Veterans' Affairs Legislation Amendment (Supporting the Wellbeing of Veterans and Their Families) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 126 (6 August 2020)

• Veterans’ Affairs Legislation Amendment (Supporting the Wellbeing of Veterans and Their Families) Bill 2020
• Significant matters in delegated legislation 49
• Incorporation of external materials existing from time to time52

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Veterans’ Affairs Legislation Amendment (Supporting the Wellbeing of Veterans and Their Families) Bill 2020

Purpose	This bill seeks to amend various acts to: • create a new commissioner position on the Repatriation Commission and Military Rehabilitation and Compensation Commission to represent the perspectives of families and veterans; • assist former Australian Defence Force member to transition into civilian work; and • extend eligibility for the quarterly energy supplement to eligible Repatriation Health Card – For All Conditions (Gold Card) holders
Portfolio	Veterans’ Affairs
Introduced	House of Representatives on 13 May 2020
Bill status	Before the House of Representatives

Significant matters in delegated legislation ^[49]

2.145 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to why it is considered necessary and appropriate to leave the details of the operation of a scheme to provide assistance or benefits to former members to delegated legislation, and whether the bill can be amended to include at least high-level guidance on the face of the primary legislation.^[50]

Minister's response^[51]

2.146 The minister advised:

Details of operation of scheme to provide assistance or benefits to former members
The proposed provision of assistance or benefits to former members of the Australian Defence Force (ADF) to assist them to transition to civilian work, through the Military Rehabilitation and Compensation Regulations 2020 will provide the Department of Veterans' Affairs (DVA) with appropriate flexibility to be responsive to the employment related needs of former members. The benefits and assistance are to be provided through the Support for Employment Program.
The embedding of detail of the operation of the program, or future employment related programs, in primary legislation would not allow DVA to be responsive when details of the program such as eligibility criteria, the process for applying for the assistance, and details of the assistance provided need to be quickly changed or updated.
These changes would reflect changes informed by client evaluation of the support or which are required operationally, and would not amend the scope of assistance for which there is authority.
To prescribe these details in the Military Rehabilitation and Compensation Act 2004 (MRCA) would be to make the smallest required changes (such as to names of employment related training courses) for transitioning veterans, dependant on being passed by Parliament.
The result of prescribing these details in the MRCA would be to leave DVA without the ability to provide employment related training programs which are responsive to, and reflect, the changing requirements of veterans' assistance and training needs and the employment market.
This issue is further compounded with possible uncertainty around Parliamentary sitting periods (as has recently been experienced as a result of COVID-19), and periods of time when Parliament does not sit (such as when it has been prorogued).
Providing the operational detail concerning veteran employment related assistance and benefits, in secondary legislation such as regulations, enables the Department to update the eligibility requirements and the types of pre and post-employment assistance to be provided as required.
The provision of benefits and assistance to former ADF members through delegated legislation is consistent with the method used to prescribe operational details for a range of other forms of assistance or benefits provided to veterans under DVA legislation.
Three such examples are:
1. Current section 268A of the MRCA enables the Military Rehabilitation and Compensation Commission (the Commission) to make a legislative instrument providing family support assistance or benefits to an ADF member or former ADF member, and to provide detail related to the benefits or assistance such as eligibility criteria, conditions on which the benefits or assistance will be granted, and limits (financial or otherwise) on the assistance or benefits, through a legislative instrument.
2. Subsection 286(1) of the MRCA enables the Commission to make a written determination concerning several different aspects of the provision of treatment and pharmaceutical benefits to veterans.
3. Details relevant to the operation of the Veterans' Children's Education Scheme, including eligibility criteria and education allowances, are set out under the Veterans' Children Education Scheme Instrument 2015 No. R43. Section 117(5) of the Veterans' Entitlements Act 1986 refers to a range of aspects of the scheme which the Commission may make provision for, and in relation to, through a written determination.
Whether the Bill can provide high-level guidance on the face of the primary legislation
Subject to the Committee's views, reasons which explain and justify why details of the Support for Employment program are most appropriately placed in regulations, can be provided in an Addendum to the Explanatory Memorandum.

Committee comment

2.147 The committee thanks the minister for this response. The committee notes the minister's advice that details for the operation of the Support for Employment program are best placed in delegated legislation to allow for an appropriate amount of flexibility and responsiveness to the changing needs of the program, to the benefit of former Australian Defence Force members. The committee also notes the minister's advice that the use of delegated legislation in this context is consistent with the provision of assistance and benefits for veterans in other legislation.

2.148 The committee further notes the minister's advice that prescribing the operational details of the program in primary legislation would leave minor changes subject to parliamentary approval, and that this approach would detract from the ability of the Department of Veterans' Affairs to provide employment related training programs that reflect the changing requirements of veterans' assistance and training needs and the employment market.

2.149 While the committee acknowledges this advice, from a scrutiny perspective, the committee remains of the view that at least some details of the Support for Employment program, such as the key eligibility criteria, should be included on the face of the primary legislation to facilitate appropriate parliamentary oversight of the program.

2.150 The committee welcomes the minister’s advice that an addendum to the explanatory memorandum can be provided which explains and justifies the rationale for why details of the Support for Employment program are most appropriately placed in regulations. The committee requests that such an addendum be presented to the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.151 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving all of the details of the operation of the proposed Support for Employment program to be set out delegated legislation.

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

Incorporation of external materials existing from time to time^[52]

2.153 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under proposed subsection 268D(4), whether these documents 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.^[53]

Minister's response

2.154 The minister advised:

Documents envisaged may be applied, adopted or incorporated by reference under proposed subsection 268D(4).
DVA envisages that relevant content from the Support for Employment policy will be possibly adopted or incorporated into the regulations.
Incorporation provisions can be found in other provisions in OVA legislation, such as subsections 268B(5) and 286(6B) of the MRCA. The proposed inclusion of subsection 268D(4) is not inconsistent with this existing practice.
It is necessary and appropriate that the regulations incorporate documents as in force or existing from time to time, to ensure the flexibility of employment related programs to respond to veterans' employment related training needs and provide relevant assistance and benefits which reflect contemporary thinking and research on what former ADF members require to successfully transition to civilian employment.
It is envisaged that the Support for Employment Policy Manual will also be publicly available on DVA's website.

Committee comment

2.155 The committee thanks the minister for this response. The committee notes the minister's advice that incorporating relevant content from the Support for Employment policy into the regulations from time to time will facilitate a flexible approach for the Support for Employment program, in response to changing employment training, assistance and benefit requirements. The committee also notes the minister's advice that it is envisaged that the Support for Employment Policy Manual will be publicly available on the Department of Veterans' Affairs' website.

2.156 The committee welcomes the advice that it is envisaged that the Support for Employment Policy Manual will be freely available on the internet. However, from a scrutiny perspective, the committee remains concerned that the incorporation of policy guidance into the regulations as it exists from time to time may raise the prospect of changes being made to the proposed Support for Employment program in the absence of any parliamentary oversight.

2.157 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing documents to be incorporated by reference into the regulations as they exist from time to time which raises the prospect of changes being made to the proposed Support for Employment program in the absence of any parliamentary oversight.

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

2.158

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[49] Schedule 2, item 4, proposed section 268D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[50] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 31-32.

[51] The minister responded to the committee's comments in a letter dated 19 June 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 9 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest

[52] Schedule 2, item 4, proposed subsection 268D(4). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[53] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 32-33.