EXPLANATORY STATEMENT
Veterans' Entitlements (Expanded Access to Non-Liability Health Care for Mental Health Treatment) Amendment Determination (No. 2) 2018
(Instrument 2018 No. R60)
EMPOWERING PROVISION
Subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).
PURPOSE
The 2018-19 Budget provides $2.2 million over the forward estimates for the initiative Mental Health Treatment for Australian Defence Force Reservists with Disaster Relief and Other Certain Service.
There are three groups of Reservists: those who have transferred from permanent forces; those Reservists with continuous full-time service; and those who have only ever rendered reserve service days. The first two groups are already covered under the Non-Liability Health Care (NLHC) arrangements for mental health treatment.
The attached instrument varies the Veterans' Entitlements (Expanded Access to Non-Liability Health Care for Mental Health Treatment) Determination 2017 (the current determination) to expand the eligibility for NLHC mental health treatment to current and former Australian Defence Force (ADF) Reservists who on a reserve service day:
- rendered disaster relief service; or
- rendered border protection service; or
- were involved in or witnessed a serious training accident.
Under the proposed changes, a Reservist must have an authorised status, that is, as a Reservist rendering reserve service days, to be eligible for the NLHC arrangements for mental health. For example, a part-time Reservist may be allocated 20 reserve service days per year. However, if a member of the Reserves undertakes disaster relief service, border protection service or is involved in or witnesses a serious training accident on a day that is not a reserve service day, then they will not be eligible (unless they have continuous full-time service). A Reservist who volunteers to help at a natural disaster as a private citizen or is called up by a State Emergency Service will not be eligible for the NLHC arrangements for mental health.
Disaster relief service, border protection service and serious training accidents may cause trauma, and both continuous full-time Reservists and those utilising reserve service days may be exposed to this type of service. Expanding the NLHC arrangements addresses some of the inconsistencies in access to treatment for these two categories of Reservists.
The Total Work Force Model of the Australian Defence Force aims to increase flexibility of Defence service and opportunities to serve. This Model no longer relies on a sharp distinction between permanent and reserve service. Increasing the types of Reservists eligible for NLHC arrangements would provide a more consistent approach within Defence. Further, the nature of service rendered in the ADF should not provide a barrier to mental health treatment.
Under the current determination, eligibility for treatment for mental health conditions on a NLHC basis is limited to past and current members of the ADF with at least one day of continuous full-time service. This means that a recruit who leaves the permanent force after one day of full-time service would qualify for the NLHC mental health treatment, whereas a Reservist with years of reserve service days, but without any continuous full-time service, may not be eligible.
Treatment is provided under the NLHC arrangements regardless of whether the treatment is linked to a condition arising from military service or a claim for compensation has been lodged. A White Card is issued to a client for the mental health treatment. Eligibility for treatment is dependent on the member making a request to the Department of Veterans’ Affairs (DVA) for treatment, except for clients issued with a White Card after their transition from the ADF whose eligibility is automatic upon their first use of the White Card.
The attached instrument requires Reservists to make a request to DVA for treatment for a mental health condition and their treatment costs can be backdated to a date that is 3 months before the date of the request provided that date is not earlier than 1 July 2018.
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.
Representatives from the Department of Defence have been involved throughout the planning and implementation process of this change of arrangements for NLHC.
The measure implemented by this instrument is entirely beneficial in nature in terms of its impact on members.
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
The Office of Best Practice Regulation assessed this measure as having a minor regulatory impact which will be offset. A Regulatory Impact Statement is not required.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument engages 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 with dignity.
Overview
The attached instrument expands the eligibility for mental health treatment to current and former ADF Reservists who are not continuous full-time Reservists:
- with disaster relief service; or
- with border protection service; or
- who were involved in or witnessed a serious training accident.
Disaster relief service, border protection service and serious training accidents can cause trauma, and both continuous full-time Reservists and those utilising reserve service days can be exposed to this type of service. Expanding the NLHC arrangements addresses some of the inconsistencies in access to treatment for these two categories of Reservists.
Further, the determination retains backdating of treatment costs for up to 3 months for such Reservists.
Conclusion
The attached instrument promotes the Right to Health by expanding access to DVA-funded treatment for mental health conditions for certain Reservists who are not continuous full-time Reservists. Accordingly, the attached instrument is considered to be “human rights compatible”.
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS See: Attachment A
Attachment A
FURTHER EXPLANATION OF PROVISIONS
Section 1
This section provides that the name of the instrument is the Veterans' Entitlements (Expanded Access to Non-Liability Health Care for Mental Health Treatment) Amendment Determination (No. 2) 2018.
Section 2
This section provides that the instrument commences on 1 July 2018.
Section 3
This section sets out the empowering provision in the primary legislation that authorises the making of this instrument – namely subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).
Subsection 88A(2) of the VEA empowers the Commission to vary a determination made under subsection 88A(1).
Section 4
This section provides that the Veterans’ Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2017 (Instrument 2017 No.R24) (FRLI reference number F2018C00272) is varied in accordance with the items in the Schedule to the instrument.
Schedule
Item 1
Item 1 inserts new definitions into section 7 of the instrument.
“Border protection service” is defined as service rendered by a member of the Defence Force in an area in or outside Australia that, in the opinion of the Commission, had the purpose of securing Australia’s borders against a potential or real threat by a State, person or persons. An example is Operation RESOLUTE – a Whole-of-Government effort to protect Australia’s borders and offshore maritime interests.
“Disaster relief service” is defined as service rendered by a member of the Defence Force in an area in or outside Australia that, in the opinion of the Commission, was an area in which a natural or other disaster occurred and the service was rendered as part of the disaster relief effort. Examples include Operation Navy Help Darwin for Cyclone Tracey and Operation Vic Fire Assist for the Victorian bushfires. An overseas example is Operation Sumatra Assist which covered the tsunami of 26 December 2004 in Indonesia, Malaysia and Thailand.
“Reserves” has the same meaning as in the Defence Act 1903.
“Reserve service day” is defined as a day or part day that a member of the Reserves is entitled to and paid a daily rate of salary for service that is a part of his or her authorised duty commitment, but it excludes continuous full-time service.
“Serious training accident” is defined as an accident that, in the opinion of the Commission, occurred during a training exercise undertaken by the Defence Force in which a member of the Defence Force died or sustained an injury that, in the opinion of the Commission, was a serious injury. Training exercises can range from small arms training to large scale international training exercises. Examples of serious training accidents include a helicopter crash or unintended weapon discharge.
For legislative consistency, the definitions of ‘border protection service’, ‘disaster relief service’ and ‘serious training accident’ are the same as or very similar to definitions in the Veterans’ Entitlements (Counselling) Extended Eligibility Determination (No.2) 2017 (F2017L00709) and are intended to cover identical client groups.
Item 2
Item 2 inserts new section 10B into Part 2 of the instrument. Part 2 of the instrument specifies the classes of persons under paragraphs 88A(1)(a) and (d) of the VEA who are eligible for the treatment specified in Part 3 of the instrument.
New section 10B deals with members of the Reserves and specifies, as a class of person, a person who:
- is or was a member of the Reserves; and
- has on a reserve service day:
(i) rendered disaster relief service; or
(ii) rendered border protection service; or
(iii) been involved in or witnessed a serious training accident; and
- makes a request to be provided with treatment for a mental health condition to an Office of the Department in Australia.
Subsection 10B(2) deals with backdating of treatment. It provides for backdating of treatment to a date that is 3 months before the day on which the request to be provided with treatment is received at an office of the Department in Australia, provided the treatment is not backdated to an earlier date than 1 July 2018.
Item 3
Item 3 amends section 11 of the instrument (Making a request for treatment) by omitting the words “section 9 or 10” and substituting “section 9, 10 or 10B(1)” in subsection 11(1). The effect of this amendment is to limit the operation of section 11 (the requirement to make a request for treatment) to the classes of persons set out in sections 9, 10 and 10B(1).