Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Hansard source

( Mr Acting Deputy President, this is not my first speech. There are measures in the Budget Savings (Omnibus) Bill 2016 that the Nick Xenophon Team support and there are others that we oppose. Tonight I rise to speak on one measure that we simply cannot support—measure 24 of the bill, the single appeal pathway under the Military Rehabilitation and Compensation Act. The Military Rehabilitation and Compensation Act 2004 provides compensation and other benefits for current and former members of the ADF who suffer a service wound, injury or disease. The measure in this bill will create a review pathway for original determinations made under the MRCA, removing the option for internal reconsideration by the Military Rehabilitation and Compensation Commission and allowing only for a review by the Veterans' Review Board.

The existing pathway for review is twofold, giving claimants the flexibility to choose the review pathway that best suits their circumstances. Currently, a claimant can seek an internal reconsideration by the MRCC, initiated by the claimant under section 349 of the act, or they can opt for a review by the Veterans' Review Board under section 352. The veteran chooses only one of the two pathways with the next stage of appeal for both pathways being the Administrative Appeals Tribunal. Should a veteran opt for the internal review pathway, the veteran cannot access legal aid. However, if the determination is varied or set aside and remade by the AAT then the tribunal can make a costs order against the Commonwealth. Conversely, should a veteran choose the review pathway by the VRB, whilst they may be legally represented, the AAT cannot award that costs of the veteran be paid by the Commonwealth. Whilst this measure seeks to simplify the process for veterans, its effect will make it harder, more onerous and costly for veterans to pursue their claims.

This is not the first time the Senate has been asked to consider the measures contained in this part of the bill. These measures originally formed part of the Veterans' Affairs Legislation Amendment (2015 Budget Measures) Bill 2015. When it became apparent that these provisions may have caused unintended consequences, the provisions of the bill relating to the single appeal pathway were referred to the Senate Foreign Affairs, Defence and Trade Committee for inquiry and report. The committee received 21 submissions, with two supplementary submissions. Many of the submissions highlighted serious concerns with the proposed legislation. Slater and Gordon lawyers highlighted the inequity created by this measure. They said:

It results in demonstrably inferior appeal rights for injured veterans compared to civilian workers, not just under Comcare, but across Australian States and Territories.

It is clear that the government has not fully understood the implications of abolishing a veteran's right to request an internal review to the MRCC provided by section 349 of the act. It means that civilian staff covered by Comcare, including staff of the Department of Veterans' Affairs, would have better protection and fairer appeal rights compared to Australian Defence Force personnel, veterans and their families. If this measure is passed, it will mean that those who placed their lives on the line for us and those who continue to do so will be relegated to second-class citizens. This is ironic, given that civilian employees of the Department of Veterans' Affairs who administer military and veterans compensation will, if they are injured at work, have greater access to justice and fairer appeal rights than veterans.

There is no group in Australia that we hold in higher regard than our Australian Defence Force personnel and veterans. Each year on Anzac Day, we commemorate their selfless contribution and the ultimate sacrifices they make. It is astonishing, then, that the government, through this measure, would seek to diminish the rights of this group of brave Australians. The Returned & Services League of Australia, on the face of it, supported the measure. However, during questioning by my colleague Senator Xenophon in a Senate Foreign Affairs, Defence and Trade Committee inquiry, the RSL were forced to reconsider their position after initially supporting the process unconditionally. The practical effect of removing the MRCC internal review appeal pathway will be to deny veterans a quicker system of review than is currently available. The MRCC internal review pathway also provides for veterans to be entitled to legal representation through the entire appeal process, with the right to payment of most, if not all, legal costs and disbursements if an adverse decision is overturned by the AAT.

This measure, however, would mean that all reviews would be directed to the VRB, where an injured veteran is not allowed to be assisted by anyone with a legal qualification during the VRB process. This denial of legal representation for veterans before the VRB sets up a David and Goliath scenario that is virtually insurmountable. The DVA has a plethora of highly qualified private sector panel lawyers and in-house lawyers with unlimited resources at their disposal to help them in defeating an unrepresented veteran's claim. In their submission to the Senate inquiry, Slater and Gordon stated that in 2013-14 the DVA spent more than $6 million on external legal services, including $586,000 on 'engaging counsel who advised on litigation' and other matters. The power of the DVA to defend claims against unrepresented veterans is palpable.

The VRB process also results in the elimination of the possibility of a veteran being awarded costs. Veterans with strong cases will not be able to appeal to the AAT because, win, lose or draw, veterans cannot be awarded their costs at the AAT, if this bill is passed. While the possibility of legal aid may be available to veterans on appeal to the AAT, a grant of legal aid is not guaranteed, as legal aid is administered by state and territory governments. Such services are already under enormous pressure due to funding cuts which are being further implemented under this government. Different eligibility requirements would apply in each state and territory, with veterans vulnerable to the behest of an administrative officer who would make a decision as to whether or not that veteran would be eligible for a grant of legal aid.

With some sensible and reasoned amendments, this measure could achieve a single appeal pathway and a level playing field for veterans in their pursuit for justice and fairness with their claims. The proud history, traditions and sacrifices made by the Australian Defence Force have played a significant role in forging our national identity. It is our responsibility to treat them with the dignity and the fairness they deserve in their hour of need. As I foreshadowed earlier, Senator Lambie and I will be moving an amendment to this bill in the committee stage to remove the measures relating to the single appeal pathway.