EXPLANATORY STATEMENT

Veterans’ Entitlements (Counselling) Extended Eligibility Determination 2017 (Instrument 2017 No.R5)

EMPOWERING PROVISION

Subsection 92(2) of the Veterans’ Entitlements Act 1986 (the Act).

PURPOSE

The attached instrument (2017 No. R5) revokes the legislative instrument known as the Veterans’ Entitlements (Counselling) Extended Eligibility Determination 2014 (the original determination) and remakes it to include an expanded range of classes of persons eligible for counselling services.

The instrument is made under subsection 92(2) of the Act which enables the Repatriation Commission, by legislative instrument, to specify a class of persons who will be eligible for counselling services under subsection 92(1) of the Act.

The original determination, made in 2014, was part of the 2013 Mental Health Service – Expansion (Strengthening Veteran Mental Health) Budget initiative which expanded eligibility to include additional ‘at risk’ cohorts in the Australian Defence Force (ADF) community.   In 2016, the Government committed to further extending client eligibility to include the following 4 additional defence and veteran community groups:

• family members of current and former service members who die by suicide or suspected suicide;
• siblings of service members killed in service related incidents;
• registered Defence Abuse Reparation Taskforce (DART) complainants and their families; and
• adult sons and daughters of post-Vietnam War members.

The attached instrument consolidates those classes of persons already eligible for counselling under the original determination and the above additional classes of persons who will become eligible from the commencement date of 1 April 2017.

This instrument should be read in conjunction with subparagraph 92(1)(a)(i) of the Act, which provides that veterans and dependants of veterans are eligible for counselling. 

Counselling services for eligible persons are provided by the Veterans and Veterans Families Counselling Service (“VVCS”).  The VVCS is funded by the Department of Veterans’ Affairs and provides free and confidential, Australia-wide counselling and mental health support services to persons who are eligible, in accordance with the attached instrument.

It is expected this further expansion will extend counselling services to an estimated additional 345 community members each year.

The authority to revoke the earlier determination is found in subsection 33(3) of the Acts Interpretation Act 1901 which provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Further details of the attached instrument are set out in Attachment A.

CONSULTATION

Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.

When the original determination was made the Department sought the views of a wide range of ex-service organisations through the Veterans and Veterans Families Counselling Service Delivery Review (the Review).  The Review conducted focus groups and individual interviews across Australia on the service delivery model of VVCS, which included the topic of eligibility.

Since then, the Government has continued to monitor community need for further expansion of access to counselling services.  In taking the decision to expand the classes of persons able to access counselling, the Repatriation Commission considered stakeholders’ views in past reviews of VVCS eligibility and more recent representations from stakeholder and community groups. Moreover, this further expansion of access to VVCS counselling gives effect to the Government’s 2016 election commitment.

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

RETROSPECTIVITY

None.

DOCUMENTS INCORPORATED BY REFERENCE

None.

REGULATORY IMPACT

None. 

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 (including mental health) conducive to living a life in dignity.

Overview

The attached legislative instrument engages with, and promotes, the Right to Health by extending free counselling services to certain sectors of the veteran and Australian Defence Force (ADF) community, namely specified “at risk” categories of 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 encompass

family members of ADF members who die by suicide or suspected suicide, brothers and sisters of those killed in service related incidents, DART complainants and their families, and adult children of post-Vietnam War service members.

Conclusion

The attached legislative instrument is considered to be compatible with the right to health because it enables additional sectors of the veteran and ex-service community to access free, specialised counselling services, whilst ensuring counselling remains cost-effective and provided where it is likely to be of greatest benefit.

Repatriation Commission

Rule-Maker

FURTHER EXPLANATION OF PROVISIONS

See Attachment A.

Attachment A

FURTHER EXPLANATION OF PROVISIONS

Part 1 Introduction

Section 1

This section sets out the name of the instrument – the Veterans’ Entitlements (Counselling) Extended Eligibility Instrument 2017.

Section 2

This section provides that the instrument commences on 1 April 2017.

Section 3

This section sets out the empowering provision in the primary legislation that authorises the making of this instrument – subsection 92(2) of the Veterans’ Entitlements Act 1986.

Section 4

This section revokes the earlier determination – the Veterans’ Entitlements (Counselling) Extended Eligibility Determination 2014. The classes of persons specified in that instrument are retained in the current instrument. In addition, the current instrument specifies 4 new classes of persons for the purposes of establishing eligibility for VVCS counselling.

.

Section 5

This is the interpretation provision.  It defines the terms used in the instrument.

Part 2   Specified Class of Person

This Part specifies (for the purposes of subparagraph 92(1)(a)(iii) of the Act), the classes of persons who are eligible for counselling services. They are:

(a)           NLHC service member.

The term “NLHC service member” is defined in section 5 of the instrument to mean a person in respect of whom a claim for treatment of a mental health condition on a non-liability health care basis has been accepted under the Veterans’ Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016.

(b)           SHOAMP participant.

The term “SHOAMP participant” is defined in section 5 of the instrument to mean a person who is a Group 1 or Group 2 participant in the SHOAMP (Study of Health Outcomes in Aircraft Maintenance Personnel) health care scheme.

The note to this definition explains that Group 1 participants are the primary participants i.e. the aircraft maintenance (aircraft fuel tank) workers and Group 2 participants are the family members or ex partners of the primary participants.

(c)           service member.

The term “service member” is defined in section 5 of the instrument to mean the groups outlined below:

• a member or former member of the Australian Defence Force with an accepted mental health disability;

• a person who, as a member of the Australian Defence Force, rendered border protection service, Australian or overseas disaster zone service or submariner service;

• a member or former member of the Australian Defence Force involved in a training accident;

• a person who has been medically discharged from the Australian Defence Force;

• a member of the Australian Defence Force killed in a service-related incident;

• a veteran under paragraph (b) of the definition of veteran in subsection 5C(1) of the Act who satisfies subsection 37(3) of the Act and who is undertaking a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme. 

This last group covers “Commonwealth veterans”, “allied veterans” and “allied mariners” (as those terms are defined in the Act) who have Australian residency for a continuous period of at least 10 years, and who are undertaking rehabilitation under the Scheme.

The definition excludes veterans, members of the Forces and members of a Peacekeeping Force as these groups are covered for counselling services under section 92 of the Act. 

(d)           partner of a service member.

The term “partner” is defined in section 5E of the VEA. The meaning of “service member” is explained in paragraph (c) above.

(e)           child of a service member who is dependent on the service member. 

The term “child” is defined in section 5F(1) of the VEA.  The meaning of “service member” is explained in paragraph (c) above.

(f)            parent or sibling of a service member killed in a service-related incident. 

The term “parent” has the meaning given in sections 5F(1) and 10A of the VEA.

The term “sibling” is defined in section 5 of the instrument to have the same meaning as it has in section 23 of the Social Security Act 1991.  The note to the definition explains that under section 23 of the Social Security Act 1991, sibling, of a person, is defined to include a

half-brother, half-sister, adoptive brother, adoptive sister, stepbrother or stepsister of the person, but does not include a foster-brother or a foster-sister of the person.

(g)           parent or sibling of a veteran killed in a service-related incident.

The terms “parent” and “sibling” are explained at paragraph (f) above.

The addition of “sibling” to the above 2 classes further expands access to counselling for families of those killed in service-related incidents beyond the 2013/14 measure which extended eligibility to the parents of those killed in service-related incidents.

(h)           family member of a current or former member of the Australian Defence Force where the member has died by suicide or suspected suicide. 

The term “family member” of a person is defined in section 5 of the instrument to mean a parent, partner, child or sibling of the person; or another person, who in the opinion of the Commission, should be treated as a family member of the person for the purposes of this instrument.

The addition of this class to the attached instrument reflects the importance of the issue of suicide in the veteran and ex-service community and recognises the need to support those left behind in tragic circumstances.

(i)                  registered DART complainant.

The term “registered DART complainant” is defined in section 5 of the instrument to mean a person who is registered and accepted to access a reparation payment or other outcome from the Defence Abuse Reparation Taskforce under the Defence Abuse Reparation Scheme.

(j)        family member of a registered DART complainant.

The addition of the above 2 classes in the attached instrument reflects the  Government’s commitment to continue to provide support for Defence Abuse Reparation Taskforce (DART) complainants and their families following the end of funding for counselling services under the DART programme.

(k)       former child of a post-Vietnam War member or a former child of a deceased

post-Vietnam War member.

The term “post-Vietnam War member” is defined in the instrument to mean a veteran or a service member who has rendered any amount of continuous full time service after 11 January 1973.  The definition covers a certain subset of Australian Defence Force members with

post-Vietnam War service, namely “service members” as defined in this instrument and “veterans” within the meaning of section 92 of the Act, who have served after the Vietnam War. 

The notes to paragraph (k) explain that the term “former child” includes all offspring aged 25 years or over, and those offspring aged between 16 and 25 years who have ceased full-time education or who are in receipt of certain payments under the Social Security Act 1991. 

Younger children, and dependents, of veterans and service members already have unrestricted access to VVCS counselling.  The inclusion of this new class at paragraph (k) adds to the existing cohorts of adult children eligible for counselling services, namely children of SHOAMP participants and adult children of Vietnam veterans.