EXPLANATORY STATEMENT
Veterans' Entitlements (Counselling and Psychiatric Assessment – Former Dependants of Vietnam Veterans) Determination 2016 (Instrument 2016 No. R13)
EMPOWERING PROVISIONS
Paragraph 88A(1)(c), subsection 88A(2) and section 92 of the Veterans’ Entitlements Act 1986 (the Act).
PURPOSE
The attached instrument (2016 No. R 13) revokes and re-makes the Veterans' Entitlements Determination (Counselling and Psychiatric Assessment – Former Dependants of Vietnam Veterans) Determination 2006 – Instrument 2006 R16, dated 16 June 2006 (the instrument) for the purposes of the sunsetting exercise. On 1 October 2016 the instrument will “sunset” (expire) unless re-made.
The Department of Veterans’ Affairs (DVA) has reviewed the instrument and found it is still required. Accordingly the instrument has been re-made in essentially the same terms.
The purpose of the attached instrument is to specify that certain classes of former dependants of Vietnam veterans – former partners and spouses, and adult children – are eligible for counselling and / or psychiatric assessment services 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).
The attached instrument provides that eligibility for counselling services for the specified classes of former dependants will be automatic. Eligibility for a psychiatric assessment will be available if in the written opinion of the Veterans and Veterans Families Counselling Service (VVCS) counsellor, the person could be suffering from a mental health condition as a result of having had a parent, or guardian, who was a Vietnam veteran, or having been the spouse or partner of a Vietnam veteran.
For former spouses and partners of Vietnam veterans, the services are available for a five-year period commencing from the date the relationship ended. No time restriction is placed on the provision of services for former dependants who are adult children of Vietnam veterans.
In conducting its sunsetting review, DVA found that some members of these classes of former dependants continue to realise the adverse mental health impact of their Vietnam veteran ex-partner or parent. Remaking this instrument ensures ongoing access to psychiatric assessments as part of the clinical treatment regime provided by VVCS for these clients.
It should be noted that the provision of counselling and psychiatric services for current dependents of Vietnam veterans is covered by the Veterans' Entitlements (Psychiatric Assessment – Dependants of Vietnam Veterans) Determination 2000 (Instrument 2015 No. R.14). That instrument was remade in August 2015 following a “sunset” review.
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 following bodies and experts was sufficient for the purposes of this exercise:
- Veterans and Veterans Families Counselling Service;
- Psychology Advisor, Department of Veterans’ Affairs.
The nature of the consultation was via discussions and written correspondence including e mail correspondence.
Accordingly, it is considered the requirements of section 17 of the Legislation Act 2003 have been met.
RETROSPECTIVITY
Nil.
DOCUMENTS INCORPORATED BY REFERENCE
No documents are incorporated-by-reference in the Instrument.
REGULATORY IMPACT
Nil.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument engages an applicable right or freedom, namely 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 promotes the Right to Health by enabling continued access to appropriate counselling and psychiatric assessments and treatment for an at-risk cohort consisting of former partners and spouses, and adult children, of Vietnam veterans.
Conclusion
The attached legislative instrument has the effect of enabling more targeted and appropriate mental health care treatment for the former dependants of Vietnam veterans concerned. The instrument advances the Right to Health for these clients and accordingly is considered to be compatible with human rights.
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS
See: Attachment A
Attachment A
Veterans' Entitlements (Counselling and Psychiatric Assessment – Former Dependants of Vietnam Veterans) Determination 2016.
Section 1
This section sets out the name of the Instrument - Veterans' Entitlements (Counselling and Psychiatric Assessment – Former Dependants of Vietnam Veterans) Determination 2016.
Section 2
Section 2 provides that the Instrument commences on 1 October 2016. This co-incides with the sunsetting of the former Instrument.
Section 3
This section revokes the former Instrument. The subject matter of the revoked Instrument has been incorporated into the attached Instrument with necessary updates.
Section 4
This is an interpretation provision. It defines the terms used in the Instrument.
Section 5
This is a savings provision. It ensures that if, immediately before the commencement date of the attached Instrument (1 October 2016), a former partner or former spouse of a Vietnam veteran remained eligible for counselling or psychiatric assessment services under the old Instrument 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 that 5-year period.
Section 6
This is a purpose provision. It provides that the Instrument is made for the purpose of specifying a class of person who are dependants of Vietnam veterans who are to be provided with treatment, and for specifying the kind of treatment for that class of persons.
Section 7
This is the operative section of the Instrument. The section provides that, for the purposes of paragraph 88A(1)(c) of the Act, the class of dependants set out in Schedule 1 is specified, and the kind of treatment set out in Schedule 2 is specified for that class of dependants.
Schedule 1
Item 1
This item specifies as a class of dependants for the purposes of paragraph 88A(1)(c) of the Act, the group of persons generally referred to as adult offspring of Vietnam veterans.
The item defines this class by reference to relevant definitions in the Act. It provides that “A person who:
(a) was a child of a veteran or a child of a deceased veteran, the veteran or deceased veteran being a Vietnam veteran; and
(b) before, on or after 1 October 2016, ceased to be a child within the meaning of section 5F of the Act,
is, subject to paragraph 2, eligible to be provided with specified treatment.”
The use of the terms “child of a veteran” and “child of a deceased veteran” (both defined in section 10 of the Act) has the effect of bringing adopted children within this class.
Note (1) at the end of Schedule 1 informs readers that generally, a person will cease to be a child within the meaning of section 5F of the Veterans’ Entitlements Act 1986 upon turning 16, or if in full-time education – on ceasing full-time education or on turning 25, or if in receipt of any of the payments under the Social Security Act specified in that section.
Item 2
Item 2 further defines the class specified in item 1 by providing that persons within the class will only be eligible for a psychiatric assessment if a VVCS member is 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.
Item 3
This item specifies as a class of dependants for the purposes of paragraph 88A(1)(c) of the Act, the group of persons generally referred to as “former partners and former spouses of Vietnam veterans”.
To fall within this class, the person must be a dependant of Vietnam veteran who, on or after 1 October 2016, became a former dependant because they were divorced from the Vietnam veteran or their marriage-like relationship with the Vietnam veteran ended.
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.
Item 4
Item 4 further specifies the class nominated in item 3 by providing that persons within the class will only be eligible for a psychiatric assessment if a VVCS member is satisfied the person could be suffering from a mental health condition as a result of having, or having had, a spouse or partner who is, or was, a Vietnam veteran.
The second note at the end of Schedule 1 informs readers that current dependants of Vietnam veterans (eg. children and current partners) will have prima facie eligibility for similar services under the Veterans’ Entitlements Determination (Psychiatric Assessment – Dependants of Vietnam veterans) 2000 (Instrument 2015 No. R14).
Schedule 2
This Schedule 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.