EXPLANATORY NOTE
VETERANS’ ENTITLEMENTS ACT 1986
Section 88A
Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 19/2000
What is the Instrument about?
- The attached Instrument extends the range of veterans eligible for treatment at Repatriation Commission expense.
2. Veterans who have undertaken operational service, hazardous service, warlike service, non-warlike service or peacekeeping service and who lodge a claim for a disability pension, within 15 years of the end of the relevant service, in respect of a condition that turns out to be unidentifiable, are eligible for certain treatment of that condition, pursuant to the attached Determination, until such time as the condition is diagnosed.
3. Upon the diagnosis of a condition, the Commission will determine if it is war/defence-caused or not. If the condition is war/defence-caused, then it may be treated under Part V of the Veterans' Entitlements Act 1986 in the same manner as any other war/defence-caused condition. If the condition, upon being diagnosed, is not determined to be war/defence-caused, then it will no longer be treated at Repatriation Commission expense.
4. In short, the attached Determination gives certain veterans "the benefit of the doubt" in relation to an unidentifiable condition. In other words, the condition may or may not be a war/defence-caused condition and for the period the condition cannot be identified it may receive treatment as if it was a war/defence-caused condition.
What is the background to the Instrument?
5. The proposal to make "Repatriation Commission treatment" available for unidentifiable conditions arose from the joint initiative ("Links Project") between the Repatriation Commission and the Department of Defence regarding the management of the health care needs of Defence Force personnel deployed overseas (e.g in the Gulf War,Somalia operations).
6. Personnel involved in these operations were, and are, potentially exposed to a range of operational, environmental, and occupational threats different to those involved in peacetime service in Australia.
7. Providing "Repatriation Commission treatment" in respect of the unidentifiable conditions of veterans' of overseas' deployments is seen as an integral part of the overall strategy to better manage the health care needs of these veterans in that the availability of "Repatriation Commission treatment" for an unidentifiable condition, as soon as it presents, may reduce the treatment needed at a later stage, regardless of whether the condition is diagnosed and regardless of whether it is determined to be war/defence-caused.
8. In other words, immediate treatment of an unidentifiable condition, using the extensive treatment-services made available by the Repatriation Commission, could be instrumental in preventing the deterioration of the condition which might occur if access to comprehensive "Repatriation Commission treatment" was denied. Early intervention could, therefore, improve the well-being of veterans and save future treatment costs.
9. On 17 April 2000 the Repatriation Commission made a Determination under section 88A of the Act which enabled the veterans in question to be treated for an unidentifiable condition namely the Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 1/2000 ("Determination 1/2000"). Determination 1/2000 commenced on
30 March 2000.
10. However Determination 1/2000 was repealed, by implication, by the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 which repealed the provision under which Determination 1/2000 was made (ie section 88A of the Act) and which replaced that provision with a more comprehensive determination-making power ("new Section 88A"). The attached Determination is made under the new section 88A, and, in most respects, is in the same terms as Determination 1/2000. Veterans who were eligible for treatment under Determination 1/2000 will be deemed to be eligible for treatment under the attached Determination.
11. The attached Determination differs from Determination 1/2000 in the following respects:
- it is now an express requirement that before the Commission determines a condition to be an unidentifiable condition it must obtain expert medical advice. In practice the Commission would obtain such advice but, as an added safeguard, it was decided to make the requirement a condition of the Commission exercising the power in question.
- it is now clear that in order to be eligible for specified treatment, a claim for pension must be lodged by a veteran within 15 years after the end of the relevant service and not within 15 years of the end of the relevant service.
- it is now the case that where eligibility for treatment of an unidentified condition is established, eligibility is effective from 3 months before the veteran claimed a pension until the claim is determined. This situation now reflects the usual legislative position regarding treatment and disability pensions which is that when eligibility for a disability pension is established, treatment and pension is effective from a date 3 months prior to the making of the pension claim. The attached Instrument ensures that the veterans eligible for treatment under Determination 1/2000 will have the advantage of their eligibility for treatment commencing 3 months prior to the lodgement of their pension claim.
12. The attached Determination was made under section 88A of the Act as amended by Schedule 1 to the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 (i.e under the "new Section 88A") 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.
What is the cost?
13. A handful of veterans are expected to be eligible for the relevant treatment, in the near future at least. Costs will be met from the standing appropriation of monies for medical and other treatment services provided under Part V of the Veterans' Entitlements Act 1986.
Will pre-existing rights be affected?
14. The Determination, apart from Part 4, commenced before gazettal. The Determination will not infringe subsection 48(2) of the Acts Interpretation Act 1901 because that part of it that commenced before gazettal does not disadvantage any person or impose liabilities upon any person. The Determination, in this respect, is beneficial legislation.
Part 4 of the Determination, which commences on gazettal, may negatively affect the pre-existing rights of people in the sense that cases "in the system" will now be determined under more stringent requirements, namely the requirement that the Commission obtain expert medical advice before it makes a decision regarding eligibility for the relevant treatment. The intention in relation to these cases is that they are to be decided under this Determination and not Determination 1/2000. In other words, cases in the system will be subject to the new, more stringent requirements of Section 88A.