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.
Overview
The Veterans' Entitlements Treatment (Gulf War Health Study) Determination 22/2000 is an instrument that provides the Repatriation Commission with the legal authority to accept financial liability for the treatment of veterans who participated in the Gulf Wars as part of the Gulf War Health Study. Enacted in 2000, this Determination addresses the gap in treatment options for veterans potentially exposed to unique operational, environmental, and occupational threats during their service. The Commonwealth Parliament introduced this Determination to ensure that the health needs of these veterans are met comprehensively, including through medical examinations, diagnostic tests, and social assistance such as transport, meals, and accommodation. The policy objective is to ascertain if Gulf War Veterans have different health needs compared to their counterparts who served in Australia during the same period and to provide appropriate treatment accordingly.
Scope and Application
The Veterans' Entitlements Treatment (Gulf War Health Study) Determination 22/2000 provides the Repatriation Commission with the legal authority to accept financial liability for the treatment of veterans participating in the Gulf War Health Study, which is an initiative established under a joint project between the Department of Veterans' Affairs and the Department of Defence to evaluate the health needs of veterans who served in the Gulf Wars. This determination applies to veterans who served in the Gulf Wars and potentially were exposed to operational, environmental, and occupational threats that could have affected their health. The treatment provided encompasses a broad range of services, including medical examinations, diagnostic tests, and social assistance such as transport, meals, accommodation, and unpaid leave from employment or absence from work for self-employed veterans. The Repatriation Commission is empowered to arrange for the provision of this treatment on behalf of the Commonwealth. The scope of this determination extends across Australia as it pertains to the nationwide provision of treatment to eligible veterans, thereby encompassing the entire Commonwealth jurisdiction. The Act does not specify any exclusions, exemptions, or thresholds within this determination, and its application may be further detailed or modified through subordinate instruments as necessary.
Key Provisions
The Veterans' Entitlements Treatment (Gulf War Health Study) Determination 22/2000 provides the legal foundation for the Repatriation Commission to accept financial responsibility for the treatment costs of veterans participating in the Gulf War Health Study (section 88A). The determination outlines the types of treatment that will be provided, including medical examinations, diagnostic tests, and social assistance such as transport, meals, accommodation, and unpaid leave for employed or self-employed veterans. This treatment is provided under the broad definition of "treatment" as per section 80 of the Veterans' Entitlements Act 1986, which encompasses various forms of assistance. The determination also clarifies that eligibility for treatment can be established under different methods stipulated in the Act, with section 88A being one of the methods used to determine eligibility for veterans in a specified class.
The obligations imposed on the parties by this determination are primarily on the Repatriation Commission. The Commission is tasked with deciding who qualifies as a "Control-Group Veteran" and making requests for veterans to participate in the Study. The Repatriation Commission must also arrange for the provision of treatment, which includes accepting financial liability on behalf of the Commonwealth for the treatment provided. This ensures that the veterans receive the necessary care and assistance for their participation in the Study, with the Commonwealth bearing the financial burden of such treatment. The Commission’s role is crucial in facilitating the smooth operation of the Study and ensuring that eligible veterans receive the benefits to which they are entitled.
In terms of legal consequences, the Act does not explicitly detail specific offences, penalties, or civil/criminal consequences for breaches of the determination. However, the nature of the determination suggests that any failure to adhere to the outlined provisions could result in legal repercussions. For instance, if the Repatriation Commission does not properly administer the treatment provisions or fails to determine eligibility accurately, it could lead to disputes or litigation by affected veterans. While the Act itself does not specify maximum penalties, any breaches could potentially lead to legal actions under other relevant legislation, such as the Administrative Decisions (Judicial Review) Act 1977, or to civil claims for damages if a veteran's rights are infringed. The overarching principle is that the Repatriation Commission must comply with the determination to avoid any legal or financial repercussions.