EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Family Support)
Amendment Instrument 2021
(Instrument 2021 No. MRCC45)
EMPOWERING PROVISION
Section 268B of the Military Rehabilitation and Compensation Act 2004 (MRCA).
PURPOSE
The amendments included in the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No.1) Act 2018 inserted a new Chapter 5A – Family Support into the MRCA to establish the legislative framework for providing additional support to eligible members, former members and their families.
Chapter 5A prescribed some of the detail of the legislative framework and provides for legislative instruments to specify further details of the assistance and benefits that may be made available.
Initially, the Military Rehabilitation and Compensation (Family Support) Instrument 2018 (Instrument 2018 No. MRCC 39) (F2018L00474) was enacted and it commenced on 1 May 2018. Part 2 of the instrument provided for the granting of assistance and benefits to members and former members of the Australian Defence Force (ADF) who had rendered warlike service, post 1 July 2004, and to related persons of such members and former members.
Partners of deceased members and deceased former members could also be granted assistance and benefits where the member or former member rendered warlike service, post 1 July 2004, and had suicided and the death was related to their service, or had died in service. The benefits and assistance provided under Part 3 of the instrument were childcare, counselling and household services.
A subsequent instrument, the Military Rehabilitation and Compensation (Family Support) Instrument (No. 2) 2018 (Instrument 2018 No. MRCC 69) (the current instrument) revoked the Military Rehabilitation and Compensation (Family Support) Instrument 2018 and remade it to clarify the eligibility criteria for assistance and benefits provided to members and former members under Part 2 of the instrument.
The proposed instrument, the Military Rehabilitation and Compensation (Family Support) Amendment Instrument 2021 (Instrument 2021 No. MRCC45) makes a minor amendment to Part 3 of the current instrument to include additional providers of child care services to the partners of deceased members and deceased former members.
The benefits and assistance provided under the amended instrument will continue to support the implementation of recommendation 19 of the Senate Foreign Affairs, Defence and Trade Reference’s committee report The Constant Battle: Suicide by Veterans.
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.
On 24 October 2017, the Government announced its response to the Foreign Affairs, Defence and Trade Committee’s Report on the Inquiry into suicide by veterans and ex-service personnel. The response included several measures that were out in place by the instrument that was revoked in 2018 and by the current instrument.
For the purposes of those instruments consultation had taken place with the Department of the Prime Minister and Cabinet, the Department of Finance, Health and Community Services Division and Legal Services Branch.
The amendments to expand the providers of child care services being made by proposed instrument are the result of ongoing consultation by the Veteran and Family Policy Division. They engaged with the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission concerning the use NDIS approved providers under the Family Support Program.
The NDIS Commission was supportive as NDIS registered providers are not limited to providing services to NDIS clients.
In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
MERITS REVIEW
A determination by the Military Rehabilitation and Compensation Commission (MRCC) to pay the providers of child care services under section 16 of the Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018 in accordance with the criteria set out in that section, is an ‘original determination’ of the Commission for the purposes of subsection 345(1) of the MRCA.
As decisions made under Chapter 5A, and instruments made under that Chapter, under which the current instrument was made have not been included in the subsection 345(2) listing of determinations which are not ‘original determinations’ they can be reconsidered and reviewed under the provisions of Chapter 8.
Section 345 lists which decisions of the MRCC can be considered to be an ‘original determination’ for the purposes of Chapter 8 of the MRCA, which provides for the reconsideration and review of an ‘original determination’. Original determinations are reviewable by the Veterans Review Board (refer to section 352 of the MRCA). An application can be made to the Administrative Appeals Tribunal for a review of reviewable decisions. Reviewable decisions include decisions made by the MRCC and the VRB on an original determination (such as a decision by the VRB on an original determination and a determination by the Commission revoking, confirming or varying an original determination under subsection 350(2)).
RETROSPECTIVITY
None.
DOCUMENTS INCORPORATED BY REFERENCE
None.
REGULATORY IMPACT
The Office of Best Practice Regulation (OPBR) previously advised that the original proposal did not appear to have a more than minor regulatory impact on business, community organisations or individuals.
On that basis, it concluded that a Regulatory Impact Statement (RIS) was not required. (OBPR#22942)
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 additional family support by way of expanding the providers of childcare 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 Instrument 2021
Part 1 - Preliminary
Section 1
This section provides that the name of the instrument is the Military Rehabilitation and Compensation (Family Support) Amendment Instrument 2021.
Section 2
This is the commencement provision and provides that the instrument is to commence on the day after it is registered on the Federal Register of Legislation.
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 MRCA.
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 amends subsection 16(4) which concerns the provision of child care services.
Subsection (4) is repealed and replaced with new subsections (4) and (4A).
The repealed subsection (4) had provided that child care services could only be provided by a child care provider as defined in section 5 to mean “a person approved (however described) to provide child care services by the Secretary of the Commonwealth Department responsible for education”.
New subsection (4) retains the existing providers of child care services and provides that child care services can also be provided by a person or an entity registered under section 73E of the National Disability Insurance Scheme Act 2013 to provide child care services.
New subsection (4A) provides that any amount payable for the provision of child care services must be paid to the child care provider or the person or entity who provided the service.