EXPLANATORY STATEMENT
Veterans' Entitlements (Invalidity Service Pension — Permanent Incapacity for Work) Determination 2013
EMPOWERING PROVISION
Section 37AA(1) of the Veterans’ Entitlements Act 1986 (the Act).
PURPOSE
The instrument replaces the Veterans’ Entitlements (Invalidity Service Pension — Permanent Incapacity for Work) Determination 1999 and is essentially the same as that former instrument except for the addition of paragraph 7(1)(c):
Under subsections 26(1B) and 26(1C) of the Legislative Instruments Act 2003 (as paraphrased), subordinate legislation that merely replaces previous subordinate legislation does not need explaining in an Explanatory Statement.
Paragraph 7(1)(c) implements a recommendation of the Review of Military Compensation Arrangements (2009).
The Review was a Government commitment to examine the current military rehabilitation and compensation system.
The report of the Review’s Steering Committee was released by the Minister for Veterans' Affairs on 18 March 2011.
The Government responded to the report of the Review on 8 May 2012 and one of the recommendations it accepted was that:
“11.3 SRDP [Special Rate Disability Pension] recipients and SRDP-eligible former members should have automatic eligibility for invalidity service pension in the same manner as recipients of the Special Rate of pension under the VEA [Veterans’ Entitlements Act 1986]”
CONSULTATION
Yes. The Steering Committee for the Review of Military Compensation Arrangements consulted the Veteran & Defence Community. Consultation was via ADF base public meetings, a dedicated WebPage, Ex Service Organisation (ESO) working party meetings with ESOs and correspondence.
RETROSPECTIVITY
If the attached instrument commenced before registration, subsection 12(2) of the Legislative Instruments Act 2003 (legislative instrument of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person) would not be contravened because the instrument does not disadvantage any person or impose a liability on any person (except the Commonwealth).
DOCUMENTS INCORPORATED-BY-REFERENCE
No.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The instrument does engage an applicable right or freedom. It relates to the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights. The right to social security requires, among other things, the right to a minimum essential level of benefits for all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
The instrument makes it easier for certain members of the community (veterans) to obtain a pension for an injury or disease (Invalidity Service Pension).
A veteran is eligible for an Invalidity Service Pension if he or she is permanently incapacitated for work.
The Repatriation Commission may determine the circumstances in which a veteran is permanently incapacitated for work and the Repatriation Commission has made such a determination (attached). The determination sets out criteria a veteran may satisfy in order to be permanently incapacitated for work.
The attached instrument introduces a new and alternative criterion for a veteran to be classified as being permanently incapacitated for work. The additional criterion is for a veteran, who as a member of the Defence Force for the purposes of the MRCA, may, generally speaking, be eligible for a Special Rate Disability Pension, depending on the degree of permanent impairment and ability for rehabilitation to improve their chances to return to work. If a person is eligible for a Special Rate Disability Pension then that is recognition of the person being permanently incapacitated for work.
The availability of this extra ground for establishing permanent incapacity for work means a veteran may not need to re-establish permanent incapacity for work in accordance with the other criteria in the relevant determination which could mean less inconvenience for the veteran and that the veteran is determined as eligible for an Invalidity Service Pension more quickly.
The UN Committee on Economic Social and Cultural Rights has stated that qualifying conditions for benefits must be reasonable, proportionate and transparent.
The attached instrument does affect the qualifying conditions for the Invalidity Service Pension but in a positive way. It expands those conditions but not so as to limit the availability of the pension but to make it easier to obtain. Accordingly it complies with the UN Committee’s requirements.
Conclusion
The instrument is compatible with human rights because it complements the right to social security.
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION
Attachment A.
Attachment A
Items Explanation
1. sets out the name of the instrument.
2. provides that the instrument commences on 1 July 2013.
3. revokes the former instrument that set out the circumstances in which a veteran could be permanently incapacitated for work in order to be eligible for an Invalidity Service Pension.
4. ensures that the revocation of the former instrument does not affect the right of any veteran that accrued under that instrument.
5. is a definition section.