Friday, 1 March 2013

11. What Is To Be Done?

The road to hell, they say, is paved with good intentions. What more noble intention could there be than to compensate those who had been injured, crippled, maimed or deranged, or who lost husbands or fathers, in the defence of our country? But the road has been wending ever downwards, misaligned by further good intentions, in the form of an over generous standard of proof, and court decisions which bore little regard to reality. Today, people do not turn to the Department of Veterans’ Affairs predominantly for compensation. Rather, we have the bizarre spectacle of what should be venerable old warriors and elderly ladies hawking around their medical conditions, or their husbands' deaths, as sources of income, hoping they can be fitted into some artificial template which allows them to be called “war caused”.
Much of the expenditure of the Department duplicates other government benefits, and would have to be met by the taxpayer in any case. Veterans and war widows are entitled to more generous medical benefits than other pensioners, but a fair proportion would nevertheless have been covered by Medicare. The service pension duplicates the aged or invalid pension, even if it is available five years earlier. Three quarters of the war widow’s pension is duplicated by the civilian widow’s pension. Nevertheless, the disability pension is a completely separate pension. When you add this to the extra quarter provided to war widows, you get an aggregate of approximately two billion dollars a year. By any reasonable estimate, only about ten per cent of this represents diseases or deaths realistically attributable to war.
What is to be done?
Perhaps nothing. After all, these people defended the country – or else their husbands did – which is more than can be said for me. Why shouldn’t they receive this largesse? What’s two billion dollars to a rich country like Australia?
I can appreciate that position. There are other benefits provided by the Department which are nothing more than a reward for serving the nation – such as the right to retire on a pension five years before anyone else, or to receive free treatment for cancer, and various psychiatric disorders. There is even a special allowance paid to Victoria Cross winners. No-one objects to that, so why not this artificial compensation scheme?
However, before we start down that path, it will have to be recognized that the scheme is inconsistent and arbitrary. Most cancers can become sources of income – if the right smoking history can be produced – but not most leukaemias, and those of the brain, lymph nodes, muscles, or prostate (unless the veteran went to Vietnam, or can come up with an imaginative tale about animal fat). Vascular dementia can be accepted, but not the more common Alzheimer’s disease. Bronchitis and emphysema are always worth a pension, but rarely asthma, and never pulmonary fibrosis. With regard to back problems, the common lumbar spondylosis is compensable, but not spondylolisthesis, which is even worse, because it incapacitates a person early in life. Those excluded had service no less meritorious than those included. Also we need to be reminded that, no matter how lucky or careful we might be, disease and death inevitably catch up with us all. I have heard many a widow complain that she has been discriminated against simply because her husband didn’t smoke.
It seems to me that we should either pay pensions for every type of illness and death, or else restrict it to those that really are due to war service. In that respect, it is worth pointing out that no country on earth has opted for the first measure. Not only would be exceedingly expensive but, as pointed out in Chapter 9, paying people to be sick is not good for their health. Besides, basing largesse on the extent of illness is a pretty silly way to reward active service.
Late in the day, the Government decided to do something about it. It has always known that the situation had got out of hand, but the political rule is that it is too dangerous to take something off people. You can, however, stop new people from getting hold of it.
Thus, the first move was to accept that, these days, people know the dangers of smoking, and do it up at their own risk. Therefore, sub-section 9(7) was added to the Veterans’ Entitlements Act (VEA): any smoking habit which starts, or increases, after 31 December 1997 will not be considered service related. This should put the kibosh on two thirds of any potential new claims, or 90% of potential war widow’s claims.
Secondly, you will remember from Chapter 2 that war service is covered by the VEA (the major subject of this book), while peace time service is covered by the Safety, Rehabilitation and Compensation Act (SRCA), and certain periods of service are covered by both. Now, from 1st July 2004, all service, in both peace and war, is covered by a new law, the Military Rehabilitation and Compensation Act, or MRCA (pronounced “merca”), which incorporated what were considered the best features of both acts. From the VEA were imported the two standards of proof, and Statements of Principles – but only the most recent SoP is valid. In other words, the effect of Keeley has been ruled out. So, too, has smoking as a risk factor.
From the SRCA was imported an emphasis on rehabilitation. This was the big weakness of the VEA. MRCA does allow payments for the non-economic consequences of permanent impairment, but the main thrust of the Act is rehabilitation. The rehabilitation authority must do its utmost to heal or retrain the sick or injured veteran, and assist him in finding employment, either full- or part-time. In the meantime, as in worker’s compensation cases, he will be paid 100% of his former wages, reducing to 75% after 45 weeks. If he does manage to obtain employment, his wages will be topped up to the old rate.
Needless to say, for many people, 75% of one’s former income will be an attractive proposition in the absence of work. Therefore, compensation can be suspended if the veteran fails to comply with a reasonable rehabilitation program. What is reasonable, of course, may be seen differently by the parties involved, and the system does allow for appeals. Psychiatric disorders are likely to be a major problem, because rehabilitation will be dependent on the patient’s (conscious or unconscious) attitude. However, I have been advised that they cannot simply insist on seeing the same old tame psychiatrist who rules their condition intractable as a matter of course. It is too early to decide how this will all play out.
So, reforms have been made, but there is a lot of life in the old dog yet. The majority of veterans are still covered by the VEA, and even the MRCA suffers from the defects inherent in the SoPs and the standard of proof. So what is to be done?
2,600 years ago the people of Athens asked the philosopher, Solon to rewrite their laws, with the understanding that they would not be altered for fifty years. Were the people of Australia sensible enough to give me the same commission, there would be a lot of changes made (and not just in veterans’ law!). Realistically, however, we have to accept that reforms will never be more than small and piecemeal as long as there is no public pressure to match the political pressure of the ex-service organisations. This will never happen as long as people are unaware of what is going on. If this book rectifies that problem to some small extent, it will not have been written in vain.
However, in the unlikely event that some government will be prepared to bite the bullet, and the public is prepared to support them, here are a few modest proposals. We shall commence with a few administrative reforms, which will require no change to the law, though they might require some degree of political courage.
  • First, staff should be thoroughly trained in the investigation of claims before they are allowed to make decisions worth thousands of dollars. The emphasis should be on getting it right the first time, not pushing them through like sausages in a machine. Skimping on training and staffing is false economy.
  • Legacy should not be allowed to filter the information coming into the Department. Irrespective of what promises were made to Legacy a couple of decades ago, Claims Assessors should be allowed to contact widows directly.
  • Likewise, ex-service organisations should not be allowed to control the investigation of psychiatric claims by directing veterans to tame psychiatrists. The Department should insist on using psychiatrists it trusts and, as a general rule, information will not be sought from the treating psychiatrist. Some doctors should be definitely blacklisted.
  • If an appellant arrives at a VRB hearing with brand new evidence, the hearing should be adjourned until a representative of the Commission has had a chance to see the evidence and, if necessary, comment on it. This, after all, is what happens at the AAT.
  • The Commission should give serious consideration to sending representatives to VRB hearings to present their point of view. This need not happen in every case, but only those flagged as being of special concern.
The following administrative reforms would require some change in legislation.
  • We should put an end of the process by which claims can go through the system again and again, without any new evidence or merit. Once the initial appeal process has been completed ie when the AAT makes its decision, a case should only be able to be reopened if substantially new evidence (not the old evidence in a new garb) is produced, or the claimant wishes to rely on a new factor in a new SoP.
  • At present, it costs nothing to initiate a claim or appeal. Instead, a nominal charge could be made – say $10 for every condition claimed, or appealed, to be reimbursed if the claim or appeal is ultimately successful. This would be of only minor inconvenience for those making genuine claims, but it may cause people to seriously think twice about claiming ten or twenty separate conditions on the advice of some R.S.L. advocate.
  • The automatic reimbursement of medical reports in VRB appeals should cease. Instead, we should revert to the earlier system, whereby reimbursement would be made if (a) the appeal was ultimately successful, and (b) the report actually made a difference to the decision. (This, in fact, is still the case for primary claims, but it is one of the best kept secrets of the Department.)
  • At present we have the bizarre situation whereby the Department provides policy directives to its staff, but the VRB and AAT are under no obligation to follow them, or even consider them. Ultimately, the Department is forced to adjust its policy to fit what these unregulated bodies decide. To correct this, policy should be binding on all decision making levels. This would not make appeals a waste of time. There will still be plenty of scope for reasonable people to differ on the facts of a case eg whether a certain event occurred as described, whether the onset of a disease was within a certain time frame, etc.
  • Likewise, the courts have too long taken the view that they know better than the elected representatives what the elected representatives intended. The law already permits recourse to parliamentary debates in determining the intention of legislation. It should also require that administrative policy be given the benefit of the doubt if it is a reasonable interpretation of the law. Of course, there will be considerable passive resistance from the judges, who jealously guard their power as sole arbiters of the law, but it ought be at least tried. And no, it would not make appeals to the Federal Court a waste of time. It is quite possible for a Tribunal to inadvertently misread the law, and occasionally (not very often) the government decides to ignore a law it does not like.

Let us now consider possible reforms to the War Widow’s pension. This, I agree, is a sensitive issue among veterans, who seek to guard their widow’s entitlements above all else. But, when all is said and done, it wasn’t they who did the fighting. Also, let us to be realistic, and accept that most recipients of the war widow’s pension are elderly women, who have had the benefit of their husband’s presence for decades after the war. Furthermore, none of the suggestions listed below will penalise anybody whose husband is killed in action in future wars.
  • First of all, let us get rid of the anomaly whereby, in a supposedly monogamous society, a veteran can leave two War Widows. If a veteran were married at the date of his death, only his legal wife should be able to claim a pension.
  • Secondly, we should abolish the dishonest practice by which a man can be receiving a pension at the single rate while he is alive, and after he dies, his de facto can receive a War Widow’s pension. If a man was being paid at the single rate prior to death, this should be taken as proof positive that he was not involved in a “marriage-like relationship”.
  • A more sensible approach would be to simply abolish benefits for de factos. This would cause a storm in certain circles but, in fact, there can be no logical defence of the system. If “marriage-like relationships” really are equivalent to marriage, then it will be small inconvenience for them to get the piece of paper which establishes their relationship beyond all doubt. In point of fact, of course, they are not equivalent to marriage, and everyone knows it.
  • The recent decision to treat homosexual and lesbian unions as the equivalent of marriage is a blot on any society, and should be repealed.
  • Getting to the actual determination of War Widow’s claims, it would be a good idea to return to the forty year rule in the original 1985 reform: that if death occurred forty years or more after the end of eligible service, the claim will be determined on the balance of probabilities rather than “beyond reasonable doubt”. Perhaps an even better solution would be to legislate for a cut-off age of 75. Any death at a later age will be deemed to have happened despite, rather than because of, eligible service.
  • Finally, may I suggest that we follow the example of every other country, and provided war graves benefits only to those who actually died on service. No doubt this would mean some minor unfairness to a few who died in the immediate aftermath of war, but let us be realistic: in a host of foreign sites are buried thousands of very young Australians, who really did make the supreme sacrifice. We are devaluing their sacrifice when we dilute it with hundreds of thousands more who survived an extra forty or fifty years. Admittedly, many older women misunderstand the purpose of a war grave, and look upon it as a recognition of their husband as a veteran. There is no reason why every veteran should not receive a grave plaque stating that he served in a particular war, but with no suggestion that his death was caused by the war.

Finally, let us look specifically at the determination of veterans’ claim. Here are a few suggestions to consider.
  • The law should be rewritten to remove the anomaly of Kattenberg.
  • Similarly, the VEA should also be amended to remove the effects of Keeley. Only the current SoP should be valid.
  • The RMA should amend the SoPs that attribute certain cancers to merely being present in Vietnam for thirty days. The rare case of a person actually spraying, mixing, or otherwise handling Agent Orange may be at risk, but not merely being in Vietnam.
  • Currently, a disease can be determined to be service-related if service contributed to the slightest degree. The Baume report recommended that, when the contribution of service was less than fifty percent, the pension assessment be discounted by a half. This is eminently logical.
  • I would also recommend that only a single SoP be valid for each disease: that of the balance of probabilities. This would not mean that the “beyond reasonable doubt” standard of proof would go by the board. It would simply establish the most likely causes of a disease, and cut back on the marginal possibilities involved in the amount of smoking, drinking, lifting etc necessary to be a risk factor. The veteran would still have the benefit of doubt on a whole range of matters, such as to whether a particular event occurred, the date of onset of a disease, what weights he lifted, how severe was his injury, and when he stopped smoking. (Remember, smoking is still a risk factor if it commenced before 1st January 1998.) In short, he would have the benefit of the doubt concerning his own service, not the disease in general.
  • Alternatively, we could return to the forty year rule originally proposed in 1985 ie that any disease which commences forty years or more after the end of operational service should attract the “balance of probabilities” standard of proof. However, I would suggest that a more reasonable cut-off date would be twenty five years. The reason for this is that this is the date at which, on the balance of probabilities, injuries and heavy lifting are no longer risk factors for osteoarthrosis and spondylosis. It would eliminate the current practice of awarding large pensions for the normal effects of old age on the joints and spine.
  • At one point, severe pre-election pressure from the ex-service organisations stymied a proposal to have expert panels rule on difficult cases. What this meant was legally sidelining tame psychiatrists for more reliable ones when very weak “stressors” were alleged. It is an idea whose time has now come.
  • Likewise, we should cease paying psychiatrists whose treatment is manifestly ineffectual.
  • Currently, we have the bizarre situation whereby people are gaining pensions on the basis of eating salt or animal fat, or of consuming alcohol in quantities well below the level of alcoholism. The law should be amended to remove from the equation the consumption after the end of service of anything other than medication, or the results of addiction to legal substances.
  • Finally, Parliament might care to bite the bullet and remove smoking from the equation completely – not just from 1998 onwards, but for all previous conflicts. I have already explained in chapter 3 why such claims, no matter how sincerely made, are essentially bogus. Nor will they be breaking faith with the veteran community. When they originally enlisted they were promised that, if anything untoward happened to them, they or their dependents would be taken care of. They were not promised that merely adopting the common habit of the time would become a royal road to government gratuities – despite what the last thirty years may have led them to presume. If that bullet is still too big to bite, at least the increase in smoking should be disqualified, - or the commencement of smoking where the standard of proof is “balance of probabilities”.
Will any of these reforms be introduced? Not very likely. At least, not many of them – and then only if there is public support, based on public knowledge of what is going on. It is more likely that future governments will simply follow their preferred course of slow attrition, while not rocking the boat.
Despite all the headlines streaming from Iraq, there is much less conflict in the world today than there was a generation ago, and for obvious reasons: the good guys won the Cold War. The future, of course, is never certain (after all, who predicted the War on Terror?), but the most realistic outlook is for low level wars such as we are experiencing now to continue indefinitely. In the foreseeable future, it is highly unlikely that Australian forces will need to be committed even to the same degree as in Vietnam which, we should remember, was thirty years ago.
The Second World War generation is now dying out. The government is banking on the Korea, Malaya, and Vietnam generation slowly declining over the next twenty or thirty years. In that period an awful lot of money is going to be spent unnecessarily, but still within current bounds. It’s been a big, glorious binge, and there is still food left in the trough, but the end is in sight.
Besides, what’s two billion dollars a year to us taxpayers?