Senate

Revised Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017

Schedule 1 - Veterans' Review Board

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

Schedule 1 contains amendments to the Veterans' Entitlements Act 1986 (the Veterans' Entitlements Act) relevant to the operation of the Veterans Review Board.

The Veterans' Review Board (the Board) is a statutory authority whose role is to provide independent merits review of decisions about:

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disability pension, war widow and widower pensions and attendant allowance under the Veterans' Entitlements Act; and

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rehabilitation, compensation and other benefits under the Military Rehabilitation and Compensation Act.

The Board exercises all of the powers and discretions that are conferred on the Repatriation Commission under the Veterans' Entitlements Act, or the Military Rehabilitation and Compensation Commission or a service chief under the Military Rehabilitation and Compensation Act 2004 (the Military Rehabilitation and Compensation Act).

The Principal Member is responsible for the overall operations of the Board. In making its decision the Board must apply the law as set out in the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act and other related legislation. A National Registrar, Registrars, Deputy Registrars and other staff provide administrative assistance to the Board.

The amendments included in Schedule 1 will modernise and improve the operations of the Board to:

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ensure that in carrying out its functions, the Board will pursue the objective of providing a mechanism of review that:

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is accessible;

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fair, just, economical, informal and quick;

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is proportionate to the importance and complexity of the matter; and

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promotes public trust and confidence in the decision-making of the Board;

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impose an ongoing obligation on both claimant and the Department of Veterans' Affairs (the Department) during the period until the Board has determined the matter, to lodge with the Veterans' Review Board a copy of any document that is in their possession that is relevant to the review that has not been lodged previously;

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provide the Board with the power to vary or revoke a decision made under the ADR processes, with the consent of the parties, and where the Board is satisfied that it is within its powers, and otherwise appropriate to do so; and

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require the Repatriation Commission and any person representing the Commission in a review to use their best endeavours, to assist the Board in fulfilling their legislated objectives.

Human rights implications

The Bill engages the following human right:

Right to a fair hearing

Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: 'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'.

The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled. To the extent that it may apply, the Schedule would promote the right to a fair hearing.

The Board would be required by its statutory objective to pursue a fair and just mechanism of review ( Item 1 of the Schedule).

All of the other proposed amendments are intended to allow the Board to operate more efficiently and effectively as a merits review tribunal are consistent with the aims stated in Article 14(1) of the ICCPR.44.

The amendments also align the operations of the Board to be more consistent with the Administrative Appeals Tribunal legislative framework.

None of the proposed amendments will have an adverse impact on the access to justice by applicants for a review of a decision.

Conclusion

Schedule 1 is compatible with human rights. It advances the protection of human rights, specifically the right to a fair hearing.

Schedule 2 - Specialist Medical Review Council

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The amendments in Schedule 2 modernise Part XIB of the Veterans' Entitlements Act, 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.

Human rights implications

Schedule 2 engages the following human right:

Right to health

The right to health is contained in article 12 of the International Covenant on Economic, Social and Cultural Rights.

Item 28 of Schedule 2 affirms this right, as it provides financial assistance for individuals, representatives of organisations and any necessary attendants accompanying those individuals or representatives of organisations, to travel and attend a SMRC hearing to make an oral submission.

The SMRC reviews Repatriation Medical Authority (the RMA) decisions in respect to the contents of a Statement of Principles (SOPs), or a decision of the RMA not to issue a SOPs, or a decision of the RMA not to amend a SOPs, or a decision by the RMA not to carry out an investigation under subsection 196C(4) of the Veterans' Entitlements Act.

The SOPs are legislative instruments that set out the factors used to connect an injury, disease or death with a person's Australian Defence Force service. SOPs are determined and/or amended by the RMA and apply to claims lodged under the Military Rehabilitation and Compensation Act and the Veterans' Entitlements Act. In order for a claim to succeed, at least one of the SOP factors must be related to a person's service. Once liability is established, treatment for that condition will be made available to the veterans under the relevant provision of either the Veterans' Entitlements Act or Military Rehabilitation and Compensation Act. By facilitating a person's attendance to make an oral submission at a SMRC hearing, the Bill enables veterans to present evidence about what factors should be included in the SOP under review.

Conclusion

Schedule 2 is compatible with human rights because it promotes access to the right to health.

Schedule 3 - International arrangements

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The substantial amendment made by Schedule 3 repeals and replaces section 203 of the Veterans' Entitlements Act.

Section 203 currently provides the Minister for Veterans' Affairs with the power to enter into arrangements with the governments of countries that are or have been Dominions of the Crown. The arrangements allowed for each of the governments, as a party to the arrangements, to act as an agent of the other country for the payment of pensions and the provision of assistance and benefits to eligible veterans or dependents who were resident in that country.

The existing arrangements concern only those payments and benefits which are payable under the Veterans' Entitlements Act.

Section 203 of the Veterans' Entitlements Act has been repealed and replaced so that it may now cover allied veterans and defence force members with service of the type for which benefits and payments including rehabilitation can be provided by the Repatriation Commission or the Military Rehabilitation and Compensation Commission under the Veterans' Entitlements Act, Military Rehabilitation and Compensation Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 or the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006.

Human rights implications

Schedule 3 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 3 is compatible with human rights as it does not raise any human rights issues.

Schedule 4 - Employer Incentive Scheme payments

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The amendments made by Schedule 4 will strengthen the legislative foundation for providing certain rehabilitation assistance to serving and former Defence Force members, reservists and cadets under the Veterans' Entitlements Act, the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act.

The amendments engage the applicable human rights and freedoms as the assistance essentially involves payments to employers under the Employer Incentive Scheme in the form of wage subsidies to encourage them to engage injured veterans who have found it difficult to compete in a tight labour market.

Human rights implications

Schedule 4 engages the following human rights:

Right to health

Article 12 of the International Covenant on Economic, Cultural and Social Rights refers to the "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".

The amendments to enhance the assistance provided under the vocational rehabilitation schemes will provide for a more effective delivery of services to injured and former Defence Force members seeking employment.

Rights of people with a disability

The rights of people with a disability are set out in the Convention on the Rights of Persons with Disabilities.

Article 26 requires countries to organise and strengthen rehabilitation programs for people with disability, particularly in health, employment, education and social services.

The amendments to the vocational rehabilitation arrangements will provide for a more effective delivery of services to injured and former Defence Force members.

The Right to Work and Rights at Work

Article 6 of the ICESCR provides for the right to work, which 'includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts'. Article 7 provides 'the right of everyone to the enjoyment of just and favourable conditions of work'.

The Committee provides that 'States parties must take measures enabling persons with disabilities to secure and retain appropriate employment and to progress in their occupational field, thus facilitating their integration or reintegration into society'.

The right to work is engaged by Schedule 4 which improves the arrangements in place for the vocational rehabilitation of injured veterans and former Defence Force members which will make it easier for them to remain in or return to employment.

Conclusion

Schedule 4 is compatible with human rights as the measures which engage human rights do so on the basis that the rights are advanced.

Schedule 5 - Disclosure of information

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The amendments in Schedule 5 insert an information sharing power into each of the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act to facilitate information sharing between the MRCC and the Commonwealth Superannuation Corporation (the CSC) with respect to certain service related compensation claims.

Human rights implications

Schedule 5 engages the following human right:

Privacy

The right to privacy and reputation is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR.)

The amendments are designed to enable the CSC to access relevant claims information held by the Department, where that access would assist the CSC in the performance of its functions and powers under the Governance of Australian Government Superannuation Schemes Act 2011, or an instrument under that Act. Most relevantly, in assessing Defence Force members' superannuation benefits.

Access to the Department's claims information, particularly relevant medical and rehabilitation information, would assist CSC to make speedier superannuation benefits assessments which, in turn, assists the Department to determine a person's entitlement to incapacity payments. The earlier a Defence Force member's Commonwealth funded superannuation benefits are determined, the earlier the Department can accurately calculate incapacity payments.

Importantly, in both of the proposed information sharing provisions, the purposes for which, and the persons to whom, information may be disclosed are appropriately prescribed and limited, consistent with subsection 409(2) of the Military Rehabilitation and Compensation Act and subsection 151A(1) of Safety, Rehabilitation and Compensation (Defence-related Claims) Act. The information may only be provided to the CSC for the purpose of exercising a function or power under the Governance of Australian Government Superannuation Schemes Act 2011, or an instrument under that Act.

The interference with privacy is reasonable in the circumstances because it would ultimately benefit the person through a quicker determination of their CSC superannuation benefit and incapacity payments payable by the Department, and may also prevent them from having to attend further unnecessary medical examinations.

Conclusion

Schedule 5 is compatible with human rights as, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 5A - Pharmaceutical benefits

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

Schedule 5A - amends section 84 (subparagraph (1)(c)(ii) of the definition of concessional beneficiary ) of the National Health Act 1953 by referring to a person who is eligible for fringe benefits under section 53A of the Veterans' Entitlements Act.

The amendment made by Schedule 5A amends the definition of "concessional beneficiary" of the National Health Act 1953 to ensure that a person who is eligible for fringe benefits under section 53A of the Veterans' Entitlements Act comes within the definition of a 'concessional beneficiary' and is therefore is eligible for discounted pharmaceuticals as a holder of a Pensioner Concession Card.

Human rights implications

Right to health

The right to health is contained in article 12 of the International Covenant on Economic, Social and Cultural Rights and refers to the "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".

These amendments affirm this right, as they restore DVA clients' access to discounted pharmaceuticals.

Conclusion

Schedule 5A is compatible with human rights because it promotes access to the right to health care.

Schedule 6 - Delegation

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The amendments made by Schedule 6 provide the Minister for Veterans' Affairs with the power to delegate his or her powers and functions under the Military Rehabilitation and Compensation Act to members of the Military Rehabilitation and Compensation Commission, or an SES employee, or an acting SES employee, in the Department.

The amendments will align the powers of the Minister under the Military Rehabilitation and Compensation Act with the powers the Minister has under the Veterans' Entitlements Act and will enable the implementation of administrative reforms that are part of the organisational reforms to achieve efficiencies across the Department.

Human rights implications

Schedule 6 does not engage any of the applicable rights or freedoms.

Conclusion

ll is compatible with human rights.

Schedule 7 - Legislative instruments

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

The amendments made by Schedule 7 provide exemptions from the rule applicable under subsection 14(2) of the Legislation Act 2003 for the Military Rehabilitation and Compensation Act and the Veterans' Entitlements Act, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act. It also includes a technical amendment in relation to the name of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006.

The Schedule includes amendments to some of the provisions of those Acts under which legislative instruments are made in order to bring the construction of the section into line with current drafting practice.

The remaining amendments are to those provisions under which legislative instruments are made in order to provide benefits under the three Acts to veterans and their families.

The proposed amendments will enable certain legislative instruments made under the Acts to incorporate matters contained in another non-disallowable legislative instrument or other non-legislative writings as in force from time to time.

The requirement to amend Veterans' Affairs portfolio legislative instruments to incorporate changes in non-disallowable instruments causes significant administrative issues for the Department.

The amendments will improve the administration of the Acts but will not have any impact on the provision of benefits under the Acts.

Human rights implications

Schedule 7 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 7 is compatible with human rights.

Schedule 8 - Minor Amendments

Schedule 8 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative amendments

Schedule 8 - Part 1

Part 1 of Schedule 8 engages the following human rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) recognises the right of everyone to social security.

The proposed amendments to the Veterans' Entitlements Act engage the right to social security by repealing:

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Division 1 of Part IIIE providing for the payment of a "clean energy advance" during a period before 1 July 2012;

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Parts VIID, VIIE and VIIF providing for one-off payments to older Australians in 2006, 2007 and 2008 respectively; and

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Part VIIG providing for the payment of an economic security strategy payment in 2008.

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Part VIIH providing for the payment of the Educational Tax Refund (ETR) payment in 2012.

The proposed repeal of these provisions will have no impact on the right to social security. The provisions are spent and redundant as they relate to one-off payments that are no longer available.

In some circumstances a person may be found to have been eligible for one of the payments because of a retrospective assessment of pension. Following the repeal, such a person will retain eligibility to receive the payment on the basis that they were eligible for the underlying payment during the relevant period the repealed legislation was still in force.

Right to education

Article 13 of the ICESCR recognises the right of everyone to education.

The amendments to the Veterans' Entitlements Act engage the right to education by repealing Part VIIH, which provided for the payment of an ETR payment on the basis that a person was in receipt of an education allowance in 2012.

The proposed repeal of these provisions will have no impact on the right to education. Following the repeal, such a person who is found to be eligible for the ETR payment will retain eligibility on the basis that they were eligible during the relevant period the repealed legislation was still in force.

Schedule 8 - Part 2

Part 2 of Schedule 8 engages the following human rights:

Right to social security

Article 9 of the ICESCR recognises the right of everyone to social security.

The amendments to the Military Rehabilitation and Compensation Act will engage the right to social security by repealing Divisions 1 to 5 of Part 5A of chapter 11 providing for the payment of a "clean energy advance" during a period before 1 July 2012.

The repeal of the clean energy advance provisions will have no impact on the right to social security. The provisions are spent and redundant as they relate to a payment during a period which finished more than four years ago.

In some circumstances a person may be found to have been eligible for the payment because of a retrospective assessment of compensation. Following the repeal, such a person will retain eligibility on the basis that they were eligible during the relevant period the repealed legislation was still in force.

Schedule 8 - Part 3

The amendments made by Part 3 of Schedule 8 are technical corrections and technical improvements to legislation. The amendments improve the ease of administration of legislation by making it more efficient to use. They do not engage any human rights issues.

Conclusion

Schedule 8 Part 1 does not adversely affect the right of people to social security or education.

Schedule 8 Part 2 does not adversely affect the right of people to social security.

Schedule 8 Part 3 does not engage any human rights issues.

Schedule 8 is therefore compatible with human rights.