Veterans' Affairs Legislation Amendment (Exempting Disability Payments From Income Testing and Other Measures) Bill 2021 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 16 (4 February 2022)

• Veterans' Affairs Legislation Amendment (Exempting Disability Payments from Income Testing and Other Measures) Bill 2021
• Significant matters in delegated legislation53

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Veterans' Affairs Legislation Amendment (Exempting Disability Payments from Income Testing and Other Measures) Bill 2021

Purpose	This bill seeks to amend the Social Security Act 1991 to exempt certain Department of Veterans’ Affairs payments known collectively as Adjusted Disability Pension (ADP) from the social security income test. This bill also seeks to repeal the collective definition of ADP from the Veterans’ Entitlements Act 1986 and as a result of the social security income test exemption removes the need for the Defence Force Income Support Allowance as social security payments will increase as a result of the exemption. This bill also repeals the operation and definition of the DFISA and DFISA Bonus from the Veterans’ Entitlements Act 1986 and consequentially removes all references to it from Commonwealth primary legislation.
Portfolio	Veterans’ Affairs
Introduced	House of Representatives on 21 October 2021
Bill status	Received the Royal Assent on 13 December 2021

Significant matters in delegated legislation^[53]

2.113 In Scrutiny Digest 17 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to leave the key details of the non-liability rehabilitation pilot program to delegated legislation; and

• whether the bill could be amended to:

• include at least high-level guidance regarding these matters on the face of the primary legislation; and

• provide that proposed Part 2A of Chapter 3 is repealed after two years.^[54]

Minister's response^[55]

2.114 The minister advised:

Why it is considered necessary and appropriate to leave the key details of the non-liability rehabilitation Pilot program to delegated legislation?
The Pilot will assist veterans by providing early access to a specified range of rehabilitation support and services. Currently, access to rehabilitation services funded by the Department of Veterans' Affairs is only available once the Australian Government has accepted liability for an injury or disease as being related to the person's military service, or while a claim for certain medical conditions is being determined.
The Pilot will extend access to rehabilitation support without the requirement to have lodged a compensation claim. This would allow a new access pathway to be trialled, to help determine the effects of 'un-coupling' a compensation claim and undertaking rehabilitation on crucial matters such as veteran participation, their rehabilitation outcomes, and compensation claiming behaviours. The outcomes of the Pilot will inform future program design and service options not just on rehabilitation support, but in relation to other relevant veteran support and assistance.
The Pilot is a voluntary program that will provide short-term psychosocial and vocational rehabilitation assistance to a veteran cohort who do not currently have access to this support. It has been funded for up to 100 participants per year.
The intention is to test and evaluate this delivery approach, and build an evidence base on which program features would be beneficial and sustainable. As a previous Pilot resulted in less uptake than anticipated, I am conscious there may be a need to vary the administrative parameters of this Pilot to enable services to be refined and provided in a timely manner, and to ensure that they are directed at those most in need, and most likely to benefit from the Pilot.
Flexibility in fine tuning the details of the Pilot as more information becomes available about the uptake of the program, accessibility, and suitability of rehabilitation support would allow the Military Rehabilitation and Compensation Commission to provide relevant, timely and much needed rehabilitation support to specified veterans.
The proposed amendments specify the key features of the new rehabilitation support program such as a compensation claim not being required, and the categories of services that will be available under the Pilot. It is necessary the legislation provides appropriate flexibility to enable the Military Rehabilitation and Compensation Commission to respond to the evidence and feedback that is gathered during the Pilot, and allow administrative matters to be amended if necessary.
Delegated legislation would provide the necessary flexibility. The instrument is expected to provide for administrative matters, such as the duration of a program of support, the packaging of pre-approved services for streamlined delivery, and the financial limits. If these details were to be included in the primary legislation, the time necessary to amend the legislation would severely limit the ability of the Pilot to respond in a timely manner to such evidence and feedback.
Whether the Bill could be amended to include at least high-level guidance regarding these matters on the face of the primary legislation
In light of the comments above, I am of the view the Bill contains sufficient details of the persons who are entitled to the provision of rehabilitation under the Pilot, and the types of rehabilitation assistance that can be provided. I do not consider it appropriate for the Bill to be amended to include further guidance that could constrain the operation of the Pilot.
The provisions included in the Bill contain limitations that are relevant to the authority and approved expenditure for the Pilot, and any further additions would restrict the flexibility required to ensure that the Pilot provides the best information to guide any future programs.
Whether the Bill could provide that proposed Part 2A of Chapter 3 is repealed after two years
I do not consider it necessary to amend the Bill to provide the part be repealed after two years. If the results of the Pilot indicate further evidence is required, or indicate ongoing provision of early rehabilitation is effective, the Department has the flexibility to continue to provide relevant and robust rehabilitation support to specified veterans beyond the two years. Thus, the primary legislation need not be amended to extend, if appropriate, the operation of the rehabilitation program support to the specified veterans beyond the two years.

Committee comment

2.115 The committee thanks the minister for this response. The committee notes the minister's advice that the non-liability rehabilitation pilot program is a voluntary program that will provide short-term psychosocial and vocational rehabilitation assistance to a veteran cohort who do not currently have access to this support. The minister advised that flexibility in fine tuning the details of the pilot as more information becomes available about the uptake of the program, accessibility, and suitability of rehabilitation support would allow the Military Rehabilitation and Compensation Commission to provide relevant, timely and much needed rehabilitation support to specified veterans.

2.116 The committee also notes the minister's advice that the proposed amendments specify the key features of the new rehabilitation support program such as a compensation claim not being required, and the categories of services that will be available under the pilot. The minister further advised that it is necessary for the legislation to provide appropriate flexibility to enable the Military Rehabilitation and Compensation Commission to respond to the evidence and feedback that is gathered during the pilot, and to allow administrative matters to be amended if necessary.

2.117 The committee also notes the minister's advice that if the results of the pilot indicate further evidence is required, or indicate ongoing provision of early rehabilitation is effective, the department has the flexibility to continue to provide relevant and robust rehabilitation support to specified veterans beyond the two years.

2.118 The committee reiterates that it has generally not accepted a desire for administrative flexibility as a sufficient justification, of itself, for leaving significant matters to delegated legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. It remains unclear to the committee why further high-level guidance regarding the scope of the non-liability rehabilitation pilot program could not be provided on the face of the primary legislation.

2.119 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

2.120 In light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

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^[53] Schedule 5, item 5, proposed section 53D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

^[54] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021, pp. 40-41.

^[55] The minister responded to the committee's comments in a letter dated 2 December 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.