Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Military Rehabilitation and Compensation Act 2004 and other legislation, and for related purposes
Administered by: Veterans' Affairs
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 26 Mar 2013
Introduced HR 20 Mar 2013

2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT
(MILITARY COMPENSATION REVIEW AND OTHER MEASURES) BILL 2013

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs,

The Honourable Warren Snowdon MP)


 

Table of Contents

 

 

Outline and Financial Impact …………………………………………………….             ii

           

1                    Short Title  ..........................................................................................           vii

2                    Commencement  .................................................................................           vii

3                    Schedule(s)   ........................................................................................          vii

 

Schedule 1 -    Rehabilitation and transition management  ……..……………….            1

Schedule 2 -    Compensation for permanent impairment  ………………………           6

Schedule 3 -    Expanded lump sum options for wholly dependent partners  .....            12

Schedule 4 -    Weekly compensation for eligible young persons……………………….  19

Schedule 5 -    Compensation for financial advice and legal advice ………………….    21

Schedule 6 -    Special Rate Disability Pension  ……………………………………….     26

Schedule 7 -    Superannuation  …..………………………………………………….        29

Schedule 8 -    Remittal power of Veterans’ Review Board  ………………………….    37

Schedule 9 -    Membership of the Military Rehabilitation and Compensation
                        Commission   
 …..………………………………………………….            40

Schedule 10 -  Aggravation of or material contribution to war-caused or
                        defence-caused injury or disease 
……………………………………….  41

Schedule 11 -  Treatment for certain SRCA injuries……………………………….        47

Schedule 12 -  Members  ………..……………………………………………………..      57

Schedule 13 -  Treatment costs   …..………………………………………………….       59

Schedule 14 -  Travelling expenses  …..………………………………………………       63

Schedule 15 -  Payments into accounts .………………………………………………      65

Schedule 16 -  Other amendments   …..………………………………………………       69

Statement of Compatibility with Human Rights  ……………………………….             70

 

 

 

 


 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT
(MILITARY COMPENSATION REVIEW AND OTHER MEASURES) BILL 2013

 

OUTLINE AND FINANCIAL IMPACT

The Bill amends the Military Rehabilitation and Compensation Act 2004 and other legislation to give effect to initiatives that form part of the Government response to the Review of Military Compensation Arrangements.  The Bill also amends Veterans’ Affairs legislation to enable travelling expenses to be paid for the partners of certain eligible persons and clarify arrangements relating to bank accounts and in relation to certain treatment costs. 

 

Schedule 1 – Rehabilitation and transition management

 

The amendments in Schedule 1 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to enhance rehabilitation services and transition management.

 

Schedule 2 – Compensation for permanent impairment

 

The amendments in Schedule 2 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to make the date of effect for periodic impairment compensation to be on the basis of each accepted condition rather than all accepted conditions and to incorporate a lifestyle factor in the calculation of interim permanent impairment compensation.

 

The Schedule also includes a transitional provision applicable to the recalculation of the amount of permanent impairment compensation a person is to be paid for the period prior to 1 July 2013, where the person already has an injury or disease accepted under the Veterans' Entitlements Act 1986 and/or the Safety, Rehabilitation and Compensation Act 1988.

 

Schedule 3 – Expanded lump sum options for wholly dependent partners

 

The amendments in Schedule 3 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to expand the options for lump sum compensation for wholly dependent partners of deceased members.

 

Schedule 4 – Weekly compensation for eligible young persons

 

The amendments in Schedule 4 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to apply a one-time increase to the rate of periodic compensation payable for dependent children so the rate aligns with similar payments under the Safety, Rehabilitation and Compensation Act 1988

 


Schedule 5 – Compensation for financial advice and legal advice

 

The amendments in Schedule 5 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to increase the amount of compensation for financial advice and to include legal advice within the new limit.

 

Schedule 6 – Special Rate Disability Pension

 

The amendments in Schedule 6 give effect to the Government decision in response to the Review of Military Compensation Arrangements to expand the eligibility criteria for Special Rate Disability Pension.  The expanded criteria will include a person who would otherwise meet the criteria in section 199 of the Military Rehabilitation and Compensation Act 2004 except for the person having received a lump sum incapacity payment under section 138 of the Military Rehabilitation and Compensation Act 2004 or the person is receiving a nil rate of incapacity payment because the amount of the incapacity payment is fully offset by Commonwealth superannuation.

 

Schedule 7 – Superannuation

 

The amendments in Schedule 7 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to make changes to certain superannuation provisions so that they apply equally to both serving and former members and to amend the definition of  ‘Commonwealth superannuation scheme’. 

 

Schedule 8 – Remittal power of Veterans’ Review Board

 

The amendments in Schedule 8 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to provide the Veterans’ Review Board with an explicit power to remit a matter to the Military Rehabilitation and Compensation Commission for needs assessment and compensation.

 

Schedule 9 – Membership of the Military Rehabilitation and Compensation Commission

 

The amendments in Schedule 9 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to increase the membership of the Military Rehabilitation and Compensation Commission.

 

Schedule 10 – Aggravation of or material contribution to war-caused or defence –caused injury or disease

 

The amendments in Schedule 10 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to require all claims for conditions accepted under the Veterans’ Entitlements Act 1986 and aggravated by defence service after 1 July 2004 to be determined under the Veterans’ Entitlements Act 1986, rather than offering a choice between the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, which is currently the case.

 


Schedule 11 – Treatment for certain SRCA injuries

 

The amendments in Schedule 11 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to issue Repatriation Health Cards – For Specific Conditions (White Cards) to Part XI defence-related claimants under the Safety, Rehabilitation and Compensation Act 1988 (SRCA members).  This initiative is intended to achieve consistency in treatment arrangements for all former Defence Force members.  SRCA members with an injury accepted under the Safety, Rehabilitation and Compensation Act 1988 as being related to service (SRCA injury), will be entitled to treatment for a SRCA injury under either the Military Rehabilitation and Compensation Act 2004 or the Veterans’ Entitlements Act 1986 in accordance with the arrangements established under those Acts. 

 

Schedule 12 – Members

 

The amendments in Schedule 12 give effect to the Government decision in response to the Review of Military Compensation Arrangements to define members undergoing career transition, personnel holding honorary ranks and authorised representatives of philanthropic organisations as ‘members’ under the Military Rehabilitation and Compensation Act 2004.

 

Schedule 13 – Treatment costs

 

The amendments in Schedule 13 will clarify the appropriation of costs for certain aged care services between the Veterans’ Entitlements Act 1986, the Australian Participants in British Nuclear Tests (Treatment) Act 2006 and the Military Rehabilitation and Compensation Act 2004 (the Veterans’ Affairs Acts) and the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 (the Aged Care Acts). 

 

Schedule 14 – Travelling expenses

 

The amendments in Schedule 14 will extend the entitlement for travelling expenses to the partner of certain eligible persons under certain circumstances. 

 

Schedule 15 – Payments into accounts

 

The amendments made by Schedule 15 clarify and streamline the administrative arrangements for the payment of pensions, compensation and other pecuniary benefits under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 into bank accounts.

 

Schedule 16 – Other amendments

 

The amendments in this Schedule include a minor and consequential amendment to the Social Security Act 1991 that clarifies which payments made under the Military Rehabilitation and Compensation Act 2004 are excluded income for the purposes of the Social Security Act 1991.

 

The Schedule also includes amendments to the Veterans' Entitlements Act 1986 to provide for the recovery from payments made under that Act of overpayments made under the Military Rehabilitation and Compensation Act 2004.

 


 

FINANCIAL IMPACT STATEMENT

 

Schedule 1 – Rehabilitation and transition management             

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.6 m            $0.6 m            $0.5 m

           

Schedule 2 – Compensation for permanent impairment

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.5 m            $0.1 m            $0.1 m

 

Schedule 3Expanded lump sum options for wholly dependent partners                    

 

2012-13           2013-14           2014-15           2015-16                                  

 $0.1 m            $0.2 m            $0.2 m            $0.2 m                       

 

Schedule 4 – Weekly compensation for eligible young persons               

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.2 m            $0.2 m            $0.3 m                       

 

Schedule 5  Compensation for financial advice and legal advice             

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.1 m            $0.1 m            $0.1 m

 

Schedule 6 – Special Rate Disability Pension                     

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.1 m            $0.1 m            $0.1 m                       

 

Schedule 7 – Superannuation                     

 

2012-13           2013-14           2014-15           2015-16

 $0.0 m            $0.0 m            $0.0 m            $0.1 m

 

Schedule 8 – Remittal power of Veterans’ Review Board                       

 

No financial impact

                         

Schedule 9 – Membership of the Military Rehabilitation and Compensation Commission      

 

No financial impact                

 


 

Schedule 10 – Aggravation of or material contribution to war-caused or defence-caused injury or disease              

 

2012-13           2013-14           2014-15           2015-16

 $0.3 m            - $0.1 m           - $0.1 m           - $0.1 m

 

Schedule 11 – Treatment for certain SRCA injuries                    

 

2012-13           2013-14           2014-15           2015-16

 $3.0 m            - $3.4 m           - $10.1 m         - $11.7 m                    

 

Schedule 12 - Members                    

 

No financial impact

 

Schedule 13 – Treatment costs                    

 

No financial impact

                       

Schedule 14 – Travelling expenses              

 

No financial impact                

 

Schedule 15 – Payments into accounts                   

 

No financial impact

                       

Schedule 16 – Other amendments              

 

No financial impact    


 

Veterans’ Affairs Legislation Amendment
(Military Compensation Review and Other Measures) Bill 2013

 

 

Short Title                  Clause 1 sets out how the Act is to be cited.

 

 

Commencement            Clause 2 provides a table that sets out the commencement dates of the provisions of this Act.

 

 

Schedules                   Clause 3 provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

This explanatory memorandum uses the following abbreviations:

 

‘ADF’ means the Australian Defence Force;

 

‘Australian Participants in British Nuclear Tests (Treatment) Act’ means the Australian Participants in British Nuclear Tests (Treatment) Act 2006;

 

‘Income Tax Assessment Act’ means the Income Tax Assessment Act 1997;

 

‘Military Rehabilitation and Compensation Act’ means the Military Rehabilitation and Compensation Act 2004;

 

‘MRCC’ means the Military Rehabilitation and Compensation Commission;

 

‘Safety, Rehabilitation and Compensation Act’ means the Safety, Rehabilitation and Compensation Act 1988;

 

‘Social Security Act’ means the Social Security Act 1991; and

 

‘Veterans’ Entitlements Act’ means the Veterans’ Entitlements Act 1986.

 

 


Schedule 1 – Rehabilitation and transition management

 

Overview

 

The amendments in Schedule 1 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to enhance rehabilitation services and transition management.

 

Background

 

The Defence Force provides rehabilitation to all full-time serving members through the Australian Defence Force Rehabilitation Program (ADFRP), with no requirement to establish liability under any compensation scheme.  Under the existing legislation, where liability has been determined, the Service Chief is the rehabilitation authority for all full-time members, unless the member has been identified as being likely to be discharged for medical reasons.  In these circumstances, the MRCC is the rehabilitation authority. 

 

For part-time Reservists and former members of the Defence Force, rehabilitation is provided by the MRCC; however, liability for the injury or disease must first be accepted under the Military Rehabilitation and Compensation Act or the Safety, Rehabilitation and Compensation Act. 

 

The introduction of the Military Rehabilitation and Compensation Act meant that for the first time, transition services were recognised in legislation with section 64 of the Military Rehabilitation and Compensation Act requiring the service chief to appoint a case manager to assist a member identified as ‘likely to discharge for medical reasons’.  Medical reasons can relate to both service-related and non-service-related conditions.

 

Rehabilitation is provided for in Chapter 3 of the Military Rehabilitation and Compensation Act.  Part 5 of Chapter 3 provides for Transition Management. 

 

The amendments are intended to:

 

·         achieve greater consistency and oversight through the three branches of the Defence Force by redesignating the responsibilities of the Service Chiefs to the Chief of the Defence Force.  The Chief of the Defence Force will have the power to delegate and the Service Chiefs to sub-delegate responsibilities including those relating to rehabilitation and transition management;

·         provide flexibility in the timing of the transfer of responsibility for rehabilitation for members by allowing the MRCC to be appointed as the rehabilitation authority on the recommendation of the Chief of the Defence Force;

·         achieve visibility of care for part-time Reservists by making the Chief of the Defence Force the rehabilitation authority for serving part-time Reservists; and

·         providing access to a transition advisory case manager for part-time Reservists.  

 

Explanation of the  items

 

Redesignating the responsibilities of the Service Chiefs to the Chief of the Defence Force

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 repeals the subsection 5(1) definition of service chief.

 

Items 4, 5 and7 amend section 39.  Section 39 defines a rehabilitation authority for the purposes of Chapter 3.

 

The reference in subsection 39(1) to “service chief of each arm of the Defence Force” is omitted and substituted by a reference to the “Chief of the Defence Force by Item 4.

 

The reference in paragraph 39(3)(a) to the “the person’s service chief for” is omitted and substituted by a reference to “subject to paragraph (aa), the Chief of the Defence Force for” by Item 5.

 

The reference to a “person’s service chief” is omitted from subparagraph 39(3)(a)(ii) and replaced by a reference to the “Chief of the Defence Force” by Item 7.

 

Item 10 omits and substitutes the second paragraph of the outline to Part 2 of Chapter 3 (Rehabilitation).  The new paragraph refers to the majority of decisions being made under the Part by the person’s rehabilitation authority – either the Chief of the Defence Force or the MRCC.

 

Item 11 amends paragraphs 61(3)(a), (b) and (c) by omitting and substituting references to a “person’s service chief” with a reference to the “Chief of the Defence Force”.

 

The reference to a “person’s service chief” is omitted from paragraph 86(1)(d) and replaced by a reference to the “Chief of the Defence Force” by Item 16.

 

Items 17 to 74 are minor amendments replacing references to a service chief with references to the Chief of the Defence Force.

 

Item 75 repeals and substitutes section 438.  Section 438 had provided for the delegation by the Service Chiefs of any of their functions and powers under the Military Rehabilitation and Compensation Act.

 

New section 438 provides for delegation by the Chief of the Defence Force and the Service Chiefs.

 

Subsection 438(1) provides for delegation by the Chief of the Defence Force of any of his or her powers or functions under the Act to any of the Service Chiefs of an arm of the Defence Force.


Subsection 438(2) provides for the sub-delegation of powers delegated under new subsection 438(1) by the Service Chiefs to those persons previously eligible under repealed section 438.

 

Subsection 438(3) provides that a function or power exercised by a person under the delegation of a Service Chief under subsection 438(2) will be taken for the purposes of the Military Rehabilitation and Compensation Act to have been performed or exercised by the Chief of the Defence Force.

 

Item 77 is a saving provision.

 

Subitem 77(1) is applicable to anything done by or in relation to a Service Chief under the Military Rehabilitation and Compensation Act before 1 July 2013.  It provides after 1 July 2013, that it will be regarded as something done by or in relation to the Chief of the Defence Force under the Military Rehabilitation and Compensation Act.

 

Subitem 77(2) provides that subitem 77(1) will not apply in relation to an instrument of delegation made under section 438 prior to 1 July 2013.

 

Safety, Rehabilitation and Compensation Act 1988

 

Item 78 repeals and substitutes the definition of “service chief” in section 141.

 

For the purposes of Part XI of the Safety, Rehabilitation and Compensation Act a reference to a “service chief” means the Service Chief of an arm of the Defence Force.

 

Items 79 to 82 are minor amendment replacing references to a Service Chief with references to the Chief of the Defence Force.

 

Item 83 inserts new paragraph 151(1)(ba) referring to “the Chief of the Defence Force”.  Section 151 list those entities that are required to provide information when requested by the MRCC.

 

Item 84 repeals subsection 152(2) and substitutes new subsections 152(2), (3) and (4).

 

Subsection 152(2) provides for delegation by the Chief of the Defence Force of any of his or her powers or functions under the Safety, Rehabilitation and Compensation Act to any of the Service Chiefs.

 

Subsection 152(3) provides for the sub-delegation of powers delegated to a Service Chief under new subsection 152(2) to those persons eligible under new subsection 438(2) of the Military Rehabilitation and Compensation Act.

 

Subsection 152(4) provides that a function or power exercised by a person under the delegation of a Service Chief will be taken for the purposes of the Safety, Rehabilitation and Compensation Act to have been performed or exercised by the Chief of the Defence Force.


Item 85 is a saving provision.

 

Subitem 85(1) is applicable to anything done by or in relation to a Service Chief under the Part XI of the Safety, Rehabilitation and Compensation Act before the 1 July 2013.  It provides after 1 July 2013, that it will be regarded as something done by or in relation to the Chief of the Defence Force under the Safety, Rehabilitation and Compensation Act.

 

Subitem 85(2) provides that subitem 85(1) will not apply in relation to an instrument of delegation made under subsection 152(2) prior to 1 July 2013.

 

Appointment of the MRCC as the rehabilitation authority on the recommendation of the Chief of the Defence Force

 

Item 3 omits and substitutes the last paragraph of the outline to Chapter 3 (Rehabilitation) in section 37.  The new paragraph refers to the appointment of a Case Manager under Part 5 of the Chapter in the circumstances where a member is likely to be discharged from the Defence Force.

 

New paragraph 39(3)(aa) is inserted by Item 8.  It provides that the MRCC may appoint itself to be the rehabilitation authority for a person for a specified time if the Chief of the Defence Force provides advice to that effect.

 

New subsection 39(4) is inserted by Item 9.  It provides that a determination under new paragraph 39(3)(aa) is not a legislative instrument.

 

The inclusion of this provision is to assist readers as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

 

Item 12 repeals and substitutes section 63.  Section 63 outlines Part 5 of Chapter 3 referring to Transition Management.

 

The new section provides that under the Part, case managers are appointed to assist members and Reservists in moving from the Defence Force to civilian life in the circumstances where they are likely to discharged for medical reasons.

 

Appointment of the Chief of the Defence Force as the rehabilitation authority for serving part-time Reservists

 

Item 2 amends subsection 10(1) which provides for a determinations that a part-time Reservist is unlikely to return to defence service.  The reference to the “Reservist’s service chief” is replaced with a reference to the “Chief of the Defence Force”.

 

Item 6 amends the reference to “or a continuous full-time Reservist” in subparagraph 39(3)(a)(i) by omitting and replacing the reference with a “a continuous full-time Reservist or a part time Reservist”.


Subitem 76(1) is an application provision concerning part-time Reservists.

 

It provides that Part 2 of Chapter 3 of the Military Rehabilitation and Compensation Act (provision of a rehabilitation program) will be applicable to a part-time Reservist where the liability for the injury or disease has been accepted by the MRCC under paragraph 43(1)(b) of the Military Rehabilitation and Compensation Act.

 

Access to a transition advisory case manager for part-time Reservists

 

The reference to “or a continuous full-time Reservist” in paragraph 64(1)(a) is omitted and replaced with a reference to “a continuous full-time Reservist or a part time Reservist” by Item 13.

 

The reference to a “person’s service chief” is omitted from paragraph 64(1)(b) and subsection 64(2) and replaced by a reference to the “Chief of the Defence Force” by Items 14 and 15.

 

Subitem 76(2) is an application provision concerning part-time Reservists.

 

It provides that the amendment to paragraph 64(1)(a)made by Item 13 is applicable to:

 

  • part-time Reservists identified on or after 1 July 2013 as being likely to be discharged for medical reasons; and
  • part-time Reservists identified prior to 1 July 2013 as being likely to be discharged for medical reasons who have not been discharged prior to 1 July 2013.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 1 commence on and from
1 July 2013.


Schedule 2 – Compensation for permanent impairment

 

Overview

 

The amendments in Schedule 2 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to make the date of effect for periodic impairment compensation to be on the basis of each accepted condition rather than all accepted conditions and to incorporate a lifestyle factor in the calculation of interim permanent impairment compensation.

 

The Schedule also includes a transitional provision applicable to the recalculation of the amount of permanent impairment compensation a person is to be paid for the period prior to 1 July 2013, where the person already has an injury or disease accepted under the Veterans' Entitlements Act and/or the Safety, Rehabilitation and Compensation Act.

 

Date of effect and inclusion of lifestyle factor amendments

 

Background

 

A member or former member of the Australian Defence Force may suffer permanent impairment as a result of a service injury or service disease.  Where the MRCC has accepted liability for a service injury or service disease under Chapter 2 of the Military Rehabilitation and Compensation Act and the member or former member suffers a permanent impairment, Part 2 of Chapter 4 of the Military Rehabilitation and Compensation Act provides for the payment of permanent impairment compensation.

 

Permanent impairment compensation payments are non-economic loss payments as they are paid to compensate for pain, suffering, functional loss or dysfunction and the effects of the injury or disease on lifestyle.  The effects of the injury or disease are assessed using the “Guide to determining impairment and compensation” (GARP M)  under section 67 of the Military Rehabilitation and Compensation Act.

 

The Guide uses a scale from 0 to 100 to express the degree of impairment. The impairment points are then combined with a lifestyle rating to determine the rate of permanent impairment compensation.  Sections 69, 70, 71 and 75 of the Military Rehabilitation and Compensation Act specifies the minimum impairment point threshold that must be met before permanent impairment compensation may become payable.

 

Section 68 of the Military Rehabilitation and Compensation Act applies to a person’s initial claim (or claims) for permanent impairment compensation for service injuries or diseases that have stabilised. 

 

Section 71 of the Military Rehabilitation and Compensation Act applies to a person’s claim (or claims) for additional permanent impairment compensation for service injuries or diseases that have stabilised.


An existing requirement, under subparagraphs 68(1)(b)(iii), 71(1)(b)(iv) and 71(2)(a)(iv) of the Military Rehabilitation and Compensation Act, for the payment of permanent impairment compensation is that all of the person’s accepted service injuries or diseases have stabilised. 

 

Where one or more of the person’s accepted service injuries or disease have not stabilised, interim permanent impairment compensation may be payable under section 75 of the Military Rehabilitation and Compensation Act. 

 

Subsection 77(1) of the Military Rehabilitation and Compensation Act provides when weekly permanent impairment compensation becomes payable under section 68.

 

Subsection 77(2) of the Military Rehabilitation and Compensation Act provides when additional weekly compensation becomes payable to a person under subsection 71(1).

 

Subsection 77(3) of the Military Rehabilitation and Compensation Act provides when additional weekly compensation becomes payable to a person in relation to a deterioration in a person’s condition under subsection 71(2).

 

Subsection 77(4) of the Military Rehabilitation and Compensation Act provides when interim weekly compensation becomes payable to a person under section 75.

 

Explanation of the changes

 

The amendments to permanent impairment compensation will:

 

·         make permanent impairment compensation payable for a service injury or disease to which section 68 or 71 applies from the later of the following dates:

o   the date the injury or disease meets the criteria in whichever of subsection 68(2)(b), 71(3)(a) or 71(3)(b) applies; and

o   the date liability for the injury or disease was claimed under the Military Rehabilitation and Compensation Act;

·         make compensation payable for each stable service injury or disease to which section 75 applies from the later of the following dates:

o   the date the injury or disease met the required impairment point threshold;  and

o   the date liability for the injury or disease was claimed under the Military Rehabilitation and Compensation Act; and

·         include a lifestyle component in the calculation for interim compensation. 

 

Transitional permanent impairment compensation

 

Background

 

Section 13 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004  provides for a methodology to be included in the Guide to determining impairment and compensation (GARP M) under section 67 of the Military Rehabilitation and Compensation Act, to calculate the amount of permanent impairment compensation a person is to be paid under the Act where the person already has an injury or disease accepted under the Veterans’ Entitlements Act and/or the Safety, Rehabilitation and Compensation Act.

 

It has been found that the methodology that has been used may have resulted in a lower or higher net permanent impairment compensation payment than expected (when considered in light of the impairment points suffered as a result of conditions accepted under the Military Rehabilitation and Compensation Act), or in a nil payment.  This may occur because of differences in the assessment methodologies and the calculation of compensation under the three Acts, and changes in the Veterans’ Entitlements Act or Safety, Rehabilitation and Compensation Act conditions over time.

 

As a consequence the methodology has been changed and will be applied both prospectively and retrospectively.  Where retrospective application of the new methodology results in a lower amount of compensation for an existing recipient, the existing rate will apply until a new assessment results in a higher amount.

 

Where the retrospective application of the new methodology results in a higher amount of compensation for an existing recipient, the additional amount will be paid to the recipient as soon as is practicable.

 

The new methodology will be provided for through the GARP M and therefore no amendments are required to any of the Acts. 

 

Explanation of the items

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 amends paragraph 75(1)(c) so that interim compensation may be payable when the person meets the minimum impairment point threshold specified under either section 68 in relation to an initial service injury or disease or section 71 in relation to an additional service injury or disease.  The minimum impairment point threshold for an initial claim for permanent impairment compensation is set out in section 69.

 

Item 2 makes a technical amendment to the Note 1 after subsection 75(1). 

 

Item 3 amends subsection 75(2) to include a lifestyle effect factor in the calculation for interim compensation.

 

Item 4 amends subsection 75(3) so that interim compensation may be payable when the person meets the minimum impairment point threshold specified under either section 68 in relation to an initial service injury or disease or section 71 in relation to an additional service injury or disease.  The minimum impairment point threshold for an initial claim for permanent impairment compensation is set out in section 69.

 

 

 

Items 5 and 6 amend subsection 77(1) so that compensation under section 68 can become payable in respect of a service injury or disease from the later of:

  • the date of the claim under section 319 for acceptance of liability for the injury or disease; and
  • the date the person satisfies the criteria in paragraph 68(1)(b) and meets the relevant minimum impairment point threshold. 

 

The effect of these amendments is to allow permanent impairment compensation to be payable for each stable service injury or disease, where more than one stable injury or disease was claimed, either from the date each condition was stable and met the criteria in paragraph 68(1)(b) and the relevant minimum impairment point threshold or the date of the claim whichever is the later, instead of the date of the most recent claim. 

 

Items 7 and 8 amend subsection 77(2) so that compensation under subsection 71 for any additional service injury or disease can become payable in respect of each service injury or disease from the later of:

  • the date of the claim under section 319 for acceptance of liability for the injury or disease; and
  • the date the person satisfies the criteria in paragraph 71(1)(b) and meets the relevant minimum impairment point threshold in section 72 (if applicable). 

 

The effect of these amendments is to allow additional permanent impairment compensation to be payable for each additional stable service injury or disease, where more than one stable condition was claimed, either from the date each condition was stable and met the criteria in paragraph 71(1)(b) and the relevant minimum impairment point threshold or the date of the claim whichever is the later, instead of the date of the most recent claim. 

 

Item 9 amends subsection 77(3) to provide that additional weekly compensation may be payable to a person under subsection 71(2) to the extent that the compensation is in respect of the deterioration in a service injury or disease.

 

Item 10 repeals and substitutes paragraph 77(3)(a).  New paragraph provides that weekly compensation may be payable under subsection 71(2) for a service injury or disease from the date on which all the criteria in paragraph 71(2)(a) are met.

 

Item 11 amends subsection 77(4) to provide that interim compensation may be payable to a person under section 75 to the extent that the compensation is in respect of a service injury or disease.

 

Item 12 repeals and substitutes paragraph 77(4)(a).  The new paragraph provides that interim compensation in respect of a service injury or disease may be payable under section 75 from the date on which the claim for that service injury or disease was made under section 319 or the date the injury or disease meet the relevant threshold, whichever is the later.

 

Item 13 sets out the application and transitional provisions concerning the amendments to the interim compensation and date of effect provisions.

 

Subitem 13(1) provides that the amendments made to subsections 75(1) and 75(3) by Item 1, 2, and 4 which replaces references to the requirement for 10 impairment

points for interim permanent impairment compensation to be payable with references to the number of impairment points required under section 68 or 71 (whichever is applicable) in relation to claims made on or after 1 July 2013.

 

Subitem 13(2) provides that the amendment to subsection 75(2) made by Item 3 removing the exclusion of considering the effect of the injuries or diseases on the lifestyle of the claimant is applicable to determinations made on or after 1 July 2013 provided that those determinations relate to periods on or after 1 July 2013..

 

Subitem 13(3) is applicable in the circumstances immediately before 1 July 2013 where all of the following apply:

o   a weekly amount of interim compensation was payable under subsection 75(2); and

o   the person had not made a choice under section 78 to convert all or part of the weekly amount into a lump sum; and

o   the MRCC was not satisfied that the one or more injuries or diseases had all stabilised

where those circumstances are applicable:

o   the MRCC must as soon as is practicable on or after 1 July 2013 determine the weekly amount of interim compensation payable under the amended subsection 75(2); and

o   that amount will be payable to the person under the amended subsection 75(2) for all of the days on or after 1 July 2013; and

o   the MRCC must as soon as is practicable on or after 1 July 2013 give the person a notice under subsection 76(1) in relation to the determination of the weekly amount of interim compensation; and

o   any notice issued by the MRCC under subsection 76(1) prior to 1 July 2013 will be taken to have been withdrawn.

 

Subitem 13(4) provides that the amendments to subsection 77(1) made by Items 5 and 6 concerning the date from which compensation for permanent impairment for a service injury or disease under section 68 will be payable apply to cases where  the date on which the Commonwealth first becomes liable to pay that compensation under that subsection is on or after 1 July 2013.

 

Subitem 13(5) provides that the amendments to subsection 77(2) made by Items 7 and 8 concerning additional weekly compensation will be applicable where the Commonwealth first becomes liable to pay compensation under that subsection on or after 1 July 2013.

 

Subitem 13(6) provides that the amendments to subsection 71(2) made by Items 9 and 10 concerning additional weekly compensation will be applicable where the Commonwealth first becomes liable to pay compensation under that subsection on or after 1 July 2013.

 

Subitem 13(7) provides that the amendments to section 75 made by Items 11 and 12 concerning interim compensation will be applicable where the Commonwealth first becomes liable to pay compensation under that section on or after 1 July 2013.

 

Item 14 is a transitional provision applicable to the retrospective recalculation under GARP M of the weekly amount of permanent impairment compensation.

 

It is applicable in the circumstances where:

 

o   before 1 July 2013 either weekly compensation under Part 2 of Chapter 4 or a lump sum under section 78 of the Military Rehabilitation and Compensation Act, or both, was payable to the person; and

o   the MRCC has before, on or after amended or substituted Chapter 25 of GARP M with the amendments to take effect from 1 July 2013; and

o   as a consequence of the amendments the MRCC has recalculated the weekly amount, the lump sum or both amounts; and

o   as a result of that recalculation a lump sum arrears amount is payable to the person;

then section 79 of the Military Rehabilitation and Compensation Act will not be applicable to the payment of the lump sum.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 2 commence on and from
1 July 2013.

 


Schedule 3 – Expanded lump sum options for wholly dependent partners

 

Overview

 

The amendments in Schedule 3 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to expand the options for lump sum compensation for wholly dependent partners of deceased members.

 

Background

 

Section 12 of the Military Rehabilitation and Compensation Act describes deceased members whose dependants may be entitled to benefits under Chapter 5 of the Military Rehabilitation and Compensation Act.  Part 2 of Chapter 5 provides for compensation for wholly dependent partners of deceased members. 

 

Paragraph 234(1)(a) provides a lump sum payment in respect of a member where the MRCC has accepted liability for the member’s death.  This relates to service-related deaths under subsection 12(1) and there are no changes being made to this lump sum payment.  The wholly dependent partner of a member whose death is accepted as service related will continue to automatically receive the lump sum payment provided for in paragraph 234(1)(a). 

 

Paragraph 234(1)(b) of the Military Rehabilitation and Compensation Act, applies to all wholly dependent partners entitled to death benefits.  It provides a choice between receiving a weekly amount of compensation for life or converting 100% of the weekly compensation payment to an age-based lump sum payment.  The weekly rate is equivalent to half the fortnightly rate of war widow/er pension payable under subsection 30(1) of the Veterans' Entitlements Act.  The fortnightly rate of war widow/er pension as at 20 September 2012, is $783.60.

 

As per section 236, a wholly dependent partner generally has 6 months to choose between the weekly compensation or the lump sum payment.  However, this period can be extended by the MRCC if it considers that there are special circumstances.   

 

As a wholly dependent partner has up to 6 months to make a choice following acceptance of the claim for compensation, the Department pays the wholly dependent partner the weekly amount until such time as the wholly dependent partner makes their decision.  If the wholly dependent partner subsequently chooses to take the lump sum payment, then the weekly payment amounts already paid are deducted from the lump sum amount.  This is provided for in section 237.   

 

It should be noted that once the claim for compensation has been accepted, the payments under section 234 are payable from the date of the member’s death rather than the date of acceptance of the claim.  Paragraph 234(5)(b) states that weekly compensation is payable from the date of the member’s death and the definition of partner’s age-based number in subsection 234(7) refers to the partner’s age at the date of the member’s death. 

 

The Government agreed to a modified version of Recommendation 9.3 of the Review.  From 1 July 2013, the options available to a wholly dependent partner under paragraph 234(1)(b) will be expanded so that a wholly dependent partner may choose to convert either 25%, 50%, 75% or 100% of the weekly compensation amount to an age-based lump sum payment.  A similar arrangement is available for certain permanent impairment payments made under section 78 of the Military Rehabilitation and Compensation Act. 

 

Explanation of the  items

 

Part 1 – Main amendments

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 omits and substitutes the second paragraph of the outline of Part 2 of Chapter 5.

 

The new paragraph refers to Division 2 as providing the wholly dependent partner of a deceased member with the choice of receiving compensation either as a weekly amount, as a lump sum representing 100% of the weekly amount or as a combination of a weekly and lump sum amount with the choice to convert 25%, 50%, 75% of the weekly amount to a lump sum.

 

Item 2 repeals and substitutes paragraph 234(1)(b).  The new paragraph provides that the weekly amount of compensation that will be payable under subsection 234(5) will be subject to the choice made under section 236.

 

Item 3 repeals and substitutes the note to subsection 234(1).  The new note refers the reader to section 236 which provides the wholly dependent partner with the choice to convert 25%, 50%, 75% or 100% of the weekly amount to a lump sum.

 

Item 4 repeals subsection 234(4) which had provided the formula for working out the amount of the lump sum referred to in repealed subparagraph 234(1)(b)(i).

 

Item 5 omits the reference to repealed subparagraph 234(1)(b)(i) and substitutes a reference to paragraph 234(1)(b).

 

Item 6 amends the definition of “partner’s age-based number” in subsection 234(7) to remove the reference to repealed paragraph 234(1)(b).

 

Item 7 repeals the heading to section 235 that refers to “Notifying the partner of the choice” and replaces it with “Notifying the partner”.

 

Items 8 and 9 repeal paragraph 235(1)(a) and amend paragraph 235(1)(b) both of which had referred to repealed paragraph 234(1)(b)(i) replace it with a reference to new paragraph 234(1)(b).

 

Item 10 repeals paragraph 235(1)(c) and replaces it with new paragraphs 235(1)(c) and (ca).


Paragraph 235(1)(c) had referred to the choice offered to the partner of a lump sum or a weekly amount.

 

New paragraph 235(1)(c) refers to the choice offered to the partner under section 236 of converting 25%, 50%, 75% or 100% of the weekly amount into a lump sum.

 

Item 11 repeals the heading to section 236 that refers to the “Requirements for choosing between the lump sum and the weekly amount” and replaces it with “Choice to take lump sum”.

 

Item 12 repeals subsection 236(1) and substitutes a new subsection which provides that the wholly dependent partner who receives a notice under section 235 may choose to convert 25%, 50%, 75% or 100% of the weekly amount to a lump sum.

 

Item 13 repeals subsections 236(4) and (5) and substitutes new subsections 236(4), (5), (6), (7) and (8).

 

New subsection 236(4) provides that the MRCC may extend the six month period the wholly dependent partner has to make a choice either before or after the period has ended if it considers that there are special circumstances.

 

New subsection 236(5) provides a formula for working out the amount of the lump sum based on the choice referred to in paragraph 234(1)(b).

 

New subsection 236(6) restates repealed subsection 236(5) which provides that the legal representative of a deceased wholly dependent partner is not entitled to exercise the choice to convert any percentage of the weekly amount that was payable to the deceased partner into a lump sum.

 

New subsection 236(7) provides that the weekly payment will cease as soon as practicable where the wholly dependent partner has chosen to convert the whole of the weekly payment into a lump sum.

 

New subsection 236(8) provides that the weekly payment will be reduced accordingly as soon as practicable where the wholly dependent partner has chosen to convert part of the weekly payment into a lump sum.

 

Item 14 repeals section 237 as the reduction in the lump sum for weekly payments already paid to the wholly dependent partner has been included in the formula set out in new subsection 236(5).

 

Item 15 repeals and substitutes paragraph 301(5)(b) to refer to the conversion of a percentage of the weekly amount referred to in paragraph 234(1)(b) into a lump sum.

 

Item 16 repeals and substitutes note 2 to subsection 321(2).  New note 2 refers to the section 236 provision that the legal personal representative of a deceased wholly dependent partner cannot convert the weekly compensation into as lump sum.

 

 


Part 2 – Consequential amendments

 

A New Tax System (Family Assistance) Act 1999

 

Item 17 repeals and substitutes paragraph 7(hc) of Schedule 3.

 

Farm Household Support Act 1992

 

Item 18 amends subsection 12(4A) to replace and update the reference to the weekly amount mentioned in paragraph 234(1)(b) of the Military Rehabilitation and Compensation Act.

 

Social Security Act 1991

 

The following Table sets out the consequential amendments to the Social Security Act 1991 to replace and update the redundant references to weekly compensation payable under paragraph 234(1)(b) of the Military Rehabilitation and Compensation Act.

 

Item 19

Paragraph 47(7)(b)

Item 20

Paragraph 103(7)(b)

Item 21

Paragraph 151(7)(b)

Item 22

Paragraph 202(7)(b)

Item 23

Paragraph 500S(5)(b)

Item 24

Paragraph 552(3)(b)

Item 25

Section 573A (table item 4A)

Item 26

Paragraph 578(4)(b)

Item 27

Paragraph 614(3B)(b)

Item 28

Paragraph 660YCF(6)(b)

Item 29

Paragraph 686(4A)(b)

Item 30

Paragraph 735(5)(b)

Item 31

Subsection 771HI(4)

Item 32

Paragraph 787(5)(b)

Item 33

Subparagraph 1061PE(4)(e)(viii)

Item 34

Paragraph 1061PJ(4)(c)

Item 35

Paragraph 1064(7)(a)

Item 36

Paragraph 1065(6)(a)

Item 37

Section 1067G (table items 4A and

20A of Module L of the Youth

Allowance Rate Calculator)

 

Veterans’ Entitlements Act 1986

 

The following Table sets out the consequential amendments to the Veterans’ Entitlements Act to replace and update the redundant references to weekly compensation payable under paragraph 234(1)(b) of the Military Rehabilitation and Compensation Act.


 

Item 38

Subsection 5E(1) (subparagraph (b)(ii) of the definition of war widow)

Item 39

Subsection 5E(1) (subparagraph (b)(ii) of the definition of war widower)

Item 40

Subsection 5H(1) (paragraphs (ca) and (cb) of the definition of adjusted income)

Item 41

Paragraph 5H(8)(zu)

Item 42

Subsection 5Q(1) (paragraph (b) of the definition of war widow/

war widower-pensioner)

Item 43

Paragraph 45N(1)(d)

Item 44

Subparagraph 45R(2)(a)(ii)

Item 45

Subparagraph 45R(2)(a)(iii)

Item 46

Subparagraph 45TB(3)(a)(iii)

Item 47

Subparagraph 45TB(3)(a)(iii)

Item 48

Paragraph 52Z(3A)(j)

 

Part 3 – Saving and transitional provisions

 

Item 49 defines for the purposes of the Part an old lump sum as being the lump sum of weekly compensation referred to in the now repealed (by Item 2 of this Schedule) subparagraph 234(1)(b)(i) of the Military Rehabilitation and Compensation Act (as in force prior to 1 July 2013) whether or not the lump sum was paid before, on or after 1 July 2013.

 

Item 50 provides at subitem 50(1) that the amendment which repeals and substitutes subsection 236(1) will not affect the validity of a choice to receive the weekly compensation as lump sum that was made before the 1 July 2013.

 

Subitem 50(2) provides that Division 2 of Part 2 of Chapter 5 (compensation payable to the wholly dependent partner of a deceased member) as in force immediately before 1 July 2013 will continue to apply on or after that date to a choice referred to in subitem 50(1).

 

Item 51 is applicable in the circumstances where:

  • before 1 July 2013 the MRCC issued a notice (the old notice) under section 235; and
  • immediately before 1 July 2013, the wholly dependent partner had not made a choice as to whether or not to convert the weekly payment into a lump sum; and
  • immediately before 1 July 2013, the period available to the person for making that choice had not ended;

then:

  • the old notice will be taken to have been withdrawn; and

  • as soon as is practicable after 1 July 2013, the MRCC must give the wholly dependent partner a written notice under section 235 (as amended by this Act) specifying the weekly amount mentioned in paragraph 234(1)(b) that is currently payable to the partner and advising the partner that he or she may choose under section 236 to convert 25%, 50%, 75% or 100% of that weekly amount into a lump sum and the amount of the lump sum payable in each case.

 

Item 52 is a transitional provision which provides that a reference to the choice of the partner to receive a lump sum in paragraph 301(5)(b) will apply on and after 1 July 2013 where that choice has been made under section 236 before that date and the choice was that weekly compensation would be payable as a lump sum.

 

Item 53 is a transitional provision which provides that paragraph 7(hc) of Schedule 3 to the A New Tax System (Family Assistance) Act 1999 will apply on and after 1 July 2013 as if a reference to a lump sum in subsection 236(5) of the Military Rehabilitation and Compensation Act included a reference to an old lump sum.

 

Item 54 is a transitional provision which provides that subsection 12(4A) of the Farm Household Support Act 1992 will apply on and after 1 July 2013 as if a reference to a lump sum in subsection 236(5) of the Military Rehabilitation and Compensation Act included a reference to an old lump sum.

 

Subitem 55(1) is a transitional provision which provides that the provisions of the Social Security Act 1991 listed in Items 19 to 24 and 26 to 36 (as set out in the above Table) will apply on and after 1 July 2013 as if a reference to a lump sum in subsection 236(5) of the Military Rehabilitation and Compensation Act included a reference to an old lump sum.

 

Subitem 55(2) is a transitional provision which provides that section 573A (table item 4A) and section 1067G (table items 4A and 20A of Module L of the Youth Allowance Rate Calculator ) of the Social Security Act 1991 will apply on and after 1 July 2013 as if a reference to subsection 236(5) of the Military Rehabilitation and Compensation Act included a reference to subparagraph 234(1)(b)(i) (as in force immediately before 1 July 2013).

 

Subitem 56(1) is a transitional provision which provides that the provisions of the Veterans' Entitlements Act listed in Items 38, 39 and 41 to 48 (as set out in the above Table) will apply on and after 1 July 2013 as if a reference to a lump sum in subsection 236(5) of the Military Rehabilitation and Compensation Act included a reference to an old lump sum.

 

 

 

 

 

 

 

 

Subitem 56(2) is a transitional provision which provides that where a choice has been made under section 236 of the Military Rehabilitation and Compensation Act before 1 July 2013 that the following rules will apply:

  • if the choice is to receive a weekly amount of compensation – paragraph (ca) of the definition of adjusted income in subsection 5H(1) of the Veterans' Entitlements Act applies, on and after 1 July 2013, as if the person had not made a choice under section 236 of the Military Rehabilitation and Compensation Act (as amended by this Schedule);

 

  • if the choice is to receive a lump sum of compensation – paragraph (cb) of the definition of adjusted income in subsection 5H(1) of the Veterans' Entitlements Act applies, on and after 1 July 2013, as if the person had not made a choice under section 236 of the Military Rehabilitation and Compensation Act (as amended by this Schedule).

 

Commencement

 

Clause 2 provides that the amendments in Schedule 3 commence on and from
1 July 2013.

 

 


Schedule 4 – Weekly compensation for eligible young persons

 

Overview

 

The amendments in Schedule 4 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to apply a one-time increase to the rate of periodic compensation payable for dependent children so the rate aligns with similar payments under the Safety, Rehabilitation and Compensation Act. 

 

Background

 

Section 12 of the Military Rehabilitation and Compensation Act provides that compensation for death may be payable to dependants if:

o   the MRCC has accepted liability for the member’s or former member’s death, or

  • the deceased person satisfied the eligibility criteria in section 199 for Special Rate Disability Pension during some period of his or her life, or
  • the person  was assessed at  80 or more impairment points before their death.   

 

Periodic payment to eligible young persons

 

An eligible young person who was wholly or mainly dependent on the deceased member is eligible to receive an ongoing weekly benefit of $87.57 (as at 1 July 2012 and indexed annually).

 

The periodic payment to eligible young persons is payable under section 253 of the Military Rehabilitation and Compensation Act and at $87.57 per week is below the payment made in similar circumstances under section 17 of the Safety, Rehabilitation and Compensation Act which is $130.89 per week (as at 1 July 2012).

 

The weekly rates of compensation payable under both Acts to persons defined as an eligible young person had been closely aligned from the commencement of the Military Rehabilitation and Compensation Act in 2004 until 13 May 2008 when amendments to the Safety, Rehabilitation and Compensation Act made by the Employment and Workplace Relations Amendment Act 2009 increased the then weekly rate from $72.98 to $110.00.  At that time the weekly rate payable under section 253 of the Military Rehabilitation and Compensation Act was $75.84.

 

The Government has agreed that on 1 July 2013, the weekly rate payable under section 254 of the Military Rehabilitation and Compensation Act be increased to match the amount payable under the SRCA.  This decision relates to Recommendation 9.6 of the Government’s Response to the Military Compensation Review. 

 

The rate under subsection 17(5) of the Safety, Rehabilitation and Compensation Act is indexed annually on 1 July under section 13AA of the Safety, Rehabilitation and Compensation Act and uses the Wage Price Index.


The  rate under section 254 of the Military, Rehabilitation and Compensation Act is indexed annually on 1 July under section 404 of the Military Rehabilitation and Compensation Act and uses the Consumer Price Index.

 

Explanation of the changes

 

The amounts payable under both Acts will be aligned as at 1 July 2013.  Because there are different indexation arrangements under the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation Acts over time the rates will not remain aligned.  

 

Explanation of the  items

 

Item 1 amends section 254 to replace the reference to “$66” with a reference to the new rate of “$135.34” payable from 1 July 2013.

 

The note to section 254 is amended by Item 2 to replace the reference to “$66” with a reference to the new rate of “$135.34” payable from 1 July 2013.

 

Item 3 is an application provision which refers to the amount inserted into section 254 (by Item 1 of this Schedule) and provides that the amount will not be indexed for the indexation year commencing on 1 July 2013.

 

A note to the provision refers to the resumption of the indexation of the amount for the indexation year commencing from 1 July 2014.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 4 commence on and from
1 July 2013.

 


Schedule 5 – Compensation for financial advice and legal advice

 

Overview

 

The amendments in Schedule 5 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to increase the amount of compensation for financial advice and to include legal advice within the new limit.

 

Background

 

The Military Rehabilitation and Compensation Act provides in certain circumstances for compensation for the provision of financial advice. Those circumstances are:

·    under section 81 for the member suffering permanent impairment of 50 impairment points or more;

·    under section 205 for the member to choose between SRDP and ongoing incapacity payments; and

·    under section 239 for a wholly dependent partner.

 

A person may be entitled to more than one payment of compensation for financial advice.

 

With the commencement of the Military Rehabilitation and Compensation Act on
1 July 2004, the amount of compensation payable was set at $1,200. This amount has been indexed annually in line with the CPI so that the current maximum (as at 1 July 2012) is $1,592.31.

 

Explanation of the changes

 

The amendments made by this Schedule will extend compensation to cover legal advice that is relevant to the choice being made under sections 78, 200 or 236.  It is not intended to cover legal advice that may be required in dealing with other matters such as family court disputes and other legal matters tied to the administration of the estate.

 

The amendments provide for the total amount of compensation for financial and legal advice to be provided under sections 81, 205 and 239 of the Military Rehabilitation and Compensation Act to be increased to $2,400 with that amount to continue to be indexed annually by the CPI.

 

Explanation of the  items

 

Part 1 – Main amendments

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 inserts into subsection 5(1) a definition of the term “practicing lawyer”.


A practicing lawyer is defined as being a person who has been admitted to the legal profession by a federal court or by the Supreme Court of any of the states or territories and who also holds what is usually described as a practicing certificate entitling the person to practice the profession in any of those states or territories.

 

Items 2 and 3 are minor formatting amendments that replace the heading to section 81 with “Compensation for cost of financial advice and legal advice” and insert a reference to subsection “(1)”.

 

Item 4 repeals paragraph 81(c) and substitutes new paragraphs 81(1)(c) and (ca).

 

Repealed paragraph 81(c) had referred to a person who was eligible for permanent impairment compensation obtaining financial advice from a suitably qualified financial adviser.

 

New paragraph 81(1)(c) refers to the financial advice having been obtained from a suitably qualified financial adviser after the MRCC has made a determination that the person has suffered the required degree of permanent impairment.

 

New paragraph 81(1)(ca) provides that the financial advice had been provided with respect to the choice the person had to make under subsection 78(1) concerning the conversion of weekly permanent impairment into a lump sum.

 

Item 5 adds new subsection 81(2) which provides that the Commonwealth will be liable to pay compensation for legal advice obtained by a person in the following circumstances:

·         the Commonwealth is liable to pay compensation to the person under sections 68, 71 or 75; and

·         the MRCC has determined that the person has suffered the required degree of permanent impairment; and

  • the legal advice was obtained from a practicing lawyer after the MRCC has made that determination;
  • the legal advice had been provided with respect to the choice the person had to make under subsection 78(1) concerning the conversion of weekly permanent impairment into a lump sum; and
  • a claim for permanent impairment compensation for the person has been made under section 319.

 

Items 6 to 8 are minor formatting amendments that replace the heading to section 82 with “Amount of financial advice and legal advice compensation” insert the heading “Financial advice” to subsection 82(1) and replaces the reference to “section 81” with a reference to “subsection 81(1)”.

 

Item 9 removes the reference in subsection 82(1) to the limit on compensation for financial advice not exceeding $1,200.

 

Item 10 repeals the note to subsection 82(1) referring to the indexation of the limit under section 404.


Item 11 repeals subsection 82(2) and substitutes new subsections 82(2), (3) and (4).

 

New subsection 82(2) provides that the MRCC must determine the amount of compensation for legal advice under subsection 81(2) that it considers reasonable.

 

New subsection 82(3) provides that the total amount of compensation for financial advice and legal advice under subsections 81(1) and (2) is not to exceed $2,400.

 

New subsection 82(4) provides that the $2,400 limit will apply to a person for both financial advice and legal advice under Part 2 of Chapter 4 and financial advice and legal advice under Part 6 (Special Rate Disability Pension) for that person where the dates specified in the notice issued under section 76 and the date on which the offer was made under Part 6 are the same.

 

Item 12 is a minor amendment to subsection 83(1) to include a reference to the provision of compensation for legal advice.

 

Items 13 and 14 make minor amendments to subparagraphs 83(1)(b)(i) and (ii) and subsection 83(2) to omit specific references to the provision of “financial” advice.

 

Item 15 amends subsection 204(2) to include a reference to the provision of legal advice.

 

Items 16 and 17 are minor formatting amendments that replace the heading to section 205 with “Compensation for cost of financial advice and legal advice” and insert a reference to subsection “(1)”

 

Item 18 adds new subsection 205(2) which provides that the Commonwealth will be liable to pay compensation for legal advice obtained by a person in the following circumstances:

o   the legal advice was obtained from a practicing lawyer; and

o   the legal advice had been provided with respect to the choice the person had to make under Part 6 about receiving a Special Rate Disability Pension; and

o   a claim for compensation for the person has been made under section 319.

 

Items 19 to 21 are minor formatting amendments that replace the heading to section 206 with “Amount of financial advice and legal advice compensation” insert the heading “Financial advice” to subsection 206(1) and replaces the reference to “section 205” with a reference to “subsection 205(1)”.

 

Item 22 removes the reference in subsection 206(1) to the limit on compensation for financial advice not exceeding $1,200.

 

Item 23 repeals the note to subsection 206(1) referring to the indexation of the limit under section 404.

 

Item 24 repeals subsection 206(2) and substitutes new subsections 206(2), (3) and (4).

 

New subsection 206(2) provides that the MRCC must determine the amount of compensation for legal advice under subsection 205(2) that it considers reasonable.


New subsection 205(3) provides that the total amount of compensation for financial advice and legal advice under subsections 205(1) and (2) is not to exceed $2,400.

 

New subsection 205(4) provides that the $2,400 limit will apply to a person for both financial advice and legal advice under Part 6 of Chapter 4 and financial advice and legal advice under Part 2 of the same Chapter for that person where the date on which the offer was made under Part 6 is the same as the date specified in the first notice issued under section 76.

 

Item 25 is a minor amendment to subsection 207(1) to include a reference to the provision of compensation for legal advice.

 

Items 26 and 27 make minor amendments to subparagraphs 207(1)(b)(i) and (ii) and subsection 207(2) to omit specific references to the provision of “financial” advice.

 

Item 28 amends the outline to Part 2 of Chapter 5 by omitting the third paragraph and substituting a new paragraph referring to the provision of compensation for the cost of financial advice and legal advice under Division 3 of the Part.

 

Item 29 repeals and substitutes a new heading to Division 3 of Part 2 of Chapter 5.  The new heading refers to “Compensation for cost of financial advice and legal advice for wholly dependent partners”.

 

Items 30 and 31 are minor formatting amendments that replace the heading to section 239 with “Compensation for cost of financial advice and legal advice” and insert a reference to subsection “(1)”

 

Item 32 inserts new paragraph 239(1)(ba) which provides that the financial advice had been provided with respect to the choice the wholly dependent partner had to make under subsection 236(1).

 

Item 33 adds new subsection 239(2) which provides that the Commonwealth will be liable to pay compensation for legal advice obtained by a wholly dependent partner in the following circumstances:

o   the wholly dependent partner is entitled to compensation under section 233; and

o   the legal advice was obtained from a practicing lawyer after the death of the deceased member; and

o   the legal advice had been provided with respect to the choice the wholly dependent partner had to make under subsection 236(1); and

o   a claim for compensation for the wholly dependent partner has been made under section 319.

 

Items 34 and 35 are minor formatting amendments that replace the heading to section 240 with “Amount of financial advice and legal advice compensation”, insert a reference to subsection “(1)” and replaces the reference to “section 239” with a reference to “subsection 239(1)”.

 

Item 36 amends subsection 240(1) to replace the reference to “section 239” with a reference to “subsection 239(1)”.


Item 37 removes the reference in subsection 240(1) to the limit on compensation for financial advice not exceeding $1,200.

 

Item 38 repeals the note to subsection 240(1) referring to the indexation of the limit under section 404.

 

Item 39 inserts new subsections 240(2) and (3).

 

New subsection 240(2) provides that the MRCC must determine the amount of compensation for legal advice under subsection 239(2) that it considers reasonable.

 

New subsection 240(3) provides that the total amount of compensation for financial advice and legal advice under subsections 239(1) and (2) is not to exceed $2,400.

 

Item 40 is a minor amendment to subsection 241(1) to include a reference to the provision of compensation for legal advice.

 

Items 41 and 42 make minor amendments to subparagraphs 241(1)(b)(i) and (ii) and subsection 241(2) to omit specific references to the provision of “financial” advice.

 

Items 43 to 45 repeals and substitutes new paragraphs 404(1)(c), (e) and (i) to replace references to subsections 82(1), 206(1) and section 240 with references to subsections 82(3), 206(3) and 240(3) respectively.

 

Item 46 is an application provision referring to the amendments made by Items 2 to 42 which provides that they will be applicable to financial advice or legal advice obtained on or after the 1 July 2013.

 

Item 47 provides that there will be no indexation for the amounts referred to in subsections 82(3), 206(3) and 240(3) (as amended by this Schedule) for the indexation year commencing on 1 July 2013.

 

Part 2 – Consequential amendments

 

Income Tax Assessment Act 1997

 

Item 48 amends section 52-114 (table item 4) by adding a reference to “legal advice” to the existing reference to “financial advice”.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 5 commence on and from
1 July 2013.

 


Schedule 6 – Special Rate Disability Pension

 

Overview

 

The amendments in Schedule 6 give effect to the Government decision in response to the Review of Military Compensation Arrangements to expand the eligibility criteria for Special Rate Disability Pension (SRDP).  The expanded criteria will include a person who would otherwise meet the criteria in section 199 of the Military Rehabilitation and Compensation Act except for the person having received a lump sum incapacity payment under section 138 of the Military Rehabilitation and Compensation Act or the person is receiving a nil rate of incapacity payment because the amount of the incapacity payment is fully offset by Commonwealth superannuation.

 

Background

 

SRDP, payable under Part 6 of Chapter 4 of the Military Rehabilitation and Compensation Act is based on the Special Rate disability pension payable under section 24 of the Veterans’ Entitlements Act.  It was included in the Military Rehabilitation and Compensation Act to ensure that a former member unable to work because of accepted disabilities would have access to benefits at least the equivalent of the Special Rate pension under the Veterans’ Entitlements Act. 

 

Briefly, a person is eligible to choose SRDP under section 199 of the Military Rehabilitation and Compensation Act if the person:

 

(a)    is in receipt of incapacity compensation under Division 2 of Part 4; and

(b)   has an impairment as a result of the service injuries or diseases that is likely to continue; and

(c)    is assessed at 50 or more impairment points; and

(d)   is unable to undertake paid work for more than 10 hours per week and rehabilitation is unlikely to assist in increasing their capacity to work.

 

Under the existing provisions outlined above, a person must be “receiving” incapacity compensation to be eligible for SRDP.  This means that a person who meets paragraphs 199(1)(b), (c) and (d) but who either:

 

·         converted their weekly rate of incapacity compensation to a lump sum  under section 138 of the Military Rehabilitation and Compensation Act; or

·         is receiving a nil rate of incapacity compensation because the amount is fully offset by Commonwealth superannuation;

is not eligible for SRDP as they are not “receiving” incapacity payments.

 

The Government agreed that a person who otherwise meets the eligibility criteria of subsection 199(1), but who is not receiving incapacity compensation because the person either received a lump sum incapacity compensation payment or their incapacity compensation is offset to nil because of Commonwealth superannuation, should be eligible for SRDP. 


This will mean that, in relation to a person who converted their incapacity compensation to a lump sum and chooses to receive SRDP in lieu of incapacity payments, that part or all of the lump sum payment will need to be repaid as a person cannot be entitled to SRDP and incapacity compensation for the same injury or disease at the same time. 

 

Explanation of the items

 

Item 1 repeals paragraph 199(1)(a) and inserts new paragraph 199(1)(a) with subparagraphs (i), (ii) and (iii).  Subsection 199(1) sets out the eligibility criteria for SRDP.  New subparagraph 199(1)(a) provides that to be eligible for SRDP a person must meet paragraphs 199(1)(b), (c) and (d) and at least one of subparagraphs 199(1)(a)(i), (ii) or (iii).   New subparagraph 199(1)(a)(i) provides that a person must be receiving incapacity compensation under Division 2 of Part 4.   New subparagraph 199(1)(a)(ii) provides that a person must be receiving a nil rate of incapacity compensation under Division 2 of Part 4, because their rate of incapacity compensation has been reduced to nil under section 126, by Commonwealth superannuation payments.  New subparagraph 199(1)(a)(iii) provides that a person must have converted their incapacity compensation to a lump sum under section 138. 

 

Item 2 inserts a heading before subsection 204(2). 

 

Item 3 makes a technical amendment to subsection 204(2).

 

Item 4 inserts a heading before subsection 204(5). 

 

Item 5 makes a technical correction to subsection 204(5) to make it clear that SRDP may be reduced under subsection 204(5) even if the SRDP was not reduced under subsection 204(2). 

 

Item 6 adds a heading and new subsection 204(7) after subsection 204(6).  New subsection 204(7) makes it clear that SRDP may also be further reduced by amounts deducted under subsection 415(4) to recover an overpayment.

 

Item 7 inserts new section 204A after section 204.  New subsection 204A(1) provides that section 204A applies if an eligible person chooses to receive SRDP after having received a lump sum payment of incapacity compensation under section 138. 

 

New subsection 204A(2) provides that part, or all, of the lump sum under section 138 is taken to be an amount of compensation that should not have been paid to the person.  The amount of the lump sum that should not have been paid is to be worked out in accordance with a formula to be included in a legislative instrument for the purposes of new subsection 204A(2).  The legislative instrument will be made by the MRCC or a delegate of the MRCC.   An amount that should not have been paid to a person may be recovered through deductions from other Veterans’ Affairs or social security payments or through a court of competent jurisdiction. 


Item 8  is an application provision.

 

Subitem 8(1) provides that new subparagraph 199(1)(a)(ii), inserted by item 1 applies in relation to a nil or negative amount of incapacity compensation, worked out under section 126, in relation to weeks ending on or after 1 July 2013. 

 

Subitem 8(2) provides that new subparagraph 199(1)(a)(iii), inserted by item 1 applies in relation lump sums paid under section 138, before, on or after 1 July 2013. 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 6 commence on and from
1 July 2013.

 

 


Schedule 7 – Superannuation

 

Overview

 

The amendments in Schedule 7 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to make changes to certain superannuation provisions so that they apply equally to both serving and former members and to amend the definition of  ‘Commonwealth superannuation scheme’. 

 

Background

 

It is Government policy that duplicate income maintenance payments are not to be made by the Commonwealth to an individual through both superannuation and compensation schemes.  Incapacity payments under the Safety, Rehabilitation and Compensation Act or the Military Rehabilitation and Compensation Act and Special Rate Disability Pension under the Military Rehabilitation and Compensation Act, are offset by the value of Commonwealth contributions towards superannuation benefits. 

 

Paragraph (a) of the current Military Rehabilitation and Compensation Act definition of “Commonwealth superannuation scheme” in subsection 5(1) applies only to former serving members whose incapacity payments are worked out under Chapter 4 of Part 4 of the Military Rehabilitation and Compensation Act.  Incapacity payments for current serving members are worked out under Chapter 3 of Part 4 of the Military Rehabilitation and Compensation Act and currently no superannuation offsetting applies under this chapter.

 

As it is possible for current serving members to be in receipt of both Commonwealth superannuation and an incapacity payment under the Military Rehabilitation and Compensation Act there are circumstances where offsetting does not take place currently under the Military Rehabilitation and Compensation Act.  Those circumstances, for example, might include:

·         where a member discharges after 20 or more years service, transfers to the Reserves and becomes incapacitated while still a serving member of the part-time Reserves or on continuous full-time service;

·         where a current serving member is medically discharged, but receives a critical skills waiver that enables transfer to the Reserves. In most of these cases, the member will have an entitlement to incapacity payments immediately following discharge, but remains a member of the Defence Force for the purposes of the Military Rehabilitation and Compensation Act; and

·         where a part-time Reservist continues to serve after being superannuated from their full-time Commonwealth civilian employment with a public service department or statutory authority following retirement, redundancy or resignation.


The Government accepted recommendation 12.3 of the Review, that, on the grounds of equity, superannuation offsetting of incapacity payments should apply to current serving members in receipt of Commonwealth superannuation whose incapacity payments are worked out under Chapter 3 of Part 4 of the Military Rehabilitation and Compensation Act, as well as former members whose incapacity payments are worked out under Chapter 4 of Part 4 of the Military Rehabilitation and Compensation Act.

 

Paragraph (a) of the definition includes a “licensed corporation” within the meaning of the Safety, Rehabilitation and Compensation Act, but excludes a “retirement savings account.”

 

The reference to a “licensed corporation” is to corporations such as Telstra that are licensed to self-insure or manage their workers’ compensation liabilities within the framework of the Commonwealth legislation instead of under the various state compensation schemes.

 

Currently, the inclusion of the reference to superannuation schemes operated by a “licensed corporation” within the definition of a “Commonwealth superannuation scheme” has the effect that contributions made by a licensed corporation to a superannuation scheme for the benefit of an Defence Force member would offset incapacity payments or the Special Rate Disability Pension.

 

The Government accepted as part of recommendation 12.2 of the Review, that reference to a “licensed corporation” be removed from the definition of a “Commonwealth superannuation scheme” and that benefits related to such contributions no longer be offset.  This is because in these circumstances the Commonwealth cannot be said to be making duplicate income maintenance payments, as it is the licences corporation, not the Commonwealth, making contributions to the scheme.

 

Likewise, the Government accepted as part of as part of recommendation 12.2 of the Review that a reference Commonwealth contributions to a “retirement savings account” be included in the definition of “Commonwealth superannuation scheme”.  This is because in these circumstances the Commonwealth can be said to be making duplicate income maintenance payments.

 

Explanation of the  items

 

Item 1 inserts new paragraph (aa) before paragraph (a) of the definition of Commonwealth superannuation scheme in subsection 5(1) of the Military Rehabilitation and Compensation Act.

 

New paragraph (aa) defines a Commonwealth superannuation scheme as being for the purposes of the following provisions:

  • new section 89A (as inserted by Item 15 of this Schedule);

·         Division 7 of Part 3 of Chapter 4 (as inserted by Item 16 of this Schedule);


·         sections 416 to 418 which provide for the recovery of overpayments to retired persons (to the extent to which they relate to compensation payable under Part 3 of Chapter 4);

any superannuation scheme under which or to which, or a retirement savings account to which the Commonwealth or a Commonwealth authority has made a contribution on behalf of an employee including superannuation schemes that have been established and are maintained by the Commonwealth or a Commonwealth authority.

 

Items 2 to 4 make minor amendments to paragraph (a) of the definition of Commonwealth superannuation scheme to either include a reference to a retirement savings account (as inserted by Item 5 of this Schedule) or to remove a reference to a licensed corporation (within the meaning of the Safety, Rehabilitation and Compensation Act) as superannuation schemes operated by such entities are no longer to be regarded as being a Commonwealth superannuation scheme.

 

Item 5 inserts a definition for retirement savings account into subsection 5(1).

 

A retirement savings account is defined as being a retirement savings account as defined within the meaning of the Retirement Savings Account Act 1997.  Section 8 of that Act being the relevant section.

 

Item 6 inserts a new paragraph after the fourth paragraph of section 84 which provides an outline of Part 3 of Chapter 4.

 

The new paragraph refers the reader to Division 7 which deals with working out the amount of compensation for incapacity if the Defence Force member receives or has received superannuation from a Commonwealth superannuation scheme.

 

Items 7 to 12 are minor amendments to subsections 85(2), 86(2) and 87(2) respectively to include references to new section 89A (as inserted by Item 15 of this Schedule) and to substitute redundant references to compensation being worked out under section 89 with a reference to compensation which will cover both section 89 and new section 89A.

 

Item 13 is a minor amendment to subsection 89(1) to insert a note which refers the reader to the exception provided in new subsection 89(4) (as inserted by Item 14 of this Schedule).

 

Item 14 inserts new subsection 89(4) which provides that, subsection 89(1) which sets out the method for determining the amount of compensation that is payable under section 85, 86, or 87, to pay to a member for a week, will not be applicable if new section 89A is applicable.

 

Item 15 inserts new section 89A.

 

New section 89A provides that the amount of weekly incapacity compensation the Commonwealth will be liable to pay under sections 85, 86 or 87 to a person who has received either or both a pension or a lump sum from a Commonwealth superannuation scheme will be worked out in accordance with the following sections:


·         new section 116B (as inserted by Item 16 of the Schedule) where the person is in receipt of a superannuation pension;

·         new section 116C (as inserted by Item 15 of this Schedule) where the person has received only a lump sum;

·         new section 116D (as inserted by Item 15 of this Schedule) where the person is receiving a superannuation pension and has received a lump sum.

 

Item 16 inserts new Division 7 (Amount of compensation where Commonwealth superannuation is received) at the end of Part 3 of Chapter 4.

 

New section 116A provides an outline of the new Division.  It informs the reader that the Division will set out how to work out the amount of incapacity compensation a Defence Force member will receive for a week if the member is receiving or has received superannuation from a Commonwealth superannuation scheme.

 

The outline refers to the methods that will apply in the following circumstances:

·         where the person is in receipt of a superannuation pension - new section 116B;

·         where the person has received only a lump sum - new section 116C;

·         where the person is receiving a superannuation pension and has received a lump sum - new section 116D.

 

The outline summarises the outcome as the amount of compensation that will be payable will be the amount worked out under Division 1 of Part 3 as reduced by the amount of superannuation that is received.

 

New section 116B is applicable where the person is receiving a Commonwealth superannuation pension for the week for which compensation for incapacity is payable.

 

New subsection 116B(1) provides that where paragraph 89A(a) is applicable to the person, the amount of compensation for incapacity the Commonwealth is liable to pay for a week will be the amount payable to the person as worked out under Division 1 of Part 3 (sections 84 to 89) less the person’s superannuation pension amount.

 

New subsection 116B(2) defines the terms “Division 1 compensation amount” and “superannuation pension amount” that are used in subsection 116B(1).

 

The “Division 1 compensation amount” for a person for a week is the amount of compensation payable if subsection 89(1) had been applicable in working out that amount.

 

The “superannuation pension amount” for a person who receives a pension for a week under a Commonwealth superannuation scheme is determined as being:

·         the amount of that part of the pension that has been identified as being attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or

·         in any other case, either:


o   the amount assessed by the MRCC to be that part of the pension that has been identified as being attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or

o   the amount of the superannuation pension received by the person for the week if the assessment cannot be made.

 

New section 116C is applicable where the person has received a lump sum from a Commonwealth superannuation scheme for a week for which compensation for incapacity is payable.

 

New subsection 116C(1) provides that where paragraph 89A(b) is applicable to the person, the amount of compensation for incapacity the Commonwealth is liable to pay for a week will be the amount payable to the person as worked out under Division 1 of Part 3 (sections 84 to 89) less the amount determined by dividing the person’s superannuation lump sum amount by the person’s age-based number.

 

New subsection 116C(2) defines the terms “superannuation age-based number” and “superannuation lump sum amount” that are used in subsection 116C(1).

 

The “superannuation age-based number” for a person who receives a lump sum under a Commonwealth superannuation scheme will be the number that has been advised by the Australian Government Actuary.  That number will be referenced to the age of the person on the day on which the lump sum is paid.

 

The “superannuation lump sum amount” for a person who receives a lump sum from a Commonwealth superannuation scheme for a week for which compensation for incapacity is payable is determined as being:

·         the amount of that part of the lump sum that has been identified as being attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or

·         in any other case, either:

o   the amount assessed by the MRCC to be that part of the lump sum that has been identified as being attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or

o   the amount of the lump sum received by the person if the assessment cannot be made.

 

New section 116D is applicable where the person has received both a superannuation pension and a lump sum from a Commonwealth superannuation scheme for a week for which compensation for incapacity is payable.

 

New subsection 116D(1) provides that where paragraph 89A(c) is applicable to the person, the amount of compensation for incapacity the Commonwealth is liable to pay for a week will be the amount payable to the person as worked out under Division 1 of Part 3 (sections 84 to 89) less the amount determined by adding the person’s


superannuation pension amount for the week to the person’s superannuation lump sum amount divided by the person’s age-based number.

 

New section 116E provides that no compensation for incapacity will be payable by the Commonwealth if the amount worked out under Division 7 of Part 3 is nil or a negative amount.

 

Items 17 to 20 are minor amendments to paragraph(a) and subparagraph (b)(i) of the definition of superannuation pension amount in subsection 134(2) to insert a reference to contributions made to a Commonwealth superannuation scheme or to remove a reference to a licensed corporation (within the meaning of the Safety, Rehabilitation and Compensation Act) as superannuation schemes operated by such entities are no longer to be regarded as being a Commonwealth superannuation scheme.

 

Item 21 to 24 are minor amendments to paragraph(a) and subparagraph (b)(i) of the definition of superannuation lump sum amount in subsection 135(2) to insert a reference to contributions made to a Commonwealth superannuation scheme or to remove a reference to a licensed corporation (within the meaning of the Safety, Rehabilitation and Compensation Act) as superannuation schemes operated by such entities are no longer to be regarded as being a Commonwealth superannuation scheme.

 

Items 25 and 26 are minor amendments to section 417 to include a reference to Part 3 in paragraph 417(c) and to insert new subparagraph 417(c)(ia) which refers to the application of section 418 to a payment of compensation that may have been affected by the provisions of Division 7 of Part 3 of Chapter 4.

 

Items 27 and 28 are minor amendments to subsection 420(4) to include a reference to Part 3 in paragraph 420(4)(a) and to insert new subparagraph 420(4)(b)(ia) which refers to the determination of the amount of an overpayment of compensation that may have been due to the application of the provisions of Division 7 of Part 3 of Chapter 4.

 

Item 29 inserts a number of application provisions under the headings of “compensation provisions” (subitems (1) to (3))and “retirement provisions” (subitem (4)).

 

Subitem 29(1) is applicable to the amendment to insert new paragraph (aa) to the definition of “Commonwealth superannuation scheme” in subsection 5(1) (by Item 1 of this Schedule), the amendment to subsection 5(1) to insert the definition of “retirement savings account” (by Item 5 of this Schedule), the amendment to insert new subsection 89(4) (by Item 14 of this Schedule), the amendment to insert new section 89A (by Item 15 of this Schedule) and the amendment to insert new Division 7 of Part 3 of Chapter 4 (by Item 16 of this schedule).

 

The subitem provides that the amendments made by the items referred to are to apply in relation to a week that commences on or after 1 July 2013 where the liability to pay compensation under sections 85, 86 or 87 has arisen because of a claim for compensation that was made on or after that date.


Subitem 29(2) is applicable to the amendment to paragraph (a) of the definition of “Commonwealth superannuation scheme” in subsection 5(1) to include a reference to a “retirement savings account” (by Item 2 of this Schedule), the amendment to subsection 5(1) to insert the definition of “retirement savings account” (by Item 5 of this Schedule), the amendment to paragraph (a) and subparagraph (b)(i) of the definition of “superannuation pension amount” in subsection 134(2) to refer to contributions “to” a Commonwealth superannuation scheme (by Items 17 and 19 of this Schedule) and the amendment to paragraph (a) and subparagraph (b)(i) of the definition of “superannuation lump sum amount” in subsection 135(2) to refer to contributions “to” a Commonwealth superannuation scheme (by Items 21 and 23 of this Schedule).

 

The subitem provides that the amendments made by the items referred to are applicable in relation to:

·         section 126, Subdivision D of Division 2 of Part 4 of Chapter 4 and section 138 in relation to a week that commences on or after 1 July 2013 where the liability to pay compensation under section 118 has arisen because of a claim for compensation that was made on or after that date; and

·         section 204 (offsetting superannuation against Special Rate Disability Pension) in relation to a week starting on or after 1 July 2013 where the offer under subsection 199(2) of the choice to receive that pension is made on or after that date.

 

Subitem 29(3) is applicable to the amendments to paragraph (a) of the definition of “Commonwealth superannuation scheme” in subsection 5(1) to remove the references to a “licensed corporation” (by Items 3 and 4 of this Schedule), the amendment to paragraph (a) and subparagraph (b)(i) of the definition of “superannuation pension amount” in subsection 134(2) to remove the references to a “licensed corporation” (by Items 18 and 20 of this Schedule) and the amendments to paragraph (a) and subparagraph (b)(i) of the definition of “superannuation lump sum amount” in subsection 135(2) to remove the references to a “licensed corporation”(by Items 22 and 24 of this Schedule).

 

The subitem provides that the amendments made by the items referred to are applicable in relation to:

·         section 126, Subdivision D of Division 2 of Part 4 of Chapter 4 and section 138 in relation to a week that commences on or after 1 July 2013 where the liability to pay compensation under section 118 has arisen because of a claim for compensation that was made  before, on or after that date; and

·         section 204 (offsetting superannuation against Special Rate Disability Pension) in relation to a week starting on or after 1 July 2013 where the offer under subsection 199(2) of the choice to receive that pension is made before, on or after that date.


 

Subitem 29(4) is applicable to the amendments to the definition of “Commonwealth superannuation scheme” in subsection 5(1) (by Items 1 to 4 of this Schedule), the amendment to insert the definition of “retirement savings account” in subsection 5(1) (by Item 5 of this Schedule), the amendments to section 417 (by Items 25 and 26 of

this Schedule) and the amendments to section 420 (by Items 27 and 28 of this Schedule).

 

The subitem provides that the amendments made by the items referred to are applicable in relation  Division 2 of Part 3 of Chapter 11 for retirements that occur on or after 1 July 2013.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 7 commence on and from
1 July 2013.

 


Schedule 8 – Remittal power of Veterans’ Review Board

 

Overview

 

The amendments in Schedule 8 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to provide the Veterans’ Review Board with an explicit power to remit a matter to the MRCC for needs assessment and compensation.

 

Background

 

Chapter 8 of the Military Rehabilitation and Compensation Act provides for the reconsideration and review of determinations made by the MRCC. 

 

Briefly, there are two pathways for review under the Military Rehabilitation and Compensation Act.  The claimant may choose between having the decision reviewed by the MRCC or the Veterans’ Review Board.  If dissatisfied with this subsequent decision, the claimant can apply to the Administrative Appeals Tribunal. 

 

Part 4 of Chapter 8 of the Military Rehabilitation and Compensation Act provides for the review by the Veterans Review Board of original determinations.  Section 353 of the Military Rehabilitation and Compensation Act sets out which provisions of Part IX of the Veterans’ Entitlements Act are applicable under the Military Rehabilitation and Compensation Act and the context in which those provisions are applicable.

 

The jurisdiction of the Veterans Review Board in reviewing a claim for liability or compensation under the Military Rehabilitation and Compensation Act, extends to making whatever determination the MRCC could have made.  

 

Section 325 of the Military Rehabilitation and Compensation Act provides that a needs assessment must be undertaken before the determination of a claim for compensation.  In the circumstances where the MRCC has accepted liability for the injury or disease, and has conducted the needs assessment, the information would be available to the Veterans Review Board.

 

However, where liability for the injury or disease was rejected by the MRCC, but subsequently accepted by the Veterans Review Board, the information required to determine the claimants entitlements under the Military Rehabilitation and Compensation Act (compensation) would not be available to the Veterans Review Board as the MRCC would not have conducted a needs assessment. 

 

Item 5 of the table in subsection 353(2) of the Military Rehabilitation and Compensation Act modifies section 139 of the Veterans’ Entitlements Act for the purposes of the Military Rehabilitation and Compensation Act so that the Veterans Review Board may remit a matter to the MRCC to assess the rate of compensation payable to a person.  However, this is only possible in limited circumstances where the MRCC has accepted liability for the injury or disease and has determined the rate of compensation payable and that rate is the matter at issue. 


Where liability for the injury or disease (and consequently any concurrent claim for compensation) was rejected by the MRCC, but subsequently accepted by the Veterans Review Board,  the Veterans Review Board currently does not have the power to remit a matter to the MRCC to conduct a needs assessment and determine the person’s compensation entitlements under the Military Rehabilitation and Compensation Act.  Instead, the Veterans Review Board must adjourn the hearing upon accepting liability for the injury of disease, request the MRCC to conduct an investigation and provide a report to the Veterans Review Board in respect of the relevant matters, such as needs assessment, rehabilitation and compensation. The request to the MRCC is made under section 152 of the Veterans' Entitlements Act as modified by section 353 of the Military Rehabilitation and Compensation Act.

 

Where liability for the injury or disease was rejected by the MRCC, but subsequently accepted by the Veterans Review Board, it will be a more effective process for the matter to be remitted to the MRCC to conduct the needs assessment and subsequent investigations and determination. 

 

These amendments will, where the Veterans Review Board has accepted liability for the injury or disease that was initially rejected by the MRCC, enable the Veterans Review Board to remit the matter to the MRCC to conduct the needs assessment and subsequent investigations and determine compensation. 

 

Explanation of the  items

 

Item 1 inserts a new subsection 353A after section 353 of the Military Rehabilitation and Compensation Act.  New subsection 353A(1) provides that where the MRCC has rejected a claim for liability for a service injury or disease, that was also a claim for compensation in respect of that service injury or disease, and upon review, the Veterans Review Board accepts liability for the  service injury or disease, the Veterans Review Board may require the MRCC to reconsider the claim for compensation.

 

A note at the end of new subsection 353A(1) advises that a determination of the Veterans Review Board in relation to liability for a service injury or disease is a reviewable determination and may be reviewed under Part 5 of the Military Rehabilitation and Compensation Act.

 

New subsection 353A(2) further provides that if the Veterans Review Board requires the MRCC to reconsider such a claim for compensation, the MRCC must carry out a needs assessment and make a determination in relation to the compensation aspect of the claim. 

 

A note at the end of new subsection 353A(2) advises that a determination of the MRCC in relation to compensation for the service injury or disease is an original determination and may be reconsidered under Part 3 of the Military Rehabilitation and Compensation Act or Part 4 of Chapter 8 of the Military Rehabilitation and Compensation Act.


New subsection 353A(3) provides that where the MRCC has rejected a claim for liability for a service injury or disease, and there was also a later claim for compensation in respect of that service injury or disease, lodged before the claim for liability had been determined by the MRCC, and upon review, the Board accepts liability for the service injury or disease, the Board may require the MRCC to reconsider the claim for compensation.

 

A note at the end of new subsection 353A(3) advises that a determination of the Board in relation to liability for a service injury or disease is a reviewable determination and may be reviewed under Part 5 of the Military Rehabilitation and Compensation Act.

 

New subsection 353A(4) further provides that if the Board requires the MRCC to reconsider such a claim for compensation, the MRCC must carry out a needs assessment and make a determination in relation to the compensation aspect of the claim. 

 

A note at the end of new subsection 353A(4) advises that a determination of the MRCC in relation to compensation for the service injury or disease is an original determination and may be reconsidered under Part 3 of the Military Rehabilitation and Compensation Act or Part 4 of Chapter 8 of the Military Rehabilitation and Compensation Act.

 

New subsection 353A(5) makes it clear that new section 353A does not limit the powers of the Board on a review of an original determination. 

 

Item 2 is an application provision.  In accordance with item 2, the amendments apply in relation to a determination of the Board accepting liability for a service injury or disease under paragraph 353A(1)(d) or (3)(d) made on or after 1 July 2013. 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 8 commence on and from
1 July 2013. 


Schedule 9 – Membership of the Military Rehabilitation and Compensation Commission

 

Overview

 

The amendments in Schedule 9 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to increase the membership of the MRCC.

 

Background

 

The MRCC was established under Chapter 9 of the Military Rehabilitation and Compensation Act as a five-person commission with responsibility for administering the Military Rehabilitation and Compensation Act and defence related claims under the Safety, Rehabilitation and Compensation Act.  

Membership of the MRCC is set out in section 364 of the Military Rehabilitation and Compensation Act and consists of the three members of the Repatriation Commission, a member nominated by the Minister administering the Safety, Rehabilitation and Compensation Act, and a member nominated by the Minister for Defence.

 

Given the breadth and complexity of the OHS and compensation issues facing the Defence Force, it was proposed that an additional Defence member be appointed to the MRCC as the second member nominated by the Minister for Defence from the Department of Defence or the Defence Force.  

 

The Government agreed that such an appointment would be of significant benefit to both the MRCC and Defence as it would, for example, facilitate the improvements necessary to allow DVA and Defence to share information more effectively.

 

Explanation of the  items

 

Item 1 amends subparagraph 364(1)(b)(iii) to provide that the Minister for Defence is to nominate 2 persons as members of the MRCC.

 

Items 2 to 4 are technical amendments as a consequence of item 1. 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 9 commence on the day the Act receives Royal Assent.


Schedule 10 – Aggravation of or material contribution to war-caused or defence-caused injury or disease

 

Overview

 

The amendments in Schedule 10 will give effect to the Government decision in response to the Review of Military Compensation Arrangements to require all claims for conditions accepted under the Veterans’ Entitlements Act and aggravated by defence service after 1 July 2004 to be determined under the Veterans’ Entitlements Act, rather than offering a choice between the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act, which is currently the case.

 

Background

 

At the time the Military Rehabilitation and Compensation Act was enacted it was intended that it would not interfere with the compensation entitlements of Veterans’ Entitlements Act beneficiaries.  This intention was achieved by the inclusion of transitional provisions in the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CTPA) which clarified the interaction between the Military Rehabilitation and Compensation Act, the Veterans' Entitlements Act and the Safety, Rehabilitation and Compensation Act.

 

A claim for the aggravation of an injury or disease accepted under the Veterans' Entitlements Act, where the aggravation occurred as a result of service rendered on or after 1 July 2004, requires the claimant to make a choice under section 12 of the CTPA (known as a section 12 election). Those choices are to either:

·         make an application for an increase under the Veterans' Entitlements Act for the aggravation of the injury or disease which will mean that both the underlying injury and disease and the aggravated component will be pensionable under the Veterans' Entitlements Act; or

  • make a claim under the Military Rehabilitation and Compensation Act for acceptance of liability for the aggravation which will mean that the underlying injury or disease will remain pensionable under the Veterans' Entitlements Act, while the aggravated component may be compensated under the Military Rehabilitation and Compensation Act.

 

The first option involves an exception to the general date of injury approach that usually applies under the Military Rehabilitation and Compensation Act transitional provisions.  However, it ensures that the operation of the Military Rehabilitation and Compensation Act does not interfere with the entitlements of Veterans' Entitlements Act beneficiaries.

 

The section 12 election process is complex and can result in confused and anxious claimants and is administratively burdensome for the Department.

 


Since the commencement of the Military Rehabilitation and Compensation Act most section 12 claimants have elected to proceed under the Veterans' Entitlements Act rather than claim under the Military Rehabilitation and Compensation Act.  A number of other issues relating to the difficulties in the administration of section 12 elections were also identified during the conduct of the MRCA Review.

 

Explanation of the changes

 

The amendments to the CTPA made by this Schedule remove the section 12 election provisions and replaces them with provisions stipulating that all claims relating to an existing Veterans' Entitlements Act injury or disease aggravated by service on or after 1 July 2004, must be claimed under the Veterans' Entitlements Act and cannot be claimed under the Military Rehabilitation and Compensation Act

 

The amendments also repeal and substitute section 9 of the CTPA with the new provision clearly stating that the Military Rehabilitation and Compensation Act will not apply to the aggravation or material contribution of a war or defence-caused injury or disease accepted under the Veterans' Entitlements Act that has been aggravated by service on or after 1 July 2004.

 

Paragraph 13(1)(b)(i) of the CTPA is repealed and substituted with new paragraph that provides that the section will apply to a claim made under section 319 of the Military Rehabilitation and Compensation Act in respect of an aggravation of, or a material contribution to a war-caused or defence caused in jury or disease that is within the meaning of the Veterans' Entitlements Act.

 

The Schedule also includes a number of consequential amendments to the Veterans' Entitlements Act.

 

Explanation of the  items

 

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004

 

Items 1 to 4 are minor amendments to sections 7 and 8 to insert a new subsection (2A) which provides that subsection (2) of each section will be subject to section 9 (as inserted by Item 5 of this Schedule).  The new subsections 7(2A) and 8(2A) include a note that refers to new section 9 setting out the circumstances where the Military Rehabilitation and Compensation Act will not apply to aggravations of, or material contributions to Veterans’ Entitlements Act injuries or diseases.

 

The redundant notes 1 and 2 to subsections 7(2) and 8(2) are repealed and substituted with notes that refer to section 4AA of the Safety, Rehabilitation and Compensation Act which provides that the Act will not be applicable after 1 July 2004 to aggravations and material contributions to injuries or diseases sustained or contracted before that date.

 


Item 5 repeals and substitutes section 9.  The new section provides that the Military Rehabilitation and Compensation Act will not apply to aggravations of, or material contributions to, injuries or diseases defined as being war-caused or defence caused injuries or diseases under the Veterans' Entitlements Act.

 

New subsection 9(1) provides that in the following  circumstances:

·         before 1 July 2004, a person was suffering from a war-caused or defence-caused injury or disease (within the meaning of the Veterans' Entitlements Act); and

  • there is an aggravation of, or a material contribution to that injury or disease on or after 1 July 2013; and
  • the aggravation or material contribution either:

o   relates to defence service rendered by the person on or after 1 July 2013; or

    • relates to defence service rendered by the person before, and on or after 1 July 2013;

the Military Rehabilitation and Compensation Act will not apply to that aggravation or material contribution.

 

A note to the new subsection refers the reader to section 15 of the Veterans' Entitlements Act where a person may be able to apply for an increase in the rate of disability pension on the ground that the incapacity of the person has increased because of the aggravation of, or material contribution to, that injury or disease.

 

New subsection 9(2) provides that to avoid doubt, defence service is rendered before, and on or after 1 July 2013 whether the service spans that date or is rendered during separate periods of defence service before and on or after that date.

 

New subsection 9(3) provides that in the following  circumstances:

·         before 1 July 2004, a person was suffering from a war-caused or defence-caused injury or disease (within the meaning of the Veterans' Entitlements Act); and

  • there is an aggravation of, or a material contribution to that injury or disease before 1 July 2013; and
  • the aggravation or material contribution either:

o   relates to defence service rendered by the person on or after 1 July 2004; or

    • relates to defence service rendered by the person before, and on or after 1 July 2004; and

·         immediately before 1 July 2013, the person had not made a choice under subsection 12(2) of this Act between making a claim under section 319 of the Military Rehabilitation and Compensation Act for acceptance of liability for the aggravated injury or disease; or applying under section 15 of the Veterans' Entitlements Act for an increase in the rate of disability pension in respect of the aggravated injury or disease;

the Military Rehabilitation and Compensation Act will not apply to that aggravation or material contribution.


A note to the new subsection refers the reader to section 15 of the Veterans' Entitlements Act where a person may be able to apply for an increase in the rate of disability pension on the ground that the incapacity of the person has increased because of the aggravation of, or material contribution to, that injury or disease.

 

New subsection 9(4) provides that to avoid doubt, defence service is rendered before, and on or after 1 July 2004 whether the service spans that date or is rendered during separate periods of defence service before and on or after that date.

 

New subsection 9(5) provides that in the following  circumstances:

·         before 1 July 2004, a person was suffering from a war-caused or defence-caused injury or disease (within the meaning of the Veterans' Entitlements Act); and

  • there is an aggravation of, or a material contribution to that injury or disease on or after 1 July 2013; and
  • the aggravation or material contribution has occurred as an unintended consequence of a kind that is defined in section 29 of the Military Rehabilitation and Compensation Act (being a service injury, service disease and service death that has arisen from treatment provided by the Commonwealth); and
  • the treatment is provided either:

o   on or after 1 July 2013; or

    • before, and on or after 1 July 2013;

the Military Rehabilitation and Compensation Act will not apply to that aggravation or material contribution.

 

A note to the new subsection refers the reader to section 15 of the Veterans' Entitlements Act where a person may be able to apply for an increase in the rate of disability pension on the ground that the incapacity of the person has increased because of the aggravation of, or material contribution to, that injury or disease.

 

New subsection 9(6) provides that to avoid doubt, treatment is provided before, and on or after 1 July 2013 whether the treatment spans that date or is provided during separate periods before and on or after that date.

 

New subsection 9(7) provides that in the following  circumstances:

·         before 1 July 2004, a person was suffering from a war-caused or defence-caused injury or disease (within the meaning of the Veterans' Entitlements Act); and

  • there is an aggravation of, or a material contribution to that injury or disease before 1 July 2013; and
  • the aggravation or material contribution has occurred as an unintended consequence of a kind that is defined in section 29 of the Military Rehabilitation and Compensation Act (being a service injury, service disease and service death that has arisen from treatment provided by the Commonwealth); and

  • the treatment is provided either:
    • on or after 1 July 2004; or
    • before, and on or after 1 July 2004; and

·         immediately before 1 July 2013, the person had not made a choice under subsection 12(2) of this Act between making a claim under section 319 of the Military Rehabilitation and Compensation Act for acceptance of liability for the aggravated injury or disease; or applying under section 15 of the Veterans' Entitlements Act for an increase in the rate of disability pension in respect of the aggravated injury or disease;

the Military Rehabilitation and Compensation Act will not apply to that aggravation or material contribution.

 

A note to the new subsection refers the reader to section 15 of the Veterans' Entitlements Act where a person may be able to apply for an increase in the rate of disability pension on the ground that the incapacity of the person has increased because of the aggravation of, or material contribution to, that injury or disease.

 

New subsection 9(8) provides that to avoid doubt, treatment is provided before, and on or after 1 July 2004 whether the treatment spans that date or is provided during separate periods before and on or after that date.

 

Item 6 repeals section 12.  The provisions of section 12 are discussed in the Background to this Schedule.

 

Item 7 repeals and substitutes paragraph 13(1)(b).  Section 13 provides for the bringing across to the Military Rehabilitation and Compensation Act of the impairment points from a Veterans' Entitlements Actor Safety, Rehabilitation and Compensation Act injury or disease.

 

New paragraph 13(1)(b) provides that a where a claim is made under section 319 of the Military Rehabilitation and Compensation Act in respect of an aggravation of, or a material contribution to:

  • a sign or symptom of a war-caused or defence-caused injury or disease (within the meaning of the Veterans' Entitlements Act) is referred to as the old injury or disease (for the purposes of section 13); or
  • an injury or disease (within the meaning of the Safety, Rehabilitation and Compensation Act) is referred to as the old injury or disease (for the purposes of section 13) or a sign or symptom of such an injury or disease or

 

Item 8 is an application provision which provides that the amendment made by Item 7 repealing and substituting paragraph 13(1)(b) will be applicable to claims made on or after 1 July 2013 under section 319 of the Military Rehabilitation and Compensation Act

 

Veterans’ Entitlements Act 1986

 

Item 9 repeals subsection 9A(2).  Section 9A provides that injuries, diseases or deaths relating to service on or after or before, and on or after 1 July 2004 would no longer


be covered under the Veterans' Entitlements Act as compensation would be provided under the Military Rehabilitation and Compensation Act.

 

Repealed subsection 9A(2) had the effect of closing off liability under the Veterans' Entitlements Act for an aggravated injury or disease if the aggravation occurs on or after the commencement of the Military Rehabilitation and Compensation Act on 1 July 2004 and:

·         the aggravation relates to service rendered on or after 1 July 2004; or

  • the aggravation relates to a continuous period or contiguous periods of service which spanned a period before the 1 July 2004 and on or after that date; and
  • the person has lodged a claim for the aggravation under the Military Rehabilitation and Compensation Act.

 

Item 10 repeals subsection 15(1A) which had been applicable in the circumstances where a person has elected under section 12 of the CTPA to make a claim under the Military Rehabilitation and Compensation Act in relation to the aggravation or material contribution by defence service under the Military Rehabilitation and Compensation Act to an injury or disease for which compensation has been claimed under the Veterans' Entitlements Act.

 

Subsection 15(1A) had the effect that a person who has made a claim under section 12 of the CTPA will not be entitled to make a claim under the Veterans' Entitlements Act for an increase in the rate of disability pension as a result of that aggravation or material contribution.

 

Item 11 repeals subsection 70A(2).  Section 70A provides that defence-caused injuries, diseases or deaths relating to service on or after or before, and on or after 1 July 2004 would no longer be covered under the Veterans' Entitlements Act as compensation would be provided under the Military Rehabilitation and Compensation Act.

 

Repealed subsection 70A(2) has the effect of closing off liability under the Veterans' Entitlements Act for an aggravated injury or disease if the aggravation occurs on or after 1 July 2004 and:

·         the aggravation relates to service rendered on or after 1 July 2004; or

·         the aggravation relates to a continuous period or contiguous periods of service which spanned a period before 1 July 2004 and on or after that date; and

·         the person has lodged a claim for the aggravation under the Military Rehabilitation and Compensation Act.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 10  commence on and from
1 July 2013.


Schedule 11 –Treatment for certain SRCA injuries

 

Overview

 

The amendments in Schedule 11 give effect to the Government decision, in response to the Review of Military Compensation Arrangements, to issue Repatriation Health Cards – For Specific Conditions (White Cards) to Part XI defence-related claimants under the Safety, Rehabilitation and Compensation Act (SRCA members).  This initiative is intended to achieve consistency in treatment arrangements for all former Defence Force members.  SRCA members with an injury accepted under the Safety, Rehabilitation and Compensation Act as being related to service (SRCA injury), will be entitled to treatment for a SRCA injury under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act in accordance with the arrangements established under those Acts. 

 

Background

 

Under both the Military Rehabilitation and Compensation Act and the Veterans’ Entitlements Act, the MRCC and Repatriation Commission respectively have established arrangements with health care providers, hospitals and other institutions for the provision of treatment to veterans, former members and their dependants.   Under the existing arrangements under the Safety, Rehabilitation and Compensation Act, the MRCC is liable to pay compensation for medical expenses reasonably incurred for injuries, including diseases, accepted under the Safety, Rehabilitation and Compensation Act as related to defence service.  

 

Under this initiative, treatment for a SRCA injury will be provided to SRCA members under either the Veterans’ Entitlements Act or the Military Rehabilitation and Compensation Act.  The initiative will initially be implemented in relation to SRCA members who have received treatment between 1 January 2012 and 9 December 2013 and SRCA members lodging defence-related claims for injury on and from
10 December 2013.   

 

The arrangements will be similar to those that applied to veterans and members when the Military Rehabilitation and Compensation Act was enacted in 2004, whereby a person entitled to treatment under both the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act receives treatment under the Military Rehabilitation and Compensation Act. 

 

This means that, on and after 10 December 2013, a SRCA member who is entitled to treatment for all conditions (Gold Card) under the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act, will receive treatment for any SRCA injury under that Act.  If a SRCA member is entitled to treatment for all conditions (Gold Card) under both the Military Rehabilitation and Compensation Act and the Veterans’ Entitlements Act, the person will receive treatment for any SRCA injury under the Military Rehabilitation and Compensation Act. On and after
10 December 2013, Gold Card holders will not be entitled to claim compensation for medical expenses under the Safety, Rehabilitation and Compensation Act for a SRCA injury.  However, provision has been made to enable the MRCC to, in exceptional


circumstances, determine that a SRCA member may continue to claim compensation for medical expenses under the Safety, Rehabilitation and Compensation Act for a SRCA injury. 

 

Similarly, on and after 10 December 2013, a SRCA member who has received treatment for a SRCA injury between 1 January 2012 and 9 December 2013, and who is entitled to treatment for specific conditions (White Card) under the Military Rehabilitation and Compensation Act, will receive treatment under the Military Rehabilitation and Compensation Act for any SRCA injury.

 

On and after 10 December 2013, a SRCA member who has received treatment for a SRCA injury between 1 January 2012 and 9 December 2013, and who is entitled to treatment for specific conditions (White Card) under the Veterans’ Entitlements Act but not under the Military Rehabilitation and Compensation Act, will receive treatment under the Veterans’ Entitlements Act for any SRCA injury. 

 

From 10 December 2013, a SRCA member who has been treated for a SRCA injury between 1 January 2012 and 9 December 2013, and who has no existing entitlement to treatment under either the Military Rehabilitation and Compensation Act  or Veterans’ Entitlements Act, will receive treatment under the Military Rehabilitation and Compensation Act for any SRCA injury. 

 

For SRCA members who have not received treatment for a SRCA injury or disease during the period 1 January 2012 and 9 December 2013, when a person claims compensation under 16(1) of the Safety, Rehabilitation and Compensation Act on or after 10 December 2013, the MRCC may determine that the person will receive treatment under either the Military Rehabilitation and Compensation Act  or Veterans’ Entitlements Act, depending on any existing entitlement of the SRCA member under those Acts.

 

SRCA members will be entitled to the full range of treatment services available under the applicable Act in accordance with the Treatment Principles, Private Patient Principles and Pharmaceutical Benefits Schemes determined under the Act. 

 

The Department will contact affected SRCA members by telephone and letter to explain the changes before they commence on 10 December 2013. 

 

The initiative will not affect other compensation entitlements under the Safety, Rehabilitation and Compensation Act.  SRCA members will continue to be entitled to:

 

  • travelling expenses for treatment (received under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act);
  •  rehabilitation; and
  • other compensation including compensation for incapacity and permanent impairment;

under the Safety, Rehabilitation and Compensation Act.  Compensation for injuries resulting in death will also be unaffected. 


Explanation of the  items

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 revises the simplified outline for Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act to include information about the new treatment arrangements for SRCA members.

 

Item 2 inserts new subsection 280A after section 280 of the Military Rehabilitation and Compensation Act. New subsection 280A(1) provides that, if table item 1 of the table in new subsection 144B(3) of the Safety, Rehabilitation and Compensation Act applies to a person, then the person is entitled to be provided with treatment under Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act for a SRCA injury.  (The Safety, Rehabilitation and Compensation Act definition of ‘injury’ includes disease.) 

 

Note 1 after new subsection 280A(1) advises that table item 1 applies to SRCA members who are not already entitled to treatment under the Military Rehabilitation and Compensation Act or Veterans’ Entitlements Act.  Many SRCA members have dual or triple entitlement under the Safety, Rehabilitation and Compensation Act, the Veterans’ Entitlements Act or the Military Rehabilitation and Compensation Act and so may be entitled to treatment under the Military Rehabilitation and Compensation Act for a service injury or disease or the Veterans’ Entitlements Act for a war or defence-caused injury or disease. 

 

Note 2 advises that the cost of treatment provided to a SRCA member under new subsection 280A(1) is paid for under the Safety, Rehabilitation and Compensation Act appropriation; see also new subsection 160(2) of the Safety, Rehabilitation and Compensation Act.

 

New subsection 280A(2) provides that, if table item 2 of the table in new subsection 144B(3) of the Safety, Rehabilitation and Compensation Act applies to a person, then the person is entitled to be provided with treatment under Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act for any SRCA injury. 

 

Note 1 after new subsection 280A(2) advises that table item 2 applies to SRCA members who are entitled to treatment under section 279 or 280 of the Military Rehabilitation and Compensation Act.  This means a SRCA member will already have a White Card and is entitled to treatment under the Military Rehabilitation and Compensation Act  for specific service injuries or diseases. 

 

Note 2 advises that the treatment provided for a SRCA member entitled to treatment under new subsection 280A(2) is paid for under the Military Rehabilitation and Compensation Act  appropriation; see also section 423 of the Military Rehabilitation and Compensation Act.


Item 3 amends section 289 of the Military Rehabilitation and Compensation Act.  Section 289 of the Military Rehabilitation and Compensation Act  defines ‘compensable treatment’ for the purposes of paying compensation for travel costs for obtaining treatment.  Item 3 excludes treatment provided under section 280A of the Military Rehabilitation and Compensation Act from the definition of ‘compensable treatment’.  This means that a SRCA member must claim travel expenses for treatment obtained under the Military Rehabilitation and Compensation Act, under subsections 16(6) to (8) of the Safety, Rehabilitation and Compensation Act.  This arrangement is explained in the note inserted by Item 4 at the end of the definition of ‘compensable treatment’ in section 289. 

 

Item 5 is a technical drafting amendment as a consequence of item 6.

 

Item 6 inserts Note 2 at the end of section 300 of the Military Rehabilitation and Compensation Act.  Section 300 of the Military Rehabilitation and Compensation Act  provides that a person is eligible for MRCA supplement if the person is entitled to treatment under Part 3 of Chapter 6.  SRCA members entitled to treatment under new subsection 280A will therefore be eligible for MRCA supplement.  MRCA supplement is paid fortnightly to assist with the cost of pharmaceuticals. 

 

Note 2 provides that MRCA supplement payable in relation to treatment provided under subsection 280A(1) is paid for under the Safety, Rehabilitation and Compensation Act appropriation, see new subsection 160(2) of the Safety, Rehabilitation and Compensation Act.

 

Item 7 amends paragraph 423(a) of the Military Rehabilitation and Compensation Act  by inserting after the words ‘or 258’, the words ‘, or 300 in relation to treatment provided under subsection 280A(1)’.  This amendment means that the cost of MRCA supplement payable to a person entitled to treatment under new subsection 280A(1) is not appropriated under the Military Rehabilitation and Compensation Act.  The cost of MRCA supplement payable to a person entitled to treatment under new subsection 280A(1) is appropriated under new paragraph 160(2)(b) of the Safety, Rehabilitation and Compensation Act.

 

Item 8 amends paragraph 423(c) of the Military Rehabilitation and Compensation Act  by inserting after the words ‘Chapter 6’, the words ‘(other than under subsection 280A(1) (treatment for certain SRCA injuries)’.  This amendment means that the cost of treatment provided to SRCA members under new subsection 280A(1) is not appropriated under the Military Rehabilitation and Compensation Act.  New note 2 inserted by Item 10 advises that the cost of treatment for SRCA members entitled to treatment under new subsection 280A(1) is appropriated under new subsection 160(2) of the Safety, Rehabilitation and Compensation Act.

 

Item 9 is a technical drafting amendment as a consequence of item 10.


Safety, Rehabilitation and Compensation Act 1988

 

Item 11 inserts a note at the end of subsection 16(1) to advise that compensation for medical expenses under subsection 16(1) is not payable in relation to certain defence-related claims.

 

Item 12 revises the simplified outline in section 140 of the Safety, Rehabilitation and Compensation Act to include a reference to managing the new treatment arrangements for SRCA members which involves the provision of treatment. 

 

Item 13 amends paragraph 142(1)(b) of the Safety, Rehabilitation and Compensation Act  to include, as a function of the MRCC, arranging for the provision of treatment, including treatment provided under the Military Rehabilitation and Compensation Act  or Veterans’ Entitlements  Act.  

 

Item 14 inserts new Division 2A after Division 2 of Part XI of the Safety, Rehabilitation and Compensation Act.

 

Division 2A – Treatment of certain defence-related injuries

 

New paragraph 144A(1)(a) provides that, if an employee (SRCA member) is entitled to be provided with treatment under section 281 or 282 of the Military Rehabilitation and Compensation Act (the person has a Gold Card under the Military Rehabilitation and Compensation Act), then the MRCC is not liable to pay compensation for medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act  in respect of any SRCA injury of the SRCA member.

 

New paragraph 144A(1)(b) provides that, if a SRCA member is entitled to be provided with treatment under section 53D or subsection 85(3), (4), (4A), (4B), (5), (7) or (7A) of the Veterans’ Entitlements Act (the person has a Gold Card under the Veterans’ Entitlements Act), then the MRCC is not liable to pay compensation for medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act in respect of any SRCA injury of the SRCA member.

 

A note at the end of new subsection 144A advises that the definition of ‘injury’ in section 5A of the Safety, Rehabilitation and Compensation Act, includes a disease. 

 

The effect of new subsection 144A is that Gold Card holders with SRCA injuries should use their Gold Card to obtain treatment for their SRCA injuries. 

 

New subsection 144A(2) provides that, if there are exceptional circumstances, the MRCC may determine in writing, that subsection 144A(1) does not apply to a SRCA member.  The determination will apply on and from a day specified in the determination. 

 

This means that, where the MRCC make a determination in relation to an employee (SRCA member), the SRCA member may continue to claim reimbursement for


medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act.

 

New subsection 144A(3) requires the MRCC to notify the employee (SRCA member) of the determination within 7 days.

 

New subsection 144A(4) makes it clear that a determination made under subsection 144A(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.  A determination under subsection 144A(2) is not legislative in character and, accordingly, subsection 144A(4) is merely declaratory of the law. 

 

New subsection 144B(1) provides that new section 144B applies to an employee (SRCA member) and a SRCA injury if the following circumstances apply:

 

  • a defence-related claim for compensation has been made for the SRCA injury; and
  • the MRCC accepted liability for the SRCA injury; and
  • between 1 January 2012 and 9 December 2013, the SRCA member received treatment for which the MRCC was liable to pay compensation for medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act.

 

This means that the subsection applies to a SRCA member who, as provided for in subparagraph 144B(1)(c)(i), received treatment for a SRCA injury between 1 January 2012 and 9 December 2013.  If the section applies to a SRCA member, then the rules in the table in subsection 144B(3) will determine whether treatment is to be provided for a SRCA injury under the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act on and from
10 December 2013.

 

New subsection 144B(1) also provides that new section 144B applies to a SRCA member and a SRCA injury if the following circumstances apply:

 

  • a defence-related claim for compensation has been made for the SRCA injury; and
  • as provided for in paragraph 144B(1)(b) and subparagraph 144B(1)(c)(ii), the MRCC accepted liability for the SRCA injury on or after 10 December 2013.

 

This means that the subsection applies if a SRCA member has lodged a claim under the Safety, Rehabilitation and Compensation Act for a SRCA injury and the MRCC accept liability for the SRCA injury on or after 10 December 2013, in accordance with subparagraph 144B(1)(c)(ii).  If the section applies to a SRCA member, then the rules in the table in subsection 144B(3) will determine whether the person is entitled


to treatment under the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act for the SRCA injury. 

 

New subsection 144B(1) further provides that new section 144B applies to a SRCA member and a SRCA injury if the following circumstances apply:

 

  • a defence-related claim for compensation has been made for the SRCA injury; and
  • the MRCC accepted liability for the SRCA injury on or before
    9 December 2013; and
  • as provided for in subparagraph 144B(1)(c)(iii), the MRCC determines, under new subsection 144B(2) that section 144B applies to the SRCA member and the SRCA injury.

 

This means that the section applies to a SRCA member with an accepted SRCA injury who has not received treatment for the SRCA injury under the Safety, Rehabilitation and Compensation Act during the period 1 January 2012 and 9 December 2013, and who receives treatment for a SRCA injury on or after 10 December 2013.  If the section applies to a SRCA member, because of a determination made under new subsection 144B(2), then the rules in the table in subsection 144B(3) will determine whether the person is to be provided with treatment under the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act for all SRCA injuries.  The SRCA member will be entitled to compensation for medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act for any treatment provided prior to the date the determination takes effect. 

 

A note at the end of new subsection 144B(1) advises that, under new subsection 144C, the MRCC may also determine that subparagraph (1)(c)(i) or (ii) does not apply. 

 

New subsection 144B(2) provides that if the MRCC accepted liability for a SRCA member’s SRCA injury on or before 9 December 2013 and between 1 January 2013 and 9 December 2013, no treatment was provided for a SRCA injury, the MRCC may determine, in writing, that section 144B applies to the SRCA member in relation to a SRCA injury.  The determination will apply on and from a day specified in the determination.

 

The table in new subsection 144B(3) sets out the conditions that determine whether a SRCA member will be provided with treatment under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act.  

 

In accordance with table item 1 of new subsection 144B(3), if a SRCA member does not already have a Gold Card or a White Card, then the person will be provided with treatment for a SRCA injury under section 280A of the Military Rehabilitation and Compensation Act.

 

In accordance with table item 2 of new subsection 144B(3), if a SRCA member has a White Card for conditions accepted under the Military Rehabilitation and

Compensation Act, then the person will be provided with treatment for a SRCA injury under section 280A of the Military Rehabilitation and Compensation Act. 

 

In accordance with table item 3 of new subsection 144B(3), if a SRCA member has a White Card for conditions accepted under the Veterans’ Entitlements Act, and no conditions accepted under the Military Rehabilitation and Compensation Act, then the SRCA member will be provided with treatment for a SRCA injury under subsection 85(2A) of the Veterans’ Entitlements Act. 

 

Note 1 advises that the SRCA member is entitled to be provided with treatment under the Military Rehabilitation and Compensation Act or Veterans’ Entitlements Act if section 280A of the Military Rehabilitation and Compensation Act or subsection 85(2A) of the Veterans’ Entitlements Act applies to the SRCA member and the SRCA injury. 

 

Note 2 advises that subsection 144B(3) is subject to section 144C.

 

Note 3 advises that the Safety, Rehabilitation and Compensation Act definition of ‘injury’ under section 5A, includes a disease.

 

New paragraph 144B(4)(a) provides that a SRCA member to whom subparagraph 144B(1)(c)(i) applies is entitled to be provided with treatment in accordance with the table in subsection 144B(3) on and after 10 December 2013.

 

New paragraph 144B(4)(b) provides that a SRCA member to whom subparagraph 144B(1)(c)(ii) applies is entitled to be provided with treatment in accordance with the table in subsection 144B(3) on and after the day the MRCC accepts liability for an initial SRCA injury. 

 

New paragraph 144B(4)(c) provides that a SRCA member to whom subparagraph 144B(1)(c)(iii) applies is entitled to be provided with treatment in accordance with the table in subsection 144B(3) on and after the day specified in the determination.

 

New subsection 144B(5) provides that a SRCA member is not entitled to compensation for medical expenses for any SRCA injury under subsection 16(1) of the Safety, Rehabilitation and Compensation Act, if as a result of the table in subsection 144B(3), the SRCA member is entitled to treatment for any SRCA injury under the Military Rehabilitation and Compensation Act or Veterans’ Entitlements Act. 

 

New subsection 144B(6) provides that compensation for travelling expenses (in accordance with subsections 16(6) to 16(8) of the Safety, Rehabilitation and Compensation Act ) is payable for treatment provided under the Military Rehabilitation and Compensation Act or Veterans’ Entitlements Act. 

 

New subsection 144B(7) makes it clear that a determination made under subsection 144B(2) is not a legislative instrument within the meaning of section 5 of the

Legislative Instruments Act 2003.  A determination under subsection 144B(2) is not legislative in character and accordingly, subsection 144B(7) is merely declaratory of the law. 

 

The effect of new subsection 144C(1) is that the MRCC may determine in writing that, on and from a specified day, a SRCA member who would otherwise be subject to the table in subsection 144B(3), may continue to receive compensation for medical expenses under subsection 16(1) of the Safety, Rehabilitation and Compensation Act  instead of treatment provided under the Military Rehabilitation and Compensation Act  or Veterans’ Entitlements Act. 

 

New subsection 144C(2) requires the MRCC to notify the SRCA member of a determination made under subsection 144C(1) within 7 days. 

 

New subsection 144C(3) makes it clear that a determination made under subsection 144C(1) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.  A determination under subsection 144C(1) is not legislative in character and accordingly, subsection 144C(3) is merely declaratory of the law. 

 

Item 15 inserts new subsection 151A after section 151.  New subsection 151A provides that the MRCC, or a staff member assisting the MRCC, may provide any information obtained in the performance of duties under this Act to the persons specified in paragraphs 151A(a) to (e) for the purposes of the applicable Department or agency.  The persons specified in paragraphs 151A(a) to (e) are: 

 

·         the Secretary of the Department administered by the Minister who administers the National Health Act 1953;

·         the Secretary of the Department administered by the Minister who administers the Aged Care Act 1997;

·         the Secretary of the Department administered by the Minister who administers the Human Services (Centrelink) Act 1997;

·         the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997);

·         the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973).

New subsection 151A(2) states that the information provided to a Secretary or Chief Executive mentioned above, must not be used for purposes other than for the purposes of the Department or agency and may not be further disclosed other than for the purposes of the Department or agency.

New subsection 151A(3) makes it clears that information that is disclosed or used in accordance with this section is taken, for the purposes of the Privacy Act 1988, to be authorised by law.

Item 16 is a technical drafting amendment as a consequence of item 17.

Item 17 inserts a new subsection 160(2) at the end of section 160.  New subsection 160(2) provides that the Consolidated Revenue Fund is appropriated under the Safety,

Rehabilitation and Compensation Act for the purposes of paying for treatment, and other service in relation to treatment, provided under subsection 280A(1) of the Military Rehabilitation and Compensation Act and for MRCA supplement that is payable because person is entitled to treatment under subsection 280A(1). 

 

Veterans’ Entitlements Act 1986

 

Item 18 inserts new subsection 85(2A) after subsection 85(2) of the Veterans’ Entitlements Act.  New subsection 85(2A) means that if a SRCA member has a White Card for a condition accepted under the Veterans’ Entitlements Act and no condition accepted under the Military Rehabilitation and Compensation Act, then as a result of table item 3 in subsection 144B(3) of the SRCA, the SRCA member is to be provided with treatment under Part V of the Veterans’ Entitlements Act for a SRCA injury. 

 

Item 19 means that travelling expenses for treatment under section 110 of the Veterans’ Entitlements Act are not payable in relation to treatment for SRCA injuries obtained under subsection 85(2A). 

 

A note at the end of the subsection advises that travelling expenses for treatment obtained under subsection 85(2A) may be payable under section 16 of the Safety, Rehabilitation and Compensation Act. 

 

Item 20 is an application provision and provides that section 144A of the Safety, Rehabilitation and Compensation Act applies in relation to medical treatment obtained for a SRCA injury on or after 10 December 2013.  This means that on and from 10 December 2013, a SRCA member should use their Gold Card to obtain treatment for a SRCA injury, unless the person is the subject of a determination under subsection 144A(2). 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 11 commence on and from
10 December 2013. 

 


Schedule 12 – Members

 

Overview

 

The amendments in Schedule 12 give effect to the Government decision in response to the Review of Military Compensation Arrangements to define members undergoing career transition, personnel holding honorary ranks and authorised representatives of philanthropic organisations as ‘members’ under the Military Rehabilitation and Compensation Act.

 

Background

 

Currently, section 8 of the Military Rehabilitation and Compensation Act provides a mechanism for certain categories of persons to be declared ‘members’ for the purposes of the Act.  This mechanism has been used to provide coverage for groups such as philanthropic organisations, former Defence Force members undergoing career transition and those holding honorary rank performing official duties. 

 

The inclusion of these categories of persons as ‘members’ in the Military Rehabilitation and Compensation Act, will provide certainty about access to rehabilitation and compensation for these defined groups who are currently given access to the Military Rehabilitation and Compensation Act through a Ministerial determination. 

 

Explanation of the  items

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 amends the definition of ‘member’ in subsection 5(1) of the Military Rehabilitation and Compensation Act by inserting new paragraph (ba).  New paragraph (ba) adds to the definition of ‘member’ a person to whom section 7A applies.

 

Item 2 inserts a definition for ‘registered charity’ in subsection 5(1) of the Military Rehabilitation and Compensation Act to provide a defined term for philanthropic organisations.

 


Item 3 inserts new section 7A after section 7 of the Military Rehabilitation and Compensation Act.  Section 7A provides that for the purposes of the definition of ‘member’ in subsection 5(1), the following persons are a ‘member’ for the purposes of the Military Rehabilitation and Compensation Act:

·         a person who holds an honorary rank in the Defence Force and who performs acts at the request or direction of the Defence Force;

  • a person who, as an accredited representative of a registered charity,  performs acts at the request or direction of the Defence Force; and
  • a person who is receiving assistance under the Career Transition Assistance Scheme and who performs acts in connection with the Scheme.  The Career Transition Assistance Scheme is established under a determination under section 58B of the Defence Act 1903

 

Item 4 is a saving provision.  Item 4 provides that a current declared member determination under section 8 of the Military Rehabilitation and Compensation Act remains valid and is not affected by the amendments made by items 1 and 3.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 12 commence on and from
1 July 2013.

 


Schedule 13 – Treatment costs

 

Overview

 

The amendments in Schedule 13 will clarify the appropriation of costs for certain aged care services between the Veterans’ Entitlements Act, the Australian Participants in British Nuclear Tests (Treatment) Act and the Military Rehabilitation and Compensation Act (the Veterans’ Affairs Acts) and the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 (the Aged Care Acts). 

 

Background

 

Aged care services for eligible Veterans’ Affairs clients are regulated by both the Aged Care Acts and the Veterans’ Affairs Acts.  The Aged Care Acts provide for subsidies for aged care services generally and the Veterans’ Affairs Acts provide for treatment, including aged care services, for eligible Veterans’ Affairs clients.  Because a person who is entitled to treatment under the Veterans’ Affairs Acts may also be a person eligible for aged care services under the Aged Care Acts, arrangements had been established under the different portfolio Acts for the appropriation of costs for aged care services for eligible Veterans’ Affairs clients.  Under the arrangements, the Repatriation Commission or the MRCC accept financial responsibility for the amount of the subsidy for certain aged care services, where that subsidy would otherwise be payable under the Aged Care Act 1997

 

Proposed amendments to the Veterans’ Affairs Acts will clarify and confirm that the Repatriation Commission and the MRCC may limit their financial responsibility to particular costs in relation to certain aged care services.  The amendments will provide that the Treatment Principles authorised under the Veterans’ Affairs Acts may specify the circumstances in which and the extent to which, the relevant Commission may accept limited financial responsibility for particular costs in relation to specified kinds of treatment.  The specified particular costs may include amounts of subsidy otherwise payable under the Aged Care Acts.  Consequential amendments are also required to the Aged Care Act 1997 to clarify and confirm that a subsidy is not payable under the Aged Care Act 1997, if the Repatriation Commission or the MRCC has accepted financial responsibility, under a Veterans’ Affairs Act, for the amount of the subsidy. 

 

Explanation of the  items

 

Aged Care Act 1997

 

Item 1 repeals subsection 96-10(2) of the Aged Care Act 1997 and substitutes a new subsection 96-10(2).

 

New subsection 96-10(2) makes it clear that a subsidy is not payable under the Aged Care Act 1997 for aged care services to the extent that:


  • the Repatriation Commission has accepted financial responsibility for the amount of the subsidy as provided for in new subsection 84(3A) of the Veterans’ Entitlements Act; or
  • the MRCC has accepted financial responsibility for the amount of the subsidy as provided for in new subsection 287(2A) of the Military Rehabilitation and Compensation Act; or
  • the Repatriation Commission has accepted financial responsibility for the amount of the subsidy as provided for in new subsection 13A of the BNT Act.

 

Australian Participants in British Nuclear Tests (Treatment) Act 2006

 

Item 2 inserts a new subsection 13A after section 13 of the Australian Participants in British Nuclear Tests (Treatment) Act.  New subsection 13A provides that, in accordance with new paragraph 16(4A)(b), the Repatriation Commission may accept financial responsibility for particular costs in relation to treatment provided to an eligible person that has been arranged for by another entity.  New subsection 13A further provides that the treatment is to be of a kind specified under new paragraph 16(4A)(a).  The particular costs for which the Repatriation Commission accepts financial responsibility may include amounts of subsidy payable under Chapter 3 of the Aged Care Act 1997 or Chapter 3 of the Aged Care (Transitional Provisions) Act 1997.

 

Item 3 inserts new subsection 16(4A) after subsection 16(4) of the Australian Participants in British Nuclear Tests (Treatment) Act.  Section 16 provides that the Treatment Principles in force under section 90 of the Veterans’ Entitlements Act, or as modified under section 16 of the Australian Participants in British Nuclear Tests (Treatment) Act, apply in relation to the provision of treatment under the Australian Participants in British Nuclear Tests (Treatment) Act. 

 

New subsection 16(4A) provides that the modifications to the Treatment Principles that may be made under section 16 may include provisions that:

 

  • specify the kinds of treatment that may be arranged by an entity other than the Repatriation Commission; and
  • specify the circumstances in which, and the extent to which, the Repatriation Commission may accept financial responsibility for particular costs relating to that treatment.  The particular costs may include amounts of subsidy payable under the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997.

 

Item 4 inserts new paragraph 49(aa) after paragraph 49(a) of the Australian Participants in British Nuclear Tests (Treatment) Act.  Section 49 provides for the appropriation of funds for the cost of treatment and travelling expenses provided under the Australian Participants in British Nuclear Tests (Treatment) Act. 

 

New paragraph 49(aa) provides that the Consolidated Revenue Fund is appropriated to the extent necessary for the payment of costs for which the Repatriation


Commission has accepted financial responsibility in accordance with section 13A of the BNT Act.

 

Military Rehabilitation and Compensation Act 2004

 

Item 5 inserts new paragraph 286(1)(h) after paragraph 286(1)(g) of the Military Rehabilitation and Compensation Act.  Section 286 provides that the MRCC may make a written determination about a number of matters relating to the provision of treatment.  New paragraph 286(1)(h) provides that the MRCC may also make a written determination about:

·         the kinds of treatment that may be arranged by an entity other than the MRCC, for the purposes of paragraph 287(2A)(b); and

  • specify the circumstances in which, and the extent to which, the MRCC may accept financial responsibility for particular costs relating to that treatment.  The particular costs may include amounts of subsidy payable under the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997.

 

Item 6 replaces the heading to section 287.

 

Item 7 inserts a new subsection 287(2A) after subsection 287(2) of the Military Rehabilitation and Compensation Act.  Section 287 provides that the MRCC may arrange for treatment to be provided to a person entitled to treatment under Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act in accordance with:

·         the arrangements made under section 285; or

  • the determination made under section 286; or
  • the arrangements under section 285 and the determination made under section 286.

 

New subsection 287(2A) provides that, in accordance with new paragraph 286(1)(h), the MRCC may accept financial responsibility for particular costs in relation to treatment provided to an eligible person that has been arranged for by another entity.  New subsection 287(2A) further provides that the treatment is to be of a kind specified under new paragraph 286(1)(h).  The particular costs for which the MRCC accepts financial responsibility may include amounts of subsidy payable under Chapter 3 of the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997.

 

Item 8 inserts new paragraph 423(caa) after paragraph 423(c) of the Military Rehabilitation and Compensation Act.  Section 423 provides for the appropriation of funds for entitlements, including the cost of treatment, provided under the Military Rehabilitation and Compensation Act. 

 

New paragraph 423(caa) provides that the Consolidated Revenue Fund is appropriated for the purposes of paying costs for which the MRCC has accepted financial responsibility for in accordance with subsection 287(2A) of the Military Rehabilitation and Compensation Act.


Veterans’ Entitlements Act 1986

 

Item 9 inserts a new subsection 84(3A) after subsection 84(3) of the Veterans’ Entitlements Act.  Section 84 establishes the overarching principles for the provision of treatment under the Veterans’ Entitlements Act.  New subsection 84(3A) provides that, in accordance with new paragraph 90(1B)(a), the Repatriation Commission may accept financial responsibility for particular costs in relation to treatment provided to an eligible person that has been arranged for by another entity.  New subsection 84(3A) further provides that the treatment is to be of a kind specified under new paragraph 90(1B)(a).  The particular costs for which the Repatriation Commission accepts financial responsibility may include amounts of subsidy payable under Chapter 3 of the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997.

 

Item 10 inserts new subsection 90(1B) after subsection 90(1A) of the Veterans’ Entitlements Act.  Section 90 of the Veterans’ Entitlements Act provides that the Repatriation Commission may prepare a written document, known as the Treatment Principles. 

 

New subsection 90(1B) provides that the Treatment Principles may also include provisions that:

·         specify the kinds of treatment that may be arranged by an entity other than the Repatriation Commission for the purposes of paragraph 84(3A)(b); and

  • specify the circumstances in which, and the extent to which, the Repatriation Commission may accept financial responsibility for particular costs relating to that treatment.  The particular costs may include amounts of subsidy payable under the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997.

 

Item 11 inserts new paragraph 199(ba) after paragraph 199(b) of the Veterans’ Entitlements Act.  Section 199 provides the Consolidated Revenue Fund is appropriated to the extent necessary for the payment of entitlements, including the provision of treatment, provided under the Veterans’ Entitlements Act. 

 

New paragraph 199(ba) provides that the Consolidated Revenue Fund is appropriated to the extent necessary for the payment of costs for which the Repatriation Commission has accepted financial responsibility in accordance with subsection 84(3A) of the Veterans’ Entitlements Act.

 

Item 12 is an application provision.  The amendments made by Schedule 13 apply in relation to treatment provided on or after the commencement of the Schedule. 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 13 commence on the 28th day after Royal Assent.

 


Schedule 14 – Travelling expenses

 

Overview

 

The amendments in Schedule 14 will extend the entitlement for travelling expenses to the partner of certain eligible persons under certain circumstances. 

 

Background

 

Part V of the Veterans’ Entitlements Act provides for treatment for eligible persons, including medical, allied health and hospital treatment.  Section 110 of the Veterans’ Entitlements Act provides for eligible persons to be paid travelling expenses for travel to obtain treatment under Part V.  Where necessary, it further provides for travelling expenses for an attendant to accompany the eligible person. 

 

Section 112 of the Veterans’ Entitlements Act specifies a time limit for claiming travelling expenses. 

 

A small number of post-traumatic stress disorder treatment programs require the partner of the veteran or member (the eligible person) to participate in the veteran’s or member’s treatment.

 

Under the existing legislation, there is no provision to enable the payment of travelling expenses for the partner of an eligible person where the partner is required to travel to participate in the eligible person’s treatment. 

 

Explanation of the  items

 

Veterans’ Entitlements Act 1986

 

Item 1 inserts new subsection 110(1A) after subsection (110)(1).  New subsection 110(1A) provides that the partner of an eligible person may be paid travelling expenses under the following circumstances: 

 

  • the veteran or member (the eligible person) travels to obtain treatment; and
  • the kind of treatment the eligible person receives is a kind prescribed in a legislative instrument under new subsection 110(6); and
  • the partner has to travel in order to participate in the eligible person’s treatment. 

 

New subsection 110(1A) further provides that the entitlement to travelling expenses is subject to section 110 and to the conditions (if any) and rates prescribed by the regulations.


Item 2 adds new subsection 110(6) after subsection 110(5).  New subsection 110(6) enables the Repatriation Commission to prescribe, in a legislative instrument, the kinds of treatment under new paragraph 110(1A)(b) for which a partner of an eligible person may be paid travelling expenses.

 

Item 3 inserts a reference to new subsection 110(1A) in section 112.  The time limits applicable in section 112 will also apply to claims for travelling expenses for a partner.

 

Item 4 is an application provision.  Item 4 provides that new paragraphs 110(1A)(a) and (c) apply in relation to travel beginning on or after the commencement of this item. 

 

Commencement

 

Clause 2 provides that the amendments in Schedule 14 commence on the day the Act receives Royal Assent.

 

 


Schedule 15 – Payments into accounts

 

Overview

 

The amendments made by Schedule 15 clarify and streamline the administrative arrangements for the payment of pensions, compensation and other pecuniary benefits under the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act into bank accounts.

 

Background

 

The amendments will clarify the administrative arrangements for the nomination of bank accounts for payments under the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act and will minimise the associated administrative obligations of veterans, members and their dependants. 

 

The changes in this Schedule will enable the Department to pay new types of payments into an existing nominated bank account of a person who is already in receipt of a payment under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act.  The amendments will make it clear that, if a person is receiving a payment from the Department, the person does not need to provide the Department with bank account details each time the person receives a new type of payment.  For example, where a recipient has nominated an account for compensation paid under the Military Rehabilitation and Compensation Act, and the recipient becomes eligible for a payment under the Veterans’ Entitlements Act but has not nominated an account under the Veterans’ Entitlements Act, then the Repatriation Commission can direct the Veterans’ Entitlements Act payment, to the person’s account that was nominated under the Military Rehabilitation and Compensation Act. 

 

Explanation of the  items

 

Military Rehabilitation and Compensation Act 2004

 

Item 1 repeals subsection 430(2) of the Military Rehabilitation and Compensation Act.

 

Item 2 adds a note at the end of subsection 430(3) advising that the rules about the nomination of accounts are in subsections 430(3D) to (3F). 

 

Item 3 inserts a heading for subsection 430(3A).

 

Item 4 repeals subsection 430(3B).

 

Item 5 inserts new subsections 430(3D), (3E) and (3F) after subsection 430(3C). 


Section 430 sets out the requirements for the payment of a person’s compensation to a bank account.  The MRCC may direct that the whole or part of a person’s compensation is to be paid to the credit of a bank account. 

 

New subsection 430(3D) provides that the account to which the MRCC may credit compensation under the Military Rehabilitation and Compensation Act must be one that is:

·         nominated, at any time, by the person for the purposes of section 430; and

  • maintained by the person.  The account may be a joint account or one held in common with another person. 

 

New subsection 430(3E) provides that if a person has not nominated an account for the purposes of section 430, but has an existing nominated account under the Veterans’ Entitlements Act, then the existing nominated account under the Veterans’ Entitlements Act may be used for the purposes of section 430 of the Military Rehabilitation and Compensation Act.

 

New subsection 430(3F) provides that if a person subsequently nominates an account for the purposes of section 430, then that account applies for the purposes of section 430 of the Military Rehabilitation and Compensation Act instead of the account nominated for the purposes of the Veterans’ Entitlements Act. 

 

Item 6 inserts a heading to subsection 430(4).

 

Item 7 inserts a new section 430A about the use and disclosure of account details.

 

New subsection 430A(1) authorises the MRCC, a member of the MRCC or a staff member assisting the MRCC to use the details of an account nominated for the purposes of the Veterans’ Entitlements Act, for the purposes of section 430 of the Military Rehabilitation and Compensation Act. 

 

New subsection 430A(2) authorises a person to whom the details of an account are disclosed under subsection 122AA(3) of the Veterans’ Entitlements Act, to use those details for the purposes of section 430 of the Military Rehabilitation and Compensation Act.

 

New subsection 430A(3) authorises the MRCC, a member of the MRCC or a staff member assisting the MRCC to disclose the details of an account obtained for the purposes of section 430 of the Military Rehabilitation and Compensation Act to the Repatriation Commission, a commissioner of the Repatriation Commission or a staff member assisting the Repatriation Commission for the purposes of section 122A of the Veterans’ Entitlements Act.

 

New subsection 430A(4) makes it clear that, for the purposes of the Privacy Act 1988, the use or disclosure of account details in accordance with subsection 430A(1), (2) or (3) is taken to be a use or disclosure that is authorised by the Military Rehabilitation and Compensation Act. 


Item 8 is an application and transitional provision.

 

Subitem 8(1) provides that paragraph 430(3E)(b) of the Military Rehabilitation and Compensation Act, inserted by this Schedule, applies in relation to nominations made before, on or after the commencement of this item.

 

Subitem 8(2) provides that if a nomination of an account by a person for the purposes of subsection 430(2) or (3B) of the Military Rehabilitation and Compensation Act is in force immediately before the commencement of this item, then, on and after that commencement, the nomination of the account by the person is taken to be in force for the purposes of section 430 of that Act (as amended by this Schedule).

 

Subitem 8(3) provides that subsections 430A(1) and (3) of the Military Rehabilitation and Compensation Act, inserted by this Schedule, apply in relation to details of an account obtained before, on or after the commencement of this item.

 

Veterans’ Entitlements Act 1986

 

Item 9 inserts new subsection 122A(1E) and (1F) after subsection 122A(1D) of the Veterans’ Entitlements Act. 

 

Section 122A sets out the requirements for the payment of a person’s pension to a bank account.  The Repatriation Commission may direct that the whole or part of a person’s pension is to be paid to the credit of a bank account. 

 

New subsection 122A(1E) provides that if a person has not nominated an account for the purposes of subsection 122A(1), but has an existing nominated account for the purposes of section 430 of the Military Rehabilitation and Compensation Act, then the existing nominated account under the Military Rehabilitation and Compensation Act may be used for the purposes of subsection 122A(1) of the Veterans’ Entitlements Act.

 

New subsection 122A(1F) provides that if a person subsequently nominates an account for the purposes of subsection 122A(1), then that account is to be used instead of the account nominated for the purposes of the Military Rehabilitation and Compensation Act. 

 

Item 10 redefines ‘pension’, for the purposes of section 122A, to mean a pension, allowance or other pecuniary benefit payable under the Veterans’ Entitlements Act and includes an instalment of such a pension, allowance or other benefit.

 

Item 11 inserts a new section 122AA about the use and disclosure of account details.

 

New subsection 122AA(1) authorises the Repatriation Commission, a commissioner of the Repatriation Commission or a staff member assisting the Repatriation Commission to use the details of an account nominated for the purposes of the


Military Rehabilitation and Compensation Act, for the purposes of section 122A of the Veterans’ Entitlements Act. 

 

New subsection 122AA(2) authorises a person to whom the details of an account are disclosed under subsection 430A(3) of the Military Rehabilitation and Compensation Act, to use those details for the purposes of section 122A of the Veterans’ Entitlements Act.

 

New subsection 122AA(3) authorises the Repatriation Commission, a commissioner of the Repatriation Commission or a staff member assisting the Repatriation Commission to disclose the details of an account obtained for the purposes of section 122A of the Veterans’ Entitlements Act to the MRCC, a member of the MRCC or a staff member assisting the MRCC for the purposes of section 430 of the Military Rehabilitation and Compensation Act.

 

New subsection 122AA(4) makes it clear that for the purposes of the Privacy Act 1988, the use or disclosure of account details in accordance with subsection 122AA(1), (2) or (3) is taken to be a use or disclosure that is authorised by the Veterans’ Entitlements Act. 

 

Item 12 is an application provision. 

 

Subitem 12(1) provides that paragraph 122A(1E)(b) of the Veterans’ Entitlements Act, as inserted by this Schedule, applies in relation to nominations made before, on or after the commencement of this item.

 

Subitem 12(2) provides that subsections 122AA(1) and (3) of the Veterans’ Entitlements Act, as inserted by this Schedule, apply in relation to details of an account obtained before, on or after the commencement of this item.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 15 commence on the day the Act receives Royal Assent.

 


Schedule 16 – Other amendments

 

Overview

 

The amendments in this Schedule include a minor and consequential amendment to the Social Security Act that clarifies which payments made under the Military Rehabilitation and Compensation Act are excluded income for the purposes of the Social Security Act.

 

The Schedule also includes amendments to the Veterans' Entitlements Act to provide for the recovery from payments made under that Act of overpayments made under the Military Rehabilitation and Compensation Act.

 

Explanation of the  items

 

Social Security Act 1991

 

Item 1 amends paragraph 8(8)(zo) to replace the reference to payments made under section 217 and 266 of the Military Rehabilitation and Compensation Act and replaces it with a reference to sections 47, 56, 81, 205, 214, 217, 226, 239 and 266 of that Act.

 

The amendment ensures that all of the relevant payments made under the Military Rehabilitation and Compensation Act are to be regarded as excluded income for the purposes of the Social Security Act.

 

Veterans’ Entitlements Act 1986

 

Item 2 inserts new paragraph 205(1)(cd) which refers to the payment of an amount of compensation under the Military Rehabilitation and Compensation Act that should not have been paid.

 

Items 3 to 5 are technical amendments to paragraph 205(2)(a) and paragraphs (ba) of the definition of excluded amount and (a) of the definition of recoverable amount in subsection 205(8) to insert a reference to new paragraph 205(1)(cd) (inserted by Item 2 of this Schedule).

 

Item 6 is an application provision which provides that paragraph 205(1)(cd) of the Veterans' Entitlements Act (as inserted by Item 2 of this Schedule) will be applicable to amounts of compensation (as defined in subsection 5(1) of the Military Rehabilitation and Compensation Act) paid under that Act on or the commencement of this item.

 

Commencement

 

Clause 2 provides that the amendments in Schedule 16 commence on the day the Act receives Royal Assent.


Statement of Compatibility with Human Rights

 

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

 

Schedule 1 – Rehabilitation and transition management

 

Schedule 1 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments in Schedule 1 will enhance rehabilitation services and transition management for Defence Force members.

 

Schedule 1 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         achieve greater consistency and oversight through the three branches of the Defence Force by redesignating the responsibilities of the Service Chiefs for rehabilitation and transition management to the Chief of the Defence Force;

·         provide flexibility in the timing of the transfer of responsibility for rehabilitation for members by allowing the MRCC to be appointed as the rehabilitation authority on the recommendation of the Chief of the Defence Force;

·         achieve visibility of care for part-time Reservists by making the Chief of the Defence Force the rehabilitation authority for serving part-time Reservists; and

·         providing access to a transition advisory case manager for part-time Reservists.

 

Human rights implications

 

Schedule 1 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 the rehabilitation and transition arrangements will provide for a more effective delivery of services to injured and ill Defence Force members

 

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 rehabilitation and transition arrangements will provide for a more effective delivery of services to injured and ill Defence Force members .

 

Conclusion

 

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

 

Schedule 2 – Compensation for permanent impairment

 

Schedule 2 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments in Schedule 2 concern changes to the date of effect for periodic impairment compensation and incorporate a lifestyle factor in the calculation of interim permanent impairment compensation.

 

Schedule 2 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         change the date of effect for periodic impairment compensation to be on the basis of each accepted condition rather than all accepted conditions and to incorporate a lifestyle factor in the calculation of interim permanent impairment compensation; and

  • include a transitional provision applicable to the recalculation of the amount of permanent impairment compensation person is to be paid for the period prior to 1 July 2013 where the person already has an injury or disease accepted under the Veterans' Entitlements Act and/or the Safety, Rehabilitation and Compensation Act.

 

Human rights implications

 

Schedule 2 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing for permanent impairment compensation to be payable earlier to eligible persons and also for a recalculation of the amount that was previously payable.


Conclusion

 

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

 

Schedule 3 – Expanded lump sum options for wholly dependent partners

 

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

 

Overview

 

The amendments in Schedule 3 expand the options for the payment of lump sum compensation for wholly dependent partners of deceased members.

 

Schedule 3 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:

·         provide that from 1 July 2013, the options available to a wholly dependent partner will be expanded so that the partner may choose to convert either 25%, 50%, 75% or 100% of the weekly compensation amount to an age-based lump sum payment.

 

Human rights implications

 

Schedule 3 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing wholly dependent partners of deceased members of the Defence Force with more options on how compensation payments may be made to them.

 

Conclusion

 

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

 

Schedule 4 – Weekly compensation for eligible young persons

 

Schedule 4 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.


Overview

 

The amendments in Schedule 4 increase the rate of compensation payable for dependent children to align it with similar payments under the Safety, Rehabilitation and Compensation Act.

 

Schedule 4 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:

·         increase from 1 July 2013, the weekly rate of compensation payable to an eligible dependent child under the Military Rehabilitation and Compensation Act to match the amount payable under the Safety, Rehabilitation and Compensation Act.

 

Human rights implications

 

Schedule 4 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by increasing the amount of compensation payable to eligible young persons who were the dependent of a deceased member of the Defence Force.

 

Conclusion

 

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

 

Schedule 5 – Compensation for financial advice and legal advice

 

Schedule 5 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments in Schedule 5 increase the amount of compensation payable for financial advice and will also provide compensation to cover legal advice that is relevant to some of the choices faced by the recipients of compensation payable under the Military Rehabilitation and Compensation Act.

 

Schedule 5 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:


 

·         provide for the total amount of compensation for financial and legal advice on the choices available to persons eligible for compensation that is provided

·         under the Military Rehabilitation and Compensation Act to be increased to $2,400.

 

Human rights implications

 

Schedule 5 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing compensation for legal advice and increasing the amount of compensation payable for both financial advice and legal advice.

 

Conclusion

 

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

 

Schedule 6 – Special Rate Disability Pension

 

Schedule 6 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments in Schedule 6 expand the eligibility criteria for Special Rate Disability Pension to include some persons who are excluded from the payment as they are not receiving incapacity compensation.

 

Schedule 6 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:

·         provide eligibility for Special Rate Disability Pension for person s who meet some of the criteria but who either converted their weekly rate of incapacity compensation to a lump sum or are receiving a nil rate of incapacity compensation because the amount is fully offset by Commonwealth superannuation.

 

Human rights implications

 

Schedule 6 engages the following human right:


Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing for payments of Special Rate Disability Pension to persons who were previously excluded from receiving the payment.

 

Conclusion

 

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

 

Schedule 7 – Superannuation

 

Schedule 7 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments in Schedule 7 make changes to certain superannuation provisions so that they apply equally to both serving and former members and amend the definition of ‘Commonwealth superannuation scheme’ to exclude licensed corporations and include references to retirement savings accounts.

 

Payments made under both the Safety, Rehabilitation and Compensation Act and the Military Rehabilitation and Compensation Act may be offset by the value of Commonwealth contributions towards superannuation benefits.

 

Schedule 7 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         amend the definition of “Commonwealth superannuation scheme” to include current members who have been discharged for incapacity;

·         make further amendments to the definition to exclude a reference to a “licensed corporation” and to include a reference to a “retirement savings account”.

 

Human rights implications

 

Schedule 7 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.


The amendments promote the right to social security by providing for that incapacity payments and payments of Special Rate Disability Pension to both former full time Defence Force members and full-time and part-time Reservists will be treated equally for the purpose of offsetting Commonwealth contributions towards the superannuation benefits the former members and Reservists have received.

 

Conclusion

 

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

 

Schedule 8 – Remittal power of Veterans’ Review Board

 

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

 

Overview

 

The amendments made by Schedule 8 provide the Veterans’ Review Board with an explicit power to remit a matter to the MRCC for needs assessment and compensation.

 

Schedule 8 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         provide the Veterans’ Review Board with the power to remit a matter to the MRCC to conduct a needs assessment and determine the person’s compensation entitlements under the Military Rehabilitation and Compensation Act.

 

Human rights implications

 

Schedule 8 engages the following human rights:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing for a more effective process for dealing with reviews concerning compensation claims by allowing the Veterans’ Review Board to remit the matter to the MRCC to conduct the needs assessment and subsequent investigations and determination.

 

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 the process of reviewing claims will provide for a more effective delivery of services to injured and ill Defence Force members

 

Conclusion

 

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

 

Schedule 9 – Membership of the Military Rehabilitation and Compensation Commission

 

The amendments made by Schedule 9 will provide for an increase the membership of the MRCC.

 

Human rights implications

 

Schedule 9 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

The Bill is compatible with human rights as it does not raise any human rights issues.

 

Schedule 10 – Aggravation of or material contribution to war-caused or defence-caused injury or disease

 

Schedule 10 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 10 require all claims for conditions accepted under the Veterans’ Entitlements Act and aggravated by defence service after 1 July 2004 to be determined under the Veterans’ Entitlements Act.

 

Schedule 10 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:

·         remove the election provisions which had allowed for claims to be made under either of the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act and replace them with provisions stipulating that all claims relating to an existing Veterans' Entitlements Act injury or disease aggravated by service on or after 1 July 2004, must be claimed under the Veterans' Entitlements Act and cannot be claimed under the Military Rehabilitation and Compensation Act.

 

Human rights implications

 

Schedule 10 engages the following human right:


Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by reducing the complexity and confusion for claimants and reducing the burden in the administration of claims for pension increases on the basis of the aggravation of the injury or disease.

 

Conclusion

 

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

 

Schedule 11 –Treatment for certain SRCA injuries

 

Schedule 11 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 11 provide for the issue of Repatriation Health Cards (for specific conditions) usually referred to as “White Cards” to persons eligible for treatment under Part XI of the Safety, Rehabilitation and Compensation Act. 

 

Schedule 11 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         achieve consistency in treatment arrangements for all former Defence Force members by ensuring that members with an injury accepted under the Safety, Rehabilitation and Compensation Act as being related to service (SRCA injury), will be entitled to treatment for a SRCA injury under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act in accordance with the arrangements established under those Acts;

·         provide that the MRCC, or a staff member assisting the MRCC, may provide any information obtained in the performance of duties under the Military Rehabilitation and Compensation Act to the Department of Health and Ageing, Centrelink and Medicare.

 

Human rights implications

 

Schedule 11 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 will provide for a more effective delivery of treatment to persons eligible under the Safety, Rehabilitation and Compensation Act and make improvements to the administration of providing that treatment.

 

Right to privacy

 

Article 17 of the International Covenant on Civil and Political Rights refers to protection against the arbitrary interference with privacy.

 

The amendments provide for the sharing of information for the purposes set out in this Bill.  The purposes are limited to those which assist the Departments and the agencies to perform their legislative functions and powers and are subject to the principles set out in the Privacy Act 1988.

 

Conclusion

 

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

 

Schedule 12 – Members

 

Schedule 12 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 12 will define certain categories of Defence Force personnel as being Defence Force members in certain circumstances including those undergoing career transition, personnel holding honorary ranks and authorised representatives of philanthropic organisations, for the purposes of the Military Rehabilitation and Compensation Act.

 

Schedule 12 includes amendments which do engage the applicable rights and freedoms.  The relevant measure will:

·         include certain categories of Defence Force personnel including those undergoing career transition and others such as official entertainers, war artists, photographers and members of philanthropic organisations as ‘members’ for the purpose of providing eligibility under the Military Rehabilitation and Compensation Act.

 

Human rights implications

 

Schedule 12 engages the following human rights:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.


The amendments promote the right to social security by providing certainty to certain categories of Defence Force personnel about their access to compensation under the Military Rehabilitation and Compensation Act.

 

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 promote the right to health by providing certainty to certain categories of Defence Force personnel about their access to treatment and rehabilitation under the Military Rehabilitation and Compensation Act.

 

Conclusion

 

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

 

Schedule 13 – Treatment costs

 

Schedule 13 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 13 will clarify the appropriation of costs for certain aged care services between the Veterans’ Entitlements Act, the Australian Participants in British Nuclear Tests (Treatment) Act 2006 and the Military Rehabilitation and Compensation Act (the Veterans’ Affairs Acts) and the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 (the Aged Care Acts). 

 

Schedule 13 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

 

  • amend the Veterans’ Affairs portfolio Acts to clarify and confirm that the Repatriation Commission and the MRCC may limit their financial responsibility to particular costs in relation to certain aged care services;
  • provide that the Treatment Principles authorised under the Veterans’ Affairs portfolio Acts may specify the circumstances in which and the extent to which, the relevant Commission may accept limited financial responsibility for particular costs in relation to specified kinds of treatment including amounts of subsidy otherwise payable under the Aged Care Acts.

 

Human rights implications

 

Schedule 13 engages the following human right:


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 promote the right to health by clarifying the particular Act under which funds are to be appropriated for the provision of aged care services.

 

Conclusion

 

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

 

Schedule 14 – Travelling expenses

 

Schedule 14 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 14 will extend the entitlement for travelling expenses to the partner of certain eligible persons under certain circumstances.

 

Schedule 14 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         provide for the payment of travel expenses to the partner of the veteran or member in the circumstances where the partner is required to participate in the veteran’s or member’s treatment.

 

Human rights implications

 

Schedule 14 engages the following human right:

 

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 promote the right to health by providing for the payment of the travel expenses of the partner of the veteran or member in the circumstances where both the partner and the veteran or member are undertaking the required treatment.

 

Conclusion

 

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


Schedule 15 – Payments into accounts

 

Schedule 15 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 15 will clarify and streamline the administrative arrangements for the payment of pensions, compensation and other pecuniary benefits under the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act into bank accounts.

 

Schedule 15 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         enable the Department to pay new types of payments into the existing nominated bank account of a person who is already in receipt of a payment under either the Military Rehabilitation and Compensation Act or the Veterans’ Entitlements Act;

·         will make it clear that, if a person is receiving a payment from the Department, the person will not need to provide the Department with bank account details each time the person receives a new type of payment.

 

Human rights implications

 

Schedule 15 engages the following human right:

 

Right to privacy

 

Article 17 of the International Covenant on Civil and Political Rights refers to protection against the arbitrary interference with privacy.

 

The amendments provide for the sharing of bank account information for the purposes set out in this Bill.  The purposes are limited to those which assist the Department to perform its legislative functions and is subject to the principles set out in the Privacy Act 1988.

 

Conclusion

 

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


Schedule 16 – Other amendments

 

Schedule 16 of the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The amendments made by Schedule 16 clarify the payments made under the Military Rehabilitation and Compensation Act that are regarded as  excluded income for the purposes of the Social Security Act.

 

The Schedule also includes amendments to the Veterans' Entitlements Act to provide for the recovery from payments made under that Act of overpayments made under Military Rehabilitation and Compensation Act

 

Schedule 16 includes amendments which do engage the applicable rights and freedoms.  The relevant measures will:

·         amend the Social Security Act to ensure that certain payments made under the Military Rehabilitation and Compensation Act are to be regarded as excluded income for the purposes of the Social Security Act;

  • provide for the recovery under the Veterans’ Entitlements Act of the payment of amount of compensation under the Military Rehabilitation and Compensation Act that should not have been paid.

 

Human rights implications

 

Schedule 16 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by ensuring that certain forms of income will be excluded from the means test applicable under the Social Security Act and will also ensure the effective administration of the Australian system of social security by ensuring that payments are reasonable, proportionate and transparent.

 

Conclusion

 

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