EXPLANATORY STATEMENT
Military Rehabilitation and Compensation Act 2004
Military Rehabilitation and Compensation (Family Support)
Amendment (Child Care Services) Instrument 2022
(Instrument 2022 No. MRCC11)
EMPOWERING PROVISION
The Military Rehabilitation and Compensation Act 2004 (the MRCA) provides for compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease. The MRCA also provides compensation and other benefits to be provided for the dependants of some deceased members. In addition, the MRCA provides certain assistance (such as child care, counselling or household services) to members or former members or to related persons of member, former members or deceased members.
Chapter 5A of the MRCA authorises the Military Rehabilitation and Compensation Commission (the MRCC) to make a legislative instrument providing for assistance or benefits of a certain kind (such as child care, counselling or household services) to a member, or to a related person of a member, former member or deceased member. The member, former member or deceased member must have rendered warlike service on or after 1 July 2004. Subsection 268B(1) of the MRCA provides for the making of provision for and in relation to the granting of assistance or benefits of a specified kind to a person who is a member or former member, or to a related person of a member, former member or deceased member, by legislative instrument. The instrument also provides for the kinds of assistance or benefits to be granted, eligibility criteria, conditions and limits on the provision of the assistance or benefits (refer to subsections 268B(3) and (4).
The Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018 (the Principal instrument) is a legislative instrument made under section 268B of the MRCA.
PURPOSE
The purpose of the Military Rehabilitation and Compensation (Family Support) Amendments (Child Care Services) Instrument 2022 (the Amending Instrument) is to amend the Principal Instrument to enable widowed partners currently eligible and accessing Family Support services to use weekly unspent funds allocated for the provision of household services, for child care services. The amendments only apply to Part 3 of the Principal Instrument.
Entitlement to household services by eligible widowed partners is provided under Part 3 at section 17 of the Principal Instrument. Under subsection 17(1) the amount for household services payable in relation to the partner of a deceased member must not exceed $514.12 per week (note this reflects indexation of the original amount of $482.50 which is stated in the current instrument). The Amending Instrument inserts a new section 17A to enable eligible widowed partners of veterans who are currently accessing household services to spend unspent funds from their weekly allocation on child care services, if the family has the need. No decision is required from the MRCC on whether unused funds for the week can be used for child care services. The partner of the deceased member has the discretion to use the unused funds for household services for child care services. Unused weekly household services amounts do not accumulate and cannot be used in the future for child care services. In addition, the amendments to the Principal Instrument removes the application of the financial limit for child care services for a specified financial year.
These changes give effect to a 2022-23 Budget measure to provide greater flexibility for widowed partners in how the existing weekly allowance for household services may be spent.
Information held by DVA shows that the household services allowance is generally undersubscribed, and widowed partners have identified a need for greater assistance with child care costs. This measure, given effect by the changes in this instrument, addresses these issues.
The amendments made by the Amending Instrument are intended to act as an interim measure until the Enhanced Family Support Package commences on 1 July 2022 (pending the passage of legislation). All participants will be able to access improved flexibility under the Enhanced Family Support Package. The Enhanced Family Support Package provides more diverse and relevant kinds of assistance and benefits for members, former members, and related persons to members, former members and deceased members.
MERITS REVIEW
Decisions of the MRCC under section 8 in Part 2 of the Principal Instrument, and section 14 in Part 3 of the Principal Instrument, are original determinations under section 345 of the MRCA, and are subject to a full range of merits review by the Commission, the Veterans’ Review Board and the Administrative Appeals Tribunal, assuming other applicable requirements under the MRCA are met. Note, however, that the decision to use unspent funds for weekly household services for child care services is a decision that will be made by the eligible widowed partner. The measure is only an interim measure and would only be operational until the new Enhanced Family Support Package comes into effect.
CONSULTATION
Section 17 of the Legislation Act 2003 requires a rule-maker to be satisfied, before making a legislative instrument that any consultation the rule-maker considered appropriate and reasonably practicable, has been undertaken.
The Department of the Prime Minister and Cabinet, the Department of Finance, Treasury, the Department of Social Services and the Department of Education Skills and Employment have been consulted about this measure as part of the Budget 2022-23 process.
In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
RETROSPECTIVITY
None.
DOCUMENTS INCORPORATED BY REFERENCE
None.
REGULATORY IMPACT
None.
HUMAN RIGHTS STATEMENT
The attached instrument makes provision in relation to extended family support by way of additional childcare arrangements, counselling and household services to eligible members, former members and their partners.
Human rights implications
The instrument engages the Right to Health under article 12(1), and the Right to Social Security under article 9, of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Right to Health
The Right to Health is contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights. The Right to Health is the right to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.
Right to Social Security
Article 9 of the ICESCR states “States Parties … recognize the right of everyone to social security, including social insurance”. General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.
Overview
The provision of flexibility to spend the weekly allowance on household services or on additional child care services will impact positively on the mental health and living standards of the families of deceased veterans.
Conclusion
The attached instrument engages positively with the Right to Health and the Right to Social Security, and is considered to be “human rights compatible”.
Military Rehabilitation and Compensation Commission
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS
See: Attachment A
Attachment A
Military Rehabilitation and Compensation (Family Support) Amendment (Child Care Services) Instrument 2022
Part 1 - Preliminary
Section 1
This section provides that the name of the instrument is the Military Rehabilitation and Compensation (Family Support) Amendment (Child Care Services) Instrument 2022.
Section 2
This is the commencement provision and provides that the instrument commences 1 April 2022.
Section 3
This section sets out the empowering provision in the primary legislation that authorises the making of this instrument, that is, section 268B of the Military Rehabilitation and Compensation Act 2004.
Section 4
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule – Amendments
Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018
Item 1 – After section 17
Item 1 inserts new section 17A in the Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018 (the Principal Instrument) to implement the interim measure allowing for weekly amounts of household services accessible by an eligible widowed partner of a deceased member under Part 3 to be used for child care services.
Subsection 17A(1) provides that section 17A applies if the partner of a deceased member is provided with both child care services under section 16 of the Principal Instrument and household services under section 17 of the Principal Instrument.
Section 16 provides that a partner of a deceased member may be provided with financial assistance for child care services. Child care services are available for infants and young children (pre-schoolers) as well as for older children (primary schoolers). Section 16 sets out financial limits on the amount of child care services. These are, $10,000 per child per financial year if a child is under school age, and $5,000 per child per financial year if a child is of primary school age.
Section 17, specifies that household services for the partner of a deceased partner must not exceed $482.50 per week (which is indexed annually in accordance with the Consumer Price Index (CPI), and is currently at the maximum weekly rate of $514.12).
Subsection 17A(2) allows the partner of a deceased member to elect some or all of an amount payable for household services for a week to instead be paid for child care services. Thus, instead of spending some or all of the weekly amount for household services, the partner of a deceased member may use the amount to pay for child care services.
Subsection 17A(3) provides that an amount of child care services paid for under section 17A is not to be counted for the purposes of subsection 16(2) and (3). In effect, despite the financial limits set out in subsection 16(2) and (3) per child which are dependent on the age of the child, the limits will not apply. For example, if the partner of a deceased member has already used up the $10,000 per child per financial year, or the $5,000 per child per financial year to pay for child care services, the widowed partner will be able to use some or all of the weekly amounts for household services to pay for child care services. The decision to use some or all of the unused weekly household services financial assistance is a decision that will be made by the deceased member’s partner. The Commission is not involved in this decision-making.
Subsection 17A(4) provides that the conditions in subsection 16(4), (4A) and (5) of the Principal Instrument apply to an amount paid for child care services under section 17A. Thus, child care services are to be provided by a child care provider or a person or entity registered under section 73E of the National Disability Insurance Scheme Act 2013, and amounts for child care services are to be directly paid to them. Monies for child care services cannot be paid by reimbursement.