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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend various Acts to provide for all claims for
compensation and rehabilitation received from 1 July 2026 to be
determined under the Military Rehabilitation and Compensation Act 2004.
To support this ‘single ongoing Act’ model, the Veterans’
Entitlements Act 1986 and the Safety, Rehabilitation and Compensation
(Defence-Related Claims Act) 1988 are proposed to continue in a limited form
and be closed to new claims for compensation and rehabilitation.
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Portfolio
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Veterans' Affairs
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Introduced
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House of Representatives on 3 July 2024
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Bill status
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Before the House of Representatives
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1.80 This bill seeks to insert the following new purposes for which the Consolidated Revenue Fund may be appropriated:
• compensation under an instrument made by the Military Rehabilitation and Compensation Commission (the Commission) relating to the obtaining of financial and legal advice by persons for the purposes of the Military Rehabilitation and Compensation Act 2004 (MRC Act);[64]
• advancing payments for compensation a person is expected to become entitled to in respect of a journey or accommodation related to their treatment;[65] and
• fees and allowances of witnesses summoned to appear before the Veterans’ Review Board.[66]
1.81 Standing appropriations enable entities to spend money from the Consolidated Revenue Fund on an ongoing basis, usually for indefinite amounts and duration. Unlike annual appropriations which require the executive to periodically request the Parliament to appropriate money for a particular purpose, once a standing appropriation is enacted any expenditure under it does not require regular parliamentary approval and therefore escapes direct parliamentary control. The amount of expenditure authorised by a standing appropriation may grow over time, but without any mechanism for review included in the bill alongside the appropriation, for example a sunset clause, it is difficult for the Parliament to assess whether a standing appropriation remains appropriate.
1.82 Given the difficulty of ongoing parliamentary oversight over enacted standing appropriations, the committee generally expects a robust justification for why a standing appropriation should be established or expanded in the first place. To this end, the committee expects the explanatory memorandum to a bill which establishes or expands a standing appropriation to explain why it is appropriate to include a standing appropriation (rather than providing for the relevant appropriations in the annual appropriation bills) and whether the bill places a limitation on the amount of funds that may be appropriated or duration in which the standing appropriation will exist for. The committee also expects the explanatory memorandum to address whether the standing appropriation is subject to a sunset clause and, if not, why such a clause has not been included in the bill.
1.83 In this instance, the explanatory memorandum does not provide a justification for why the Consolidated Revenue Fund has been appropriated for these additional purposes. The committee understands that the exact amount of compensation payable to people in respect of legal fees and travel and accommodation costs would not be ascertainable in advance making an annual appropriation potentially difficult. Nonetheless, it is unclear if any other mechanisms have been considered to provide parliamentary oversight of the amount of money expended under this standing appropriation.
1.84 In light of the above, the committee requests the minister’s advice as to what mechanisms are in place to report to the Parliament on any expenditure authorised by the standing appropriations.
1.85 This bill seeks to amend the MRC Act to provide that an instrument made for the purpose of determining a class of persons eligible for services under the Veteran Suicide Prevention Pilot may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.[68]
1.86 At a general level, the committee is concerned where provisions in a bill allow the incorporation of legislative provisions by reference to other documents as such an approach:
• raises the prospect of changes being made to the law in the absence of parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);
• can create uncertainty in the law; and
• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).
1.87 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. The committee reiterates its consistent scrutiny view that where material is incorporated by reference into the law, it should be freely and readily available to all those who may be interested in the law.
1.88 In this instance, the explanatory memorandum only provides a brief explanation of how this provision is intended to operate.[69]
1.89 Noting the above comments and in the absence of a sufficient explanation in the explanatory memorandum, the committee requests the minister's advice as to:
• whether documents applied, adopted or incorporated by reference under proposed subsection 287B(3) will be made freely available to all persons interested in the law; and
• why it is necessary to apply the documents as in force or existing from time to time, rather than when the instrument is first made.
1.90 The bill seeks to make it an offence for a person to undertake a number of actions that would be deemed to be contempt of the Veterans’ Review Board (the Board).[71] The Board is a specialist tribunal that reviews decisions relating to veterans’ entitlements and compensation. These include:
• engaging in conduct that insults another person in, or in relation to, the exercise of their powers or functions under the MRC Act (relating to review of original determinations by the Board);
• engaging in conduct that interrupts the proceedings of the Board;
• creating a disturbance that is in or near a place where the Board is sitting;
• takes part in creating or continuing a disturbance that is in or near a place where the Board is sitting;
• engaging in conduct that, if the Board were a court of record, constitute a contempt of that court.
1.91 The committee is concerned about the potential effect of these measures on the rights to freedom of speech and the right to protest, which have both been described as a fundamental aspect of our common law system.[72] In particular, these offences would criminalise a person engaging in conduct that ‘insults’ another person or ‘creates a disturbance’. As such, this could in effect restrict a person's ability to impart certain information and ideas, thereby limiting freedom of speech. Prohibiting a person from interrupting the proceedings of the Board or creating, or taking part in creating or continuing, a disturbance in or near a place where the Board is sitting, could also limit the right to protest. This is particularly the case as the disturbance is not limited only to where the Board is sitting but also includes ‘near a place’ where it is sitting. This could result in a person taking part in a legitimate protest on a public street outside the office space where the Board is sitting being liable to up to six months imprisonment.
1.92 While it may be necessary and appropriate in certain circumstances to limit these rights, the explanatory memorandum does not provide any information as to the necessity of these measures and only states that the contempt offences under proposed section 353L are based on an existing provision in the Veterans’ Entitlements Act 1986 (Veterans’ Act) and that the policy intentions of these offences are to promote the effective operation of the Board.[73] It is unclear why it is necessary to criminalise interrupting a proceeding, creating a disturbance or conduct that insults a person in order to promote the effective operation of the Board when it appears that subsection 353L(5), which creates the offence of conduct that constitutes contempt of the Board, would be able to capture behaviour such as interruptions or causing a disturbance that would amount to contempt of the Board.
1.93 The committee also considers that there is a lack of clarity in some of these provisions. Without clear definitions in the bill, there may be substantial variation in the way the legislation is interpreted and applied in practice. This lack of clarity may unduly trespass on an individual's rights and liberties, as it is uncertain what an individual is and is not able to do. The committee considers that any offence provisions should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence and the explanatory memorandum should explain what key terms mean and how they are intended to operate.
1.94 For instance, it is not clear how the terms ‘creating a disturbance’ or ‘continuing a disturbance’ in proposed subsections 353L(3) and 353L(4) should be understood or what conduct would constitute creating or continuing a disturbance as there are no definitions provided for these terms in the bill and explanatory memorandum. Similarly, it is unclear what conduct is intended to constitute ‘interrupts the proceedings of the Board’ under proposed subsection 353L(2).
1.95 The committee’s concerns are heightened as each of the offences under proposed section 353L carries a custodial penalty of imprisonment for six months. The committee considers that, where significant penalties are imposed, the rationale should be fully outlined in the explanatory memorandum, and should be justified by reference to similar offences in Commonwealth legislation and if not, why not. This promotes consistency and guards against the risk that a person's liberty is unduly limited through the application of disproportionate penalties. In relation to proposed section 353L, the explanatory memorandum merely states that the offences are ‘not of strict liability’ and does not provide any justification as to the necessity of custodial penalties for these offences.[74]
1.96 Further, in relation to the offence under proposed subsection 353L(1), the committee notes that the criminalised conduct has the effect of ‘insulting’ a person in relation to their functions or powers. The committee is concerned that it is not simply the conduct, but the effect of the conduct on another individual, which results in the commission of an offence.
1.97 In light of the above, the committee requests the minister’s advice as to the following matters:
• the appropriateness of the penalties proposed in subsection 353L; and
• whether these penalties are broadly equivalent to similar offences in Commonwealth legislation and if not, why not.
1.98 The committee's consideration of the appropriateness of these provisions would be assisted if the minister’s response explicitly addresses relevant principles as set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
1.99 The committee also requests the minister’s advice as to:
• whether guidance can be provided in relation to how each of the offences under proposed section 353L is intended to operate, such as by providing examples of conduct that would result in an ‘interruption’, ‘insults’ a person in relation to their functions or powers or creates or contributes to a ‘disturbance’;
• why it is necessary and appropriate in this instance to limit freedom of speech and the right to protest, including why it is necessary to extend the offence provisions not only to disturbances where the Board is sitting but also to ‘near a place’ where they are sitting; and
• why it is necessary to criminalise conduct such as an interrupting a proceeding, creating a disturbance or any conduct that insults a person in relation to their powers and functions in addition to proposed subsection 353L(5) which creates an offence of engaging in conduct that would constitute contempt of the Board.
1.100 The bill proposes to introduce the following offences:
• failure of a person served with a summons to appear before the Board as required;[76]
• failure of a person appearing at a hearing to take an oath or make an affirmation;[77]
• failure of a witness to answer a question required by the Board;[78]
• failure of a person served with a summons to comply with a requirement to produce a document.[79]
1.101 All of these proposed offences would be offences of strict liability with a defence of reasonable excuse available to the defendant, subject to six months imprisonment or 30 penalty units. These offences largely mirror existing provisions in the Veterans’ Act.[80]
1.102 Under general principles of the common law, fault is required to be proven before a person can be found guilty of a criminal offence. This ensures that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have. When a bill states that an offence is one of strict or absolute liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant had the intention to engage in the relevant conduct or was reckless or negligent while doing so.
1.103 As the imposition of strict or absolute liability undermines fundamental common law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict or absolute liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.[81]
1.104 In this instance, the explanatory memorandum provides the following justification in relation to the offences:
Both sections 353H and 353J establish offences for non-compliance to protect the integrity of the Board’s merits review processes. As these offences involve acts of omission, evidence is often unlikely in the absence of admission, and therefore it would be appropriate to retain the approach for the legislation to impose a strict liability. A declaration of strict liability means there is no requirement to prove fault but allows a defence of honest and reasonable mistake of fact (in addition to the general defences) if relevant evidence is given in support.
The conduct/failure to act specified in these sections is not an offence if the person has a reasonable excuse, as per subsections 353H(3) and 353J(5). Defence of reasonable excuse is open-ended and what constitutes a reasonable excuse would depend on the individual circumstances. Each provision is followed by a note referring to subsection 13.3(3) of the Criminal Code that a defendant bears the evidential burden because:
• the reasons why it was not reasonable for a person to comply are likely to be entirely within the knowledge of the person on whom the summons or requirement was served; and
• it would be onerous for the prosecution to disprove the existence of all possible circumstances that would make it reasonable for a defendant to comply with the summons/requirement.[82]
1.105 In accordance with the Guide to Framing Commonwealth Offences, strict liability may be adopted where that is necessary to ensure the integrity of a regulatory regime, where the penalty does not include imprisonment and where the application of strict liability is necessary to protect general revenue. The committee does not consider that the inconvenience of proving the fault element is sufficient as a justification for applying strict liability to the proposed offences.
1.106 Further, it is alarming that these offences carry maximum penalties that include imprisonment, which directly contradicts the Guide to Framing Commonwealth Offences which states that the application of strict liability to all physical elements of an offence should generally only be considered appropriate when the offence is not punishable by imprisonment.[83] Although the offences largely mirror existing offences that carry maximum penalties of imprisonment, the committee considers that in drafting this bill, there is an opportunity to consider the appropriateness of those penalties in relation to strict liability offences. The committee reiterates its long-standing scrutiny view that it is inappropriate to apply strict liability in circumstances where a period of imprisonment may be imposed.
1.107 The committee’s concerns are also heightened in this instance as a result of the defence of reasonable excuse that is applicable to these offences. While the committee acknowledges the need for persons not to be penalised when able to provide a reasonable excuse which will depend on personal circumstances, the context of these offences makes a reversal of the evidential burden of proof concerning. The prosecution will not be required to prove fault as to any of these offences even though at common law, it is ordinarily the duty of the prosecution to prove all elements of an offence, and this is an important aspect of the right to be presumed innocent until proven guilty. The process by which a person is convicted of an offence that carries a custodial penalty has been greatly simplified by removing the burden on the prosecution to prove fault, and in addition to this, the defendant bears an evidential burden of proof.
1.108 The committee queries whether it is appropriate for these offences to be offences of strict liability in the context of their custodial penalties and considers that these offences would be more appropriately classified as fault element offences, unless the penalties are revised.
1.109 The committee requests the minister’s advice as to why it is necessary and appropriate to impose strict liability on the offences under proposed sections 353H and 353J of the bill, noting that these offences carry maximum penalties of six months imprisonment and impose an evidential burden on the defendant to provide evidence of a reasonable excuse.
1.110 Currently, the Veterans’ Act provides that the minister may delegate to a commissioner of the Military Rehabilitation and Compensation Commission (the Commission) or person appointed or engaged under the Public Service Act 1999 any or all of the minister’s powers.[85] This bill seeks to repeal and remake this with a power to allow the minister to delegate any or all of the minister’s powers to a commissioner or an APS employee.[86] The Veterans’ Act and the MRC Act also currently provide that the Commission may delegate any or all of its powers to a commissioner, a member of staff assisting the Commission, an APS employee or a contractor.[87] The bill would amend this to provide the Repatriation Commission may delegate any or all of its functions or powers to a commissioner, a member of staff assisting the Commission, or a contractor engaged by the Commission.[88]
1.111 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation as to why these are considered necessary should be included in the explanatory memorandum.
1.112 In this instance, the explanatory memorandum provides the following in relation to proposed subsection 212(1):
While the wording of the provision has changed in new subsection 212(1), the breadth of the delegation power remains the same. (See Schedule 4 items 53 and 68 for terminology updates upon commencement of the single ongoing Act.)
The scope, nature, and purpose of the exercise of power involve many routine administrative powers, which do not require personal attention of the Minister. For administrative necessity, including the volume of decision-making, the provision means they could be exercised by a departmental official for and on the Minister’s behalf.[89]
1.113 While the breadth of these delegations may be unchanged, the committee considers that this bill provides an opportunity to reassess the appropriateness of the breadth of these delegations and that a justification should still be provided in the explanatory memorandum for a delegation of any or all of the minister’s or the Commission’s powers to such a broad group of people, including contractors under section 360DB. The explanatory memorandum and the information provided on the face of the bill do not include safeguards to ensure that the persons to whom these powers are delegated possess the appropriate skills, qualifications and experience to exercise the Commission’s or the minister’s powers. It is also unclear why the minister’s powers should be delegated to any APS employee under proposed subsection 212(1) and why the Commission’s powers can be delegated to contractors under proposed section 360DB.
1.114 In light of the above, the committee requests the minister’s advice as to:
• why it is necessary and appropriate for any or all of the minister’s powers to be delegated to any APS employee under proposed subsection 212(1) of the bill; and
• why it is necessary and appropriate for any or all of the Commission’s powers to be delegated to contractors engaged by the Commission under proposed section 360DB.
[62] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024, Scrutiny Digest 9 of 2024; [2024] AUSStaCSBSD 148.
[63] Schedule 1, item 200, proposed paragraph 423(da); Schedule 2, item 106, proposed paragraph 423(caa) and Schedule 3, item 14, proposed new paragraph 423(cb). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).
[64] Schedule 1, item 200, proposed paragraph 423(da), in relation to a legislative instrument made under proposed new section 424M (to be inserted by Schedule 1, item 201).
[65] Schedule 2, item 106, proposed paragraph 423(caa) in relation to payments made in accordance with proposed section 291A (to be inserted by Schedule 2, item 103).
[66] Schedule 3, item 14, proposed new paragraph 423(cb) in relation to fees payable in relation to proposed section 353T (to be inserted by Schedule 3, item 10).
[67] Schedule 2, item 124, proposed subsection 287B(3). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[68] Schedule 2, item 124, proposed subsection 287B(3).
[69] Explanatory memorandum, p. 53.
[70] Schedule 3, item 10, proposed section 353L. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[71] This seeks to remake an existing provision, namely the Veterans Entitlements Act 1986, section 170.
[72] See Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129) (2016) paragraphs 4.13 and 6.13.
[73] Explanatory memorandum p. 65.
[74] Explanatory memorandum, p. 66.
[75] Schedule 3, item 10, proposed sections 353H and 353J. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[76] Schedule 3, item 10, proposed section 353H.
[77] Schedule 3, item 10, proposed subsection 353J(1).
[78] Schedule 3, item 10, proposed subsection 353J(2).
[79] Schedule 3, item 10, proposed subsection 353J(3).
[80] See Veterans’ Entitlements Act 1986, sections 168 and 169 (note the existing provisions have a penalty of 6 months imprisonment or 10 penalty units or both).
[81] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (May 2024) p. 24.
[82] Explanatory memorandum, p. 66.
[83] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (May 2024) p. 25.
[84] Schedule 3, item 105, proposed subsection 212(1) and Schedule 4, item 23, proposed section 360DB. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(ii).
[85] Veterans’ Entitlements Act 1986, section 212. A person engaged under the Public Service Act 1999 refers to an APS employee under section 22 of that Act.
[86] Schedule 3, item 105, proposed subsection 212(1).
[87] Veterans’ Entitlements Act 1986, section 213 and Military Rehabilitation and Compensation Act 2004, section 384.
[88] Schedule 4, item 23, proposed section 360DB.
[89] Explanatory memorandum, pp. 75-76.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/148.html