Politicians have united to find a quick fix for an embarrassing flaw in the law which meant veterans were receiving entitlements without a legal basis.

Hundreds of military veterans have been receiving service benefits in breach of the law, due to a legislative error which was not picked up for more than four years.

The legal flaw – which was only picked up after a veteran contacted the Government – may have also prevented as many as 1600 retired servicemen and servicewomen from receiving access to entitlements while a fix was prepared.

In a rare show of political unanimity, Veterans Minister Ron Mark and other political parties have fast-tracked a fix to the Veterans Support Act which will retroactively legalise the payments made to affected veterans.

The act, which was passed in 2014, sets out financial entitlements and other support services for both veterans and their families.

In a March letter, Chief of Defence Force Kevin Short told Mark that Veterans’ Affairs had identified a flaw in the legislation, related to the ability of the Veterans Minister to declare historical deployments as “qualifying operational service”.

There was “a risk that all declarations relating to historic deployments are unlawful, and therefore the Crown cannot lawfully pay for veterans’ entitlements relating to those deployments”.

While the Veterans Support Act was intended to allow the minister to designate a deployment as operational service before, while, or after it took place, in late 2018 officials had identified “legal risk” which meant a declaration could not be made for a deployment which started before the law came into effect – a view confirmed by Crown Law advice.

Declarations ‘without legal basis’

Eleven declarations had been made under the law for deployments which took place before it came into effect, including ongoing missions in Afghanistan, Iraq, Syria, South Sudan, the Sinai and South Lebanon, with a further three made for historical deployments.

Short said there were about 675 veterans receiving entitlements under the law “that may be without legal basis”, including the families of service personnel who were killed in action.

At least another 1600 former servicemen and servicewomen from deployments which may have been declared as qualifying missions could not receive entitlements, as new declarations were put on hold while a fix was devised.

In its advice to the NZ Defence Force, Crown Law said the interpretation of the law could not be stretched to allow declarations in respect of historic deployments, with “no indication that [it] was intended to act retrospectively”.

Crown Law said the risk of any declarations being found to be unlawful was low, given it was unlikely anybody would seek a judicial review of a decision which had been made.

Veterans Minister Ron Mark said an ex-serviceperson’s questions to Veterans’ Affairs had led to the identification of a legislative flaw. Photo: Lynn Grieveson.

However, there was “a risk that all declarations relating to historic deployments are unlawful, and therefore the Crown cannot lawfully pay for veterans’ entitlements relating to those deployments”.

Mark told Newsroom the flaw had been picked up after a veteran wrote to Veterans’ Affairs asking some technical questions, which led it to pick up “an unintended drafting error that did not align with either the Law Commission or the Cabinet’s intent”.

He had worked with former Veterans Ministers and political parties in Parliament to fix the law as quickly as possible.

National veterans spokeswoman Maggie Barry said the drafting error was “not ideal”, but all parties had worked together to fix the issue quickly and ensure the letter of the law matched up with the intent of Parliament in 2014.

Parliament’s business committee had unanimously agreed to hold the second and third readings of the amendment legislation at the same time on Wednesday night so the issue could be dealt with, Barry said.

“If we want to be fair to veterans, we need to move quickly.”

Wider work ongoing

Mark is still working on wider changes to the Veterans’ Support Act, after an independent review criticised “complex and cumbersome” processes for veterans and their families seeking government support.

University of Auckland law professor Ron Paterson’s report raised concerns about deep dissatisfaction amongst the veteran community regarding who qualified for entitlements, saying: “The issue of who is considered an eligible veteran is a fundamental one that deserves re-examination.”

While eligibility was outside the scope of the report, Newsroom understands officials have been preparing advice related to both it and the wider recommendations which Mark will receive later in the year.

Barry said National had asked Mark to avoid a “truncated” consultation process as he moved ahead with any reforms.

“He does need to consult with veterans very widely on the range of concerns that the Paterson report showed up and the dates of deployments, their entitlement, the name of a veteran, what it means, how do you qualify, is it just when you take the oath – all of these matters need to be worked through in detail.”

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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