Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Hansard source

I rise today to speak about the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017. As senators may be aware, as it stands, pensions, compensation, rehabilitation, treatment and other benefits for veterans, members of the Defence Force and their families are provided for under three separate legislative acts. These are the Veterans Entitlement Act 1986, called the VEA; the Safety, Rehabilitation and Compensation Act 1988, called SRCA; and the Military Rehabilitation Act 2004, called MRCA.

The VEA primarily provides benefits and entitlements for those who undertook service in wartime and certain operational deployments, as well as certain peacetime service between 7 December 1972 and 30 June 2004. For peacetime service eligibility, a member who had not completed a qualifying period of three years service prior to 7 April 1994 is not covered, unless they were medically discharged. British nuclear test defence service during the 1950s and 1960s in Australia is also covered when relevant criteria are met. If a veteran suffers an injury or disease arising out of, or aggravated by, a period of full-time service while they were covered under the VEA, they may be entitled to a disability pension and medical treatment. They may also be eligible for compensation under the SRCA for the same disability, with compensation offset against their pension.

The second piece of legislation, the SRCA, provides coverage for illness, injury and death suffered as a result of peacetime and peacekeeping service from 3 January 1949 to 30 June 2004 and for certain periods of operational service between 7 April 1994 and 30 June 2004. Coverage under SRCA is essentially linked to peacetime ADF service between 3 January 1949 and 30 June 2004, with no coverage of ADF service prior to 3 January 1949 or any period of operational service prior to 7 April 1994.

The final piece of legislation, MRCA, covers members who served on or after 1 July 2004. MRCA provides rehabilitation and compensation coverage for warlike, non-warlike and peacetime service. The SRCA and MRCA are more like modern workers compensation legislation and provide rehabilitation and compensation coverage for military service related to injuries, illness or death.

This legislation proposes to remove all the Defence Force elements from the SRCA and create an exact replica called the DRCA which will only apply to Defence Force members. The creation of this act will also bring all legislation relating to veterans affairs under the responsibility of the Minister for Veterans' Affairs. As it stands, both the VEA and the MRCA are in the remit of the Minister for Veterans' Affairs; however, the SRCA, as it applies to the ADF, is part of a larger act which covers all employees of the Australian government. Consequently, this means that the act sits with the Minister for Employment. When the MRCA took effect, responsibility for determining and managing defence-related claims under the SRCA was given to the Military Rehabilitation and Compensation Commission, the MRCC, by virtue of the addition of part 11 to the SRCA. Essentially, while the decisions about compensation and rehabilitation fall within the responsibility of the Minister for Veterans' Affairs, the legislation itself sits with a different minister. This new legislation is designed to fix this. In addition, the bill makes a number of minor language amendments to the DRCA and amends the SRCA to remove cover for members of the Defence Force and their dependants. The implementation of the DRCA will provide for a complete separation of the legislative framework for defence-related claims from the Comcare scheme under the SRCA and will provide the Minister for Veteran's Affairs with the responsibility of all three of the separate compensation acts that cover Defence Force members.

Given the complexity of the bill, Labor supported the referral of this legislation to the Senate Standing Committees on Foreign Affairs, Defence and Trade to consider the detail of the bill. The committee received a number of submissions and held a public hearing to work through concerns of interested parties.

The DRCA should be viewed as a snapshot in time, an exact replica of the Defence Force elements of the SRCA, as of the day the DRCA is enacted. Given the complexity of the SRCA, which has been amended 68 times since its inception, there was a considerable amount of concentrated effort to ensure the DRCA was the exact replica of the legislation and nothing had been inadvertently omitted. An example of this work relates to the functions of Comcare in relation to rehabilitation and acting quickly to minimise the duration and the severity of injuries. This was also raised by Senator Lambie during the committee process. On reading the explanatory memorandum of the bill, it would appear that section 69, which deals with Comcare and claims, had not come across to the new bill. While this is technically correct, section 69 of the SRCA has not applied to veterans since the insertion of section 142 when the Military Rehabilitation and Compensation Commission was created, which then became responsible for compensation claims and rehabilitation. Section 142 has been duplicated by the DRCA, and through a number of other sections in both the DRCA and the MRCA, the commitment to determining claims, which includes rehabilitation, quickly and accurately remains. We're satisfied that the element that currently applies to veterans is maintained under the DRCA. However, Labor encourages the government to consider making the pathway that leads to this conclusion clearer into the future.

There were a number of other technical concerns raised during this process. I would like to acknowledge the very diligent work of all parties involved, in particular Labor's terrific shadow minister in the other place, Amanda Rishworth, in identifying areas where the legislation appeared to have not been duplicated across in its entirety. Labor has worked through each of these concerns with stakeholders and the government and is confident that the issues raised have now been addressed. However, due to the complexity of the legislation, under advice from the Australian Government Solicitor a Henry VIII clause was added to provide a remedy for any unforeseen adverse consequences that could arise from the unique manner in which the DRCA was enacted. The government has been clear that the intention is not for the clause to be utilised. It is only there as a failsafe in case something has been overlooked in the process that would leave a particular veteran worse off.

Henry VIII clauses essentially enable a government to make regulations with the power to modify the act, which are then introduced to the parliament as disallowable instruments. In the DRCA, a condition has been added to the Henry VIII clause that requires any regulations made under this provision to act in a purely beneficial way, for the benefit of the veteran, to deal with any anomalies that may arise where there is retrospective application of the DRCA. This condition states:

Before the Governor-General makes regulations under subsection (1), the Minister must be satisfied that it is necessary or desirable to make the regulations to ensure that no person (except the Commonwealth) is disadvantaged by the enactment of this Act.

As such, it's clear that in the unlikely event of this clause being utilised it can only be when someone has been made worse off by the creation of the DRCA and only to the benefit of the individual, not of the government. This is a very important condition, and it is the reason that Labor is in a position to support the inclusion of this clause. In addition, it is important to note that any regulations brought in under this provision would be disallowable instruments and be brought before both houses of parliament and sit for 15 days of parliament before they come into operation. While this gives some assurances, concerns have been raised about notification of these instruments. Although they are disallowable instruments, this rests on interested parties becoming aware of the tabling of these documents.

Consequently, Labor senators recommend that section 121B be amended to include a consultative element. This amendment would essentially require the minister to be satisfied that appropriate consultation had been undertaken with relevant parties, including disclosure of the proposed regulations. The government has declined to accept this proposal, stating that the intention of the clause is to quickly provide relief to an individual who has been made worse off by the creation of the DRCA. The government argues that the inclusion of a requirement to consult would result in delaying the provision of relief to the individual. It is worth remembering that in the unlikely event that the clause is utilised there would be an individual veteran who has been made worse off for the creation of this bill, who has had to have this acknowledged by the department, and regulations drafted, approved and tabled. To delay them, the provision of the relief is unfair, particularly given in this circumstance. If the DRCA had not been created, there would have been no delay and they would have received the assistance immediately.

In the event that this clause is utilised, we call on the department to exhaust all avenues to ensure that anyone else who would benefit from the changes is made aware of the regulations. The government has agreed to do this, at Labor's request, and is committed to ensuring that everything possible will be done by the department to locate and contact any person who would be affected by a DRCA Henry VIII clause. Labor supports the inclusion of this clause, without the requirement to consult prior to making the regulations, for one reason only: to ensure that there is no delay correcting the issue that has come about due to the creation of the bill and is impacting a particular veteran.

Significant concerns were also raised in relation to the consultation conducted by the department in relation to this and other legislation during the committee process. While the government stated that the development of a standalone act for the ADF members and veterans was announced two years ago, with consultation continuing during this period predominantly with the ex-service round table, it conceded that the ex-service round table members were not able to view the bill until it was introduced into parliament last year. However, the president of the Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women stated they considered the bill was not really brought to the Ex-Service Organisation Round Table's attention as being a piece of legislation which was due to be passed.

In addition, members of the Alliance of Defence Service Organisations highlighted that there is a lack of resources for the ex-service organisations to be able to assess and analyse legislation. Their representatives noted that their organisation and its partners are voluntary associations and as such have limited access to personal and financial resources. As members may be aware, there have been a number of Senate inquiries into veterans affairs in recent months, along with the high-profile Senate inquiry into suicide by veterans and ex-service personnel. This has stretched voluntary organisations' capacity to respond to and critically examine new legislation. This issue was raised by a number of submitters who were concerned with the speed at which this legislation appeared to be tabled and required feedback. While this legislation may have been broadly discussed some time ago, the evidence provided indicated that consultation was neither thorough enough nor wide enough to capture ESOs and other interested parties. As such, the committee concluded there was room for improvement in the way in which that DVA consults on changes to legislation and engages with veteran communities.

The committee raised concerns about DVA's current consultation and engagement practices in relation to proposed legislative changes, noting that, while this is partly due to the limited resources of ESOs to examine legislation, ultimately it is up to the DVA to improve this relationship. This issue was regularly raised by veterans and is an area of deep concern. Consultation on these issues is vital not only for capturing the lived experiences of those working through the system but also for preventing unnecessary angst or concern. Effective engagement is fundamental and is an area which the department needs to address as soon as possible.

The committee also highlighted another issue, which has been raised with me a number of times—that is, the adversarial approach of DVA towards some veteran advocacy groups and lawyers acting on behalf of veterans. This adversarial culture in the department is something Labor sought to resolve by committing, prior to the election, to undertaking the first principles reviews of the Department of Veterans' Affairs. This review would be based on a set of agreed-upon first principles, would examine the department and would seek to rectify administrative, governance and process failings to ensure the department is able to meet existing and future challenges in a clear and efficient manner. Most importantly, this review would help to establish trust in DVA for the veterans and their representative organisations. It would ensure we have a system in place which works for the people who need it the most and puts our veterans first. The committee recommended that the Department of Veterans' Affairs conduct the review into its consultation and engagement practices, in order to receive informed critical feedback on proposed legislative amendments, rapidly respond to concerns raised by the veteran community and increase the understanding in the veteran community of proposed legislative changes. We understand the government has accepted this recommendation and has undertaken to review the DVA's consultation processes.

This inquiry, along with a recently completed inquiry into suicide by veterans and ex-service personnel, has clearly highlighted that there is a disconnect between the Department of Veterans' Affairs and the ex-service community. The Senate committee process also highlighted the anxiety veterans, interested parties and the ex-service community feel about future changes to the SRCA, particularly with regard to the alignment of the Military Rehabilitation and Compensation Act. It is generally acknowledged that legislation in this space is complex, with each act operating slightly differently. There is the desire in the ex-service community to see this process made easier for veterans and their advocates to administer. This desire is equally measured by concern that, with the harmonisation of the provisions, the lowest common denominator will become the standard.

DVA indicated there will be appropriate consultation with the veteran and defence communities on any areas of potential alignment between DRCA and the MRCA. While the assurance is welcome, this consultation as undertaken continues to raise questions. Broad consultation is important to ensure that veterans and their advocates are aware of proposed changes and are able to provide detailed feedback. Labor senators continue to hold concerns about the future alignment of legislation and urge the minister to clarify the details of the proposed forms to provide certainty to ADF members and veterans. We concur with this request. Labor is supportive of changes which make it easier for veterans to navigate the system, however not at the expense of the entitlements and support structures. Given assurances that no veterans would be worse off for these changes, Labor offers our support to the legislation.