EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Weekly Payments – Class of Persons) Instrument 2021
No. MRCC4 of 2021
Summary
The Military Rehabilitation (Weekly Payments – Class of Persons) Instrument 2021 (No. MRCC4 of 2021)(the Instrument) is made by the Military Rehabilitation and Compensation Commission (Commission) under subsections 224(4), 248(4) and 303(4) of the Military Rehabilitation and Compensation Act 2004 (the Act).
The purpose of the Instrument is to specify a class of persons to whom the payment under the Act known as the “MRCA supplement” is payable and who may be paid the supplement, which is otherwise required by the Act to be paid fortnightly, weekly.
The Commission will then determine whether a particular person who is within that class of persons should be paid the fortnightly MRCA supplement in two weekly payments.
Background
Who will be covered by the Instrument?
The Australian Government provides financially vulnerable or significantly disadvantaged customers with the option of receiving payments weekly instead of each fortnight.
This class encompasses Australia’s most vulnerable people including those who are experiencing homelessness or at risk of being homeless. For example, people experiencing homelessness includes people who are living on the streets or staying in cars. People who are at risk of homelessness may suffer a range of factors or triggers that can contribute to homelessness, such as financial or housing affordability stress or family and domestic violence.
In most cases, the MRCA supplement is paid fortnightly in arrears. However, this Instrument sets out the classes of persons who may be paid the supplement weekly, in arrears.
There are other types of payments under the Act. Although some of these payments may be paid weekly, the Commission has directed, under section 430 of the Act that they be paid fortnightly. Under section 430 of the Act, the Commission has directed that these other ‘fortnightly payments’ be paid weekly in the same circumstances that the MRCA supplement may be paid weekly e.g. client is homeless or is at risk of homelessness.
This Instrument is beneficial in nature and is intended to assist a broad class of persons. In addition, the person must consent to be paid weekly before the Commission can determine that a person is to receive their fortnightly MRCA supplement on a weekly basis.
Sunsetting of existing instrument
The Military Rehabilitation and Compensation (Weekly Payments – Class of Persons) Specification 2011 is due to sunset on 1 April 2021.
The instrument is substantially the same as will replace the Military Rehabilitation and Compensation (Weekly Payments – Class of Persons) Specification 2011.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power is construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
The instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Commencement
This instrument commences the day after it is registered on the Federal Register of Legislation.
Retrospective
No.
Statutory Pre-conditions
Apart from requirements relating to all legislative instruments (e.g. under the Legislation Act 2003), no statutory preconditions needed to be satisfied prior to the making of the attached instrument.
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.
Given the beneficial nature of the instrument, the Repatriation Commission was satisfied that consultation with the Ex-Service Organisation Round Table (ESORT) was sufficient for the purposes of making this Instrument.
Regulation Impact Statement (RIS)
OBPR: 43814 - The instrument does not have more than a minor regulatory impact on business, community organisations or individuals.
Availability of Merits Review
Merits review is available for decisions made under subsections 224(4), 248(4) and 303(4) (with decisions under those subsections being made with reference to the class of persons specified in this instrument).
Decisions can be subject to an internal merits review by the Commission or externally by the Veterans’ Review Board (VRB). Decisions, including reconsideration or reviews made by the Commission are subject to external review by the VRB.
If the recipient remains unsatisfied they can seek merits review of a decision made by the VRB to the Administrative Appeals Tribunal.
Explanation of provisions
Section 1 provides that the name of the Specification is the Military Rehabilitation and Compensation (Weekly Payments – Class of Persons) Instrument 2021.
Section 2 provides that the instrument commences on the day after the day it is registered on the Federal Register of Legislative Instruments.
Section 3 provides that the authority for making this instrument is subsections 224(4), 248(4) and 303(4).
Section 4 contains definitions of terms used in the instrument. In particular it defines the payments under the Act that are made fortnightly.
Section 5 in conjunction with Schedule 1 operates to repeal Military Rehabilitation and Compensation (Weekly Payments – Class of Persons) Specification 2011.
Section 6 specifies the class of persons for the purpose of making weekly payments.
Subsection 6(1) specified the class of persons for the purpose of making weekly MRCA supplement, being persons who meet each of the following requirements:
(a) the person is an Australian resident and living in Australia (section 5G of the Veterans’ Entitlements Act 1986 provides a definition of ‘Australian resident’);
(b) the person is receiving one of the payments listed in subsection 6(2);
(c) the person would benefit from having their fortnightly MRCA supplement paid weekly; and
(d) the person has voluntarily agreed to be paid the total amount of their fortnightly MRCA supplement in respect of a fortnightly payment period in two weekly payments as provided by subsections 224(2), 248(2) and 303(2) of the Act, and has not revoked or withdrawn that agreement.
Whether a person is financially vulnerable and significantly disadvantaged is not defined in the instrument, as it is intended to be a broad and flexible concept examining many aspects of a person’s circumstances.
Examples of matters that decision-makers would be expected to consider include whether:
(a) the person has suffered a recent traumatic relationship breakdown, particularly if domestic or family violence was involved;
(b) the person or their partner or a family member has a diagnosed mental illness, acquired brain injury or acute cognitive impairment;
(c) the person or their partner or a family member has a gambling, substance or alcohol dependence that is severe enough to impede the person from managing their finances on a fortnightly basis;
(d) the person has ongoing budgeting difficulties with his or her fortnightly payment arrangements;
(e) the person has suffered an unforeseen event that has substantially reduced his or her income or requires significant additional expenditure; or
(f) the person has previously been offered other services and referrals which have failed to stabilise the person’s financial circumstances.
Subsection 6(2) sets out non-exclusively, circumstances under which a person is taken to benefit from having their fortnightly MRCA supplement paid weekly. Those circumstances are that the person does not have access to safe, secure and adequate housing, or is using emergency accommodation or a refuge; or the person is financially vulnerable and significantly disadvantaged.
Subsection 6(3) sets out, non-exclusively, circumstances under which a person is taken to have inadequate access to safe and secure housing. This definition is derived from the Supported Accommodation Assistance Act 1994, and is intended to encompass the particular characteristics or incidents of a person’s accommodation that may adversely affect them or place them at risk.