EXPLANATORY STATEMENT
VETERANS' ENTITLEMENTS (Repeal of Expired Amendment Statements of Principles) Determination 2018
(No. 52 of 2018)
VETERANS' ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
- This is the Explanatory Statement to the Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018).
Background
2. The Repatriation Medical Authority (the Authority) has determined, under section 196B of the Veterans' Entitlements Act 1986 (the VEA), the Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018) (the "Instrument").
3. This Instrument repeals the various Amendment Statements of Principles referred to in Schedule 1- Expired Amendment Statements of Principles to the Instrument.
4. Each Amendment Statement of Principles referred to in Schedule 1 deals with a particular kind of injury, disease or death and the only legal effect of the substantive provisions of each of them was to amend the existing Statement of Principles dealing with that particular kind of injury, disease or death.
5. However, those Amendment Statements of Principles each contained an application provision which prevented their repeal pursuant to section 48A of the Legislation Act 2003. In each case the application provision only provided for the amendment to operate consistent with the terms of the existing Statement of Principles dealing with that particular kind of injury, disease or death.
6. By operation of section 48C of the Legislation Act 2003 the substantive provisions of each Amendment Statements of Principles were themselves repealed upon commencement.
7. The effect was to leave extant on the Federal Register of Legislation legislative instruments that have no legal effect.
8. As the Statements of Principles are used to facilitate claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA) respectively, the existence of these otherwise expired instruments on the Federal Register of Legislation had the capacity to confuse those parties and frustrate the making of such decisions. The Authority therefore determined this Instrument to remove the Amendment Statements of Principles referred to in Schedule 1 from the Register.
Day of Commencement
9. This Instrument also specifies a day of commencement for the Instrument in accordance with subsection 12(3) of the Legislation Act 2003.
Consultation
10. Prior to determining this Instrument, the Authority consulted with the Office of Parliamentary Counsel concerning the matter.
Human Rights
11. This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights follows.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Instrument No.: Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018).
Kind of Injury, Disease or Death: Each kind the subject of a Statement of Principles referred to in Schedule 1- Expired Amendment Statements of Principles.
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
1. This Legislative Instrument is determined pursuant to section 196B of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).
2. This Legislative Instrument:-
- Repeals expired Amendment Statements of Principles and corrects the Federal Register of Legislation; and thereby
- facilitates claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have the particular kinds of injury, disease or death referred to in the various Statements of Principles referred to in the Schedule 1 - Expired Amendment Statements of Principles to this Instrument; and
- facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal.
3. The Instrument is assessed as being a technical instrument necessary to ensure the integrity of the Federal Register of Legislation.
Human Rights Implications
4. This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:
- the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];
- the right to an adequate standard of living (Art 11, ICSECR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;
- the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICSECR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members;
- the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
- ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).
Conclusion
This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.
Repatriation Medical Authority
[1] In General Comment No. 19 (The right to social security), the Committee on Economic, Social and Cultural Rights said (at paragraph 24) this to be one of the elements of ensuring accessibility to social security.
Overview
The Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 was enacted to address the issue of expired Amendment Statements of Principles remaining on the Federal Register of Legislation despite having no legal effect. This determination was made under section 196B of the Veterans' Entitlements Act 1986 by the Repatriation Medical Authority, with the aim of facilitating both claimants and the Repatriation Commission in making and assessing claims under the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act 2004. The primary objective of this legislation is to remove outdated and ineffective legislative instruments from the Federal Register to prevent confusion and streamline the claims process.
This instrument ensures the Federal Register of Legislation is kept accurate and up to date, thereby promoting the efficient administration of veterans' entitlements. By repealing the expired Amendment Statements of Principles, the legislation aims to support the human rights of veterans, current and former Defence Force members, and their dependents, including their right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The Repatriation Medical Authority has confirmed the compatibility of this determination with human rights under the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018) is an instrument established under section 196B of the Veterans' Entitlements Act 1986 and applies to the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The primary purpose of this instrument is to repeal expired Amendment Statements of Principles that have no current legal effect, thereby correcting the Federal Register of Legislation and facilitating the process for claimants and the Repatriation Commission to assess claims for medical treatment and compensation. By removing these redundant legal instruments, the determination aims to prevent confusion and streamline the claims process for veterans, current and former Defence Force members, and their dependents. The instrument ensures that only relevant and applicable Statements of Principles are available for reference, promoting transparency and efficiency in the administration of veterans' entitlements.
The Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 extends across the Commonwealth of Australia and affects entities such as the Repatriation Medical Authority, claimants, and the Repatriation Commission, all of which operate within the framework of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The instrument does not specify any exclusions or exemptions but rather focuses on repealing outdated legal provisions to maintain an accurate and accessible legislative record. The application of this determination is further governed by the provisions of the Legislation Act 2003, which ensures that the substantive provisions of the repealed Amendment Statements of Principles are removed from the Federal Register of Legislation while maintaining their historical context.
Key Provisions
The main operative sections of the Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018) include the repeal of various expired Amendment Statements of Principles as listed in Schedule 1, which previously dealt with specific kinds of injury, disease or death. These expired instruments, although substantively repealed under the Legislation Act 2003, had not been removed from the Federal Register of Legislation. This repeal aims to correct this oversight and ensure that only active legislative instruments are available on the register. The repeal is crucial for avoiding confusion among claimants and the Repatriation Commission when making or assessing claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). By removing these redundant instruments, the Federal Register of Legislation will reflect the current legal framework accurately.
The Repatriation Medical Authority (the Authority), under section 196B of the VEA, determined this Instrument, which imposes an obligation to ensure that the Federal Register of Legislation only contains active and effective legislative instruments. The Authority must consult with relevant bodies, such as the Office of Parliamentary Counsel, to ensure that the determination aligns with legislative processes and requirements. Additionally, the Authority must ensure that the repeal of these expired instruments does not undermine the rights of veterans and their dependents, as outlined in various international human rights instruments.
The Act outlines specific offences and penalties for breaches of the legislative requirements. While the primary focus of this determination is to correct the Federal Register of Legislation, failure to adhere to the provisions of the VEA and MRCA could result in civil or criminal consequences for parties involved in the claims process. The maximum penalties for breaches can vary significantly depending on the nature and severity of the offence. For example, under the VEA, penalties for fraudulent claims can include fines and imprisonment. Similarly, under the MRCA, penalties for providing false or misleading information can result in substantial fines. The precise penalties are detailed in the respective Acts and are enforced by relevant authorities to maintain the integrity of the claims process.
In summary, the Veterans' Entitlements (Repeal of Expired Amendment Statements of Principles) Determination 2018 (No. 52 of 2018) is a technical legislative instrument aimed at correcting the Federal Register of Legislation by repealing expired Amendment Statements of Principles. This repeal facilitates the claims process for veterans and their dependents by ensuring that only current and active legislative instruments are available. The Authority's obligations include consulting with relevant bodies and ensuring compliance with the VEA and MRCA. While the primary focus is on the legislative register, failure to adhere to the provisions of these Acts can result in civil or criminal consequences, with penalties varying based on the nature of the offence.