EXPLANATORY STATEMENT

Veterans’ Affairs (Treatment Principles – Incorporated Documents) Amendment Instrument 2018 (Instrument 2018 No. R12/MRCC12)

EMPOWERING PROVISIONS

For Schedule 1 of the attached instrument which varies the Treatment Principles (VEA Treatment Principles) — section 90 of the Veterans’ Entitlements Act 1986 (the VEA).

For Schedule 2 of the attached instrument which varies the MRCA Treatment Principles — section 286 of the Military Rehabilitation and Compensation Act 2004 (the MRCA).

PURPOSE

The attached instrument (2018 No. R12/MRCC12) varies the VEA Treatment Principles and the MRCA Treatment Principles – collectively known as the “Treatment Principles”.

The Treatment Principles set out the circumstances in which treatment may be provided to clients of the Department of Veterans’ Affairs (DVA).  

The purpose of these variations to the Treatment Principles is to provide for the incorporation of non‑legislative material into the Treatment Principles in the form in which that material exists, or is in force, from time to time.

Under section 14 of the Legislation Act 2003, non-legislative material may only be incorporated by reference into legislative instruments in the form in which it exists on a specific date.  “Ambulatory” or “open” incorporation by reference is not permitted unless the empowering Act expressly provides for it.

The Treatment Principles incorporate by reference a number of external non‑legislative documents which are legally regarded as being part of the Treatment Principles.  Historically, these non-legislative documents have been incorporated in the form in which they exist on a specific date. This is because the relevant empowering provisions of the VEA and MRCA have not previously expressly provided otherwise. This approach required a legislative instrument to change the “as-in-force” date for incorporated documents to accommodate updates to the content of those documents, often resulting in delay in implementation of new policy.

The position changed recently with enactment of the Veterans’ Affairs Legislation Amendment (Omnibus) Act 2017.  Schedule 7 to that Act amended various instrument-making provisions in Veterans’ Affairs portfolio legislation to provide for incorporation by reference of non-legislative documents into those instruments in the form in which they exist “from time to time”.  Specifically, section 90 of the VEA and section 286 of the MRCA were amended to allow for the incorporation of non‑legislative material into the Treatment Principles in the form in which that material exists from time to time.

These amendments provide the necessary “contrary intention” in the empowering Acts for the purposes of subsection 14(2) of the Legislation Act 2003, thus enabling the incorporation, application or adoption of non-legislative material into the relevant legislative instruments, including the Treatment Principles, in the form in which the non-legislative material exists, or is updated “from time to time”.

This variation to the Treatment Principles will have the effect of incorporating into the Treatment Principles, the latest version of each of the documents listed at Schedule 1 to the Treatment Principles. Notably, this will bring into force the most recent version of the Rehabilitation Appliance Program National Schedule of Equipment (RAP Schedule). The Repatriation Commission and the Military Rehabilitation and Compensation Commission recently approved changes to the “Business Rules” in the RAP Schedule. The changes:

• add a new Business Rule about National Disability Insurance Scheme (NDIS) funding options, alerting health providers to check if a DVA client has received funding under the NDIS for the same item, thus avoiding duplication of funding of rehabilitation appliances by the Australian Government; and

• strengthen the Business Rule about Australian Standards to confirm that contracted suppliers of RAP equipment are required to provide products and services that meet Australian or international Standards. 

On commencement of the attached instrument, these changes to the RAP Schedule will have the force of law.  In addition, further changes to the RAP Schedule and other documents listed in Schedule 1 that are made after the commencement date of the attached instrument may proceed administratively without the need for a legislative instrument to amend the Treatment Principles.

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. 

Consultation was undertaken at the time of developing the Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017 to amend the primary legislation that would facilitate the making of this instrument. Specifically, the development and passage of Schedule 7 to the Veterans’ Affairs Legislation Amendment (Omnibus) Act 2017 included consultation with veteran community stakeholders, including Ex-Service Organisation Roundtable Organisation (ESORT) members, via email on 6 April 2017 and at an ESORT meeting on 9 May 2017.  

In addition, in response to the Senate Standing Committee for the Scrutiny of Bills seeking the Minister for Veterans’ Affairs’ advice about the availability of documents incorporated by reference, hyperlinks to each of the documents incorporated by reference is included within the Treatment Principles, and will also be available on the DVA’s Web Page at:  

http://clik.dva.gov.au/legislation-library

Further, the recent changes to the RAP Schedule that will be given force of law by this instrument involved consultation with relevant DVA health advisers, DVA staff in Health Access, Contract Management and Rehabilitation and Support Policy. In addition, the external agency, the National Disability Insurance Scheme (NDIS), was consulted with regard to the new NDIS Business Rule.

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

RETROSPECTIVITY

No.

DOCUMENTS INCORPORATED-BY-REFERENCE

Yes. Following the amendments made by the attached instrument, the documents listed in Schedule 1 to the Treatment Principles will be incorporated into the Treatment Principles in the form in which they exist or are “in force” from time to time.

Schedule 1 to the Treatment Principles refers to a number of external non-legislative documents which are incorporated-by-reference into the Treatment Principles. Most of these documents are prepared by the Department of Veterans’ Affairs (DVA) and include various Fee Schedules and the RAP Schedule that apply to treatment provided under the Treatment Principles.  Other documents are prepared by the Department of Health.  All of the incorporated non-legislative documents can be easily accessed on‑line via the DVA website or via links to other Departments’ websites on the DVA website.

The documents listed in Schedule 1 to the Treatment Principles are available for inspection at:

Department of Veterans’ Affairs, Level 5 Gnabra Building, Genge Street, Civic, Canberra. Tel.no: (02) 6289 6076.

In addition, the various fee schedules and other Department of Veterans’ Affairs documents are available electronically on the DVA Web Page at:

http://clik.dva.gov.au/legislation-library

REGULATORY IMPACT

None.

HUMAN RIGHTS STATEMENT

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The attached legislative instrument does not engage an applicable right or freedom.

Overview

The amendments made by the attached instrument update the wording of Schedule 1 to the Treatment Principles to remove the specific date as the date of incorporation of the documents in the Schedule, and replace it with the documents “in the form in which they exist from time to time”.

The amendments will enable the Treatment Principles to incorporate-by-reference, the documents referenced in Schedule 1 in the form in which they exist from time to time.

This approach is sanctioned by subsection 14(2) of the Legislation Act 2003. The VEA and the MRCA were recently amended to expressly allow for the incorporation of non-legislative documents, in their changing form, into the Treatment Principles.

The amendments will improve the administration of the Treatment Principles by speeding the implementation of policy measures, but will not have any impact on the provision of benefits under those Principles.

Conclusion

The attached legislative instrument does not engage a human right and therefore is compatible with human rights.

Elizabeth Cosson

AM CSC

Chief Operating Officer of the Department of Veterans’ Affairs

As delegate for

Michael McCormack

Minister for Veterans’ Affairs

Rule-Maker

FURTHER EXPLANATION OF PROVISIONS

See Attachment A.

Attachment A

FURTHER EXPLANATION OF PROVISIONS

Section 1

This section sets out the name of the instrument - the Veterans’ Affairs (Treatment Principles –Incorporated Documents) Amendment Instrument 2018.

Section 2

This section provides that the instrument commences on 1 April 2018.

Section 3

This section sets out the legislative authority for the making of the variations to each set of Treatment Principles.

Section 4

Section 4 provides that the variations to the Treatment Principles, as outlined in each of the Schedules to the amending instrument, have effect.

Schedule 1 – (Variations to the Treatment Principles under the Veterans’ Entitlements Act 1986)

Item 1

This item replaces Schedule 1 of the Treatment Principles which sets out the list of documents that are incorporated-by-reference into the Treatment Principles and the relevant date of effect for those incorporated documents. 

The new (substituted) Schedule updates the introductory wording to Schedule 1 to remove the reference to the “as-in-force” date of 1 July 2017 and provide that the documents listed in Schedule 1 “are incorporated-by-reference into the Treatment Principles in the form in which they exist from time to time”.

In addition, the list of incorporated documents in Schedule 1 has been updated to include a hyperlink for each document. This will enable users of the legislation to electronically access the latest version of each of the incorporated documents.

The list of incorporated documents in Schedule 1 otherwise remains unchanged.

Schedule 2 – (Variations to the MRCA Treatment Principles under the Military Rehabilitation and Compensation Act 2004)

Item 1

This item replaces Schedule 1 of the MRCA Treatment Principles which sets out the list of documents that are incorporated-by-reference into the MRCA Treatment Principles and the relevant date of effect for those incorporated documents. 

The new (substituted) Schedule updates the introductory wording to Schedule 1 to remove the reference to the “as-in-force” date of 1 July 2017 and provide that the documents listed in Schedule 1 “are incorporated-by-reference into the MRCA Treatment Principles in the form in which they exist from time to time”.

In addition, the list of incorporated documents in Schedule 1 has been updated to include a hyperlink for each document. This will enable users of the legislation to electronically access the latest version of each of the incorporated documents.

The list of incorporated documents in Schedule 1 otherwise remains unchanged.