EXPLANATORY STATEMENT
Veterans' Entitlements (Counselling) Extended Eligibility Determination 2014
EMPOWERING PROVISION
Subsection 92(2) of the Veterans’ Entitlements Act 1986 (the Act or the VEA).
PURPOSE
The attached instrument (2014 No.R14) specifies classes of people eligible for counselling. Under section 92 of the Act the Minister for Veterans’ Affairs has approved the arrangement made by the Repatriation Commission with the Veterans and Veterans Families Counselling Service (called “VVCS”)(a Department of Veterans’ Affairs (DVA) health care program) whereby counselling for the classes of people in the attached instrument will be provided under the auspices of the VVCS.
The proposal implemented by the attached instrument is part of the 2013 Mental Health Service – Expansion (Strengthening Veteran Mental Health) Budget initiative.
The instrument consolidates classes of person who are already eligible to VVCS and new classes of person who are proposed to become eligible to VVCS from 1 July 2014. This instrument should be read in conjunction with section 92 (1)(a)(i) of the Act, which provides that veterans and dependants of veterans are eligible for counselling.
CONSULTATION
Yes. The Department of Veterans’ Affairs (DVA) sought the views of a wide range of ex-service organisations through the Veterans and Veterans Families Counselling Service Delivery Review (the Review).
Noting that paragraph 26(1A)(d) of the Legislative Instruments Act 2003 requires an Explanatory Statement for a legislative instrument to contain a description of the nature of any consultation, the Review conducted focus groups and individual interviews across Australia on the service delivery model of VVCS, which included the topic of eligibility. This consultation process informed consideration of this proposed legislative instrument.
The Repatriation Commission considered VVCS client eligibility in light of the above and recommendations from DVA. The development of recommendations included consideration of comments from interested stakeholders.
RETROSPECTIVITY
The instrument may commence before registration on the Federal Register of Legislative Instruments. If it does, and noting subsection 12(2) of the Legislative Instruments Act 2003 (instruments commencing before registration not to disadvantage a person), it would not disadvantage any person or impose any 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 extending free counselling services to a section of the community, namely certain current and former Australian Defence Force (ADF) personnel and their families.
Counselling services from VVCS, delivered with an awareness of the military experience and culture, are already available for veterans, peacekeepers and their dependants, along with a range of other cohorts in the veteran and ex-service community. The attached instrument extends that eligibility to certain other current and former ADF personnel as well as to their partners and children. Parents of ADF members killed in service related incidents will also be eligible for counselling.
A limitation imposed in this exercise is the differentiating between a range of potential groups of ADF personnel and their family members and the inclusion of some, but not others in this expansion to eligibility.
The Parliamentary Joint Committee on Human Rights has stated three grounds for assessing whether a limitation on a human right is reasonable, namely:
- whether the limitation is aimed at achieving a legitimate objective;
- whether there is a rational connection between the limitation and that objective; and
- whether the limitation is proportionate to that objective.
The assessment by the Department of Veterans’ Affairs of the relevant limitations using these grounds is that the legitimate objective is conserving expenditure by ensuring those groups and family members identified through extensive consultation as potentially more susceptible to experiencing mental health concerns should receive specialised VVCS counselling without restriction.
Conclusion
The attached legislative instrument is considered to be compatible with the human right to health because it enables an additional section of the veteran and ex-service community to access free, specialised counselling services, whilst ensuring counselling remains cost-effective and provided only where it is likely to be of greatest benefit.
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF INSTRUMENT
Section 1.1
This section sets out the name of the instrument - Veterans’ Entitlements (Counselling) Extended Eligibility Determination 2014.
Section 1.2
This section provides that the instrument is taken to have commenced when Schedule 2 of the Veterans’ Affairs Legislation Amendment (Mental Health and Other Measures) Act 2014 commences.
Section 1.3
This section is a definitions section.
Part 2
This Part specifies classes of people. A person within a class is eligible for counselling services. The classes are:
- NLHC service member [“NLHC service member” is defined in the instrument].
- SHOAMP participant [“SHOAMP participant” is defined in the instrument].
- service member [“service member” is defined in the instrument].
- parent of a service member killed in a service-related incident [“parent” is defined in s.5F(1) and s.10A of the VEA].
- partner of a service member [“partner “ is defined in s.5E(1) of the VEA].
- child of a service member who is dependent on the service member [“child” is defined in s.5F(1) of the VEA].