EXPLANATORY STATEMENT
Guide to Determining Impairment and Compensation
EMPOWERING PROVISIONS
Section 67 of the Military Rehabilitation and Compensation Act 2004.
PURPOSE
The attached instrument (2015 No. MRCC 4) revokes and re-makes the Guide to Determining Impairment and Compensation (GARP M) for the purposes of the sunsetting exercise. On 1 October 2015 GARP M will “sunset” (expire) unless re-made.
The Department of Veterans’ Affairs (DVA) has performed a preliminary review of GARP M to ascertain if it is still required and found the instrument is still required. Accordingly GARP M has been re-made and apart from minor drafting changes the instrument is the same in substance as the GARP M it replaces.
It should be noted that subsection 26(1B) of the Legislative Instruments Act 2003 (as it was known on 1 January 2015) provides that the requirement for an explanatory statement to explain the purpose and operation of an instrument may be met by an explanation that the instrument replaces a specified earlier legislative instrument or a specified provision of an earlier legislative instrument and is the same in substance as the specified instrument or provision. Accordingly the explanation of the attached instrument is limited to the abovementioned statement that the instrument replaces GARP M in almost exactly the same form.
As a result of the preliminary assessment of GARP M, in particular whether it is “fit-for-purpose”, it is envisaged that the instrument will be more comprehensively reviewed in the future.
The main purpose, therefore, of the attached instrument is to save GARP M from sunsetting and thereby preserve the methods of working out the impairment of people who have served in Australia’s Defence Force and suffered a service-related injury or disease which entitles them to compensation.
CONSULTATION
No because the attached instrument did not change any of the impairment methodologies in the instrument it replaced. The aim was to re-make GARP M as quickly as possible before it sunsets given the significance of the instrument in determining claims for compensation, including in Courts and Tribunals.
RETROSPECTIVITY
None.
DOCUMENTS INCORPORATED-BY-REFERENCE
No.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument does not engage an applicable right or freedom. Although the instrument contains methods for working out a person’s impairment for compensation purposes and to that extent relates to a person with disabilities, the nexus is technical and has no bearing on the provision of services for people with disabilities. Accordingly the Right to Full and Effective Participation in Society, on an equal basis with others, by people with a disability (Right to Full and Effective Participation in Society), contained in the Convention on the Rights of Persons with Disabilities, is not relevant .
Conclusion
The attached legislative instrument does not engage a human right and therefore is compatible with human rights.
Michael Ronaldson
Minister for Veterans’ Affairs
Rule-Maker
FURTHER EXPLANATION OF NEW PROVISIONS
See: Attachment A
Attachment A
Section 1
This section sets out the name of the instrument - Guide to Determining Impairment and Compensation.
Section 2
This section states the short title of the instrument, namely “GARP M”.
Section 3
This section provides that the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 4
This section states that the authority for the instrument is the Military Rehabilitation and Compensation Act 2004.
Remaining provisions
GARP M is to be applied to assess the impairment points due to injuries or diseases, or both, that are determined to be service related.
In making any determination on the impairment the clinical features of injuries or diseases are to be taken into account. Sequelae of conditions can only be assessed after the sequelae have been determined to be service related.
The two elements required to determine a periodic payment are medical impairment and lifestyle. Impairment is dealt with in Chapters 1 – 21 of the Guide. Lifestyle effects are dealt with separately and are described in Chapter 22 of the Guide.
Chapters 1 to 16 of the Guide contain two principal types of tables. Physical loss is to be rated against criteria in “Other Impairment” tables. Functional loss is to be rated against criteria in “Functional Loss” tables.
Overview
The Guide to Determining Impairment and Compensation (GARP M) was introduced as a legislative instrument under the Military Rehabilitation and Compensation Act 2004 to address the problem of ensuring that the methods for assessing the impairment of veterans who have suffered service-related injuries or diseases remained current and effective. This instrument was enacted in 2015 to prevent the previous guidelines from expiring and to maintain consistency in the assessment of claims for compensation. The Department of Veterans' Affairs found that the existing guidelines were still required and, aside from minor drafting changes, the new instrument essentially retains the same methodologies. The policy objective is to ensure that veterans receive fair and accurate compensation by preserving the established methods for determining the extent of their impairment. The instrument does not alter any existing impairment methodologies, does not apply retroactively, and does not incorporate any documents by reference. The explanatory statement confirms that the new instrument does not engage any relevant human rights, thereby ensuring its compatibility with human rights obligations.
Scope and Application
The attached instrument, Guide to Determining Impairment and Compensation, is a legislative instrument made under the authority of the Military Rehabilitation and Compensation Act 2004. Its primary function is to provide a framework for assessing the impairment points attributable to service-related injuries or diseases, thereby determining the eligibility and amount of compensation for members of Australia’s Defence Force who have suffered such conditions. The instrument applies to individuals who have sustained injuries or diseases during their service and seek compensation from the Department of Veterans’ Affairs. It includes the assessment of both physical and functional losses, using criteria specified in designated tables within the Guide. The instrument does not alter the existing methodologies for determining impairment but rather seeks to preserve them by preventing the sunsetting of the previous Guide to Determining Impairment and Compensation. The instrument applies nationally within Australia, covering all states and territories, and is applicable to all service-related claims for compensation. There are no stated exclusions, exemptions, or thresholds within the instrument itself, but the application of the compensation determined through the instrument may be subject to other provisions of the Military Rehabilitation and Compensation Act 2004. The instrument does not extend or restrict its application through subordinate instruments but stands as a comprehensive guide for assessing compensation claims based on the impairment resulting from service-related injuries or diseases.
Key Provisions
The main operative sections of this legislation (Guide to Determining Impairment and Compensation) are concerned with the methods used to assess the level of impairment for individuals who have served in Australia’s Defence Force and have suffered a service-related injury or disease, which entitles them to compensation. The instrument, referred to as GARP M, outlines the criteria for determining the impairment points due to these injuries or diseases, taking into account the clinical features and sequelae of the conditions (Sections 1-4). It specifies that the impairment assessment process includes two principal types of tables: “Other Impairment” tables for physical loss and “Functional Loss” tables for functional loss (Chapters 1-16). Additionally, it addresses the assessment of lifestyle effects in Chapter 22.
The Act imposes several obligations and requirements on the parties involved. Primarily, the Department of Veterans' Affairs (DVA) is tasked with using GARP M to assess the impairment points for compensation claims. This involves considering the clinical features of injuries or diseases and only assessing the sequelae of conditions if they have been determined to be service-related. The Act mandates that DVA must apply the methods and criteria set out in GARP M consistently and fairly when determining the level of impairment, ensuring that compensation is awarded based on an accurate assessment of the impact of service-related injuries or diseases.
The legislation does not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, the accurate and fair application of GARP M is crucial for the proper administration of compensation claims. Failure to adhere to the guidelines and criteria set out in GARP M could potentially lead to disputes and legal challenges, particularly in courts and tribunals where compensation claims are adjudicated. Ensuring compliance with the instrument is therefore essential to maintain the integrity of the compensation process and to avoid potential legal ramifications for the DVA.