Commonwealth Numbered Regulations - Explanatory Statements
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VETERANS' ENTITLEMENTS AMENDMENT (TRAVEL EXPENSES) REGULATIONS 2017 (F2017L01641)
EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Veterans' Affairs
Veterans' Entitlements Act 1986
Veterans' Entitlements Amendment (Travel Expenses) Regulations 2017
The Veterans' Entitlements Act 1986 (the Act) provides for the payment of pensions and other entitlements (including medical and other treatment) for veterans and certain other persons.
Section 216 of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which are by the Act required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Veterans' Affairs Legislation Amendment (Omnibus) Act 2017 has amended the Act (by insertion of a new section 196ZQ) to enable applicants who make submissions before the Specialist Medical Review Council (the SMRC) and, where reasonable, their attendant, to lodge an application to the SMRC for the payment of travel costs that are prescribed.
The purpose of the Veterans' Entitlements Amendment (Travel Expenses) Regulations 2017 (the Regulations) is to prescribe the travelling expenses that are to be paid for an applicant (and attendant if they have one) who appears before the SMRC to make an oral submission in relation to their review.
The SMRC is an independent statutory body established under Part XIB of the Act. Its function includes conducting reviews into some or all of the contents of Statements of Principles (SoPs) made by the Repatriation Medical Authority (RMA) in respect of a particular kind of injury, disease or death and certain decisions of the RMA not to determine or amend SoPs.
Individuals seeking a review of SoPs may make oral submissions to the SMRC at a hearing.
The Veterans' Entitlements Regulations 1986 (the Principal Regulations) prescribe a range of matters under the Act including travelling expenses in various situations, such as travel for treatment.
Specifically, travelling expenses are covered by section 9 of the Principal Regulations which outlines the types of travel costs that can be paid (for transport, accommodation and meals) and the upper limits for each.
Section 9 of the Principal Regulations currently prescribes travelling expenses for persons who travel for treatment, for a medical examination or for obtaining medical documentary evidence.
The Regulations extend section 9 and other sections relating to travelling expenses, to include applicants travelling for the purposes of attending a SMRC hearing to make an oral submission.
These changes ensure that financial assistance for the travel expenses incurred will be available for applicants to travel and attend a SMRC hearing to make an oral submission (subject to the conditions and monetary limits set out in section 9 of the Principal Regulations).
Section 13A of the Principal Regulations is also amended as a result of a consequential amendment made to subsection 196ZN(2) of the Act.
Details of the Regulations are set out in the Attachment.
The authority to amend the Principal Regulations is found in subsection 33(3) of the Acts Interpretation Act 1901 which provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Consultation
Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.
The SMRC Secretariat was consulted on the amendments in the attached instrument.
Consultation was by way of phone calls and email correspondence.
Further, the Ex-Service Organisation Round Table (ESORT), which comprises the National Presidents of 14 Ex-Service Organisations was consulted in May 2017 on the SMRC amendments to the Act, including the measure to allow for travel expenses to be paid to applicants who appear before the SMRC to make oral submissions. ESORT did not raise any concerns with the measure.
Consultation was by way of meetings.
In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
Retrospectivity
None.
Documents Incorporated-by-Reference
No.
Regulatory Impact
None.
Human Rights Statement
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument engages an applicable right or freedom - specifically, the Right to Health contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights.
Overview
The instrument prescribes, amongst other matters, the amount and type of travelling expenses an applicant who appears before the SMRC to make an oral submission in relation to their reviews (and an attendant if they have one), is entitled to receive.
Amongst other matters, the SMRC reviews Repatriation Medical Authority (RMA) decisions in respect to the contents of Statements of Principles (SoPs), or a decision of the RMA not to issue or amend a SoPs.
The SoPs are legislative instruments that set out factors used to connect an injury, disease or death with a person's Australian Defence Force service. In order for a claim to succeed, at least one of the SoPs factors must be related to a person's service. Once liability is established, treatment for that condition will be made available to the veterans under the relevant provisions of either the Act or the Military Rehabilitation and Compensation Act 2004.
By facilitating and providing financial assistance for a person to attend a SMRC hearing to make an oral submission, this enables applicants to present evidence about what factors should be included in the SoPs under review.
The other measure contained in the attached instrument does not engage applicable rights or freedoms. The amendments relating to section 13A of the Regulations are consequential in nature.
Conclusion
The attached legislative instrument is considered to be compatible with human rights, specifically, the Right to Health.
Rule-Maker
The Minister for Veterans' Affairs
ATTACHMENT
Details of the Veterans' Entitlements Amendment (Travel Expenses) Regulations 2017
Section 1 - Name
This section provides that the name of the Regulations is the
Veterans' Entitlements Amendment (Travel Expenses) Regulations 2017.
Section 2 - Commencement
This section provides that the Regulations commence at the same time as Schedule 2 to the Veterans' Affairs Legislation Amendment (Omnibus) Act 2017 commences.
Schedule 2 commences on the 28th day after the Veterans' Affairs Legislation Amendment (Omnibus) Act 2017 received the Royal Assent.
It is expected that these Regulations will be made in reliance on the "anticipatory" power in section 4 of the Acts Interpretation Act 1901 which authorises the making of an instrument after the Act under which it is made has received Royal Assent but before commencement of the relevant provisions of that Act.
Section 3 - Authority
This section provides that the Veterans' Entitlements Amendment (Travel Expenses) Regulations 2017 are made under the Veterans' Entitlements Act 1986.
Section 4 - Schedules
This section provides that the amendments to the Veterans' Entitlements Regulations 1986 (the Regulations), outlined in Schedule 1 to the Regulations, have effect.
Item 1
This item repeals the heading to Regulation 9 and renames it "Travelling expenses".
Items 2, 3 and 4
These items insert a reference to the new section 196ZQ into various definitions included under subregulation 9(1).
The definitions that are being amended are the definitions relating to "attendant", "entitled person" and "travel".
The inclusion of section 196ZQ in the definition of "attendant" in paragraph 9(1)(c) enables attendants (where the Repatriation Commission considers it is reasonable for an attendant to accompany an applicant) to have their travel expenses reimbursed, as prescribed.
The inclusion of section 196ZQ in the definition of "entitled person" enables an applicant who appears before the SMRC to make an oral submission in relation to a SMRC review to be entitled to have his or her travel expenses reimbursed, as prescribed.
The inclusion of section 196ZQ in the definition of "travel" means that the travel under that section will cover travel from an applicant's residence to the SMRC hearing location and return.
Item 5
This amendment would include a reference to section 196ZQ in subregulation 9(2) of the Principal Regulations. That subregulation deals with the composition of travel expenses (namely transport, accommodation and meals). This amendment would ensure applicants appearing before the SMRC can claim the travelling expenses.
Item 6
This item amends subregulation 9(4A) to provide that if an applicant travels for a purpose mentioned in section 196ZQ of the Act, and incurs parking fees, the travelling expenses payable to the applicant in this regard, are the costs necessarily incurred.
Item 7
This item amends subregulation 9(9) to include reference to section 196ZQ of the Act and provides that the relevant distance travelled for the purposes of that section is the distance that in all circumstances is reasonable.
Item 8
This item amends the note to subregulation 9(11) by inserting a reference to subsection 196ZQ(3) of the Act to make it clear that travelling expenses under section 196ZQ are not payable in respect of travel outside Australia.
Item 9
This item repeals the heading to regulation 9AM and renames it "Travelling expenses to a single destination for 2 or more purposes".
Item 10
This item amends regulation 9AM to include reference to section 196ZQ. This regulation limits the amount of travelling expenses a person would be eligible to be paid if the person travels to one destination for more than one purpose.
Item 11
This item repeals the heading to regulation 9AN and renames it "Travelling expenses to multiple locations within the same town and city".
Item 12
This item amends regulation 9AN to include reference to section 196ZQ. This regulation limits the amount of travelling expenses a person would be eligible to be paid if, for example, the person travels to one destination to attend a SMRC hearing and then travels to another destination in the same city for treatment purposes under section 110 of the Act.
Item 13
This item repeals and substitutes a new regulation 13A. This is as a result of a consequential amendment to subsection 196ZN(2) of the Act.
Section 196ZN deals with the amount an applicant can be paid for expenses incurred for obtaining relevant documentary medical evidence for a review before the SMRC.
The Veterans' Affairs Legislation Amendment (Omnibus) Act 2017 amended subsection 196ZN(2), to remove paragraphs (a) and (b) under that subsection and, instead, substituted a single subsection.
As a consequence, regulation 13A of the Principal Regulations is amended to remove the references to former paragraphs (a) and (b) of subsection 196ZN(2) and, instead, refer to the single subsection that now exists.
The maximum amount prescribed for reimbursement of documentary medical evidence remains unchanged at $1000.