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

I rise to speak on the Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017. The bill contains eight schedules which deal with different elements of veterans legislation that would implement amendments to clarify, improve and streamline the operation of the law. Schedule 1 of the bill seeks to amend the provisions under which the Veterans' Review Board, or VRB, operates, in an effort to modernise the VRB in line with the Administrative Appeals Tribunal following amendments made to the tribunal with the passage of the Tribunals Amalgamation Act 2015. An example of this alignment is new section 133A, which deals with the board's objectives. The proposed amendments provide that:

In carrying out its functions, the Board must pursue the objective of providing a mechanism of review that:

(a) is accessible; and

(b) is fair, just, economical, informal and quick; and

(c) is proportionate to the importance and complexity of the matter; and

(d) promotes public trust and confidence in the decision-making of the Board.

Schedule 1 also provides the board with the power to vary or revoke a decision made under the alternative dispute resolution process with the consent of the parties and where the board is satisfied that it is within its powers and otherwise appropriate to do so. It also requires the Repatriation Commission and any person representing the commission in a review to use their best endeavours to assist the board in fulfilling its legislative objective in line with the expanded objective which deals with proportionality and public trust.

Schedule 1 had originally contained provisions which would have given the principal member of the VRB the power to dismiss an application for a review of a decision if they were satisfied that the application is frivolous, vexatious, misconceived or lacking in substance, has no reasonable prospect of success, or is otherwise an abuse of process. This was of great concern to me, the veterans community and many submitters to the Senate inquiry into the bill. Mr Brian Briggs of Slater and Gordon Lawyers opined that to introduce these dismissal powers to the VRB 'would increase the risk that genuine claims could be erroneously dismissed', given that even the AAT had wrongly dismissed genuine claims in the past. The principal member of the VRB, Mr Doug Humphreys, conceded in writing that during his tenure of seven years there had only been three matters where it may have been appropriate to hold a preliminary hearing to consider whether or not the matter should be dismissed on this ground if the VRB were so empowered. In the report The constant battle: suicide by veterans, the TPI Federation observed that DVA has acknowledged that there are less than 1.5 per cent of claims made by veterans that are disingenuous.

The single appeal pathway was a measure contained in the Budget Savings (Omnibus) Bill 2016, which had the effect of removing the option for internal reconsideration by the Military Rehabilitation and Compensation Commission. I did not support the measure at the time and argued that the previous pathway for review provided veterans with the flexibility to choose the review that best suited their circumstances. But, unfortunately, the opposition did support the measure, which became law. The practical effect of removing the MRCC internal review pathway was to deny veterans a quicker system of review which entitled veterans to legal representation through the entire appeal process. The Foreign Affairs, Defence and Trade References Committee inquiry into suicides of veterans reaffirmed my concerns with the new VRB process. The committee was concerned about whether the practice of preventing veterans from bringing their lawyers to the VRB is appropriate in all cases. A number of examples were provided where vulnerable veterans felt underrepresented or unable to fairly engage with VRB proceedings. The committee acknowledged that it is imperative that veterans should be able to achieve the fairest hearing possible.

To that end I welcome the government's agreed response to recommendation 24 of The constant battle: suicide by veterans report, which proposed that the Australian government establish an independent review of the representation of veterans before the VRB. The recommendation proposes that the review should assess whether the rights of vulnerable veterans are being adequately protected and whether further support mechanisms for veterans appearing before the VRB are required. Our veterans deserve a fair, just and timely system to address their claims. Given the small number of times that the proposed power would be utilised, I do not believe the government has made its case for the inclusion of the summary dismissal powers in the bill. We do, however, support the intention of the bill to align the principles of the VRB and the AAT, and are supportive of these broader changes. The government has, to its credit, subsequently removed these provisions for summary dismissal from the bill, following amendments which passed the lower house last month. I thank the government for listening to my concerns and the concerns of relevant stakeholders by removing the summary dismissal power.

Schedule 2 of the bill seeks to simplify the appointment process of individuals to the Specialist Medical Review Council, progress whole-of-government requirements for digital transformation, remove red tape in commencing reviews and provide reimbursement for certain travel expenses. The SMRC exists as an independent statutory body which reviews the contents of statements of principles or a decision of the Repatriation Medical Authority not to issue such a statement. The current appointment process of panel members to the SMRC takes around three months or longer and is overly prescriptive and time consuming. This affects the ability of the SMRC to perform its functions. The government has advised that these amendments will not change the threshold for specialists appointed to the panel; rather, the amendments will focus on streamlining the process of appointing specialists to the SMRC and are supported by the Nick Xenophon Team.

The amendments in schedule 2 will also provide payment of travel expenses for individuals, representatives of organisations and any necessary attendants accompanying a person attending the SMRC to make an oral submission. Schedule 2 also makes amendments which enable the convener of the SMRC to provide written directions about the manner for lodging requests for review for applications and to facilitate the electronic lodgement of documents in light of the government's digital transformation agenda. The Nick Xenophon Team supports these amendments in an effort to streamline processes and procedures at the SMRC.

Schedule 3 of the bill relates to the making of international arrangements. In particular, the proposed amendments will allow the minister to enter into agreements with a broader range of foreign countries than is currently allowed in order to establish reciprocal arrangements for veterans' affairs, the effect of which is that the minister can enter into agreements with any foreign country that makes provision for reciprocal payments or treatment and rehabilitation in relation to classes of persons specified in the agreement.

Another issue is that currently existing agreements are concerned with only those benefits payable under the VEA. Proposed amendments in schedule 3 will mean that coverage of allied veterans and Defence Force members with service of the type for which benefits and payments can be provided by the Repatriation Commission or the MRCC will extend to all acts pertaining to them: the VEA, the MRCA, the DRCA or the Australian Participants in British Nuclear Tests (Treatment) Act 2006. The Nick Xenophon Team supports these amendments. Currently, Australia has entered into formal agreements with New Zealand and the United Kingdom, and we look forward to seeing similar arrangements with other nations to expand the coverage of our benefits to our veterans living overseas.

Schedule 4 provides additional measures in connection with the employer incentive scheme payments. These payments are made to employers in the form of wage subsidies to encourage employers to hire injured veterans who have found it difficult to transition to civilian life and competing in tough labour markets. The department provides vocational rehabilitation to eligible serving and former Defence Force members, reservists and cadets following service related injury or disease. The assistance may also involve incentive payments to employers to facilitate civilian employment of veterans. The proposed amendments to the MRCA, the VEA and the DRCA will strengthen the legislative foundation for the payments to employers. These measures are supported by the Nick Xenophon Team because they will assist injured veterans to move forward and transition from defence service. Vocational rehabilitation can play a key role in assisting eligible veterans to find and retain employment. We know that for veterans, working can strengthen self-esteem, increase socialisation and improve physical and mental health.

Whilst I appreciate that there are checks and balances in place to ensure that the EIS achieves its stated aims, I remain concerned that employers may take advantage of vulnerable injured veterans. To that end, I have negotiated with the government to provide for an independent review of the scheme two years after its commencement. This will ensure that it is working to achieve its aims of employing injured veterans and giving them a genuine and lasting opportunity to engage with paid employment and the wider community. I understand that the minister will refer to this in the summing up of the bill.

Schedule 5 amends the MRCA and the DRCA to facilitate information sharing between the Military Rehabilitation and Compensation Commission and the Commonwealth Superannuation Corporation for the purposes allowed under the CSC's legislation. The proposed amendments would implement a recommendation by the 2011 Review of Military Compensation Arrangements intended to improve the information-sharing framework for incapacity and superannuation benefits between DVA and CSC, therefore reducing the time taken to process claims by DVA and CSC, which would better support injured veterans.

Currently, there is no express provision to allow the CSC to request information from the MRCC, but the MRCC can request information from the CSC. The bill aims to assist the CSC to make more timely superannuation decisions by allowing access to MRCC claims information where necessary. Requests for information from the CSC to the MRCC are made in accordance with the Privacy Act 1988. By enabling the CSC to use medical information and reports held by the MRCC to determine superannuation claims, it may avoid the need to send applications for further medical assessment where the MRCC already holds relevant medical evidence that could be used by the CSC to determine superannuation benefits. This amendment is highly significant to Defence Force members and veterans, as they would be spared from any retraumatisation from having to retell their stories, which have arisen in many cases from physical or psychological abuse.

I do note that this section has caused some concern with the veteran community, who raised a number of privacy concerns during the Senate inquiry into the bill. Many submitters encouraged the department to promote greater transparency by undertaking a privacy impact assessment of schedule 5 of the bill. This has been undertaken, and the PIA report by the Australian Government Solicitor was published on 22 June this year and has been uploaded on DVA's website. This information sharing is designed to assist the CSC to undertake its usual function. It is very different to the public interest disclosure provisions of the digital readiness act, which I did not support, which envisaged the secretary being able to make public disclosure of personal information about a veteran.

The provisions in schedule 6 relate to the power of the Minister for Veterans' Affairs to delegate any of his or her functions under the MRCA. In the original drafting of the bill, the delegation of the minister's power extended to a commissioner of the MRCC or any public servant appointed or engaged under the relevant act. Whilst I acknowledge that this broad delegation of power exists under the VEA, it raised concerns with the Scrutiny of Bills Committee about why it was necessary to allow the minister's powers and functions to be delegated to any APS employee at any level. The minister acknowledged these concerns and moved amendments which passed the lower house, which now limit the delegation power so that the minister would only be able to delegate any of his or her functions or powers to an SES employee or acting SES employee in the department. Limiting the delegation power to the Senior Executive Service is reasonable, strikes the right balance and is supported by the Nick Xenophon Team.

Schedule 7 of this bill will amend the legislation to exempt certain legislative instruments from section 14(2) of the Legislation Act 2003 and enable those legislative instruments to incorporate material contained in other non-disallowable legislative instruments or other non-legislative writings in force from time to time. The current requirement to amend the Veterans' Affairs portfolio legislative instruments to incorporate changes in non-disallowable instruments has caused significant administrative issues and lengthy delays for the department. For example, Veterans' Affairs treatment principles are a legislative instrument. The treatment principles set out the arrangements under which the Repatriation Commission can issue guidelines for the provision of treatment, including hospital services, to veterans. An external document associated with the treatment principles includes a schedule of rehabilitation appliances that are approved for use when providing services to veterans. When a new technology becomes available, this list must be updated. Currently, every time an external document is updated, the legislative instrument is attached to it and must be amended. In the case of treatment principles, this can cause a delay of up to six months in new products being made available to the veteran community. The schedule allows certain legislative instruments to be automatically updated to incorporate changes to external documents. All of the incorporated documents will be made available online by the department and readily accessible. This schedule is also supported by the Nick Xenophon Team.

Finally, the amendments in schedule 8 will repeal redundant and spent provisions administered in the Veterans' Affairs portfolio concerning benefits that are no longer payable under portfolio acts and also makes consequential amendments in relation to their repeal. The measures proposed in schedule 8 are being made to simplify veterans' legislation and make it more accessible for individuals wishing to interpret the current provisions. I support this bill and I thank the minister's office for dealing with my concerns in a professional and considered manner.

On 19 October, I moved a motion calling on the government to implement the recommendations made in the report Theconstant battle: suicide by veterans. The government has since responded to the report and accepted all of the recommendations. I thank the government for its timely response and for acknowledging the importance of the inquiry, which I had the privilege to be part of. I look forward to the implementation of the recommendations and the positive impact they will have on the lives and health of our Defence Force members and veterans.