Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Dan Tehan MP)

Schedule 2 - Specialist Medical Review Council

Overview

The purpose of Schedule 2 is to amend the Veterans' Entitlements Act to modernise

Part XIB, which establishes the Specialist Medical Review Council (the SMRC). The amendments proposed would improve the SMRC's operation by: simplifying the appointment process for councillors; progressing whole-of-government requirements for digital transformation; removing red tape in commencing reviews; and providing for reimbursement of certain travel expenses. Related miscellaneous amendments are also proposed.

Background

The SMRC is an independent statutory body established under Part XIB of the Veterans' Entitlements Act. The SMRC is constituted by such numbers of members (councillors) as the Minister determines from time-to-time to be necessary for the proper exercise of its functions.

These functions are set out in section 196W of the Veterans' Entitlements Act and include conducting reviews into: some or all of the contents of a Statement of Principles made by the Repatriation Medical Authority (the RMA) in respect of a particular kind of injury, disease or death; and certain decisions of the RMA to not determine or amend Statements of Principles.

The SMRC was created 1994. Legislative amendment is required to improve the operation of the SMRC and to better reflect the manner in which its functions and processes have evolved over time. These amendments would streamline some of the SMRC's administrative arrangements. Further, many of the amendments are designed to assist the SMRC to modernise by allowing electronic lodgement of requests for review.

The Minister for Veterans' Affairs (the Minister) appoints SMRC councillors on a part-time basis under subsection 196ZE(2) of the Veterans' Entitlements Act. Councillors are taken to be officials of the Department of Veterans' Affairs (the Department) for the purposes of the Public Governance, Performance and Accountability Act 2013 (section 196VA.) The statutory appointment process is in need of change as it has proven to be overly prescriptive and time-consuming.

Under current arrangements, the Minister must select members from a list or lists of nominations submitted by colleges or other bodies of medical practitioners or medical scientists (subsection 196ZE(4)). In practice, colleges forward the names of candidates who have responded to advertisements without assessing or recommending candidates. In making appointments, the Minister must have regard to the branches of science where expertise is necessary to decide review matters and must appoint not less than two councillors with experience in each branch (subsection 196ZE(3).) The process of appointing members takes around three months or longer. This can affect the SMRC's ability to perform its functions in a timely manner.

The SMRC's operations have been evolving since its establishment. The review process commences with an application for review lodged with the SMRC after which the SMRC may carry out an investigation, which includes inviting submissions.

The review process requires the SMRC to advertise the date of its first meeting with respect to a particular review. This requirement is unnecessarily prescriptive given the practicalities of arranging a meeting of specialists with busy schedules outside their SMRC commitments. For individuals and organisations, the essential information is the date by which submissions for the review must be lodged. This information will still to be required to be published by notice in the Gazette at least 28 days' before the first meeting of councillors convened for the particular review.

Individuals seeking a review of Statements of Principles under Part XIB of the Veterans' Entitlements Act may make oral submissions to the SMRC at hearings. Without financial assistance for travel expenses, this can give rise to significant costs to those assisting the SMRC. The amendments would ensure that individuals who make such submissions and, where reasonable, their attendants (if any) can apply to have prescribed travel costs reimbursed.

Finally, consistent with the practice of the RMA, several of the amendments would empower the Convenor of the SMRC to give written directions about the manner for lodging requests or applications, enabling the SMRC to adopt electronic lodgement of requests for reviews, rather than the current practice of people having to lodge a hard copy form as required by the Veterans' Entitlements Act.

Explanation of the items

Item 1 inserts a note at the end of subsection 196V(1) to include a reference to the definition of Review Council under subsection 5AB(1), relevant to the SMRC and the RMA (established under Part XIA.) Specifically, this note will make it clear to the reader that all references in Part XIB to the 'Review Council' are references to the Specialist Medical Review Council.

The note will assist the reader to navigate concepts in Part XIB. In some instances, Part XIB refers to the 'Council' which, as a matter of grammatical construction, is also a reference to the Review Council.

Items 2, 5, 14 and 21 propose amendments to remove the requirement that either a request for review under sections 196Y or 196Z, or an application for payment under sections 196ZN or 196ZO, be lodged in a form approved by the Review Council. Currently, the Review Council does not require such requests or applications to be lodged in a form approved by it.

Electronic lodgement of documents, notifications and related issues

Items 3, 6, 16, 17 and 24 propose amendments to facilitate electronic lodgement of documents under Part XIB. Presently, certain applications made under sections 196Y, 196Z, 196ZN and 196ZO must be lodged at an office of the Department in accordance with section 5T. Section 5T requires that the manner of lodgement of applications and documents be approved by the Repatriation Commission. In light of the Australian Government's digital transformation agenda, it is appropriate that the SMRC should have the capacity to develop its own online forms and lodgement method.

Accordingly, items 3, 6, 16 and 24 would, respectively, repeal paragraphs 196Y(3)(c), 196Z(2)(d), 196ZN(4)(d) and 196ZO(5)(d) and substitute paragraphs that currently refer to the Repatriation Commission and section 5T with new paragraphs that would require lodgement with the SMRC under proposed new section 196ZR (as described in Item 29 below.)

Items 17 and 25 would, respectively, repeal subsections 196ZN(4A) and 196ZO(5A) dealing with requests for payment of medical and travelling expenses. These subsections will be redundant because requests and applications will instead be lodged with the SMRC, and the time of these communications will be determined, in accordance with written directions given by the Convenor made under section 196ZR.

Item 4 would repeal existing subsections 196Y(3A) and (4) and replace these with a single subsection that requires the SMRC to notify the Secretary of the Department and the RMA of a request from the Repatriation Commission, the MRCC, an individual or a specified organisation for review of Statements of Principles or certain decisions made by the RMA with respect to such Principles. Subsection 196Y(3A) will be redundant as a result of changes made by Item 2 .

Proposed new subsection 196Y(4) will require the SMRC to notify the Secretary of the Department and the RMA of any requests for review under that section within 28 days of the request being lodged. This is necessary because the RMA must provide the SMRC with the information required under s196K and the Department must provide secretariat service to support the SMRC review and may wish to make a submission.

Item 7 makes similar changes to those made by Item 4 , but in respect of requests by a person or organisation to review an RMA decision under section 196Z to not carry out an investigation in respect of a particular kind of injury, disease or death. That is, this item will repeal subsections 196Z(2A) and (3) and replace them with a single new subsection 196Z(3), which requires the SMRC to notify the Secretary of the Department and the RMA of any request for review within 28 days of the request being lodged. Subsection 196Z(2A) is repealed for redundancy.

Investigations - notice of investigation

Item 8 repeals current subsection 196ZB(2), which relates to the content of a notice of investigation that must be published in the Gazette under subsection 196ZB(1), stating the SMRC's intention to carry out a review under section 196Y and inviting persons or authorised organisations to make written submissions. The requirement that a Gazette notice published under section 196ZB must specify the date by which all written submissions must be received by the Review Council will be re-enacted by new subsection 196ZB(2).

The change to subsection 196ZB(2) is that the notice will no longer need to specify the date on which the SMRC will hold its first meeting for the purposes of that review. Instead, only the date by which all submissions must have been received by the SMRC will be required to be specified in the notice. The requirement to specify the first meeting date of a review is unnecessarily prescriptive, given the practicalities of arranging a meeting of specialists with busy schedules outside of their SMRC commitments.

Constitution of the Review Council

Items 9 and 10 implement changes to improve the process for appointing councillors and help ensure that candidates have the expertise required to perform the SMRC's functions as described in the background above.

Item 9 repeals the requirement that fixes the number of councillors with experience in each branch of medical science required to ensure the SMRC can perform its functions to not less than two. In selecting councillors, the Minister would still be required to have regard to the branches for expertise needed to decide matters referred to the SMRC for review but, subject to the changes made by Item 10 , would have greater discretion as to the number of experienced councillors needed. While it makes sense to have a standing membership from which to draw councillors, there are not necessarily at least two members from each branch. Under the current prescriptive provisions, for an uncommon speciality for example, the Minister is required to appoint two experts, whereas only one may be required.

Item 10 introduces a new requirement that at least one councillor must have at least 5 years' experience in the field of epidemiology, which is a branch of medicine dealing with the study of the distribution and determinants of disease in populations and with investigations into the source and causes of infectious diseases. This is considered essential in assisting the SMRC to perform its functions under Part XIB of the Veterans' Entitlements Act.

Medical and travel expenses

Several amendments are proposed with respect to medical and travel expenses, some of which relate to electronic lodgement of claims and are discussed above (specifically, Items 16, 17, 24 and 25) Other amendments, which are discussed below, involve drafting simplifications. Additionally, this Schedule will expressly create an entitlement to certain travelling expenses with respect to attendance at hearings of the SMRC.

Item 17 (also discussed above in regard to electronic lodgement) repeals subsection 196ZN(5), which contains a definition of 'relevant documentary medical evidence,' linking it to the definition in section 133 of the Veterans' Entitlements Act. Section 133 is found in Part IX, which is the Part to do with the Veterans' Review Board. The purpose of medical evidence for a review at the Veterans' Review Board is quite different to the purpose of submitting medical evidence to the SMRC. It is therefore necessary to ensure that, for each relevant Part, the purpose for which the medical evidence is obtained is clear.

Items 11, 15 and 18 flow from Item 17 and make changes to subsection 196ZN(1), paragraph 196ZN(4)(b) and subsection 196ZO(1) with regard to the nature of medical evidence for which a person may request reimbursement under Part XIB. Item 11 amends section 196ZN(1) to omit the reference to the submission of 'relevant documentary medical evidence for the purpose of the review' and substitutes this with a new form of words that is independent of the definition in section 133. Item 15 makes a consequential change to paragraph 196ZN(4)(b), while item 18 makes similar consequential changes to subsection 196ZO(1).

Item 12 repeals subsection 196ZN(2), which limits the amount of medical expenses that can be paid to a person who requests reimbursement and substitutes a new provision which ensures that a person cannot be paid more than the amount prescribed by, or worked out in accordance with, the regulations. This amendment is necessary because it ensures consistency with other travel payments made by the Department under the regulations.

Items 13, 19, 20, 23 and 27 will omit references to 'the Commission' (that is, the Repatriation Commission) wherever they occur in sections 196ZN(3), 196ZO(2)(b), 196ZO(4), 196ZO(5)(b)(ii) and 196ZP(1) and replace them with references to 'the Review Council'. The purpose of these amendments is to make the SMRC responsible for approving its own forms and to make its own decisions with respect to medical and travel expenses rather than relying on the Repatriation Commission. This is to reflect the fact that it is the SMRC that makes the decisions under section 196ZN - ZP, not the Repatriation Commission.

Item 22 amends subparagraph 196ZO(5)(b)(i) to require that applications for travelling expenses must be submitted within 3 months of the completion of the travel in respect of which the claim is made. Presently, applicants have a 12-month period. This amendment is designed to make the time in which a claim for reimbursement is to be made for travelling expenses under subsection 196ZO, consistent with the timeframe specified in subsection 196ZN(4) and new subsection 196ZQ(5) (see Item 28.)

In practice, an application for travel expenses under section 196ZO is usually made to the SMRC in advance of the travel, and the SMRC arranges the person's travel for them. Reducing the timeframe for submitting the application for reimbursement of travelling expenses from 12 to 3 months after completion of the travel should not cause any problems, given the practice of submitting the application in advance and the SMRC arranging the person's travel.

Item 26 amends the heading of section 196ZP to ensure that the heading better reflects the content of the section. Paragraph 196ZP(1)(a) refers to section 196ZO (travelling expenses for obtaining medical information) and this amendment ensures that the heading to section 196ZP more accurately reflects the content of section 196ZP.

Item 28 adds a new section 196ZQ to Part XIII of the Act, which would create entitlements to be paid travel expenses to an individual or an organisation referred to in paragraph 196Y(1)(c) who appears before the Review Council to make oral submissions in respect of a review conducted under subsections 196W(2) or (6) and, where reasonable, to a person who accompanies that individual (that is, their 'attendant.') These entitlements for the individual and their attendant are created by subsections 196ZQ(1) and (2) respectively. The entitlement to travel expenses only extends to those expenses that are prescribed by Regulation.

New subsections 196ZQ(3) to (6) set out the conditions under which travel expenses must or must not be paid. Essentially, travelling expenses:

•

are not payable in respect of travel outside Australia (see subsection 196ZQ(3));

•

are not payable unless a written application for payment has been made to, and approved by, the SMRC (see subsection 196ZQ(4));

•

the written application must be:

o

made within 3 months after the completion of the travel;

o

accompanied by relevant documents; and

o

lodged with the SRMC in accordance with the directions of the Convener under section 196ZR (see subsection 196ZQ(5).)

Paragraphs 4.56 and 4.57 of the Administrative Review Council's Guidelines, regarding the decisions that should be subject to merits review, state where the cost of merits review is disproportionate to the significance of the decision under review, merits review may not be appropriate. A reimbursement amount sought under proposed section 196ZQ could be as little as a train or bus fare, if the person is located in the same city as where the SMRC is undertaking the review. For this reason, merits review has not been included for section 196ZQ.

Item 29 adds a new Division 5 to Part XIB, which comprises only one section: new section 196ZR. This section would enable the Convener to give written directions about the manner of lodging requests or applications, including in electronic form, to the SMRC, and the time at which such requests or applications are taken to have been communicated. In order to assist the reader, proposed subsection 196ZR(2) has been included to make it clear that any directions made by the Convenor are not legislative instruments within the meaning of subsection 8(1) of the Legislation Act 2003. That is, proposed subsection 196ZR(2) is merely declaratory of the law.

Item 30 sets out the application provisions for this Schedule. Generally amendments to sections 196Y, 196Z, 196ZB, 196ZN, 196ZO, 196ZP and 196ZQ apply to things (such as requests made or notices published) done or given on or after the commencement of the relevant items.

Commencement

Clause 2 provides that the amendments made by Schedule 2 commence 28 days after the Act receives Royal Assent.