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Thursday, 3 June 2010
Page: 5175


Mr ADAMS (11:22 AM) —The Veterans’ Affairs Legislation Amendment (2010 Budget Measures) Bill 2010 addresses five parts of the Veterans’ Entitlements Act that require amendment and it includes service relating to British nuclear tests, service on submarine special operations, service in Thailand, domicile and effect of widows and widowers entering into de facto relationships, and requires further interpretation of the eligibility criteria. The Veterans’ Entitlements Act provides eligibility for pensions, treatment and other benefits on the basis of the type of service that the veteran or Defence Force member has rendered. The three main types of service are operational service, which includes non-warlike service, qualifying service and defence service. Service regarded as operational service provides eligibility for disability and war widow and war widower pensions, treatment and other benefits, and the more generous reverse criminal standard of proof is used to determine pension claims. Operational service is overseas service within defined areas and dates in a time of war or during warlike or non-warlike operations. Operational service also grants veteran status under the Veterans’ Entitlement Act.

Qualifying service provides eligibility for service pension and associated benefits. Post Second World War qualifying service generally requires a person to have been allotted for duty and to have served in an operational area listed in schedule 2 of the Veterans’ Entitlements Act or to have rendered warlike service. The other main category of defence—defence service—provides eligibility for disability and war widow and war widower pensions, treatment and other benefits. Broadly, defence service is peacetime service of three years or more in the Defence Force between 7 December 1972 and the commencement of the Military Compensation Act 1994 on 7 April 1994 and any period of hazardous service. Pension claims relating to defence service only are determined on the balance of probabilities, unless the member has peacekeeping service or hazard service, in which case the generous reverse criminal standard of proof is applicable.

Then we have to look at those who were in defence forces during the series of British nuclear weapons tests which were conducted in Australia at the Monte Bello Islands off the coast of Western Australia and at Emu Field and Maralinga in South Australia between October 1952 and October 1957. Minor trials were also conducted at Emu Field and Maralinga between 1953 and 1963. Both Australian and British personnel were involved in the tests and those involved included military and civilian participants but have yet to be included under this legislation.

Workers compensation coverage for participants who were at the time members of the Australian Defence Force or the Australian Public Service is provided under the Safety Rehabilitation and Compensation Act and its predecessors. In 1986 the government created a like safety, rehabilitation and compensation act administrative scheme to provide compensation coverage for civilians, including pastoralists and Indigenous persons, who were at the test sites. This scheme is still open to claimants. The test participants also had access to a special administrative scheme and an act of grace scheme, both administered by the then Department of Science, Education and Training.

In 2006 the government enacted the British Nuclear Test (Treatment) Act to provide free testing and treatment for cancer for both military and non-military personnel who participated in the tests and related activities. The changes allowed a group of veterans who had been left out before to be included. As part of the 2010 budget, a new category of eligible service is to be created under the Veterans’ Entitlements Act to provide former Australian Defence Force members who participated in the British nuclear tests and related activities with eligibility for benefits equivalent to those that are available to members with non-warlike or hazardous service. In addition, pension claims relating to British nuclear test defence service are to be determined under the more generous standard of proof of the reasonable hypothesis test under sections 120 and 120A of the Veterans’ Entitlements Act. British nuclear test defence service is a distinct new category of service and is not non-warlike or hazardous service, although the benefits it will attract are equivalent to those for non-warlike or hazardous service or defence service.

To achieve this, the British nuclear test Defence service will be incorporated into part 4 of the Veterans’ Entitlements Act. The amendments will be made to sections 120 and 120A to ensure that pensions claimed relate to British nuclear test Defence service and are determined on the more generous reverse criminal standard of proof and reasonable hypothesis test. British nuclear test Defence service will be incorporated into part IV of the Veterans’ Entitlements Act by including British nuclear test Defence service in the definition of Defence service in part 4 item 4 of this schedule, including members of the British nuclear test Defence service in the definition of member of the forces in part IV item 5 of this schedule and applying part IV of the VEA to members with British nuclear test Defence service. This requires a new subsection, 69B, at item 6 of this schedule. It will also define the criteria a member must meet to have rendered British nuclear test Defence service.

Because of the incorporation of British nuclear test Defence service into part IV of the VEA, members will become eligible for disability and war widow and war widower pensions under part IV; treatment under part V by virtue of section 81 of part V; allowance and other benefits under part VI by virtue of section 96 of part VI; rehabilitation under part VIA; the Veterans’ Children Education Scheme under part VII; and the veterans’ supplement under part VIIA.

The second part of this legislation applies to certain submarine special operations, which will be reclassified as operational and qualifying service under the Veterans’ Entitlements Act. This will provide eligibility for all pensions and associated benefits under the Veterans’ Entitlements Act and will mean that disability and war widow and war widower pension claims relating to this service will be determined on the more generous reverse criminal standard of proof.

The amendments made by schedule 2 reclassify certain submarine special operations that were undertaken in the period between 1978 and 1992 as operational and qualifying service. Service regarded as operational service provides eligibility for disability and war widow and war widower pensions, treatment and other benefits and the more generous reverse criminal standard of proof is used to determine pension claims. Operational service is overseas service within defined areas and dates in a time of war or during warlike or non-warlike operations. Operational service also grants veteran status under the Veterans’ Entitlements Act. Qualifying service provides eligibility for service pension and associated benefits. Post Second World War qualifying service generally requires the person to have been allotted for duty and have served in an operational area listed in schedule 2 of the Veterans’ Entitlements Act or to have rendered warlike service.

Persons with Defence service will generally have the same access to disability and war widow and war widower pensions, treatment and other benefits as those with operational service, except that pension claims will be subject to the civil standard of proof. On that basis a pension will only be granted if the Repatriation Commission, in deciding the claim, is able do so to its reasonable satisfaction. Persons with operational service under the Veterans’ Entitlements Act are also eligible for subsidised home loan advances under the Defence Service Homes Act.

Relevant submarine special operations service between 1978 and 1992 currently attracts dual eligibility under both the Safety Rehabilitation and Compensation Act and under the Veterans’ Entitlements Act as Defence service. As such, under the Veterans’ Entitlements Act claims for pension relating to this service are currently determined on the civil standard of proof and not the more generous reverse criminal standard of proof. All persons who served on the relevant submarine special operations were awarded, or were eligible to be awarded, the Australian Service Medal with Clasp SPECIALOPS.

As a consequence of the inclusion of the certain submarine special operations as operational and qualifying service under the Veterans’ Entitlements Act there is a need for consequential amendments to both the Safety, Rehabilitation and Compensation Act and the Defence Service Homes Act. Eligibility under the Safety Rehabilitation and Compensation Act will be retained for claims made before the commencement of the amendments in this schedule; that is, claims made under the Safety Rehabilitation and Compensation Act before 1 July 2010.

Eligibility under the Safety Rehabilitation and Compensation Act will cease for new claims relating to the relevant submarine special operations on and from the commencement of the amendments to this schedule, 1 July 2010. This means that any compensation payable under the Safety Rehabilitation and Compensation Act prior to the commencement of this schedule, including claims lodged before the commencement of this schedule and determined after the commencement of this schedule, will continue to be payable and may be offset against any subsequent disability pension payable under the Veterans’ Entitlements Act. The Defence Service Homes Act will be amended to provide eligibility under that act for members with the relevant submarine special operations service.

Then there are the changes for those who served in Ubon in Thailand from 31 May 1962 to 27 July 1962 inclusive, which is to be re-classified as ‘qualifying service’ due to the potential risk from the activities of hostile forces and dissident elements. The reclassification of this service to qualifying service will provide members with eligibility for service pensions and associated benefits. Service in Ubon in Thailand from 31 May 1962 to 27 July 1962 will retain its current operational service status.

It should be noted that the qualifying service reclassification is limited to service in Ubon and does not extend to service in other parts of north-east Thailand during that period, as the circumstances justifying the reclassification applied only to those serving in Ubon at that time. Service in other parts of north-east Thailand during this period will remain operational service. Some of these areas of service have been the subject of much discussion over the years and I am pleased to see they have now been recognised.

Domicile legislation is also to be altered by this legislation. Under the Veterans’ Entitlements Act, British, Commonwealth and allied veterans may be eligible for pensions and other benefits, if they have eligible service with a Commonwealth or allied defence force and if they had Australian domicile immediately prior to their enlistment in that defence force. This policy was intended to cover those Australians who were travelling or studying overseas at the time World War II broke out and who could not return to Australia to enlist in the Australian Defence Force.

In the absence of the legal concept of Australian citizenship until 1949, the domicile concept was adopted as a means of determining whether a British, Commonwealth and allied veteran could be regarded as an Australian at the time of enlistment. However, persons under 21 at the time of their enlistment in a Commonwealth or allied defence force could not establish a domicile of choice—independent domicile—as the common-law rules that applied at that time meant that a person could not assume a domicile of choice before the age of 21. Until the age of 21, a person’s domicile would have been dependent on the domicile of the father, or if the father was deceased, the domicile of the mother. The Domicile Act 1982 has since lowered the age at which a person can claim independent domicile from 21 to 18 years of age.

However, this act does not apply to circumstances that occurred before the commencement of the act and thus the common-law rules continue to apply in those circumstances. This will enable those veterans who were between 18 and 20 and unable to nominate Australia as their domicile of choice to gain eligibility under the Veterans’ Entitlements Act for their service in a British, Commonwealth or allied defence force, as Australian veterans, providing they meet the other domicile and service eligibility requirements.

Finally, the amendments made by schedule 5 will cease eligibility for war widow or war widower pensions for widows and widowers who enter into a de facto relationship prior to claiming the war widow or war widower pension. It will also cease eligibility for a widow or widower who is in a de facto relationship at the time of the veteran or member’s death and who would otherwise have been automatically granted war widow or war widower pension.

Under the Veterans’ Entitlements Act, a war widow or war widower pension is payable to compensate the widow or widower of a veteran or member of the Defence Force who has died as a result of war service or defence service. Under the current provisions, a widow or widower remains eligible for a war widow or war widower pension even if the widow or widower enters into a de facto relationship prior to claiming the war widow or war widower pension. (Time expired)