EXPLANATORY STATEMENT
Veterans' Entitlements (Counselling and Psychiatric Assessment – Former Dependants of Vietnam Veterans) Determination 2006 No.R16
EMPOWERING PROVISION
Subparagraph 92(1)(a)(ii) and paragraph 88A(1)(c) of the Veterans’ Entitlements Act 1986.
PURPOSE
To specify that fomer children and former partners/spouses of Vietnam veterans are eligible for counselling and/or psychiatric assessment services.
It should be noted that under the Veterans’ Entitlements Act 1986 (Act) a child-dependant of a veteran is, generally speaking, a person who has not turned 16 years of age. A child (of a veteran) who turns 16 is a former child of the veteran unless the child is studying in which case the person remains “a child” until he or she turns 25 years of age.
BACKGROUND
In 1998 the report of A Study of the Health of Australia’s Vietnam Veteran Community was released. The study found that partners/spouses (including former partners/spouses) of Vietnam veterans suffered from serious adverse psychological effects and that the health of children of Vietnam veterans was a cause for serious concern.
In 1999 the report of a “validation study” into the health issues of children of Vietnam veterans found that suicides were more prevalent among veterans’ children than among children generally.
In 2000 the Government announced a range of initiatives in response to the findings of the studies. Prior to the attached Instrument, the measures that had been implemented and that are relevant in the current context are:
(i) Counselling for veterans, veterans’ children (under 16), veterans’ partners or spouses;
(ii) Psychiatric assessment for children (under 16) of Vietnam veterans and for partners or spouses of Vietnam veterans;
(iii) Counselling and Psychiatric assessment for former children (age 16-35) of Vietnam veterans and for former partners or spouses of Vietnam veterans. In the case of former partners/spouses such services were provided for only 5 years commencing from the end of the relationship/divorce;
(iv) Counselling and/or Psychiatric assessment for older former children (age 36 or more on 1 July 2001/turn 36 before 30 June 2006) of Vietnam veterans (such services being provided until 30 June 2006).
MS EK SH
CURRENT SITUATION
The attached Instrument consolidates the measures in items (iii) and (iv) above. While the situation in relation to former partners/spouses of Vietnam veterans remains virtually unchanged, the situation in relation to former children of Vietnam veterans has changed considerably in that, subject to the approval of the Minister for Veterans’ Affairs and to the terms of the appropriate arrangement made by the Repatriation Commission (see:section 92 of the Act), they are now eligible for Counselling and/or Psychiatric Assessment without any restrictions as to (post 16) age or as to the length of the period for which such services may be provided.
RETROSPECTIVITY
Subsection 12(2) of the Legislative Instruments Act 2003 (LIA) provides (as paraphrased) that retrospective legislative instruments that negatively affect citizens are of no effect.
The attached instrument does not have retrospective effect. It commences after registration on the Federal Register of Legislative Instruments and on 1 July 2006.
CONSULTATION
Section 17 LIA requires a Rule-Maker to be satisfied, before making a legislative instrument, that any consultation the Rule-Maker considered appropriate, had been undertaken. If no consultation occurs the Explanatory Statement for the instrument must cite the reason (see: definition of “explanatory statement” in section 4 LIA).
The Repatriation Commission was satisfied that consultation with the following bodies was adequate consultation for the purposes of the attached Instrument:
- Australian Centre for Posttraumatic Mental Health;
- National Veterans Mental Health and Wellbeing Forum;
- Vietnam Veterans Counselling Service.
DOCUMENTS INCORPORATED BY REFERENCE
Subsection 4(1) LIA requires Explanatory Statements for legislative instruments to describe any document incorporated-by-reference in the Instrument and to indicate how the document may be obtained.
No documents are incorporated-by-reference in the Instrument.
FURTHER INFORMATION
Attachment A
ATTACHMENT A
Part 1
Paragraph 1.1 sets out the name of the Instrument.
Paragraph 1.2 provides that the Instrument commences after registration on the Federal Register of Legislative Instruments and on 1 July 2006.
Paragraph 1.3 contains definitions.
Paragraph 1.4 revokes two former Instruments. The subject matter of these Instruments has been incorporated in the attached Instrument.
Paragraph 1.5 ensures that if, immediately before the commencement of the attached Instrument, a former partner or former spouse of a Vietnam veteran was still eligible for counselling or psychiatric assessment services because the period of eligibility for such treatment had not expired (5 years), then the person is eligible for such treatment under the attached Instrument for the remaining part of the eligibility period.
Paragraph 1.6 sets out the purpose of the attached Instrument.
Part 2
Paragraphs 1-2 specify that the class of person which a person must be within in order to be provided with counselling and/or psychiatric assessment services is the class comprised of former children of Vietnam veterans (including deceased Vietnam veterans). In order to be provided with the relevant services, a person must be within this class on or after 1 July 2006 and, in order to be eligible for psychiatric assessment, a psychologist or social worker with the Vietnam Veterans Counselling Service must be satisfied the person could be suffering from a mental condition as a result of having, or having had, a parent or guardian that is, or was, a Vietnam veteran.
Paragraph 3-4 specify that the class of person which a person must be within in order to be provided with counselling and/or psychiatric assessment services is the class comprised of former (partner) dependants of Vietnam veterans who became former dependants because they were divorced from the Vietnam veteran or their marriage-like relationship with the Vietnam veteran ended. In order to be provided with the relevant services, a person must be within this class on or after 1 July 2006 and, in order to be eligible for psychiatric assessment, a psychologist or social worker with the Vietnam Veterans Counselling Service must be satisfied the person could be suffering from a mental condition as a result of having been the spouse of, or partner of, a Vietnam veteran.
Eligibility for the services (in respect of a former partner-dependant) is for a “one off” period of 5 years. In the case of a former spouse of a Vietnam veteran, the eligibility period commences on the date the divorce order took effect. In the case of a former de facto spouse, the eligibility period commences on the date that, in the opinion of the Repatriation Commission, the marriage-like relationship ended.
Part 3 specifies the kind of treatment that a person within a specified class is eligible to receive, namely counselling services or psychiatric assessment services or both.