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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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2.38 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);[229]
• advancing payments for compensation a person is expected to become entitled to in respect of a journey or accommodation related to their treatment;[230] and
• fees and allowances of witnesses summoned to appear before the Veterans’ Review Board.[231]
2.39 In Scrutiny Digest 9 of 2024 the committee requested the minister’s advice as to mechanisms to report to the Parliament on expenditure authorised by the standing appropriation.[232]
2.40 The minister drew the committee’s attention to the annual financial statements for the Department of Veterans’ Affairs (the Department) which are tabled in Parliament as part of the Department’s annual report.
2.41 The minister also noted the Department’s portfolio budget statement, and the Department of Finance’s publication, Budget Paper No. 4 –Agency Resourcing, as sources of information on expenditure from standing appropriations, special appropriations as well as actual and forecasted expenditure.
2.42 The committee thanks the minister for this response. The committee notes the minister’s advice that the annual financial statements of the Department contain information about special appropriations and are tabled in Parliament. The committee also notes the minister’s advice in relation to estimated expenditure from special appropriations being included in the Department of Finance’s publications as part of the annual budget process.
2.43 Noting the importance of explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation,[234] the committee considers that this information relating to mechanisms to report on expenditure authorised by the standing appropriation should be included in the explanatory memorandum and requests that the explanatory memorandum be updated to include it.
2.44 The committee concludes its examination of this matter and makes no further comment.
2.45 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.[236]
2.46 In Scrutiny Digest 9 of 2024 the committee requested the minister’s advice on whether the documents applied, adopted or incorporated by reference would be freely available, and the necessity of applying these documents in force or existing from time to time instead of when the instrument was first made.[237]
2.47 The minister advised that it is the Department’s practice to freely publish any documents incorporated by reference into legislative instruments.
2.48 On the matter of the necessity to apply these documents in force or as existing from time to time, the minister advised that proposed subsection 287B(3) mirrors the drafting of the currently in-force subsection 88B(3) of the Veterans’ Entitlements Act 1986 (the Veterans’ Entitlements Act). The minister referred to the following justification in the explanatory memorandum for the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Bill 2018 (which inserted subsection 88B(3) into the Veterans’ Entitlements Act) which the minister believes remains relevant for proposed subsection 287B(3):
The subsection would ensure that any document incorporated into an instrument under subsection 88B(2) in relation to the Veteran Suicide Prevention pilot is automatically incorporated into and effective for this section.[239]
2.49 The committee thanks the minister for this response. The committee notes the minister’s advice that the Department’s practice is to publish freely any documents that are incorporated by reference. The committee also notes the justification provided as to why documents are incorporated as existing from time to time.
2.50 Noting the importance of explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation,[240] the committee considers that this information should be included in the explanatory memorandum and requests that the explanatory memorandum be updated to include it.
2.51 The committee concludes its examination of this matter and makes no further comment.
2.52 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).[242] The Board is a specialist tribunal that reviews decisions relating to veterans’ entitlements and compensation. The offences 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.
2.53 In Scrutiny Digest 9 of 2024 the committee requested the minister’s advice on a range of matters such as:
• the appropriateness of the penalties proposed in subsection 353L and their broad equivalence to similar offences in Commonwealth legislation;
• guidance on the intended operation of the proposed offences under subsection 353L;
• the necessity and appropriateness of limiting freedom of expression and the right to protest, including why this offence extends to disturbances where the Board is sitting but also to ‘near a place’ where they are sitting; and
• the necessity to criminalise conduct such as 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 further criminalises engaging in conduct that constitutes contempt of the Board.[243]
2.54 The minister advised the committee that the government are considering suggested amendments by the Parliamentary Joint Committee on Human Rights[245] in relation to the offence provisions under proposed section 353L. In addition, the minister advised that the government would consider any recommendations that may arise out of the Senate Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into the bill.[246]
2.55 The committee thanks the minister for this response and welcomes the minister’s undertaking to consider amendments suggested by the Parliamentary Joint Committee on Human Rights. That committee notes that the proportionality of the measure may be assisted were the bill amended to remove subsection 353L(1) to (4), which would remove all offences except the contempt of Board offences, or at a minimum remove subsection 353L(3) and (4), which make it an offence to create or take part in creating or continuing, a disturbance in or near a place where the Board is sitting. They also recommended that the bill be amended to provide that the conduct each offence seeks to criminalise must reach such a level that the Board is effectively unable to operate.[247]
2.56 However, the committee considers the minister’s response did not address this committee’s questions in relation to the breadth of the offence provisions, the appropriateness of the penalties currently imposed and the necessity of criminalising certain conduct, such as ‘causing a disturbance’. It remains unclear to the committee what part of the amendments proposed by the Parliamentary Joint Committee on Human Rights will be accepted and when they will be introduced.
2.57 As such, the committee considers that undertaking to consider amendments is not sufficient to address any of its present concerns. The committee remains concerned that there is still a lack of clarity as to how the provisions under proposed section 353L should be understood, such as ‘creating a disturbance’, ‘continuing a disturbance’ and ‘interrupts the proceedings of the board’. Further, the committee also remains concerned that these offences are subject to custodial penalties that appear to be disproportionate to the conduct that is being criminalised.
2.58 The committee welcomes the minister’s advice that the government will consider amendments made by the Parliamentary Joint Committee on Human Rights in relation to section 353L of the bill that deal with many of the matters raised by this committee.
2.59 However, without further detail and in the absence of the specific amendments being made, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the breadth of the offence provisions under proposed section 353L, the application of custodial penalties to these offences, and the necessity and appropriateness of criminalising conduct relating to freedom of expression.
2.60 The bill proposes to introduce the following offences:
• failure of a person served with a summons to appear before the Board as required;[249]
• failure of a person appearing at a hearing to take an oath or make an affirmation;[250]
• failure of a witness to answer a question required by the Board;[251]
• failure of a person served with a summons to comply with a requirement to produce a document.[252]
2.61 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.[253]
2.62 In Scrutiny Digest 9 of 2024 the committee requested the minister’s advice as to the necessity and appropriateness of imposing strict liability on these offences, with note to the maximum penalty of six months imprisonment and the imposition of the evidential burden on a defendant.[254]
2.63 The minister advised that proposed sections 353H and 353J are modelled on existing sections 168 and 169 of the Veterans’ Entitlements Act, and that one of the government’s objectives with the bill is to merge the provisions which govern the operation of the Veterans’ Review Board into the Military Rehabilitation and Compensation Act 2004 as the singular, ongoing Act.
2.64 The minister noted that retaining the substance of these provisions provides certainty to both the Veterans’ Review Board and its users, and therefore places further changes to these provisions outside the scope of the current reform process. However, the minister did note that the committee’s proposal may be considered in the future.
2.65 The committee thanks the minister for this advice. While the committee acknowledges the minister’s advice that the committee’s proposal may be considered in the future, the committee does not consider that this acknowledges any of its present concerns.
2.66 The committee also does not consider that modelling these offence provisions on existing provisions of the Veterans’ Entitlements Act justifies the necessity of making the offences in proposed sections 353H and 353J offences of strict liability or reversing the evidential burden of proof. The committee particularly remains deeply concerned that custodial penalties may be imposed in relation to offences that are subject to strict liability.
2.67 Further, the committee notes that these provisions were inserted into the Veterans Entitlements Act in 2001 and have since only been amended in 2016 to increase the monetary penalty amounts applying to these offences.[256] It is not clear to the committee how reviewing the appropriateness of these offence provisions is outside of the scope of the current reform process. The committee reiterates its position that it is not appropriate for these offences to be of strict liability when custodial penalties are imposed in relation to them and when the evidential burden of proof is also reversed.
2.68 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of applying strict liability to offence provisions under proposed sections 353H and 353J that are subject to a custodial penalty.
2.69 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.[258] 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.[259] 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.[260] 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.[261]
2.70 In Scrutiny Digest 9 of 2024 the committee requested the minister’s advice on the necessity and appropriateness of two matters:
• the delegation of any or all of the minister’s powers to any APS employee under proposed subsection 212(1) of the bill; and
• the delegation of any or all of the Commission’s powers to contractors engaged by the Commission under proposed section 360DB.[262]
2.71 The minister advised that it would not be practical, and would create material delays for claims decision making, if delegations were limited to Senior Executive Staff.
2.72 The minister provided the context that as at 31 July 2024, ‘the Department had 77,992 claims on hand, and made decisions on over 100,000 claims in 2023-24.’ Due to this high volume of claims, which require individual discretion in their assessment, the minister emphasised the need for the Repatriation Commission and the minister to delegate their functions and powers more broadly.
2.73 The committee thanks the minister for this response. The committee notes the advice that a large number of claims have been received and that decisions need to be made in relation to these in a timely manner, which requires delegations to be made to junior officials.
2.74 However, it is still unclear to the committee why the Commission’s powers can be delegated to contractors under proposed section 360DB. Further, while the committee acknowledges the need for delegations to APS employees below the Senior Executive Service level, the committee considers that safeguards such as a requirement for the delegate to possess necessary skills, qualifications or experience should have been included on the face of the bill and in the explanatory memorandum.
2.75 The committee recommends that consideration be given to amending the bill to require the Commission to be satisfied that a person who has been delegated the Commission’s powers possesses the necessary skills, qualifications or experience to perform the delegated functions or exercise the delegated powers.
2.76 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the minister and the Commission’s powers being delegated to any APS employees and to contractors under proposed sections 212 and 360DB respectively of the bill, with no safeguards in relation to skills, qualifications or experience being included on the face of the bill.
[227] 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 13 of 2024; [2024] AUSStaCSBSD 208.
[228] 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 this provision pursuant to Senate standing order 24(1)(a)(v).
[229] 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).
[230] 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).
[231] 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).
[232] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 26–27.
[233] The minister responded to the committee’s comments in a letter dated 20 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[234] See Acts Interpretation Act 1901, section 15AB.
[235] 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).
[236] Schedule 2, item 124, proposed subsection 287B(3).
[237] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) p. 28.
[238] The minister responded to the committee’s comments in a letter dated 20 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[239] Explanatory memorandum to the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 2) Bill 2018, p. 14.
[240] See Acts Interpretation Act 1901, section 15AB.
[241] Schedule 3, item 10, proposed section 353L. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[242] This seeks to remake an existing provision, namely the Veterans Entitlements Act 1986, section 170.
[243] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 29–31.
[244] The minister responded to the committee’s comments in a letter dated 20 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[245] Parliamentary Joint Committee on Human Rights, Report 6 of 2024 (24 July 2024) pp. 10–15.
[246] See the Senate Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 [Provisions].
[247] Parliamentary Joint Committee on Human Rights, Report 6 of 2024 (24 July 2024) pp. 14–15.
[248] 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).
[249] Schedule 3, item 10, proposed section 353H.
[250] Schedule 3, item 10, proposed subsection 353J(1).
[251] Schedule 3, item 10, proposed subsection 353J(2).
[252] Schedule 3, item 10, proposed subsection 353J(3).
[253] 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).
[254] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 31–34.
[255] The minister responded to the committee’s comments in a letter dated 20 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[256] Items 499 and 500, Statute Update Act 2016.
[257] 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).
[258] 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.
[259] Schedule 3, item 105, proposed subsection 212(1).
[260] Veterans’ Entitlements Act 1986, section 213 and Military Rehabilitation and Compensation Act 2004, section 384.
[261] Schedule 4, item 23, proposed section 360DB.
[262] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 34–35.
[263] The minister responded to the committee’s comments in a letter dated 20 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
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