Compensation for the incapacity or death of members of the Australian Defence Force, as part of a wider ‘repatriation’ system, has its genesis in World War One. The establishment of the Repatriation Commission and the Repatriation Department (now known as the Department of Veterans’ Affairs) and passage of the Repatriation Act in 1920 created a national system designed to deliver on behalf of Australia obligations owed to volunteers who had “heroically fought and suffered in its defence.”1 The system has been organised around five principal areas – war pensions and other compensatory assistance; general assistance to war veterans; medical and hospital benefits; housing; and war graves2.
Other programs have ceased or been developed over time as circumstances and expectations have changed. Pensions and assistance provided to veterans with tuberculosis, for example, disappeared in the 1970s. A national network of prostheses factories (the Repatriation Artificial Limb and Appliance Centres) were closed in the early 1990s, and general and psychiatric hospitals were similarly closed, transferred to State Governements or sold between 1988 and 1994. Compensation pensions for ‘peacetime’ service commenced in 1972, and expanded greatly in 1999. Commemoration activities grew rapidly from the late 1990s.
Compensation, in the form of a pension (payable at a variety of levels commensurate with the level of severity of the associated impairment) and medical treatment, for injuries or diseases causally related to war service was introduced as an integral part of the original repatriation system. The provisions and basis for determining whether a claimed condition is in fact due to war service – or other types of ‘eligible’ service after World War Two – have varied over time, as a result of changes to the legislation, decisions by the courts or the understanding of medical causation. The area of veterans’ entitlements law is one of the most extensively contested areas of administrative law, with more cases each year than any other area other than taxation law.
A formal review of the compensation program was prompted by the 1992 Auditor-General’s report on the compensation provided by the Department of Veterans’ Affairs (DVA) to veterans and their dependants for injuries, diseases and death attributable to service. That review, together with a number of High Court decisions which allowed successful claims by veterans and the outcome of an inquiry by the Senate Committee on Legal and Constitutional Affairs, led to the establishment in 1993 of the Veterans’ Compensation Review Committee, chaired by Professor Peter Baume. That Committee took evidence from the veteran community and issued a report entitled ‘A Fair Go’ in March 1994.A formal review of the compensation program was prompted by the 1992 Auditor-General’s report on the compensation provided by the Department of Veterans’ Affairs (DVA) to veterans and their dependants for injuries, diseases and death attributable to service. That review, together with a number of High Court decisions which allowed successful claims by veterans and the outcome of an inquiry by the Senate Committee on Legal and Constitutional Affairs, led to the establishment in 1993 of the Veterans’ Compensation Review Committee, chaired by Professor Peter Baume. That Committee took evidence from the veteran community and issued a report entitled ‘A Fair Go’ in March 1994.
The RMA arose from the recommendation of the Baume Committee that an expert medical committee should be formed. It was considered that such a committee would assist in providing a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants.
The Government announced the establishment of the RMA in the 1994/95 Federal Budget. The role of the RMA was to issue binding Statements of Principles (SOPs) based on sound medical-scientific evidence stating what factors must exist to establish a causal connection between service and a medical condition. The Veterans’ Entitlements Act 1986 (the VEA) was amended to reflect this announcement on 30 June 1994. The passage of the Military Rehabilitation and Compensation Act 2004 (the MRCA) extended the application of SOPs to the consideration of claims to have injury, disease or death accepted as service-related under that Act for all service on or after 1 July 2004.
A more detailed overview of the Repatriation system can be found APPENDIX 1. The overview, ‘History of Repatriation System’, is chapter 3 of the 2003 Report of the Review of Veterans’ Entitlements (the Clarke Report)3. An overview with a focus on military compensation arrangements, chapter 2 of the 2011 Review of Military Compensation Arrangements, can be found at APPENDIX 24. Further reading could include Lloyd and Rees’ The Last Shilling or Creyke and Sutherland’s Veterans’ Entitlements Law5.
The VEA was amended in 1994 to establish the RMA (s196A). A new Part XIA was inserted in the Act which set out the constitution, functions and powers of the organisation and, broadly, how it should operate. Its functions are specified as undertaking investigations and determining SOPs (s196B). The VEA specifies how investigation are commenced (s196B), who may request an investigation or review (s196E), make a submission (s196F), and how investigations must be notified (s196G).
The number (s196L), qualifications (s196M) and tenure of office(s196N) of RMA Members are also specified in Part XIA, as well as reference to the meetings of the RMA (s196R), payments to Members (s196S) and staff to support the RMA (s196T).
Part XIB of the VEA covers similar matters in relation to the SMRC.
Statements of Principles
SOPs are disallowable instruments used to determine liability for claims made under the VEA and the MRCA.
The SOPs are ‘templates’ which set out all factors which can cause or permanently worsen a disease or injury (and potentially death). All claims for pensions are assessed against the relevant SOP. If an individual claimant’s circumstances meet at least one of the causal factors listed in a SOP, the claim may be accepted provided that the provisions of the factor relied upon are related to service. If an individual claimant’s circumstances do not meet one of the causal factors listed in a SOP, the claim must be refused.
Disallowable instruments are a form of delegated legislation (also known as legislative instruments), which have the status of law. Parliament has delegated its authority to make legislation to the RMA. The SOPs do not have to be passed (or even considered) by the Parliament, although they are required to be registered and then ‘tabled’ in both Houses of Parliament for 15 sitting days. During that time, any MP (or Senator) can move a motion of disallowance in relation to a SOP, which if passed (or if not defeated, withdrawn or otherwise disposed of within a further 15 sitting days) causes the SOP to cease to be operative. SOPs apply from the date of their registration on the Federal Register of Legislative Instruments or the date specified in them, whichever is the later.
For information about the structure of the SOPs see the APPENDIX 4.
There are a number of statutory bodies with a role in the SOPs system.
The Repatriation Medical Authority
The RMA is an independent statutory authority responsible to the Minister for Veterans' Affairs (s196A of the VEA). It consists of a panel of five practitioners eminent in their fields of medical science, who are appointed on a part-time basis for up to 5 years (with members being eligible for reappointment).
The VEA requires that at least one RMA Member must be a person having at least 5 years experience in the field of epidemiology. In practice, all Members have had extensive experience in epidemiology. Since its initial establishment in 1994, Ministers have ensured that all RMA members have expertise in epidemiology and evidence-based medicine, and collectively have a mix of research and clinical skills covering areas of particular relevance to veterans, including oncology, psychiatry, cardiovascular and respiratory diseases, and musculoskeletal conditions.
The RMA's primary function, as set out in s196B of the VEA, is to undertake investigations of particular injuries and diseases, and determine the contents of SOPs for each injury or disease based on sound medical-scientific evidence.
For further information on the operations of the RMA, see RMA Practices and Procedures
Specialist Medical Review Council
The SMRC is an independent statutory authority established under s196V of the VEA. Its functions are to review the determinations of the RMA. The SMRC does not determine individual claims for pension.
The SMRC consists of members appointed by the Minister according to the expertise necessary to deal with matters referred for review. The membership of the SMRC reflects the legislative intention to have determinations of the RMA reviewed by those medical specialists or scientists who are expert in the injury or disease under review.
The SMRC Convener establishes a new Review Council for each new review. The SMRC may comprise a number of separate Review Councils working concurrently on different reviews.
The Repatriation Commission and the Military Rehabilitation and Compensation Commission (together, the Commissions) are responsible for the general administration of the VEA and the MRCA. The Commissions have no staff of their own but delegate their powers to Department of Veterans’ Affairs (DVA) staff. The Commissions are responsible for considering and determining individual claims for pension, utilising the SoPs determined by the RMA.
The Commissions may request a review of a determination (or of a SoP) and make submissions to both the RMA and to the SMRC.
The Commissions may choose to make joint submissions to the SMRC on its reviews.
The Commissions, like the RMA and the SMRC, are independent statutory bodies responsible to the Minister and Parliament.
1 Lloyd, C & Rees J (1994) The Last Shilling: A History of Repatriation in Australia, MUP, Melbourne, p 1
2 Ibid p 3
5 Creyke, RC & Sutherland, P (2008) Veterans’ Entitlements Law, 2nd Edition, Federation Press, Sydney