David Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

I rise to speak on the Veterans' Affairs Legislation Amendment (Single Appeal Path) Bill 2016. The bill will give effect to a veterans' affairs 2015 budget measure that will create a single appeal path for the review of original determinations made under the Military Rehabilitation and Compensation Act 2004. This measure was previously introduced into the parliament under the Veterans' Affairs Amendment (2015 Budget Measures) Bill 2015.

At that time, Labor identified key flaws in the legislation and we urged the then Minister for Veterans' Affairs to engage in extensive and thorough consultation with the opposition, crossbenchers and key stakeholders so that parliament could achieve a single appeal pathway but one that keeps faith with the original recommendation as found in the review of military compensation arrangements in 2011 and our shared goals for this legislation. Since that time there has been the consultation we sought, and I take this opportunity to thank the former Minister for Veterans' Affairs, the Hon. Stuart Robert MP, and his successor as minister, the Hon. Dan Tehan MP, for engaging with us in good faith and for indeed entertaining those consultations with stakeholders and the veterans community so that this legislation is, in our judgement, much improved.

The opposition continues to support the ideal of establishing a single appeals pathway for our veterans. But, for Labor, that single appeals pathway is required to achieve certain key policy goals. It must be fair. It must present both the Department of Veterans' Affairs and individual veterans with the opportunity for procedural fairness. It must be appealable on fair terms. It must aim to lessen the time—all too much time—that veterans spend bogged down in an appeals process.

By way of background, the Military Rehabilitation and Compensation Act 2004 provides compensation and other benefits for current and former members of the Australian Defence Force who suffer a service injury or disease. The Military Rehabilitation and Compensation Act also provides compensation and other benefits for the dependants of some deceased members. Under the existing arrangements, the two pathways for a reconsideration or review of an 'original determination' made under chapter 8 of the Military Rehabilitation and Compensation Act are internal reconsideration by the MRCC under part 3; or review by the Veterans' Review Board under part 4. If the claimant is dissatisfied with the reconsideration by the MRCC or the review by the VRB, part 5 provides for the claimant to apply to the AAT for a review of what is referred to as a 'reviewable determination'.

In 2011, the review of military compensation arrangements—which was initiated by the former Labor government following an election commitment, and I pay credit to the Hon. Alan Griffin MP, the honourable member for Bruce—recommended that the MRCA appeal process be refined to a single appeal path for clients. The amendments in this bill give effect to this recommendation.

The former Minister for Veterans' Affairs, Senator the Hon. Michael Ronaldson, originally proposed a single appeal pathway and he brought to this parliament a plan whereby the single appeal path would remove internal reconsideration by the MRCC for claimants and enable a claimant to appeal an original decision of the MRCC to the VRB, the Veterans' Review Board, with a second tier of appeal to the Administrative Appeals Tribunal. Currently, applicants who choose reconsideration by the MRCC are not able to access legal aid at the Administrative Appeals Tribunal. The removal of reconsideration by the MRCC had the consequent effect of not being able to apply for award costs at the AAT, but the single appeal path through the VRB will mean that all applicants will have access to legal aid at the AAT, subject to the usual legal aid eligibility criteria.

As I said earlier, the former Minister for Veterans' Affairs, the Hon. Stuart Robert MP, and his successor Dan Tehan MP, have negotiated with us in good faith to present the bill before us today. The bill before us proposes to streamline the review process by removing the option to choose between the commission and the VRB. While the budget measures bill proposed to no longer allow the commission to conduct an internal reconsideration of the matter, this bill will allow the commission to 'initiate and conduct an internal review on any original determinations that are the subject of an appeal to the VRB'. This change reflects the advice provided by the Senate Foreign Affairs, Defence and Trade Legislation Committee's inquiry into the budget measures bill. That inquiry and the work of that committee demonstrated that, contrary to the wording in the explanatory memorandum, 'internal reconsiderations and screening will automatically take place before matters proceed to the VRB'.

The explanatory memorandum notes at page 1 'that the 'single appeal path through the VRB would enable all applicants to have access to legal aid at the AAT, subject to the usual legal aid eligibility criteria'. The proposed amendments would also allow the award of costs at the AAT for Military Rehabilitation and Compensation Act appeals through the VRB in some circumstances. This change reflects the view of the Law Council of Australia, who submitted to the committee inquiry into the budget measures bill that not allowing veterans access to costs 'would be at odds with the current costs provisions in the civilian community and would plainly place military personnel in a position of disadvantage and discrimination'.

You can imagine how plainly absurd it would be for a veteran to appeal a department's determination at the Administrative Appeals Tribunal, to engage the lawyers and endure the trauma and hardship that necessarily comes with legal action, and, at the end of that, to win that legal action to have the department proved negligent or whatever it may be, and to have the AAT find in favour of the veteran and yet for the veteran to not be able to recover costs and to be significantly out of pocket. Way back then, the government was proposing to set up a system which meant it was in no-one interest to review the department and, even if one successfully reviewed a determination of the department, it could be costly and utterly counterproductive—a proposal to put the department in an irresistibly powerful position. I am very pleased indeed that the bill before us today has recognised the error of that approach and has made the appropriate changes.

Items 11 and 12 of the bill amend the Military Rehabilitation and Compensation Act 2004 to allow for a claimant to recover either all or part of the costs in relation to an AAT review of a determination by the VRB in certain circumstances. In order to recover costs, the AAT must have either varied a determination in favour of a claimant or set aside and substituted a decision in favour of a claimant. Further, the claimant will not be allowed to recover costs where: the claimant failed to provide a document to the VRB that, if provided, would have resulted in them receiving a favourable outcome at that earlier stage; the claimant received legal aid for their matter at either the VRB or the AAT; the claimant failed to comply with a direction under the subsection 148 (4B) of the Veteran's Entitlement Act; or where the claimant failed to comply with a direction under section 330 of the Military Rehabilitation and Compensation Act 2004 before the commission made its original determination.

The explanatory memorandum to this bill argues that these amendments will ensure that claimants are not encouraged to withhold information or fail to fully participate in the processes of the commission or the VRB. Claimants will not be entitled to both costs and legal aid. The amended proposal would give effect to the single appeals pathway as follows: original determination by the Military Rehabilitation and Compensation Commission; if dissatisfied with the commission decision the claimant may appeal to the Veterans' Review Board; the Military Rehabilitation and Compensation Commission will initiate and conduct an internal review on any original determinations that are the subject of an appeal to the board, using its existing 'own motion' powers under section 347, in a manner similar to section 31 of the Veterans' Entitlements Act 1986; if the claimant is not satisfied with the commission-initiated review decision, the matter will proceed to the Veterans' Review Board; and if the claimant is not satisfied with the board's decision, the claimant may appeal to the Administrative Appeals Tribunal. At that point, legal aid may be provided subject to the National Partnership on Legal Assistance.

The government's new proposal will specify the circumstances under which costs may or may not be awarded at the tribunal, in relation to a decision of the board. The amendments are intended to ensure that the right decision is made at the earliest level of decision making and the awarding of costs of the tribunal does not discourage the presentation of documentary evidence at the earliest possible stage of the decision-making process. Again, I note that the amendments allow, for the first time and, in some circumstances, an award of costs at the tribunal on its review of a board decision.

If 'new evidence' is presented, the AAT will have the power to remit the matter back to the commission for determination of the claim, based on that new evidence. The commission will have a statutory period of 28 days to determine the matter referred back by the Administrative Appeals Tribunal. In the event that the commission failed to meet the 28 days for an AAT-referred case, the matter will be deemed 'refusal' and returned to the AAT for a decision. If the commission determines the matter but the claimant is not satisfied with the decision, there will be a right of review to the AAT.

The following are further prohibitions on the award of costs: if the matter has received legal aid funding; if, at the VRB, the appellant sought a decision 'on the papers' and did not appear before the VRB; or if there is non-compliance with a request for further information. I have received assurances that the AAT will not remit cases back to the commission in order to avoid awarding costs. This is a matter of concern in some quarters of the veteran's community, and it is a matter that the opposition will be looking at very carefully. Further, the government has stated that they remain committed to the VRB remaining as a non-adversarial, beneficial jurisdiction, as they believe this is in the best interests of the veteran.

That has, ultimately, been the conclusion of Labor, but let me make it plain that there has been a very active discussion in the Labor Party, and between Labor and stakeholders, about this jurisdiction and whether it should remain a lay jurisdiction. While that has, ultimately, been our conclusion, there is a view that it is appropriate for this jurisdiction to also be a jurisdiction where lawyers can work and be engaged on behalf of veterans. In Labor reaching this decision, I simply make the point that this debate is a live one and remains a live one, and this process, hopefully enacted today, as a result of this bill, will be under serious scrutiny and pressure to succeed or that debate will not go away.

Legal representation is not permitted at the Veterans' Review Board. It is strongly the view of some veterans' organisations, not the least of which the Returned and Services League, that that is an appropriate course. Although legal representation is not permitted, the claimant may be accompanied by a nominated representative. While people with legal qualifications are prohibited from representing applicants at VRB hearings, applicants are permitted to consult lawyers prior to the hearing, and a paralegal employed by a law firm may appear. Written submissions prepared by a legal practitioner will be accepted by the VRB for consideration as evidence; however, legal aid funding is not available for legal work on VRB applications. This is an issue in some quarters of the veterans' community.

The government has advised that the National President of The Returned & Services League, Rear Admiral Ken Doolan, and the National Spokesperson for the Alliance of Defence Service Organisations, Colonel David Jamison, have provided written confirmation of their support of the proposed pathway. I, of course, have spoken with those gentlemen and can, indeed, confirm that is the case.

It is our view that this amended bill represents a victory for Labor. It is the government's third attempt and, on this attempt, Labor is able to support the legislation. The original legislation was flawed and, thanks to Labor's resolve to refer the bill to the Senate Committee on Foreign Affairs, Defence and Trade and highlight those flaws in evidence, we have, as a result, found ourselves now dealing with a much better piece of legislation. In particular, veterans will now be able to appeal determinations of the VRB to the AAT, confident that, if successful, they can recover their costs. As a consequence, the department has not engendered a system which shields itself from scrutiny or the review of its determinations. This means that an enormous disincentive to challenge the MRCC has been removed. It is a good thing too.

The introduction of a 28-day statutory reporting time frame for the MRCC to consider new evidence provided by a claimant is an important step in speeding up the time that it takes for a claimant to achieve justice under the appeals system. I might note that there are many elements of the veterans' community who are very interested, indeed, to see how the department responds to dealing with statutory reporting time frames. The revised pathway also allows for an internal review of an MRCC decision, as envisaged in the original 2011 military and compensation inquiry.

It is fundamental to Labor that the compensation system for injured veterans, including the appeal system, is balanced and fair. The system must also operate without unnecessary delays because those delays exacerbate hardship, sometimes with crushing results. We believe that the legislation as now presented to the House will provide an appeals process that best serves our veterans.

As I indicated, this is an issue of great interest to Labor. We will be watching how it proceeds. We will certainly continue to remain very engaged with the veterans' community and how it is they find this process. I take this opportunity to thank those organisations for working and consulting with me. I think my parliamentary colleagues Warren Snowdon and Alan Griffin, both of whom remain passionately interested in this subject. As former ministers for veterans' affairs, their counsel continues to be an enormous aid to me as I deliberate through these questions. I commend the bill to the House.

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