EXPLANATORY STATEMENT

Military Rehabilitation and Compensation (Family Support) Instrument 2018

(Instrument 2018 No. MRCC39)

EMPOWERING PROVISION

Subsection 268B of the Military Rehabilitation and Compensation Act 2004 (MRCA).

PURPOSE

The purpose of the instrument is to provide for the granting of assistance and benefits to members and former members of the Australian Defence Force (ADF) who have rendered warlike service, post 1 July 2004, and to related persons of such members and former members. Partners of deceased members and former members may also be granted assistance and benefits where the member or former member has rendered warlike service, post 1 July 2004, and has suicided and the death was related to their service, or has died in service. The benefits and assistance available are childcare, counselling and household services.

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 support to eligible members, former members and their families. Chapter 5A prescribes some of the detail of the new framework and enables a legislative instrument to specify further details of the assistance and benefits that may be made available.

Part 2 of the instrument specifies that the following kinds of assistance and benefits may be provided to members, former members and related persons:

• Childcare up to $10,000 per child per annum (under school age) and up to $5,000 per child per annum (primary school) which could include child day care, and before and after school care. 
• Counselling will be extended to current and former ADF members with an approved rehabilitation program, and their related persons will be entitled to a total of 20 sessions (in addition to any ‘treatment’ provided under the DVA Health Card system) over a 5 year period. 

Part 3 of the instrument specifies that the following kinds of assistance and benefits may be provided to the partners of deceased members and former members:

• Childcare for a child of the deceased member or former member of up to $10,000 per child per annum (under school age) and up to $5,000 per child per annum (primary school) which could include child day care, and before and after school care. 
• Counselling may be provided to the partner of a deceased member or former member of up to 4 counselling sessions per calendar year for a period of 2 years from that death.
• Household services may be provided to the widow or widower of an ADF member or former member for a period of 2 years from that death. Household services include garden maintenance and home help/domestic support to provide assistance in their adjustment to life after the death of their partner.

The instrument specifies the criteria for eligibility to receive assistance and benefits. It sets out the kind of assistance and benefits that are available and the financial and other limits of the support. Further, it provides for the annual indexation of the amounts of household services.

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 to be put in place to reduce suicide and self-harm in the veteran community, with a package of new measures to deliver better support for veterans and their families, including additional family support.

Consultation has taken place with the Department of Finance and the Department of Prime Minister and Cabinet.

The measure implemented by this instrument is entirely beneficial in nature in terms of its impact on members.

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

RETROSPECTIVITY

None, if the attached legislative instrument is made before 1 May 2018.

If made after that date, the instrument will be taken to have commenced on 1 May 2018 and will operate retrospectively from that date.

Any such 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 changes implemented by the instrument are beneficial in nature; the changes do not disadvantage any person or impose a liability on a person other than the Commonwealth. 

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 in certain circumstances.

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 additional childcare arrangements, brief intervention counselling, and additional household services will impact positively on the mental health and living standards of veterans and their families.  

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) Instrument 2018

Part 1 - Preliminary

Section 1

This section provides that the name of the instrument is the Military Rehabilitation and Compensation (Family Support) Instrument 2018.

Section 2

This is the commencement provision and provides that the instrument is to commence on 1 May 2018 or is taken to have commenced on 1 May 2018.

Section 3

This section sets out the empowering provision in the primary legislation that authorises the making of this instrument, namely section 268B of the Military Rehabilitation and Compensation Act 2004 (MRCA).

At the time of making the instrument, that provision had not commenced.  Schedule  1 of the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No.1) Act 2018 inserted new section 268B into the MRCA.  Schedule 1 commences on 1 May 2018. Accordingly, the instrument is made in reliance on section 4 of the Acts Interpretation Act 1901 which provides for the exercise of the instrument-making power as if the relevant empowering provision had occurred.

Section 4

This section is a purpose provision. It outlines the policy intent behind the instrument, namely, to provide additional assistance and benefits for eligible persons (see sections 8 and 14).

Section 5

This is the interpretation section. It defines terms that are used in the instrument. Explanations of the key definitions are set out below.

child care provider is a person approved (however described) to provide child care services by the Secretary of the Commonwealth Department responsible for education.

counselling provider is a person accredited (however described) to provide counselling by the professional body of which the person is a member.

counselling is any form of brief intervention counselling, including, but not limited to, mental health counselling, financial counselling, life skills counselling, counselling to provide mental health first aid and counselling focusing on caring for veterans with specific disabilities.

household services is any service conducted within or around the principal place of residence of the partner of a deceased member or former member to assist with the proper functioning or maintenance of the environment of the residence that will assist the partner to adjust to life after the member’s or former member’s death, including, but not limited to, home cleaning, gardening services and home maintenance services.

household services provider is a person with an Australian Business Number and public liability insurance who is in the business of providing household services.

nominated person of a member or former member is a person listed by the member or former member in accordance with section 9 (see below). The nominated persons are entitled to the assistance and benefits outlined in Part 2 (child care services and counselling). A nominated person must be a related person of the member or former member.

partner of a deceased member or former member is the person who was the partner of the member or former member at the time of his or her death. This limits the provision of assistance under Part 3 to the person who was the partner at the time of the member’s death.

related person of a former member covers the same persons as the definition of related person of a member in section 15 of the MRCA, that is, dependents of the former member. This definition is required because the definition of related person in section 15 of the MRCA does not extend to former members.

Also defined are primary school age and school age, and these definitions are used to set the financial limits for child care services, see sections 11 and 16. The other definition in section 5 is technical in nature. Other terms used have the same meaning as in the MRCA, including approved rehabilitation program, service death and warlike service.

Section 6

This section confirms that additional assistance or benefits cannot be granted unless the member, former member or deceased member rendered warlike service on or after 1 July 2004 in accordance with subsection 268B(2) of the MRCA.

Part 2 – Assistance or benefits to members, former members and nominated persons

Section 7

This section provides that Part 2 applies to members and former members, and their nominated persons (see section 9).

Section 8

This section sets out the eligibility criteria for the additional assistance or benefits, namely:

• the member or former member has rendered warlike service on or after 1 July 2004 and has an approved rehabilitation program; and
• the member, former member or nominated person is in need of assistance or benefits.

Section 9

This section allows a member or former member to list any of their related persons for inclusion in the member’s or former member’s approved rehabilitation program. This is to ensure that  persons so listed are eligible to receive assistance or benefits.

‘Related persons’ are defined in section 15 of the MRCA. Consequently, a nominated person of a member or former member can be any of the following:

• the partner of the member or former member,

• a parent or step-parent of the member or former member,

• a parent or step-parent of the member’s or former member’s partner,
• a grandparent of the member or former member,
• a child or stepchild of the member or former member,
• a child or stepchild of the member’s or former member’s partner,
• a grandchild of the member or former member,
• the member’s or former member’s brother, sister, half-brother or half-sister,
• a person in respect of whom the member or former member stands in the position of a parent; or
• a person who stands in the position of a parent to the member or former member. 

The definition of related persons is purposefully broad to reflect the different family structures accepted as family in contemporary Australian society.

Section 10

This section provides that childcare services or counselling, or both, can be granted to a person who is eligible under section 8.

Section 11

This section provides that a member or former member, or a nominated person, may be provided with childcare services for a child of the member or former member. Child care services are available for infants and young children (pre-schoolers) as well as for older children (primary schoolers).

The financial limits on the amount of childcare services are:

• If a child is under school age, the limit is set at $10,000 per child per calendar year.
• If a child is of primary school age, the limit is set at $5,000 per child per calendar year.

School age is defined (see section 5) as the age at which a child is required by a law of the State or Territory in which the child lives to attend school. Primary school age is defined (see section 5) as any of the ages at which a child in the State or Territory in which the child lives would usually attend a primary school.

Child care services are to be provided by a child care provider and amounts for child care services are to be paid to them. Monies cannot be paid directly to members, former members or nominated persons.

Section 12

Counselling to members and former members and their nominated persons (family group) are to be provided by counselling providers. Amounts for counselling are to be paid to the counselling provider. Monies cannot be paid directly to members, former members or nominated persons.

The limit is four counselling sessions per family group per year over a five year period starting on the date of the first counselling session. A counselling session may be provided to an individual member of a family group, or to more than one or all of the family group. A family group may also comprise just the member or former member.

Part 3 — Assistance or benefits to partners of deceased members or former members

Section 13

This section provides that Part 3 applies to partners of deceased members and former members. They may be granted assistance or benefits listed in section 15.

Section 14

This section sets out the eligibility criteria for assistance or benefits to partners of deceased members or former members, namely:

• the person was the partner of the member or former member at the time of the member’s or former member’s death; and

• the member or former member rendered warlike service on or after 1 July 2004; and

• the member’s or former member’s death:

(i)                 was death by suicide and the death was related to his or her service; or

(ii)               in any other case—was a service death.

Section 15

This section provides that childcare services, counselling and household services may be granted to persons eligible under section 14.

Section 16

This section provides that the partner of a deceased member or former member may be provided with childcare services for a child of the deceased member or former member. Child care services are available for infants and young children (pre-schoolers) as well as for older children (primary schoolers).

The financial limits on the amount of childcare services are:

• If a child is under school age, the limit is set at $10,000 per child per calendar year.
• If a child is of primary school age, the limit is set at $5,000 per child per calendar year.

School age is defined (see section 5) as the age at which a child is required by a law of the State or Territory in which the child lives to attend school. Primary school age is defined (see section 5) as any of the ages at which a child in the State or Territory in which the child lives would usually attend a primary school

Child care services are to be provided by a child care provider and amounts for child care services are to be paid to them. Monies cannot be paid directly to the partner of a deceased member or former member.

Section 17

This section specifies that household services for the partner of a deceased member or former member cannot exceed $482.50 per week. The household services are to be provided by a household services provider chosen by the partner, and the amounts for household services are to be paid to the household services provider. Monies cannot be paid directly to the partner. Household services cease to be available on the second anniversary of the member’s or former member’s death.

The maximum amount of $482.50 per week for household services is to be indexed annually in accordance with the Consumer Price Index (CPI) as provided for by section 404 of the MRCA.

Section 18

This section provides that the partner of a deceased member or former member may be provided with up to four counselling sessions per calendar year. Counselling ceases to be available on the second anniversary of the member’s or former member’s death. Counselling is to be provided by a  counselling provider and amounts for counselling are to be paid to the counselling provider. Monies cannot be paid directly to the partner of the deceased member or former member.