David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

No, that is certainly my word, Senator; I concede that—between the department's work and the wording of the EM. To address myself to that point: the government maintains that the department's position to the committee is not at odds with the EM. In fact, we continue to maintain that they are complementary. The amendments to the legislation to maintain current arrangements are to ensure that the Smith decision—that is, the decision of the full bench of the Federal Court—is not used to circumvent the current provisions by excluding some injuries or diseases where the incapacity is the same under more than one compensation source.

What the department says regarding circumventing the offsetting provisions and whether that contradicts chapter 19 of the Guide to the Assessment of the Rate of Veterans' Pensions, mentioned in the EM, we say that the offsetting provisions are completely separate from chapter 19 of the guide. Chapter 19 is the guide that determines the rate of pension for a veteran. The government included reference to chapter 19 in the explanatory memorandum to alleviate the RSL's concerns that there may be an overlap and to ensure that these will remain separate processes in line with current practice.

This has no relationship to the terms of a common law settlement that might be used. This is used where possible to separately identify the relative contribution of each condition to an incapacity and then assess the appropriate rate of compensation. This is based on medical advice. However, it is not always possible for medical practitioners to assess the relative contributions of different conditions, particularly where the symptoms of the conditions substantially overlap. Where it is not possible to apportion the impairment from a non-accepted condition from the incapacity assessment, the offsetting provisions are used. Chapter 19 is never used together with offsetting; it is one or the other.

An example of how the Smith decision might impact current arrangements is this. As you have noted, Senator, the decision was concerned with different injuries or diseases even where the incapacity is the same. These amendments ensure that no matter how the injury or disease is described, if the incapacity is the same, compensation offsetting will continue to apply to ensure that a person cannot be compensated twice. These amendments clarify the longstanding current position. They ensure that someone who simply labels two conditions differently is not compensated twice when the incapacity is clearly the same—for example, a back sprain and lumbar spondylosis.

Offsetting is about fairness. It ensures that individuals get the same amount of compensation whether or not they get compensation from only one source or from more than one source. I hope that assists the senator.