Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

I rise to speak about the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016. As members may be aware, as it stands, pensions, compensation, rehabilitation, treatment and other benefits for veterans, members of the Defence Force and their families are provided for under three separate legislative acts. These are the Veterans' Entitlements Act 1986, the Safety, Rehabilitation and Compensation Act 1988 and the Military Rehabilitation and Compensation Act 2004. The VEA primarily provides benefits and entitlements for those who undertook service in wartime, certain operational deployment and certain peacetime service between 7 December 1972 and 30 June 2004. For peacetime service eligibility, a member who had not completed a qualifying period of three years service prior to 7 April 1994 is not covered unless they were medically discharged. British nuclear test defence service during the 1950s and 1960s in Australia is also covered when relevant criteria are met. If a veteran suffers an injury or disease arising out of or aggravated by a period of full-time service while covered under the VEA, they may be entitled to a disability pension and medical treatment. They may also be eligible for compensation under the SRCA for the same disability, with offsetting against the pension.

The second piece of legislation, the SRCA 1988, provides coverage for illness, injury or death suffered as a result of peacetime and peacekeeping service from 3 January 1949 to 30 June 2004 and for certain periods of operational service between 7 April 1994 and 30 June 2004. Coverage under the SRCA is essentially linked to peacetime ADF service between 3 January 1949 and 30 January 2004, with no coverage of ADF service prior to 3 January 1949 or any period of operational service prior to 7 April 1994. The final piece of legislation, the MRCA, covers members who served on or after 1 July 2004. The MRCA provides rehabilitation and compensation coverage for warlike, non-warlike and peacetime service. The SRCA and the MRCA are more like modern workers compensation legislation, providing rehabilitation and compensation coverage for military service related injuries, illness or death.

This legislation proposes to remove all the Defence Force elements from the SRCA and create an exact replica called the DRCA, which applies only to Defence Force members. The creation of this act will also bring all legislation relating to Veterans' Affairs under the responsibility of the Minister for Veterans' Affairs—as it stands, both the VEA and MRCA. However, the SRCA, as it applies to the ADF, is part of a larger act which covers all employees of the Australian government. Consequently, this means that the act sits with the Minister for Employment. When the MRCA took effect, responsibility for determining and managing defence related claims under the SRCA was given to the Military Rehabilitation and Compensation Commission by virtue of the addition of part XI of the SRCA. Essentially, while decisions about compensation and rehabilitation fall within the responsibility of the Minister for Veterans' Affairs, the legislation itself sits with a different minister. The new legislation is designed to fix this.

In addition, the bill makes a number of minor language amendments to the DRCA and amends the SRCA to remove cover for members of the Defence Force and their dependants. The implementation of the DRCA will provide for a complete separation of the legislative framework for defence related claims from the Comcare scheme under the SRCA and will provide the Minister for Veterans' Affairs with responsibility for all three of the separate compensation acts that cover Defence Force members.

Given the complexity of the bill, Labor supported the referral of this legislation to the Senate Standing Committee on Foreign Affairs, Defence and Trade to consider the detail of it. The committee received a number of submissions and held a public hearing to work through the concerns of interested parties. The DRCA should be viewed as a snapshot in time, an exact replica of the Defence Force elements of the SRCA as of the day the DRCA is enacted. Given the complexity of the SRCA, which has been amended 68 times since its inception, a considerable amount of effort was concentrated on ensuring that the DRCA was an exact replica of the legislation and that nothing had been inadvertently omitted.

An example of this work relates to the functions of Comcare in relation to rehabilitation and acting quickly to minimise the duration and severity of injuries. This was also raised by Senator Lambie during the committee process. On reading the explanatory memorandum and the bill, it would appear that section 69, which deals with Comcare and claims, has not come across to the new bill. While this is correct, section 69 of the SRCA has not applied to veterans since the insertion of section 142 when the Military, Rehabilitation and Compensation Commission was created, which then became responsible for compensation claims and rehabilitation. Section 142 has been duplicated in the DRCA and, through a number of other sections in both the DRCA and the MRCA, the commitment to determining claims which include rehabilitation quickly and accurately remains. We are satisfied that the element that currently applies to veterans is maintained under the DRCA. However, Labor encourages the government to consider making the pathway that leads to this conclusion clearer in the future.

A number of other technical concerns were raised during this process, and I would like to acknowledge the diligent work of parties to identify areas where the legislation appeared not to have been duplicated across its entirety. Labor has worked through each of these concerns with stakeholders and the government and is confident that the issues raised have been addressed. However, due to the complexity of the legislation, under advice by the Australian Government Solicitor a Henry VIII clause was added to provide a remedy for any unforeseen adverse consequences that may arise from the unique manner in which the DRCA was enacted.

The government has been clear that the intention is for the clause not to be utilised; it is there only as a fail-safe, in case something has been overlooked in the process that would have left a veteran worse off. Henry VIII clauses essentially enable the government to make regulations with the power to modify the act, which are then introduced to the parliament as a disallowable instrument. In the DRCA a condition has been added to the Henry VIII clause which requires any regulations made under this provision to act in a way purely beneficial for the veteran in dealing with any anomalies that may arise where there is a retrospective application of the DRCA. This condition states:

(2) Before the Governor-General makes regulations under subsection (1), the Minister must be satisfied that it is necessary or desirable to make the regulations to ensure that no person (except the Commonwealth) is disadvantaged by the enactment of this Act.

As such, it is clear that in the unlikely event of this clause being utilised it can be only when someone has been made worse off by the creation of the DRCA and only to the benefit of an individual and not the government. This is a very important condition, and it is the reason Labor is in a position to support the inclusion of this clause in the bill.

In addition, it is important to note that any regulations brought in under this provision would be a disallowable instrument and be brought before both houses of parliament and sit for 15 days of parliament before coming into operation. While this gives some assurances, concerns have been raised about notification of these instruments. Although they are disallowable instruments, this rests on interested parties becoming aware of the tabling of these documents. Consequently, Labor senators recommended that proposed section 121B be amended to include a consultative element. This amendment would essentially require the minister to be satisfied that appropriate consultation had been undertaken with relevant parties and include disclosure of the proposed regulations.

The government has declined to accept this proposal, stating that the intention of the clause is to quickly provide relief to an individual who has been made worse off by the creation of the DRCA. The government argues that the inclusion of a requirement to consult would result in delaying the provision of relief to the individual. It is worth remembering that, in the unlikely event the clause is utilised, there would be an individual veteran who has been made worse off by the creation of this bill, who has had to have this acknowledged by the department and regulations drafted, approved and tabled. To delay them the provision of relief is unfair, particularly given the circumstances that if the DRCA had not been created there would have been no delay and they would have received this assistance immediately. In the event that this clause is utilised, we call on the department to exhaust all avenues to ensure that anyone else who would benefit from the changes is made aware of the regulations. The government has agreed to this at Labor's request and committed to ensuring that everything possible will be done by the department to locate and contact any person who would be affected by a DRCA Henry VIII clause. Labor supports the inclusion of this clause without the requirement to consult prior to making the regulations for one reason only: to ensure there is no delay correcting the issue which has come about due to the creation of the bill and is impacting the veteran.

Significant concerns were also raised in relation to the consultation conducted by the department on this and other legislation during the committee process. While the government stated that the development of a standalone act for ADF members and veterans was announced two years ago—with consultation continuing during this period, predominantly with Ex-Service Organisation Round Table members—they conceded that the ex-service round table members were not able to view the bill until it was introduced into parliament last year. However, the president of the Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women stated:

… the bill was not really brought to ESORT's notice as being a piece of legislation that was due to be passed.

In addition, members of the Alliance of Defence Service Organisations highlighted the lack of resources available to ex-service organisations to assess and analyse proposed legislation in general. Their representative noted that their organisation and its partners are voluntary associations and, as such, have limited access to personal and financial resources.

As members may be aware, there have been a number of Senate inquiries into veterans affairs in recent months, along with a high-profile Senate inquiry into suicide by veterans and ex-service personnel. This has stretched voluntary organisations' capacity to respond to and critically examine new legislation. This was an issue raised by a number of submitters, who were concerned about the speed with which this legislation appeared to be tabled and required feedback. While this legislation may have been broadly discussed some time ago, the evidence provided indicated that consultation was not thorough enough or wide enough to capture ex-service organisations and other interested parties.

The issue of widespread consultation was also raised by Mr Brian Briggs of Slater and Gordon, who highlighted that lawyers representing claimants were generally unrepresented in DVA consultation processes on legislative changes. Mr Briggs raised concerns that by:

… restricting of consultation to organisations that are higher up in the chain of command such as ESORT and Defence does not paint a holistic picture of the effects of these reforms [and] excludes the opinions of those who are at the heart of the system and those who will be most deeply affected.

As such, the committee concluded that there is room for improvement in the way in which DVA consults on changes to legislation and engages with the veteran community.

The committee raised concerns about DVA's current consultation and engagement practices in relation to proposed legislative changes, noting that, while this is partly due to the limited resources of ex-service organisations to examine legislation, ultimately it is for the Department of Veterans' Affairs to improve this relationship. This is an issue which is regularly raised by veterans and an area of deep concern. Consultation on these issues is vital not only to capture the lived experiences of those working through the system but also to prevent unnecessary angst or concern. Effective engagement is fundamental and is an area which the department needs to address as soon as possible.

The committee also highlighted another issue, which has been raised with me a number of times, which is the adversarial relationship of the Department of Veterans' Affairs with some veterans advocates, veterans advocacy groups and lawyers acting on behalf of veterans. This adversarial culture in the department was something Labor sought to resolve by committing prior to the election to undertaking a first principles review of veterans affairs. This review would be based on a set of agreed upon first principles and would examine the department and seek to rectify administrative governance and process failings to ensure the department is able to meet existing and future challenges in a clear and efficient manner. Most importantly, this review would help to re-establish the veterans and their representative organisations' trust in DVA. It would ensure that we have a system in place which works for the people who need it the most and puts our veterans first.

The committee also stated that the Department of Veterans' Affairs should be seeking out and actively engaging with those persons who are best informed and capable of providing analysis of proposed legislation, noting that critical feedback on proposed legislative reforms should be encouraged at an early stage and utilised to identify areas where communications strategies may be required to answer questions in the veteran community.

In addition, the committee noted that, if DVA does not adequately consult and respond to issues raised, it can create environments where misinformation or unwarranted fears regarding legislative reform can flourish. As such, the committee recommended that the Department of Veterans' Affairs conduct a review of its consultation and engagement practices in order to receive informed critical feedback on proposed legislative amendments, rapidly respond to concerns raised in the veteran community and increase the understanding of proposed legislative changes in the veteran community. We understand that the government accepted this recommendation and undertook to review the Department of Veterans' Affairs consultation processes. Labor urges the department to ensure the review is thorough and considers all potential avenues of communication to engage with the ex-service community. While there is benefit in placing information on the website, this cannot be with the width and breadth of consultation. Consideration must be given to both traditional and non-traditional avenues of communication. Labor calls on this review to be completed in a timely fashion and urges the government to take any recommendations seriously and implement changes as soon as practical. This inquiry, along with the recently completed inquiry into suicide by veterans and ex-service personnel, has clearly highlighted that there is a disconnect between the Department of Veterans' Affairs and the ex-service community.

The Senate committee process also highlighted the anxiety veterans, interested parties and the ex-service community feel about future changes to the SRCA, particularly with regard to alignment to the Military Rehabilitation and Compensation Act. In his second reading speech, the minister described the changes as:

… a foundational step towards … reform being undertaken by the Department of Veterans' Affairs to significantly improve services for veterans and their families by re-engineering DVA business processes.

This was reiterated by the department in the hearing process, by a representative who stated that bringing the policy control over the three acts under the one minister will:

… give him opportunities to start examining streamlining, simplification and alignment of legislation.

While it was made clear these areas for alignment are at an embryonic stage, significant concern has been raised by respondents.

It is generally acknowledged that legislation in this space is complex, with each act operating slightly differently. There is a desire in the ex-service community to see this process made easier for veterans and their advocates to navigate. This desire is equally measured by concern that, with the harmonisation of the provisions, the lowest common denominator will become the standard. DVA did indicate:

… there will be appropriate consultation with the veteran and Defence communities on any areas of potential alignment between the DRCA and the MRCA.

While this assurance is certainly welcomed, how this consultation is undertaken continues to raise questions. Broad consultation is important to ensure that veterans and their advocates are aware of proposed changes and are able to provide detailed feedback. Feedback by those who work within the system or benefit from the system is vital to ensure that changes are necessary and worthwhile.

Labor senators continue to hold concerns about future alignment of legislation and urge the minister to clarify the details of the proposed reforms to provide certainty to ADF members and veterans. We concur with this request. Labor is supportive of changes that make it easier for veterans to navigate the system; however, not at the expense of entitlements and support structures. Labor will continue to watch this space to ensure veterans are not made worse off for the changes.

The purpose of the DRCA is to create a Defence-specific bill which applies only to members of the Defence Force and their dependants. In addition, it will place all current veterans legislation with the Minister for Veterans' Affairs. It is reasonable that the Minister for Veterans' Affairs should be responsible for matters regarding veterans. As the DRCA is an exact replica of the elements of the SRCA, we have been assured no veterans or Defence Force members will be worse off for the creation of this bill.

Labor would like to thank the committee for its diligent examination of this legislation and acknowledge the feedback provided by the ex-service community and other interested parties, in particular the Hervey Bay Veterans Advice and Social Centre, the Alliance of Defence Service Organisations and Brian Briggs from Slater and Gordon, as well as the representations made by members of the public. Labor would also like to thank the Minister for Veterans' Affairs and the Department of Veterans' Affairs for their assistance with this legislation and their willingness to work through any issues. Given their assurances that no veterans will be worse off for these changes, Labor offer our support to this legislation. I commend the bill to the House.

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