Details of the Financial Framework (Supplementary Powers) Amendment (Veterans' Affairs Measures No. 2) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Veterans' Affairs Measures No. 2) Regulations 2021.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the Department of Veterans' Affairs (the department).

 

New table item 483 establishes legislative authority for the Wellbeing and Support Program (the program), to provide case management services to highly vulnerable veterans who are transitioning into civilian life after their service in the Australian Defence Force (ADF), or have complex care needs.

 

The program has been running since 2018 as a pilot, which was established in response to recommendations from a number of inquiries and reports, including the Senate Inquiry into Suicide by Veterans and Ex-Service Personnel conducted by the Foreign Affairs, Defence and Trade Committee in 2017. The inquiry report, The Constant Battle: Suicide by Veterans, recommended that the Government continue to fund measures to increase case coordination staff to assist clients with complex needs (refer Recommendation 8) and provide intensive transition services for veterans leaving the ADF who need additional support (refer Recommendation 15). The Government agreed to all recommendations of the inquiry report. These documents are available at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/VeteranSuicide/Report.

 

As part of the 2021-22 Budget, the Government agreed to continue the program on an ongoing basis, commencing on 1 July 2021.

 

The objective of the program is to support highly vulnerable veterans to improve their wellbeing, which in turn will have a positive impact on the wellbeing of their families. This objective aligns with Priority One of the Veteran Mental Health and Wellbeing Strategy and National Action Plan 2020-2023 (available at https://www.dva.gov.au/documents-and-publications/veteran-mental-health-and-wellbeing-strategy-and-national-action-plan), to facilitate high quality, evidence-based, accessible and tailored health care to reflect the unique nature of military service and its impacts on veterans and their families.

 

The program will provide intensive, supportive, face-to-face case management services for veterans who have significant vulnerabilities. This includes people transitioning from the ADF and veterans with alcohol and/or substance misuse disorders, complex physical and/or mental health problems, high levels of chronic pain, traumatic brain injury, or other complex health and psychosocial needs. Government funding will support up to 200 veterans to participate in the program at any given time. The program is available to veterans across Australia. 

 

Veterans participating in the program are assigned a community-based case worker to provide psychosocial case management support. The case worker provides face-to-face support to the veteran and their family, usually in the veteran's home or local community. The case worker establishes wellbeing goals with the veteran, coordinates care and facilitates access to services, including programs administered by the department and mainstream health and support services. The case worker is also responsible for building a strong therapeutic alliance with the veteran, their family and treating health professionals, particularly general practitioners.

 

Case managers within the department work collaboratively with case workers to assist veterans participating in the program and enable streamlined and responsive management of claims and access to programs administered by the department. Departmental clinical advisers provide medical and mental health expertise to case managers and case workers. Regular case conferences between case workers, departmental case managers and clinical advisers provide clinical oversight and risk monitoring to support high quality care to veterans.

 

Any highly vulnerable veteran identified as potentially benefiting from the additional support offered by the program can be considered for participation. Highly vulnerable veterans may be referred to the program by their general practitioner, Department of Defence transition support services, Open Arms (provider of mental health assessment and clinical counselling services for veterans and their families), staff members of the department or ex-service organisations. Veterans are eligible to participate in the program irrespective of their accepted conditions and the status of their claims under veterans' entitlements and benefits legislation administered by the department.

 

The department will maintain program administration arrangements to manage referral, intake and exit processes for participants, manage contracts with case worker providers, and assist case workers and the participants' treating teams to determine options available for the veteran. The department will put in place a sound clinical governance framework to support safe, effective, integrated and high quality services. The department will include a quality assurance process informed by program objectives, clinical governance and risk management frameworks for program administration.

 

Further information about the program is available on the departmental website at www.dva.gov.au/health-and-treatment/work-and-social-life-programs/wellbeing-and-support.

 

The department will seek to extend current contracts with external service providers who supply community-based case workers, while undertaking an open tender procurement process to establish a new contract for case work services. Departmental case managers and clinical advisers will be engaged using existing arrangements.

 

Procurement decisions will be made in accordance with the Commonwealth resource management framework, including the Commonwealth Procurement Rules and the Public Governance, Performance and Accountability Act 2013. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au). Final funding decisions will be made by the Secretary of the department, or their delegate.

 

Procurement decisions made in connection with the program are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. Funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The re-making of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services to participants. The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an avenue of redress for dissatisfied providers or potential providers, depending on the circumstances.

 

Additionally, decisions made in relation to the eligibility of veterans to participate in the program are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. Funding that has already been allocated to support other veterans would be affected if the original decision was overturned. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The Government has determined that the program case management services are a finite resource and these services are additional to veterans' legislated entitlements and benefits. Available resources will not be able to meet the needs of all veterans who may be eligible for the program.

 

The program is intended to support the most vulnerable veterans. It complements the department's client support framework which provides assistance to veterans with complex matters who have difficulty navigating programs administered by the department. Under the client support framework, the department has established protocols to ensure veterans receive the most appropriate level of support to meet their needs. The framework also provides options for stepped down support for veterans who are ready to transition to less intensive support. Veterans who are referred to the program, but for whom a place in the program is not available, will be able to access other departmental services and programs for which they are eligible. 

 

The department has consulted internal and external stakeholders during the delivery of the program pilot, which confirmed support for the program.

 

An independent evaluation of the program pilot was conducted by Flinders University over two years to January 2021. The evaluation incorporated feedback from stakeholders, including veterans, their families and service providers. The evaluation team noted that across stakeholders consulted, including veterans, families, case workers and departmental staff, there was universal support for the program. The evaluation reported that '[f]or many [of the program] clients, this model of support felt like the first real tangible support for their mental health and psychosocial needs they had experienced since leaving the ADF'. The evaluation measured outcomes and identified areas for improvement in the program design. Results and recommendations from the independent evaluation have informed the evolution and refinement of the program.

 

Funding of $23.3 million was included in the 2021-22 Budget under the measure 'Wellbeing and Support Funding' for a period of four years commencing in 2021-22. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at page 197.

 

Funding for this item will come from Program 2.5: Veterans' Counselling and Other Health Services and Program 2.6: Military Rehabilitation and Compensation Acts - Health and Other Care Services, which are part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.3B, Defence Portfolio (Department of Veterans' Affairs) at pages 25, 44, 48 and 49.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the defence power (section 51(vi)) of the Constitution.

 

Defence power

 

Section 51(vi) of the Constitution empowers the Parliament to make laws with respect to 'the naval and military defence' of the Commonwealth and States, and the control of the forces to execute and maintain the laws of the Commonwealth.

 

The case management services of the program will be provided to military personnel transitioning to civilian life and veterans with complex care needs.

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Veterans' Affairs
Measures No. 2) Regulations 2021

 

This disallowable 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

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Veterans' Affairs
Measures No. 2) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to

establish legislative authority for the Wellbeing and Support Program (the program), to provide case management services to highly vulnerable veterans who are transitioning into civilian life after their service in the Australian Defence Force or have complex care needs. The Department of Veterans' Affairs (the department) has responsibility for the program.

 

The program has been running since 2018 as a pilot, which was established in response to recommendations from a number of inquiries and reports, including the 2017 Senate Inquiry into Suicide by Veterans and Ex-Service Personnel. As part of the 2021-22 Budget, the Government agreed to continue the program on an ongoing basis, commencing on 1 July 2021.

 

The objective of the program is to support highly vulnerable veterans to improve their wellbeing, which in turn will have a positive impact on the wellbeing of their families. This objective aligns with Priority One of the Veteran Mental Health and Wellbeing Strategy and National Action Plan 2020-2023, to facilitate high quality, evidence-based, accessible and tailored health care to reflect the unique nature of military service and its impacts on veterans and their families.

 

The program aims to achieve this objective by providing intensive, supportive, face-to-face case management services for veterans who have significant vulnerabilities. This includes veterans with alcohol and/or substance misuse disorders, complex mental health problems, high levels of chronic pain, traumatic brain injury, or other complex health and psychosocial needs. Government funding will support up to 200 veterans to participate in the program at any given time. The program is available to veterans across Australia. 

 

Veterans participating in the program are assigned a community-based case worker to provide psychosocial case management support. The case worker provides face-to-face support to the veteran and their family, usually in the veteran's home or local community. Case workers help veterans to engage with the health system, through facilitating attendance at key health appointments and helping organise access to other services. Veterans also benefit from streamlined and responsive management of claims matters and access to programs administered by the department.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

• the right to the widest possible protection and assistance to the family - Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right to an adequate standard of living - Article 11 of the ICESCR; and

• the right to the highest attainable standard of physical and mental health - Article 12 of the ICESCR.

 

Pursuant to Article 2(1), each State Party to the ICESCR undertakes to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization' of the rights recognised in the ICESCR by all appropriate means.

 

Article 10 of the ICESCR recognises that the widest possible protection and assistance should be accorded to the family, particularly for its establishment and while it is responsible for the care and education of dependent children.

 

Article 11 of the ICESCR recognises the right of every person to an adequate standard of living, including to the continuous improvement of living conditions. 

 

Article 12(2)(d) relevantly requires the States Parties to take steps to realise the right to health to '[create] ... conditions which would assure to all medical service and medical attention in the event of sickness'.

 

The program promotes the rights to health, adequate standard of living and protection and assistance to the family as the objective of the program is to provide intensive support to veterans with drug and alcohol disorders, complex mental health problems, high levels of chronic pain, traumatic brain injury, or other complex health and psychosocial needs.

 

Veterans participating in the program are assigned a community-based case worker to provide psychosocial case management support. The case worker is expected to provide face-to-face support to the veteran and their family, usually in the veteran's home or local community except in unusual circumstances. The case worker is responsible for building a strong therapeutic alliance with the veteran, their family and treating health professionals, particularly general practitioners. The case worker also establishes wellbeing goals with the veteran, coordinates care and facilitates access to services.

 

Case managers within the department work collaboratively with case workers to assist veterans participating in the program, and enable streamlined and responsive management of the veteran's claims and access to programs administered by the department. Departmental clinical advisers also provide medical and mental health expertise to case managers and case workers. 

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance