EXPLANATORY NOTE
VETERANS’ ENTITLEMENTS ACT 1986
Section 88A
Veterans' Entitlements Treatment (Gulf War Health Study) Determination 22/2000
What does the attached Determination do?
1. It provides the legal authority to the Repatriation Commission to accept financial liability for the cost of treating veterans as part of the Gulf War Health Study.
What is the Gulf War Health Study?
2. The Gulf War Health Study was established under a component of a joint initiative between the Department of Veterans' Affairs and the Department of Defence for improving the delivery of services to members of the Defence Force ("LINKS"). The purpose of the Study is to ascertain if members who served in the Gulf Wars have different health needs compared to their counterparts who served in Australia during the relevant period. Members who served in the Gulf Wars were potentially exposed to a range of operational, environmental, and occupational threats not encountered by members performing peacetime service in Australia and those threats may have affected the health of those Gulf War Veterans.
What treatment will be provided to veterans who participate in the Gulf War Health Study?
3. The definition of "treatment" under section 80 of the Veterans' Entitlements Act 1986 ("the Act") is very broad and includes matters not normally considered to be treatment. Thus, as in the present case, treatment can mean the provision of transport, meals and accommodation and unpaid leave from employment or absence from work in the case of a self-employed veteran ("social assistance"). In the present case it will also mean the provision of medical examinations, diagnostic tests, and radiology and pathology services. The Repatriation Commission is empowered under subsection 84(1) of the Act to arrange for the provision of treatment for veterans which means accepting financial liability, on behalf of the Commonwealth, for the provision of that treatment.
4. Before a veteran can be provided with treatment, the veteran must be eligible for the treatment. Eligibility of veterans for treatment can be established in a number of ways under the Act. The various methods of establishing eligibility all have their own in-built criteria. For example, under some methods, a veteran must establish he or she suffers from a service-related condition. The simplest method of establishing eligibility of a veteran for treatment is to utilise section 88A of the Act which enables the Repatriation Commission to determine that a veteran in a specified class is eligible to be provided with treatment of a specified kind.
5. On 4 September 2000 the Repatriation Commission made a Determination under section 88A of the Act which enabled the veterans in question to be provided with treatment for the purposes of the Gulf War Health Study, namely the Veterans' Entitlements Treatment (Gulf War Health Study)Determination 14/2000 ("Determination 14/2000"). Determination 14/2000 commenced on 1 July 2000.
6. However Determination 14/2000 was repealed, by implication, by the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 which repealed the provision under which Determination 14/2000 was made (ie section 88A of the Act) and which replaced that provision with a more comprehensive determination-making power ("new Section 88A"). Veterans who were eligible for treatment under Determination 14/2000 will be deemed to be eligible for treatment under the attached Determination.
7. The attached Determination is made under the new section 88A and is basically in the same terms as Determination 14/2000. It describes the veterans who are eligible for treatment in relation to the Gulf War Health Study and the type of treatment they are to receive. The Determination was made after the enactment of the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 and before that Act commenced, which was on Royal Assent. Section 4 of the Acts Interpretation Act 1901 permitted this course of action.
8. The only differences between the attached Determination and Determination 14/2000 is that the attached Determination now requires certain actions to be performed by the Repatriation Commission rather than the Commonwealth (Department of Veterans' Affairs) e.g deciding who is a "Control-Group Veteran" and making the request that a veteran participate in the Gulf War Health Study, and now makes social assistance in the form of unpaid leave from employment or absence from work available to participants in the Study.
Will pre-existing rights be affected?
9. The determination commenced before gazettal. However it will not infringe subsection 48(2) of the Acts Interpretation Act 1901 because it does not disadvantage any person or impose liabilities upon any person. The Determination is beneficial legislation.