EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Amendment (2023 Expansion of Acute Support Package) Instrument 2023
EMPOWERING PROVISIONS
Section 268B of the Military Rehabilitation and Compensation Act 2004 (the MRCA).
PURPOSE
The Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Amendment (2023 Expansion of Acute Support Package) Instrument 2023 (the Instrument) sets out provisions for, and in relation to, the extension of the granting of an acute support package of assistance or benefits to grandparents who are caring for the children of a deceased member for the purposes of the amendments to the MRCA made by the Veterans’ Affairs Legislation Amendment (Miscellaneous Measures No.2) Act 2023 (the Amendment Act). In addition, the Instrument also makes it clear that related persons can apply for, and be eligible for, the benefits and assistance under the acute support package.
Section 268B of the MRCA provides vulnerable veterans (in this case members and deceased members), their families and related persons with more flexible support through the acute support package of benefits and assistance. The acute support package provides choice and flexibility for families to access the help that will be most beneficial to them. A support plan, developed between the family or the specified person and a Department of Veterans’ Affairs (DVA) case manager, will set out the services on which the capped amount may be spent, based on individual family needs. A support plan must then be approved by a delegate.
The Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Instrument 2022 (the Principal Instrument) implemented and provided details of the acute support package. The Principal Instrument sets out the assistance and benefits that form part of the acute support package including the provision of child care services, counselling, household assistance, education, transport and equipment services to veterans and their families. It also provides for additional criteria for eligibility to be granted assistance and benefits under the acute support package.
The Principal Instrument also provides that for the purposes of the acute support package, the Military Rehabilitation and Compensation Commission (the MRCC) must prepare a support plan for the eligible person which outlines, among other things, the persons who will be provided with assistance or benefits under the support plan, the kinds of assistance or benefits that will be provided, and the periods during which the assistance or benefits will be provided. The support plan can be varied and revoked.
CONSULTATION
The acute support package was implemented in response to the Senate Foreign Affairs, Defence and Trade References Committee’s report The Constant Battle: Suicide by Veterans. It also responds to Recommendation 19.2 of the Productivity Commission’s inquiry report A Better Way to Support Veterans. The Principal Instrument also addressed feedback received through the Female Veterans and Veterans’ Families Forum. In addition, the amendments made by the Instrument clarifies the entitlement of related persons and the amendments consequential to the amendments made by the Amendment Act. Therefore no further additional consultation was required in relation to this Instrument.
DETAILS/OPERATION
The Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
MERITS REVIEW
Section 345B of the MRCA provides that Chapter 8 (Reconsideration and review of determinations) of the MRCA applies to decisions made by the MRCC under the Instrument. In effect, this makes a decision of the MRCC under the Instrument and the Principal Instrument merits reviewable, by reconsideration of the MRCC or, on application, by the Veterans’ Review Board and the Administrative Appeals Tribunal.
FURTHER EXPLANATION OF PROVISIONS
Details of the amendments made by Instrument including commencement details are set out in Attachment A.
Attachment A
Details of the Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Amendment (2023 Expansion of Acute Support Package) Instrument 2023
Part 1 - Preliminary
Section 1 - Name
This section provides that the name of the Instrument is the Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Amendment (2023 Expansion of Acute Support Package) Instrument 2023 (the Instrument).
Section 2 - Commencement
This section sets out the date on which the Instrument commences operation. Section 2 provides that the Instrument commences on 1 July 2023.
Section 3 - Authority
This section provides that the legislative authority for the Instrument is section 268B of the Military Rehabilitation and Compensation Act 2004 (the Act).
Section 4 - Schedule
This section provides that the instrument that is specified in the Schedule to this Instrument is amended as set out in the applicable items in the Schedule, and any item has effect according to its terms. In essence, Section 4 provides that the Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Instrument 2022 (the Principal Instrument) is amended as set out in the applicable items in Schedule 1.
Schedule 1—Amendments
Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Instrument 2022 (Principal Instrument)
These amendments amend the Principal Instrument.
Item 1 – Section 5
This item repeals the current section 5 and substitutes with a new section 5.
Section 5 is a simplified outline of the Principal Instrument. The simplified outline is included to assist the reader to understand the substantive provisions of this Instrument; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive provisions of this Instrument to which the outline relates.
New section 5 now includes reference to a related person of the member or former member, a parent or step-parent of a deceased member, a parent or step-parent of a wholly dependent partner of a deceased member or a parent or step-parent of another person who was the partner of a deceased member. These persons would be eligible for the benefits and assistance under the acute support package if they meet certain eligibility criteria and the MRCC is satisfied that it is appropriate to grant the package to assist the person to adjust to new and challenging life circumstances (refer to section 7 of the Principal Instrument).
Item 2 – Subsection 7(1)
This item amends subsection 7(1), consequential to the amendments made by Item 3 which inserts new subsection (5) and (6). This item adds a reference to subsection (5) or (6).
Item 3 – At the end of subsection 7(4), addition of new subsections (5) and (6)
Section 268B provides that the MRCC may decide to grant an acute support package to a person provided that they meet certain eligibility requirements and if satisfied that it is appropriate to grant assistance or benefits under the acute support package to assist the person to adjust to new and challenging life circumstances.
Subsection 7(1) of the Principal Instrument currently provides that the MRCC may decide to grant a package, otherwise known as an acute support package of assistance or benefits to a person provided that:
(a) the person is a person covered by subsection (2), (3), or (4); and
(b) if the person has previously been granted an acute support package, either the period during which the assistance or benefits for that acute support package has ended or the support plan has been revoked; and
(c) the MRCC is satisfied that it is appropriate to grant an acute support package to the person to assist the person to adjust to new and challenging life circumstances.
New subsections 7(5) and (6) of the Instrument specify additional persons that can be granted assistance and benefits. In particular, it adds a related person of the member or former member at subsection (5) and a parent or step-parent of a deceased member, a person who is the parent or step-parent of a wholly dependent partner of a deceased member or a person who is a parent or step‑parent of another person who was the partner of a deceased member, at subsection (6). In effect this makes it clear that a related person of the member or former member can apply for the grant of an acute support package of assistance and benefits, in their own right. The addition of subsection (6) reflects the extension to grandparents of children of deceased members as implemented in Schedule 4 to the Veterans’ Affairs Legislation Amendment (Miscellaneous Measures No.2) Act 2023 (the Amendment Act).
Paragraph 7(5)(e) provides for an additional eligibility criteria applying in relation to a related person. Paragraph (e) provides that the MRCC must be satisfied that the crisis, or the risk of experiencing, crisis, is impacting or involving the member or former member or is connected to the member or former member’s wellbeing. The additional criteria support the objective of the acute support package that assistance and benefits are provided to the veterans and their families, and that the eligibility of the related person is linked to the specified eligibility criteria being met by the member. Note that subsection 268B(9) extends the coverage of the definition of related person under subsection 15(2) of the MRCA to a deceased member. Section 20 of the MRCA also provides that a member in that definition also includes a reference to a former member.
New subsection 7(6) provides for the eligibility of grandparents caring for the deceased member’s children. New subsection (6) provides that the grandparent must be:
(a) a parent or step‑parent of:
(i) a deceased member; or
(ii) a wholly dependent partner of a deceased member; or
(iii) another person who was the partner of a deceased member;
(b) the deceased member’s death occurred no more than 2 years before the day the person’s eligibility for an acute support package is determined;
(c) either:
(i) the deceased member’s death was related to service rendered by the member; or
(ii) the Commission is satisfied that the deceased member’s death was a suicide related to service rendered by the member;
(d) the MRCC is satisfied that the person is parenting a child of the deceased member;
(e) at the time the person’s eligibility for the package is determined, the child is under 18 years;
(f) the MRCC is satisfied that the person, or the child, is experiencing, or is at risk of experiencing, crisis.
Item 4 – Repeal of paragraph 8(3)(b)
Section 8 provides that the MRCC must develop a support plan. Subsection 8(3) provides that a person must not be included in a support plan for an acute support package for the purposes of paragraph 8(2)(a) unless certain circumstances exist. The effect of this provision is to set out who can be included in the support plan for the acute support package.
This item repeals paragraph 8(3)(b). This paragraph is no longer required as a related person of a member or former member can be granted an acute support package in their own right without relying on the member. In addition, related persons are already covered by paragraph 8(3)(b).
Item 5 - At the end of paragraph 8(3)(d) a new subsection (e) is added.
New paragraph 8(3)(e) relates to grandparents who are caring for children of deceased members being able to be included in a support plan for an acute support package under section 8 of the Instrument. This is consequential to the addition of these persons as being eligible for the grant of an acute support package assistance or benefits by the MRCC. New paragraph (8)(3)(e) provides that:
(e) if the package has been granted to a person who is a parent or step-parent of a deceased member, to a person who is a parent or step-parent of a wholly dependent partner of a deceased member, or to a person who is a parent or step-parent of another person who was the partner of a deceased member; and
(i) the MRCC is satisfied that the person is parenting a child of the deceased member who is under 18; and
(ii) the MRCC is satisfied that the person, or the child, is experiencing, or is at risk of experiencing, crisis.
Item 6 - Paragraph 9(3)(a)
This item repeals current paragraph 9(3)(a) and substitutes a new paragraph 9(3)(a). Section 9 provides for the variation and revocation of a support plan. Subsection 9(3) provides that the MRCC may revoke a support plan in certain circumstances. New paragraph (a) reflects the addition of new subsections 7(5) and 7(6) of the Instrument (refer to Item 3) specifying eligibility of related persons of a member or former member and grandparents who are caring for the children of deceased member for assistance and benefits under the acute support package. These persons are persons in which a support plan can be prepared, if the MRCC is satisfied that it is appropriate to do so, and in which a support plan can also be revoked in specified circumstances in relation to the person.
Item 7- Paragraph 10(1)(a)
This item amends paragraph 10(1)(a) of the Instrument to include a reference to a related person of a member or a former member.
Section 10 provides for the total financial value of assistance or benefits that may be included in the support plan. The total value and total annual cap can be used for any of the services or assistance listed in subsection 8(4). Additional benefits are provided under sections 11 (additional counselling) and 12 (additional assistance or benefits in relation to children).
Currently, the total value of assistance or benefits for a member, former member or former partner of a member or former member is a maximum of $7,500 for one or more periods during which the assistance or benefits add up to 12 months (the first year) and a maximum of $5,000 for one or more periods during which the assistance or benefits add up to a further 12 months (the second year). That is, the assistance provided in subsection 10(1) does not have to be accessed during one continuous period of time, the member, former member or former partner of a member or former member can access support included in a support plan to cover multiple periods of crisis. However, limitations and the ending of support in relation to the overall period covering the assistance or benefits are set out in subsection 10(2).
This amendment makes it clear that a related person of a member or former member, if eligible, is entitled to the total value of assistance specified in paragraph 10(1)(a).
Item 8 - At the end of paragraph 10(1)(b)
This Item adds a new paragraph 10(1)(c) that sets out the total value of assistance that may be included in a support plan prepared for a person who is the parent or step-parent of a deceased member, or a person who is the parent or step-parent of the wholly dependent partner of a deceased member, or a person who is the parent or step-parent of another person who was the partner of a deceased member. The maximum value of assistance is $27,835 every 12 months for a continuous 24 month period starting on the day the support plan comes into effect.
Item 9 - Paragraph 10(2)(a)
This Item repeals the current paragraph 10(2)(a) and substitutes it with a new paragraph (a). Subsection 10(2) provides for the ending of the period during which assistance or benefits is provided under section 9. Although the financial assistance provided under paragraph 10(1)(a) does not need to be accessed continuously for 24 months, the support plan prepared for the person and access to benefits ends immediately after the earlier of the end of the further 12 month period referred to in subparagraph (1)(a)(ii) or the end of the 48 month period starting on the day the support plan comes into effect. This means that persons who have been granted assistance under the acute support package generally have a maximum period of 4 years to use the assistance or benefits.
New paragraph 10(2)(a) takes into consideration the changes made under subsection 7(5) in relation to the specific inclusion of a related person of a member or former member. This new paragraph makes it clear that a related person’s (who is specified in a support plan) access to benefits ends immediately after the earlier of the end of the further 12 month period referred to in subparagraph (1)(a)(ii) or the end of the 48 month period starting on the day the support plan comes into effect.
Item 10 - Paragraph 10(2)(b)
Amendments are made in paragraph 10(2)(b) to include the grandparents taking care of the deceased member’s children. Under current paragraph 10(2)(b), a wholly dependent partner of a deceased member, an eligible recipient, will receive the assistance over a continuous 24 month period. The total value of assistance or benefits for a wholly dependent partner of a deceased member is a maximum of $27,835 for every 12 months for a continuous period of 24 months referred to in paragraph 10(1)(b), starting on the day the support plan comes into effect.
The amendment to paragraph (b) makes it clear that an eligible person who is a parent or step-parent of a deceased member, a person who is a parent or step-parent of a wholly dependent partner of a deceased member, or a person who is a parent or step-parent of another person who was the partner of a deceased member, and if a support plan is made for that person, will be entitled to a total maximum value or benefits of $27,835 for every 12 months for a continuous period of 24 months referred to in paragraph 10(1)(b), starting on the day the support plan comes into effect.
Item 11 - Subsection 11 (1)
Section 11 currently provides for additional counselling assistance to be included in a support plan to a member, former member or former partner of a member, in addition to those provided under section 10. The maximum amount of additional counselling that may be included in a support plan is 4 courses of counselling every 12 months for a continuous period of 36 months.
The 36 month period starts on the day after the relevant period referred to in paragraph 10(2)(a) ends. Currently, the additional counselling is only available to a member, former member, or former partner of a member or former member. This item amends subsection 11(1) to include a related person of a member or former member. This means that additional counselling assistance can be included in a support plan for a related person of a member or former member.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Military Rehabilitation and Compensation (Defence, Veterans’ and Families’ Acute Support Package) Amendment (2023 Expansion of Acute Support Package) Instrument 2023 (the Instrument)
The Instrument is compatible with the human rights and freedoms recognised or declared in the international Instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Instrument engages and promotes the right to social security under article 9, and the right to health under article 12(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR).
Right to social security
The right to social security is contained in article 9 of the ICESCR. The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
The Instrument promotes the right to social security by providing members, former members and their families with additional support and services when faced with challenging circumstances.
Right to health
The right to health is contained in article 12(1) of the ICESCR. The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.
The Instrument provides for counselling to veterans and their families. It will ensure that critical mental health support is provided to veteran and their families when experiencing challenging life situations.
Overview
The Instrument will enable the provision of targeted, flexible support to members, former members and their families managing challenging life circumstances. It provides intensive support to the member and their families, complementing other services provided by the DVA and other Government services.
Conclusion
The attached Instrument is compatible with human rights because it promotes the right to social security and right to health.
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Rule-Maker