EXPLANATORY STATEMENT

Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) (Extension of Eligibility) Instrument 2017 (Instrument 2017 No.R31)

EMPOWERING PROVISION

Subsection 5(3D) of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (the Act).

PURPOSE

The attached instrument (2017 No. R31) specifies classes of persons to be classified as nuclear test participants for the purposes of the Act.

In the 2017-18 Budget, the Government included a measure for the Department of Veterans’ Affairs (DVA) to provide a Health Card for treatment of all conditions (Gold Card) to Australian participants of the British Nuclear Testing program or Australian residents who may have been exposed to ionising radiation due to the tests in Australia and veterans of the Australian Defence Force who served as part of the British Commonwealth Occupation Force (BCOF) in Japan directly after the Second World War.  This measure was implemented by the Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017.

Certain people affected by the British nuclear tests in Australia in the 1950s and 1960s are currently ineligible for the Gold Card under the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 because they were not in a nuclear test area.  However, they have been found to be entitled to compensation under one of several Australian non‑statutory schemes related to British nuclear tests.

Others, including ADF members, civilians and Commonwealth employees and contractors have successfully claimed compensation under an Australian military compensation or workers’ compensation regime for conditions caused by exposure to ionising radiation arising from service or work in support of the British nuclear tests.  However, they may also be ineligible for a Gold Card as their involvement in a nuclear test area may have occurred outside the specified timeframes under the Act.

Further, members of the Australian Defence Force who served in Japan directly after the Second World War and before the establishment of BCOF were potentially exposed to ionising radiation through that service but are currently ineligible for a Gold Card.

Section 5 of the Act defines “nuclear test participant” by specifying the various categories of persons who come within the definition. Subsection 5(3C) also provides that a person is a “nuclear test participant” if the person satisfies the requirements that are specified in a legislative instrument made by the Repatriation Commission under subsection 5(3D).

The purpose of the attached instrument is to specify 3 new classes of persons to be classified as “nuclear test participants” with the result that persons within those classes may apply under the Act to be provided with a Gold Card which will give them access to treatment for all medical conditions, regardless of causation, under DVA arrangements.

1. Persons entitled under non-statutory compensation schemes

The new participants covered by the attached instrument are those who have received, or have been assessed as eligible to receive, compensation under one of the various non‑statutory schemes set up by the Commonwealth government in the 1980s to compensate indigenous Australians, pastoralists, contractors and other civilians for diseases or injuries related to the British nuclear tests. The first of these schemes, outlined below, remains open; the second and third are now closed:

(1)     The Administrative Scheme for the Purposes of Compensating Persons Present at British Nuclear Test Sites in Australia.

(2)     Act of Grace Scheme established in 1989 to provide compensation for certain common law claimants affected by the tests.

(3)     Special Administrative Scheme established in 1989 and administered by the former Department of Primary Industries and Energy to compensate eligible test participants.

Compensation under these schemes was broadly payable to persons who developed a disease that was caused, or likely to have been caused, by their participation in the British nuclear tests.  In some cases, dependants were entitled to claim compensation in respect of the death of such a person.  The attached instrument limits eligibility for the Gold Card to those who received or who are eligible to receive compensation under the schemes in their own right.

2. Persons entitled under statutory compensation schemes

The attached instrument covers, as a second category of “nuclear test participant”, those who successfully claimed compensation under a workers’ compensation law or military compensation law, for medical conditions arising from their service or work in support of the British nuclear tests. 

This group broadly covers persons who received compensation under the Veterans’ Entitlements Act 1986 or the Safety Rehabilitation and Compensation Act 1988 (SRCA), or its antecedent Acts, in relation to a condition caused by exposure to radiation from the British nuclear tests.   

It might cover, for example, personnel involved in the Royal Australian Navy’s post nuclear test visits to the Monte Bello Islands to monitor radiation levels and ensure warning signs were visible and adequate.  These visits continued after 19 June 1958, being the cut-off date under the Act for eligibility for the Gold Card in respect of the Monte Bello Islands nuclear test area.

A person who was present at this site after 19 June 1958 may have been exposed to sufficient radiation to give rise to a medical condition for which they were awarded compensation under the SRCA.

Again, the instrument limits the class to those who received compensation in their own right and not solely by virtue of their status as a dependant of a person who died from exposure to radiation from the British nuclear tests.

3. ADF members with pre-BCOF service in Japan.

In addition, the attached instrument specifies as a further class of “nuclear test participant” those ADF personnel who served in Japan at the end of the Second World War but before the creation of the British Commonwealth Occupation Force (BCOF).  These people are currently ineligible for the Gold Card whereas their counterparts who served in Japan immediately after, as part of the BCOF, do qualify.

Specifically, the instrument provides that a person is a “nuclear test participant” if the person was a member of the Australian Defence Force who served in Japan at any time during the period from the beginning of 16 August 1945 to the end of 30 January 1946. 

The addition of these 3 new classes of “nuclear test participant” in the attached instrument is consistent with Government policy as announced in the 2017-2018 Federal Budget to provide Gold Card treatment for all conditions to people potentially exposed to ionising radiation either through the British Nuclear Tests or through their service within the Australian Defence Force in connection with the occupation of Japan at the end of the Second World War.

Further details of the attached instrument are set out in Attachment A.

CONSULTATION

Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.

The Department of Employment was consulted in the development of this instrument, in particular, in regard to eligibility and compensation payable under the Administrative Scheme for the Purposes of Compensating Persons Present at British Nuclear Test Sites in Australia.

The Department of Finance and the Department of Employment were consulted as part of the Budget approval process regarding the 2017-18 Budget measure to provide Gold Cards to those persons already covered for treatment under the APBNTTA (British Nuclear Test Participants) and civilians present at a nuclear test area during a relevant period, as well as Australian veterans of the British Commonwealth Occupation Force (BCOF).

The nature of consultation was by way of phone calls and e mail correspondence.

In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.

RETROSPECTIVITY

Yes, the instrument will be taken to have commenced on 1 July 2017 and will operate retrospectively from that date.

Any retrospective commencement will not contravene subsection 12(2) of the Legislation Act 2003 (a provision of a legislative instrument is of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person other than the Commonwealth) because the policy implemented by the attached instrument is entirely beneficial in nature; it does not disadvantage any person or impose a liability on a person other than the Commonwealth. 

The instrument can be said to be beneficial in nature in that it specifies 3 new classes of “nuclear test participants” with the result that they will be eligible under the Act to apply to the Department of Veterans’ Affairs for a Gold Card – an entitlement to government-funded treatment for all medical conditions.

DOCUMENTS INCORPORATED BY REFERENCE

None.

REGULATORY IMPACT

None.

HUMAN RIGHTS STATEMENT

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The attached legislative instrument engages an applicable right or freedom, namely, the Right to Health.

The right to health is contained in article 12(1) of the International Covenant on Economic Social and Cultural rights and refers to the right to the enjoyment of the highest attainable standard of physical and mental health. 

The attached legislative instrument engages with, and advances, the Right to Health by extending eligibility for a Gold Card to the persons within the new classes of “nuclear test participant” covered by the attached instrument, namely those who have received or are eligible for compensation under one of the specified non-statutory schemes; those who have received compensation under a workers’ compensation or military compensation law as a result of exposure to radiation from a nuclear test area in Australia; and those ADF members who served in Japan during the period directly after the Second World War and before the establishment of BCOF.

A Gold Card provides access to treatment for all medical conditions, regardless of causation, under DVA arrangements and is not limited to treatment to those health conditions that may be caused by exposure to radiation such as malignant neoplasia.

The attached instrument enables the persons in question to obtain health care for all conditions.

Conclusion

The attached legislative instrument is considered to be compatible with human rights, specifically, the Right to Health.

Repatriation Commission

Rule-Maker

Attachment A

FURTHER EXPLANATION OF PROVISIONS

Section 1

This section sets out the name of the instrument – the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) (Extension of Eligibility) Instrument 2017.

Section 2
This section provides that the instrument is taken to have commenced on 1 July 2017.

This commencement date aligns with the commencement of recent amendments to the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (the Act) to provide for Gold Cards for a broader class of civilians and Australian veterans of the British Commonwealth Occupation Force (BCOF).

The 1 July 2017 commencement will ensure equivalence in terms of availability of Gold Card entitlements between the new classes of “nuclear test participants” specified in this instrument and the “British Commonwealth Occupation Force participants” and “nuclear test participants” eligible under the Act.

Section 3

This section sets out the empowering provision in the primary legislation that authorises the making of this instrument – subsection 5(3D) of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006.

Section 4

This is the interpretation provision.  It defines the terms used in the instrument.

The section defines the following 3 non-statutory compensation Schemes referred to in section 5 of the instrument:

• “Act of Grace Scheme” is defined to mean the scheme, now closed, that was established in 1989 and administered jointly by the Attorney-General’s Department and the former Department of Primary Industries and Energy to provide compensation to common law claimants affected by the British nuclear tests who commenced proceedings against the Commonwealth in the period from 1988 to 4 September 1989.

• “Special Administrative Scheme” is defined to mean the scheme, now closed, that was established in 1989 and administered by the former Department of Primary Industries and Energy to provide compensation to eligible test participants involved in the British nuclear tests who suffered from leukaemia or multiple myeloma, or to their dependants in the case of participants who died from such diseases.

• “Administrative Scheme for the Purposes of Compensating Persons Present at British Nuclear Test Sites in Australia” is defined to mean the scheme established in 1986 in response to the 1985 Report of the Royal Commission into British Nuclear tests in Australia and administered by the Department of Employment to provide compensation to Aborigines, graziers and other civilians affected by the British nuclear tests.

In relation to that final scheme, section 4 also includes a definition of “Administering Authority” defined to mean the Department of Employment or such other Commonwealth agency or department as may from time to time be responsible for administering the scheme.

Section 5

This section specifies requirements for a “nuclear test participant” for subsection 5(3C) of the Act.  It covers the class of persons entitled to compensation under one of the 3 specified non-statutory compensation schemes established to assist persons affected by the British Nuclear tests.

Section 5(1) provides that a person is a “nuclear test participant” if the person –

•   has received compensation under the Act of Grace Scheme; or
•   has received compensation under the Special Administrative Scheme; or
•   has received compensation, or has been assessed by the Administering Authority as eligible to receive compensation, under the Administrative Scheme for the Purposes of Compensating Persons Present at British Nuclear Test Sites in Australia –

in respect of the person’s known or likely exposure to radiation from the British nuclear tests.

Subsection 5(2) provides, that for the avoidance of doubt, a person is not a nuclear test participant under subsection (1) if the person received compensation only by virtue of being a dependant of a person who died following exposure to radiation from the British nuclear tests.

Compensation under the schemes mentioned in section 5(1) is payable to persons who contracted a disease caused, or likely to have been caused, by their participation in the British nuclear tests.

In some cases, dependants may claim in respect of the death of such a person. This instrument establishes eligibility for the Gold Card only for the primary beneficiaries under the schemes – those directly affected by their involvement in the British nuclear tests.  A dependant of such a person who successfully claimed compensation under one of the schemes in respect of the death of the person is not be entitled to a Gold Card by virtue of that compensation payment alone.  This is consistent with the outcome under the primary legislation, whereby the Gold Card is not available to dependants of British nuclear test participants unless the dependant meets the legislated eligibility criteria in their own right. 

Section 6

This section specifies requirements for a “nuclear test participant” for subsection 5(3C) of the Act.  It covers the class of persons who have received compensation under a workers’ compensation or military statutory compensation scheme in respect of a condition caused by exposure to radiation from the British nuclear tests.  

Subsection 6(1) provides that a person is a “nuclear test participant” if–

• the person has received compensation under the Veterans’ Entitlements Act 1986 or under a workers’ compensation law of the Commonwealth or a State or Territory; and

• the compensation related to a condition caused by exposure to radiation from the British nuclear tests; and

•   the person was, at the time of the exposure, an Australian resident.

The note to subsection 6(1) gives examples of the relevant statutory compensation schemes in place from the time of the British nuclear tests.  It refers to the Safety, Rehabilitation and Compensation Act 1988 and its antecedents, the Commonwealth Employees’ Compensation Act 1930 and the Compensation (Commonwealth Government Employees) Act 1971.  In addition, it mentions State workers’ compensation laws in force from the time of the British Nuclear tests such as the Workers’ Compensation Act 1912 (WA).

Again, membership of this class is limited to persons who received compensation under one of the specified statutory schemes in their own right. Subsection 6(2) puts this beyond doubt.  It provides: “…a person is not a nuclear test participant under subsection (1) if the person received compensation only by virtue of being a dependant of a person who died as a result of a condition caused by exposure to radiation from the British nuclear tests”.

Section 7

This section specifies requirements for a “nuclear test participant” for subsection 5(3C) of the Act.  It covers the class of ADF members who served in Japan immediately after the Second World War and before the establishment of the British Commonwealth Occupation Force (BCOF).

The section provides that a person is a nuclear test participant if the person was a member of the Australian Defence Force who served in Japan at any time during the period from the beginning of 16 August 1945 to the end of 30 January 1946. 

The primary legislation provides coverage for Australian Defence Force members who served as part of the BCOF in Japan between its establishment on 31 January 1946 and its disbandment on 28 April 1952. 

Some members of the Australian Defence Force served in Japan after the end of the Second World War but before the creation of the BCOF.  Such members are not covered by the primary legislation and in order to receive a Gold Card, need to satisfy other, more onerous eligibility requirements under the Veterans’ Entitlements Act 1986 to qualify for a Gold Card.

This instrument will ensure that any service in Japan after the end of the Second World War and before the establishment of BCOF (the period from the beginning of 16 August 1945 to the end of 30 January 1946) will be sufficient to establish eligibility for a Gold Card.