EXPLANATORY STATEMENT
Veterans’ Affairs (TRCP Treatment – Eligibility) Determination 2015
EMPOWERING PROVISIONS
Paragraph 88A(1)(a), (b) and (d) of the Veterans’ Entitlements Act 1986 (the VEA).
PURPOSE
The attached instrument (2015 No.R20) determines eligibility for a kind of treatment under the Veterans’ Entitlements Act 1986 known as TRCP treatment. This treatment is provided under the Treatment Principles.
The Treatment Principles is a legislative instrument made under section 90 of the Act and sets out the circumstances in which treatment may be provided under Part V of the Act to veterans or their dependants (entitled persons) and the circumstances in which the Repatriation Commission may accept financial responsibility for treatment provided to entitled persons.
However paragraph 88A(1)(d) of the VEA enables the Repatriation Commission (the Commission) to grant eligibility for treatment under Part V of the VEA to “a person” i.e. a person not necessarily a veteran or dependant of a veteran.
The Commission has exercised its power under paragraph 88A(1)(d) to make the attached instrument that, among other things, grants eligibility for TRCP treatment ( a treatment under Part V of the VEA) to members of the Australian Defence Force (ADF) and their dependants and to former members of the ADF and their dependants, where such members, former members and dependants are eligible for treatment under the Military Rehabilitation and Compensation Act 2004.
Accordingly, for the purposes of the provision of TRCP treatment, members, former members, and their dependants are to be taken to be entitled persons under the Treatment Principles under the VEA.
Although some veterans and their dependants would be eligible for TRCP treatment without the need for the attached determination, because they are eligible for treatment under the VEA proper, nevertheless they have been granted eligibility under the attached determination because the determination enables treatment (TRCP treatment) to be applied to non-service-related conditions, in the case of veterans, and applied “whole-of-person”, in the case of both veterans and dependants i.e. without the person needing to have an injury or disease. Thus TRCP treatment can be applied to, for example, the effects of old age (frailty).
TRCP treatment is research-type treatment aimed at improving the health care of members of the Australian Defence Force which in turn could benefit the health care of members of the Defence and Veteran Community.
TRCP is an acronym for Training, Researching, Communication-improvement and Policy-development in relation to health care for members of the Australian Defence Force.
It should be noted that under subsection 80(1) of the VEA the definition of treatment is very broad and is not confined to treatment in its normal sense. Among other things treatment can be “action taken with a view to maintaining a person in physical or mental health”. TRCP treatment is an example of such treatment.
Further details of the attached instrument are set out in Attachment A.
CONSULTATION
No. The reason for not consulting is that the amendments are beneficial in nature and interested parties could be expected to agree to them, thereby making consultation unnecessary.
RETROSPECTIVITY
Yes. The attached instrument is taken to have commenced when the Treatment Principles were amended to establish the treatment of TRCP treatment namely
22 May 2015. The amendment to the Treatment Principles was made by the Veterans’ Affairs (Treatment Principles – TRCP Treatment and Updating of RAP Schedules) Amendment Instrument 2015. The attached instrument had been intended to have been made at the same time as the Treatment Principles were amended but inadvertently this did not occur.
The commencement of the attached instrument before registration would not infringe subsection 12(2) of the Legislative Instruments Act 2003 [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 retrospective operation of the instrument would not disadvantage any person or impose a liability on a person other than the Commonwealth.
DOCUMENTS INCORPORATED-BY-REFERENCE
No.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument does engage an applicable right or freedom. It relates to the Right to Health 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.
The attached legislative instrument engages with, and promotes, the Right to Health by enabling a type of treatment to be provided to a section of the Community (TRCP treatment). Such treatment could help maintain and improve the health of members of the Defence and Veteran Community.
Apart from eligibility criteria there are no limitations imposed on the provision of the treatment.
Conclusion
The attached legislative instrument is considered to be compatible with the human right to health because it grants eligibility for a type of treatment to a section of the Community.
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF INSTRUMENT
Section 1
This section sets out the name of the instrument – the Veterans’ Affairs (TRCP Treatment – Eligibility) Determination 2015.
Section 2
This section provides that the instrument commences on the day the Veterans’ Affairs (Treatment Principles – TRCP Treatment and Updating of RAP Schedules) Amendment Instrument 2015 commenced, namely 22 May 2015.
Section 3
This section is a definitions section.
Section 4
This section specifies the class of person eligible for a kind of treatment and specifies TRCP treatment as the kind of treatment a person within a specified class is eligible to receive under Part V of the VEA, namely TRCP treatment.