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Veterans' Affairs Legislation Amendment Bill (No. 1) 2000

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1998 - 99 - 2000

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 VETERANS’ AFFAIRS LEGISLATION

AMENDMENT BILL (No. 1) 2000

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs,

The Honourable Bruce Scott MP)

 

 



Table of Contents

 

 

Outline and Financial Impact ……………………………………………………. ii

           

            1          Short Title ………………………………………………………….. vii

            2          Commencement ……………………………………………………. vii

            3          Schedule(s) …………………………………………………………  vii

           

 

 

Schedule 1 - Amendment of the Veterans’ Entitlements Act 1986

 

Part 1 - Amendments Relating to Additional Death Benefits and     …………    1

                      Severe Injury Adjustments

 

Part 2 - Amendments Relating to Review by the Repatriation      …………….    5

                      Medical Authority

 

Part 3 - Amendments Relating to Travelling Expenses  ………………………. 10

 

Part 4 - Amendments Relating to Bereavement Payments    …. . .…………. ..  12

 

Part 5 - Amendments Relating to the Veterans’ Review Board    ………….…  14

 

Part 6 - Amendments Relating to Delegations   ………..………………………  17

 

Part 7 - Amendments for Special Benefits   ……………………………………   20

 

Part 8 - Amendments Relating to the Divestment of Hospitals and    ……….    22

              Other Institutions

 

Part 9 - Amendments Relating to Provision of Medical or Other    ………….   25

              Treatment

 

Part 10 -  Amendments Relating to Compensation Measures in

                 Connection with the Implementation of A New Tax System  ………  28

 

Schedule 2 - Amendment of the Defence Service Homes Act 1918  …….  30

 

 

 

OUTLINE

 

Outline and Financial Impact

This Bill gives effect to a number of measures relating to the Veterans’ Entitlements Act 1986 (VEA).

 

SCHEDULE 1 - PART 1

AMENDMENTS RELATING TO ADDITIONAL DEATH BENEFITS AND SEVERE INJURY ADJUSTMENT

 

Outline

These amendments to the VEA will give effect to changes to the Military Compensation Scheme which will increase benefits to members of the Australian Defence Forces who are severely injured and to the dependants of those members killed in compensable circumstances.

 

Date of Effect

Royal Assent

 

Financial Impact

The financial impact to the Department is negligible.

 

 

SCHEDULE 1 - PART 2

AMENDMENTS RELATING TO REVIEW BY THE REPATRIATION MEDICAL AUTHORITY

 

Outline

These amendments to the VEA will give effect to the recommendations of the Pearce Report to clarify the powers of the Repatriation Medical Authority in relation to the conduct of formal reviews of Statements of Principles (SOPs).

 

Date of Effect

Royal Assent

 

Financial Impact

No financial impact.

 

SCHEDULE 1 - PART 3

AMENDMENTS RELATING TO TRAVELLING EXPENSES

 

Outline

These amendments to the VEA will increase the Commission’s flexibility in granting claims for travel expenses incurred obtaining treatment.

 

Date of Effect

Royal Assent.

 

Financial Impact

The financial impact is negligible.

 

SCHEDULE 1 - PART 4

AMENDMENTS RELATING TO BEREAVEMENT PAYMENTS

 

Outline

These amendments will reinstate provisions that protect financial institutions from any claim when the financial institution makes available to a surviving partner, certain amounts of pension that have been paid into the account of a person who has died.

 

Date of Effect

Royal Assent

 

Financial Impact

No Financial impact.

 

SCHEDULE 1 - PART 5

AMENDMENTS RELATING TO THE VETERANS’ REVIEW BOARD

 

Outline

These amendments to the VEA will improve the flexibility and efficiency of the Board’s operations.

 

Date of Effect

Royal Assent

 

 

Financial Impact

No financial impact.

 

 

SCHEDULE 1 - PART 6

AMENDMENTS RELATING TO DELEGATIONS

 

Outline

These amendments will provide the Commission with more flexibility in relation to the delegation of its powers.

 

Date of Effect

Royal Assent.

 

Financial Impact

No financial impact.

 

SCHEDULE 1 - PART 7

APPROPRIATION FOR SPECIAL BENEFITS

 

Outline

These amendments will ensure that any special assistance provided under section 106 of the VEA, that has the characteristics of the pensions, allowances or benefits provided under the VEA, are funded from the Consolidated Revenue Fund.

 

Date of Effect

Royal Assent

 

Financial Impact

The financial impact is negligible.

 

SCHEDULE 1 - PART 8

AMENDMENTS RELATING TO THE DIVESTMENT OF HOSPITALS AND OTHER INSTITUTIONS

 

Outline

These amendments will remove, from the VEA, outdated references to hospitals and other institutions operated by the Commission.

 

Date of Effect

Royal Assent

 

Financial Impact

No financial impact.

 

SCHEDULE 1 - PART 9

AMENDMENTS RELATING TO PROVISION OF MEDICAL OR OTHER TREATMENT

 

Outline

These amendments will enable improved efficiencies in the provision of treatment to veterans and their dependants.

 

Date of Effect

Royal Assent

 

Financial Impact

No financial impact.

 

SCHEDULE 1 - PART 10

AMENDMENTS RELATING TO COMPENSATION MEASURES IN CONNECTION WITH THE IMPLEMENTATION OF A NEW TAX SYSTEM

 

 

Outline

These changes make consequential amendments to the VEA as a result of the A New Tax System (Compensation Measures Legislation Amendment) Act 1999.

 

Date of Effect

1 July 2000

 

Financial Impact

No financial impact.

 



 

 

SCHEDULE 2 - AMENDMENT OF THE DEFENCE SERVICE HOMES ACT 1918

 

 

Outline

These amendments allow for the provision of certain advances, such as Home Support Advances under the Defence Service Homes Scheme to be made by credit providers other than the Westpac Banking Corporation which administers the Defence Service Homes Scheme.

 

Date of Effect

Royal Assent

 

Financial Impact

No financial impact.

 

 



 

CLAUSES

 

Short Title

Clause 1 sets out how the Act is to be cited.

 

Commencement

Clause 2 sets out the various commencement dates of the provisions in the Act.  These are explained in more detail in each topic.

 

Schedule(s)
 

Clause 3 provides that the Act specified in a Schedule to this Act is amended as set out in the items of that Schedule.

 

 



 

SCHEDULE 1 - PART 1

 

Amendments Relating to Additional Death Benefits and Severe Injury Adjustments

 

Overview

These amendments to the VEA will give effect to changes to the Military Compensation Scheme which will increase benefits to members of the Australian Defence Forces (ADF) who are severely injured and to the dependants of those members killed in compensable circumstances.

   

Background

The Military Compensation Scheme provides compensation to Australian Defence Force members under three different arrangements:

 

·          the Safety Rehabilitation and Compensation Act 1988 (SRCA), which also applies to Commonwealth employees;

·          the VEA; and

·          dual eligibility under both the SRCA and the VEA.

 

The Military Compensation Scheme (MCS) was introduced in 1994 by the Military Compensation Act 1994 which amended the SRCA and the VEA. While the value of the package of MCS benefits compares favourably with other compensation schemes in Australia, it did not go far enough in recognising the special nature of service in the ADF.

 

The Black Hawk accident on 12 June 1996 highlighted certain inadequacies in compensation for military staff who are often involved in considerably more dangerous activities than normally found in the civilian community which may result in serious injury or death and therefore warrant distinct rehabilitation and compensation arrangements. 

 

As a result of an Inquiry into Military Compensation Arrangements in 1997, the Government agreed to a new military compensation package including:

 

·          an additional lump sum payment to ADF members who are severely injured;

·          an additional lump sum payment to a surviving spouse of an ADF member killed in compensable circumstances;

·          no offsetting of these additional payments against VEA disability pensions;

 

 

 Background (Cont.)

·          access to guidance and counselling, through the Veterans’ Children Education Scheme (VCES), for children of those severely injured or killed in compensable circumstances;

·          access to the services of the Vietnam Veterans’ Counselling Service for ADF members and their families.

 

The additional lump sums are paid in addition to any lump sum amounts payable under the SRCA and bring the combined amount payable to $200,000 (CPI indexed), with a further $50,000 (CPI indexed) for each dependent child.

 

Compensation awarded under the SRCS, is offset against any DVA disability pension or war widow/ers pension, where the compensation is awarded for the same injury, disease or death as the DVA payment.  The amounts are offset on a dollar for dollar basis.  Thus if a person is receiving $50 per fortnight compensation, the DVA payment is reduced $50 per fortnight.  Lump sum payments of compensation are converted, using a formula determined by the Commonwealth Actuary, to a fortnightly amount, and the DVA fortnightly payment is reduced by that amount.

 

Explanation of the Changes

These amendments give effect to the new military compensation package as it impacts on the VEA.  The changes involve:

 

·          the non-offsetting of the additional lump sum payments only, against VEA disability or war widow/ers pensions; and

·          the provision of access to the VCES for the children of those ADF members severely injured or killed in compensable circumstances. 

 

Additional death benefits and severe injury adjustment payments are made by a determination under section 58B of the Defence Act 1903 .

 

Access to the services of the Vietnam Veterans’ Counselling Service are provided through a Memorandum of Understanding between the Department of Defence and the Department of Veterans’ Affairs.  Legislative change was therefore not required to implement this element of the compensation package.

 

The new compensation package had immediate effect for Black Hawk victims and a retrospective effect back to 7 April 1994, the commencement of the Military Compensation Scheme, for those who applied and met the criteria.

 

 

 

 

 

Explanation of the Changes (Cont.)

Severe injury adjustment to members injured and additional death benefit payments to the surviving spouse of ADF members killed, on or after 7 April 1994 but before 10 June 1997, the date the Government agreed to the changes to the military compensation package, were made as act of grace payments.   These payments also had to be provided for in the amendments to the VEA so that the payments would not be offset against any disability payment made under the VEA.

 

Explanation of the Items

 

Item 1

Item 1 substitutes a new section 30A in Division 5A of Part II of the VEA.  Division 5A of Part II provides for the offsetting of compensation payments against disability pensions paid under Part II the VEA.

 

Section 30A provides that certain types of payments are excluded from the compensation offsetting provisions contained in Division 5A of Part II.  This item amends the section to add the following types of payment as being excluded from the compensation offsetting provisions of Division 5A of

Part II:

 

·          an additional death benefit or severe injury adjustment made in respect of a member of the Forces or a member of a Peacekeeping Force on or after 10 June 1997, under a determination made under section 58B of the Defence Act 1903 ; and

 

·          an act of grace payment made in respect of a member of the Forces or a member of a Peacekeeping Force for a death or injury that occurred on or after 7 April 1994 and before 10 June 1997 where an additional death benefit or a severe injury adjustment would have been payable for that death or injury if the death or injury had occurred on or after

10 June 1997.

 

This means that an additional death benefit or severe injury adjustment payment, including an act of grace payment, will not reduce the amount of disability pension or war widow/er pension the person will receive.

 

It should be noted that only ADF members of a Peacekeeping Force are eligible for an additional death benefit or severe injury adjustment.  Non- ADF members such as Australian Federal Police are not eligible for the additional lump sum payments.

 

 

 

   Item 2

Item 2 inserts new section 73A into Division 4 of Part IV of the VEA.  Part IV of the VEA was inserted when the VEA was amended to include coverage of certain serving ADF members and members of Peacekeeping Forces. It provides for the payment of disability pensions and war widow/er pensions in respect of eligible members of the Forces and eligible members of a Peacekeeping Force. 

 

Item 2 does the same for this Part as Item 1 does for Part II.  That is, any additional death benefit or severe injury adjustment payments, including act of grace payments, made to persons provided for under Part IV, will not be offset against any Part IV pension they or their surviving spouse may receive.

 

Item 3

Item 3 is a technical amendment to reflect current drafting style.

 

Item 4

Item 4 inserts a new paragraph (f) at the end of subsection 117(5).  This amendment makes it clear that guidance and counselling are services provided by the VCES.

 

Item 5

Item 5 inserts two new subsections at the end of section 118.  New subsection (2) will enable the Minister to determine, in writing, that certain children are eligible to receive guidance and counselling services through the VCES.  These children will be children of ADF members or members of a Peacekeeping Force who receive an additional death benefit or severe injury adjustment payment.

 

New subsection (3) provides that the determination made under subsection (2) will be a disallowable instrument.

     

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

SCHEDULE 1 - PART 2

Amendments Relating to Review by the Repatriation Medical Authority

 

Overview

These amendments to the VEA will give effect to the recommendations of the Pearce Report to clarify the powers of the Repatriation Medical Authority (RMA) in relation to the conduct of formal reviews of Statements of Principles (SOPs).

 

Background

The RMA is a statutory authority established under section 196A of the VEA.  It is made up of a panel of five medical and scientific experts appointed by the Minister for Veterans’ Affairs.  The role of the RMA is to:

 

·          determine whether there is sound medical-scientific evidence that links particular kinds of injury, disease or death with war or defence service; and

·          reflect the causal links in legally binding SOPs.

 

SOPs are used when deciding claims for disability pension and their medical content is binding on decision makers at all levels, including the Repatriation Commission, the Veterans Review Board, the Administrative Appeals Tribunal and the courts.

 

In October 1997 Professor Dennis Pearce published a report reviewing the role of the RMA.  The report included three recommendations which were agreed to by the Government in conjunction with the ex-service community:

 

·          that a person seeking a formal review of a SOP should state the reasons for that review and refer to evidence that it is perceived was not used by the RMA;

 

·          that the Chair of the RMA be empowered to decline to undertake a review if he or she considers that a request is not supported by reference to relevant evidence or is otherwise frivolous or vexatious; and

 

 

Background (Cont.)

·          that the RMA should be entitled to consolidate more than one request for a review and not have to undertake multiple reviews where it receives more than one request relating to the same condition.

 

Currently, section 196B of the VEA provides the RMA with the authority to investigate, determine and review SOPs. Existing section 196E provides that the Repatriation Commission, a potential pensioner or an ex-service organisation (ESO) may ask the RMA to:

 

·          carry out an investigation in respect of a particular kind of injury, disease or death;

·          review a decision of the RMA not to make a SOP in respect of a particular kind of injury, disease or death; or

·          review the contents of a SOP in force. 

 

The only limitation placed on such requests for review is that the request must be in a form approved by the RMA and must be lodged at an office of the Department. There is currently no obligation on a person or body seeking a review of a SOP to state the basis on which that request is made or to furnish information to the RMA in support of the request for review.

 

If the RMA receives a request for review under section 196E, it is obliged to carry out the review.  The only exception is if the RMA has carried out an investigation in respect of a particular kind of injury, disease or death and a request for a review is made within 12 months of the RMA determining or amending a SOP.  In these circumstances, the RMA may decline to carry out the investigation if it thinks that there are no grounds for a review.

  

Explanation of the Changes

These amendments will give effect to the recommendations of the Pearce Report in relation to reviews of SOPs.  The changes will mean that the RMA may decide not to conduct a review of a SOP if the person or ESO requesting the review does not state the grounds on which the review is sought or does not identify sufficient relevant information to support the grounds on which the review is sought or to otherwise justify the review.

 

The changes will specify that the RMA can, where two or more requests for a review have been received in respect of the same injury, disease or death, consolidate the requests and conduct one review.   This restates in different language, the RMA’s existing powers and practices in this regard.

 

The RMA receives many requests under section 196E of the VEA to investigate a particular kind  of injury, disease or death by reference to the circumstances of a particular veteran.  Many of the requests concern the same particular injury or disease even when an investigation to review the contents of the particular injury of disease has already been notified in accordance with the VEA.  Often in the past, these requests have been received from the same representative in respect of different veterans even after the representatives have been informed by the Office of the RMA Secretariat that further formal requests under the VEA are not required.  Undertaking the further investigation processes as required by the VEA is unnecessary and is administratively burdensome and costly. 

 

It is unnecessary because under the existing provisions of the legislation once the RMA receives a request in respect of a particular kind of injury, disease or death it is charged by the legislation with ensuring that the SOP provides a definitive, generic statement of the factors that may connect that kind of injury, disease or death with service.  This accords with the nature of SOPs as legislative instruments.  Accordingly, it is inconsistent with the responsibility of the RMA (and equally so of the SMRC upon review) necessarily to restrict its investigation to matters raised by a particular applicant for review.  Factors in a SOP may interact or have a synergistic relationship, so that such a restriction could be scientifically faulty.  This has not been well understood by members of the ex-service community and tribunals and Courts. 

 

 

   

Explanation of the Changes (Cont.)

Accordingly, this restatement of the RMA’s powers will be of assistance to both the RMA and the ex-service community in administering the large numbers of requests that are dealt with by the RMA.  (It should be noted that the specific restatement of the RMA’s powers is not intended either specifically or impliedly to restrict or limit, by reference to the terms of an individual request, the existing ability of the SMRC similarly to consolidate the much smaller number of requests that it receives, or the scope of its obligation to review, by reference to the information before the RMA, the SOP in its totality, having regard to the general nature and purpose of SOPs as explained above.

 

Finally, the amendments also change the address for the lodging of reviews from the Department to the RMA.  This change will streamline the processing of reviews.

 

 

Explanation of the Items

 

Item 6

Item 6 amends subsection 196B(7) by inserting  a reference to new section 196CA.  This means that the provisions of 196B(7) will be subject to both subsection 196C(4) and section 196CA.

 

Item 7

Item 7 inserts new sections 196CA and 196CB after section 196C.  New subsection 196CA(1) provides that the RMA may decide not to undertake a review if the request for the review does not state the grounds on which the review is sought, or if the RMA considers that there is insufficient relevant information to support the grounds upon which the review is being sought or to otherwise justify the review.

 

New subsection 196CA(2) requires that, where the RMA decides not to undertake a review, the RMA must inform the person or the organisation, in writing, of the decision and the reasons for the decision not to undertake the requested review.

 

New section 196CB provides that the RMA may consolidate requests for reviews, and carry out only one review, where the requests are for the same injury, disease or death.

 

Item 8

Item 8 is a minor amendment to improve consistency of terminology.

 

Item 9

Item 9 repeals current subsections 196E(2) and (3) and substitutes new subsections 196E(2) and (3).

 

New subsection 196E(2) provides that reviews should be in a form approved by the RMA and be lodged at the office of the RMA.  Previously, reviews were to be lodged at an office of the Department.

 

New subsection 196E(3) provides that a request for a review of either:

 

·          an RMA decision not to make a SOP; or

·          a SOP;

 

must state the grounds on which the review is sought and identify any information relied on to support the grounds.

 

Item 10

Item 10 provides that the changes made by items 7, 8 and 10 apply only to requests made on or after the commencement of those items.

 

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

 

SCHEDULE 1 - PART 3

Amendments Relating to Travelling Expenses

 

Overview

These amendments to the VEA will increase the Commission’s flexibility in granting claims for travel expenses incurred obtaining treatment.

 

Background

The VEA provides for the payment of travel expenses for travel undertaken for the following reasons:

 

·          to obtain medical treatment or associated services (section 110);

·          to attend certain appointments associated with a claim or a review (section 132);

·          to obtain medical evidence for submission to the Veterans’ Review Board (section 170B); and

·          to obtain medical evidence for submission to the Specialist Medical Review Council.

 

Currently, the VEA requires that a claim for travelling expenses be lodged within 3 months of the completion of the travel.  For the latter three reasons for travel (above), this is a reasonable requirement.  However, in some cases involving travel for obtaining treatment, the 3 month application period cannot be met.  This can happen in exceptional circumstances, for example where a veteran is required to undergo prolonged treatment in an institution and is unable to attend to personal business within the 3 month period.

 

 

Explanation of the Changes

These changes will provide the Commission with the flexibility to grant claims for travel expenses outside the 3 month time limit, but only where the travel involved obtaining treatment.

 

To grant the claim outside the 3 month time limit, the Commission must be satisfied that the delay was the result of exceptional circumstances.

 

 



 

Explanation of the Items

 

Item 11

Item 11 amends subsection 112(3) by providing that the Commission may extend the time period for lodging a claim for travel for the purposes of obtaining treatment, if the Commission thinks that there were exceptional circumstances that justify extending that time period.  In normal circumstances the time period  for the lodgment of a claim for travel expenses is 3 months.

 

Item 12

Item 12 provides that item 11 applies only to travelling expenses incurred after the commencement of that item.

 

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

SCHEDULE 1 - PART 4

Amendments Relating to Bereavement Payments

 

Overview

This Part will reinstate provisions that protect financial institutions from any claim when the financial institution makes available to a surviving partner, certain amounts of pension that have been paid into the account of a pensioner who has died.

 

Background

The Department of Veterans’ Affairs and the then Department of Social Security introduced bereavement payments in 1989.   A bereavement payment is made by continuing to pay to the surviving partner (or parent) for 98 days after the death of the pensioner or child, the same amount of pension that was being received by the partner (or for the child) at the time of death.  This provides the surviving partner with a period of stable income support while he or she re-adjusts.  The bereavement period also minimises the need for the survivor to liaise with the Department during a time of grief.

 

Bereavements payments in the VEA were simplified by the Veterans’ Affairs Legislation Amendment (1995-96 Budget Measures) (No.2) Act, 1995 .  As part of the simplification, sections 36U, 37U, 38T, 39W and 45ZF were repealed.  These duplicate sections provided indemnity to a financial institution against any action, by the Commonwealth or a representative of a person who died, for making available to a surviving partner an amount not exceeding the amount of bereavement payment due to the surviving partner.

 

These provisions were seen as an invaluable means of ensuring that the surviving partner of a deceased pensioner had ready access to the financial support provided by the VEA during the bereavement period.  A similar provision in respect of disability pension is currently contained in section 98A of the VEA.

 

The non-inclusion of these provisions during the simplification of the bereavements payments provisions was an oversight.  With the inadvertent loss of the protection, some financial institutions have refused to release payments made after the death of the pensioner to the surviving partner.

 

Explanation of the Changes

This Part amends the VEA by reinstating a provision to indemnify financial institutions against any claim or demand by the Commonwealth, the personal representative of the person who has died, or anyone else, where the financial institution has made available to the surviving partner, an amount of income support payment established by the bereavement payment provisions in Division 12A of Part IIIB of the VEA.

 

Explanation of the Items

 

Item 13

Item 13 inserts new section 53NA at the end of subdivision B of Division 12A of Part IIIB of the VEA.

 

New subsection 53NA(1) provides that:

 

·          section 53NA applies if, after the death of a partner, an amount of pension, either Veterans’ Affairs or social security, (the partner’s amount ), to which the partner would have been entitled if they had not died, is paid into an account with a financial institution; and

 

·          the financial institution makes available to the pensioner an amount from that account that is not more than the partner’s amount.

 

New subsection 53NA(2)  indemnifies the financial institution against any claim, action or demand in relation to a payment made available to the surviving partner, where the amount of the payment does not exceed the surviving partner’s bereavement payment entitlement.

 

Subsection 53NA(3) provides that subsection 53NA(2) has effect despite any other law.

 

Commencement

Subclause 2(2) provides that this Part is taken to have commenced on

1 January 1996, immediately after the commencement of Schedule 8 to the Veterans’ Affairs Legislation Amendment (1995-96 Budget Measures) Act (No. 2), 1995.

 

 



 

 

SCHEDULE 1 -PART 5

Amendments Relating to the Veterans’ Review Board

 

Overview

These amendments to the VEA will improve the flexibility and efficiency of the operations of the Veterans’ Review Board (VRB).

 

Background

The VRB is part of the Repatriation determining system.  It is a tribunal created by Parliament to review decisions about disability pensions, war widow/ers pensions and attendant allowances.

 

It is independent of the Repatriation Commission and the Department and is made up of members who decide the cases and staff who assist the Members.

 

Explanation of the Changes - Organisation of the Board

Section 141 of the VEA provides for two different constitutions of the Board for the purposes of a review.  The usual configuration is three persons, including either the Principal Member or a Senior Member, a Services member and one other member.  Subsection 141(2) sets out the circumstances in which one person may constitute the Board.

 

The existing provisions are effective for most cases.  However, there are instances, where, having regard to the nature or sensitivities of a particular matter or other reason, the desired Board configuration would be the Principal Member, a Senior Member and a Services member.  While the Principal Member may, under subsection 143(1) give directions about the constitution of the Board for a particular review or particular reviews, the Principal Member is unable to include him or herself, if a Senior Member also constitutes the Board.

 

These amendments will enable the Principal Member to constitute, where required for a particular review, a Board comprising the Principal Member, a Senior Member and a Services member. 

 

This change will provide a flexibility that will only enhance the efficiency of the Board.  It will permit the Principal Member to sit with any of the other members of the Board, including a Senior Member.

 

Explanation of the Changes - Slip Rule

The “slip rule” allows the decision maker to correct an obvious error in a decision or reasons for decision.  Subsection 31(3) gives the Repatriation Commission power to effect a correction of a Board decision, but only in relation to an error concerning a date.  Currently, the Board itself has no such authority.  The Administrative Appeals Tribunal Act 1975 (AAT Act) provides the Administrative Appeals Tribunal with the power to correct obvious errors in the text of a decision or in a written statement of reasons for the decision (section 43AA of the AAT Act).

 

These amendments will enable a presiding member or the Principal Member of the VRB to direct a Registrar or Deputy Registrar of the VRB to make a correction to an obvious error in the text of a decision or in a written statement of reasons for decision.

 

This ability will provide an effective mechanism for the correction of obvious errors.

  

Explanation of the Changes - Delegation

Section 166 provides for the Principal Member to delegate, to a Registrar or a Deputy Registrar, his or her power under section 155AA or 155AB, to dismiss an application. There is no comparable power of delegation in relation to subsection 148(6A) which allows the Principal Member to request the Secretary to furnish and/or obtain certain documents, or arrange certain investigations or medical examinations.

 

These amendments will enable the Principal Member to delegate his or her powers under subsection 148(6A) to a Registrar or Deputy Registrar.

 

This ability to delegate this power will improve the operational efficiency of the Board.

 

Explanation of the Items

  

Item 14

Item 14 inserts a new subsection 141(1A) after subsection 141(1).  This new subsection provides that the Board may, for a particular review, be made up of the following members:

 

·          the Principal Member;

·          a Senior Member; and

·          a Services member.

 

 

Item 15

Item 15 inserts new section 140A at the end of Division 3 of part IX of the VEA.

 

New subsection 140A(1) grants the VRB the power to direct a Registrar or Deputy Registrar of the VRB to correct  an obvious error in a VRB decision or statements of reasons.

 

New subsection 140A(2) provides that if a decision or statement of reasons is corrected under new subsection 140A(1), then the corrected document is taken to be a decision or a statement of reasons of the Board.

 

New subsection 140A(3) gives examples of instances that would be considered to be obvious errors in the text of a decision or statement of reasons.

 

New subsection 140A(4) provides that the powers of the Board to direct a Registrar or Deputy Registrar to correct an obvious error, may be exercised only by the Principal Member of the VRB or the presiding member of the particular case to which the decision or statement of reasons pertains.

 

Item 16

Item 16 amends subsection 166(1A) to provide that the Principal Member may delegate his or her powers under subsection 148(6A) to a Registrar or Deputy Registrar of the VRB.

 

These powers will allow the Principal Member or his or her delegate, being a Registrar or Deputy Registrar of the VRB, to request the Secretary to:

 

·          give to the Principal Member, or his or her delegate, further documents that are in the Secretary’s custody; or

·          to obtain and give to the Principal Member, or his or her delegate, further documents that are not in the Secretary’s custody; or

·          to arrange for the making of an investigation or medical examination and to give to the Principal Member, or his or her delegate, a report of the investigation or medical examination.

 

      

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

SCHEDULE 1 - PART 6

Amendments Relating to Delegations

 

Overview

These amendments will provide the Repatriation Commission and the Secretary with more flexibility in relation to the delegation of their powers.

 

 Background

The current legislation limits the delegation of the Repatriation Commission’s powers to a person engaged under the Public Service Act 1999

 

Since the divestment of the Repatriation General hospitals and other institutions, the Commission has moved further from being a provider of health care services to a purchaser of health care services.  This change in focus for the Commission from service provider, to purchaser of services, has been reflected in the outsourcing of a number of activities previously undertaken within the Department of Veterans’ Affairs.

 

These changes are illustrated by the outsourcing of  the processing of treatment accounts to the Health Insurance Commission (HIC).  This involves the processing and payment of all accounts for health care services provided to veterans and their dependants. 

 

The existing provisions enable the Repatriation Commission or the Secretary of the Department of Veterans’ Affairs to delegate powers to contracted persons engaged under the Public Service Act 1999 , but not to those employed by a third party contracted to provide similar services.  The effect of this is to limit delegation only to those who can be contracted under the Public Service Act 1999 .

 

Broadening the powers of delegation will enable the Repatriation Commission and the Department to work more effectively with outsourced arrangements.

 

Explanation of the Changes

These amendments will enable the Repatriation Commission and the Secretary to delegate, where necessary, relevant powers to organisations or persons outside the Australian Public Service (APS). 

 

However, the ability to delegate the Repatriation Commission’s or Secretary’s powers to non-APS organisations or personnel will be limited by the legislation to certain categories of persons or organisations.

 

Similarly, non-APS persons able to receive the delegated powers of the Repatriation Commission or Secretary must be either:

 

·          an officer or employee of a public authority established by a law of the Commonwealth; or

·          a person or an employee of a person who performs services on behalf of the Commission under a contract made between the person and the Commission or the person and the Commonwealth.

 

The terms of the contract would stipulate the desired standards of service and codes of conduct of such persons.

 

Item 17

Item 17 amends subsection 213(1) to reflect the broadening of the categories of persons to whom the Repatriation Commission’s powers may be delegated These persons are listed in  subsection 213(4).

 

Item 18

Item 18 repeals subsection 213(4) and replaces it with a subsection that categorises the persons and organisations to whom the Repatriation Commission’s powers may be delegated.  These categories now include certain non-APS persons and organisations, but are limited to:

 

·          a public authority established by a law of the Commonwealth;

·          an officer or employee of a public authority established by a law of the Commonwealth;

·          a person who performs services on behalf of the Commission under a contract made between the person and the Commission or the person and the Commonwealth; and

·          an employee of a person who performs services on behalf of the Commission under a contract made between the person and the Commission or the person and the Commonwealth.

 

 

 

   Item 19

Item 19 amends subsection 214(1) to reflect the broadening of the categories of persons and organisations to whom the Secretary’s powers may be delegated.  These persons and organisations are listed in new subsection 214(4).

 

Item 20

Item 20 adds a new subsection 214(4) after subsection 214(3). This subsection categorises the persons and organisations to whom the Secretary’s powers may be delegated.  These categories now include certain non-APS persons and organisations, but are limited to:

 

·          a public authority established by a law of the Commonwealth;

·          an officer or employee of a public authority established by a law of the Commonwealth;

·          a person who performs services on behalf of the Department under a contract made between the person and the Commonwealth; and

·          an employee of a person who performs services on behalf of the Department under a contract made between the person and the Commonwealth.

 

 

Item 21

Item 21 is a saving provision.  It provides that any delegation under section 213 or 214 that was in force immediately before the new provisions in this Act commence, continue in force after the commencement of this Act, as if they had been made under the provisions enacted under this Act.  This means that current delegations do not need to be re-issued because of the amendments provided for in this Act.

 

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 

 



 

 

SCHEDULE 1 - PART 7

 

Appropriation for Special Benefits

 

Outline

These amendments will ensure that any special assistance provided under section 106 of the VEA, that has the characteristics of the pensions, allowances or benefits provided under the VEA, is funded from the Consolidated Revenue Fund.

 

Background

Section 106 of the VEA maintained a long standing provision that had been regulation 181 of the Repatriation Regulations.  When the Repatriation Act 1920 prevailed, section 51 of that Act provided for the special appropriation, from the Consolidated Revenue Fund, to pay “any pension, allowance or other payment, the rate or maximum rate of which is … fixed by the Repatriation Regulations”.  When that Act was repealed and replaced by the VEA in 1986, the new provisions relating to appropriation for benefits provided by the Act (section 199), did not capture coverage of special assistance, because the rate for any special assistance remained fixed by subordinate legislation.

 

 

Explanation of the Changes

Section 106 (and the former regulation 181) is a provision which enables the Repatriation Commission to render special assistance by way of regulations made under the Act.  While it is rarely used, the inadvertent un-tying of any payment under section 106 from appropriation from the Consolidated Revenue Fund has limited the capacity to fund any assistance granted by regulation under section 106.  This amendment will restore the ability to respond to a need for special assistance.

 



 

Explanation of the Items

 

 

Item 22

Item 22 adds a new paragraph to section 199.  This new paragraph provides that, where regulations are made under section 106 to grant a person special assistance or benefits and that assistance or those benefits have the same general characteristics as the assistance or benefits described in section 199, then the Consolidated Revenue Fund is appropriated to the extent necessary for payment of that assistance or those benefits.

 

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

 

SCHEDULE 1 - PART 8

 

Amendments Relating to the Divestment of Hospitals

and Other Institutions

 

 

Overview

These amendments will remove, from the VEA, outdated references to hospitals and other institutions operated by the Commission.

 

Background

The Repatriation Commission facilitates access to a comprehensive range of health services for entitled persons. These services include hospital, general practitioner and allied health services and the supply of surgical aids and appliances. The circumstances in which, and conditions subject to which these treatment services may be provided are set out in the Treatment Principles and the Repatriation Private Patient Principles. These Principles are delegated legislation authorised under sections 90 and 90A respectively, of the VEA.

 

Explanation of the Changes

With the divestment of Repatriation General Hospitals and other institutions, the Commission now purchases hospital services for the veteran community through special arrangements with public and private hospitals. The circumstances and conditions subject to which hospital care may be provided are set out in the Repatriation Private Patient Principles (RPPPs).

Other health care such as general practitioner and allied health services are provided in accordance with the arrangements set out in the Treatment Principles (TPs).

 

As a consequence a number of minor and technical amendments are required in order to remove, from the VEA, reference to Commission owned and operated hospitals and other institutions.

 

 



 

Explanation of the Items

 

Item 23

Item 23 amends section 84(1) by repealing paragraph (a). The paragraph refers to the provision of treatment for veterans and other persons eligible to be provided with treatment at a hospital or other institution operated by the Commission. Since the Commission no longer owns or operates such institutions, this provision is no longer required.

 

Item 24

Item 24 amends paragraph 84(1)(b) by omitting "another" and substituting "a". This provision removes an implied reference to a hospital owned and operated by the Commission.

 

Item 25

Item 25 amends section 84 by repealing subsection 84(6). This subsection refers to the recovery of treatment costs for persons, under sections 87 and 88 (veterans and other persons who would not otherwise be eligible) treated at a hospital or other institution operated by the Commission. As the Commission no longer operates any hospitals or other institutions, these people are no longer eligible to be treated under Commission arrangements. As a result these costs will no longer be incurred and thus there will no longer be any need for provisions that enable the recovery of the cost of that treatment.

 

Item 26

Item 26 amends paragraph 85(9)(c) by inserting the word "formerly" after the first occurrence of the word "hospital". This measure acknowledges the former role of the Commission in running these hospitals and the continuing access to these ex-Commission hospitals by the veteran community, while recognising the present reality of divestment of hospitals.

 

Item 27

Item 27 amends paragraph 85(9)(c) by omitting "Commission (third occurring), and substituting "person operating the hospital". This measure acknowledges that the Commission no longer operates the hospitals.

 

Item 28

Item 28 amends paragraph 86(5)(a) by inserting the word "formerly" after the first occurrence of the word "hospital". This measure acknowledges the former role of the Commission in running these hospitals and the continuing access to these ex-Commission hospitals by the veteran community, while recognising the present reality of divestment of hospitals.

 

Item 29

Item 29 amends paragraph 86(5)(a) by substituting "person operating the hospital for the third occurrence of "Commission". This is a technical amendment to acknowledge that the Commission no longer operates the hospitals.

 

Item 30

Item 30 repeals section 87 and 88. These subsections have been removed to remove reference to the provision of treatment in a Commission operated hospital or other institution for veterans and other persons not otherwise eligible. Since the Commission no longer operates any hospitals or other institutions, these person are no longer eligible for treatment under Commission arrangements and thus the sections are no longer required.

 

Item 31

Item 31 repeals subsections 89(3) to (9). These subsections refer to hospitals owned or operated by the Commission. Since divestment of these institutions by the Commission the subsections are no longer required. Note, however, that paragraph 89(1)(a) has been left in place in order for the Commission to retain a head of power to be able to establish, run and maintain hospitals or other institutions should the need arise in the future. This does not negate the current fact that the Commission has divested itself of hospitals and other institutions .

 

Item 32

Item 32 repeals paragraph 90(1)(a). The paragraph relates to the provision of treatment covered by the Treatment Principles. Subsection (1)(a) refers to treatment "by the Commission at a hospital or other institution operated by the Commission”. Since divestment of these institutions, the paragraph is no longer required.

 

Item 33

Item 33 repeals section 204. This Section refers to canteens operated at a hospital or other institution operated by the Commission. Since the Commission divested itself of such institutions, this subsection is no longer required.

 

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 



 

SCHEDULE 1 - PART 9

 

Amendments Relating to Provision of Medical or Other Treatment

 

 

Overview

These amendments will enable improved efficiencies in the provision of treatment to veterans and their dependants.

 

Background

The Repatriation Commission facilitates access for veterans and their dependants to a wide range of health care services.  These services include hospital, general practitioner and allied health services and the supply of surgical aids and appliances.  The circumstances in which, and conditions subject to which these treatment services may be provided are set out in the Treatment Principles (TPs) and the Repatriation Private Patient Principles (RPPPs).  These Principles are delegated legislation authorised under sections 90 and 90A respectively, of the VEA.

 

One of the conditions for arranging treatment that the Commission specifies in the TPs and the RPPPs is whether or not the treatment to be provided requires the Repatriation Commission’s approval before the treatment is commenced.  This is referred to as “prior approval”.

 

Explanation of the Changes

 

 

 

Prior approval has been a significant part of the Department’s administrative workload in the Health Program.  The Department has continuously evaluated the cost effectiveness of this process and with the Department’s shift in focus from service provider to purchaser of services and other changes in the health care arena, the need for prior approval requirements has been drastically reduced.

 

As a consequence a number of minor and technical amendments are required in order to reflect the shift in emphasis away from the requirement for prior approval.

 

 



 

Explanation of the Items

 

Item 34

Item 34 repeals subsections 84(2) and 84(2A).  These broadly provide for the Commission’s approval for treatment other than treatment provided at a hospital or other institution operated by the Commission.  New subsection 84(2) seeks to reflect the reduced need for prior approval by providing that no prior approval is required for treatment arranged by the Commission except in certain circumstances.  The circumstances would then be set out in the TPs and the RPPPs in accordance with sections 90 and 90A respectively.

 

(a)     New subsection 84(2) provides that:

 

·          subject to subsection (3), the Commission is taken to have arranged for the provision of treatment for a person only if:

 

(a)     the treatment was provided in accordance with arrangements made by the Commission under the Part; or

(b)    the treatment was provided in the circumstances in which, and in accordance with the conditions subject to which the treatment may be provided under this Part; or

(c)     the Commission approved the provision of the treatment before the treatment was given, or began to be given, as the case may be.

 

 

Item 35

Item 35 inserts, after subsection 90(1), a new subsection 90(1A).  New subsection 90(1A) provides scope under the TPs to include provisions concerning whether or not Commission approval for the treatment is required; if approval is required, then whether the approval needs to be prior approval; and where the treatment may be provided.

 

Item 36

Item 36 repeals subsection 99(3) and replaces it with the new subsection.  The former subsection referred to funeral benefits not being granted unless treatment was provided with Commission approval.  In light of the shift in focus away from the requirement for prior approval other than in certain circumstances, an anomaly could have been created if a veteran died following treatment given under Part V that did not require prior approval.  Under such a situation the veteran might have been denied rightful access to the funeral benefit.  The amendment to subsection 99(3) is aimed at removing the potential for such an anomaly to occur.

 

Item 37

Item 37 amends subparagraphs 99(4)(b)(i) and (ii) to add the word “and” to the end of (i) and (ii).  This is a housekeeping measure to reflect the fact that all conditions must be met rather than any single condition in isolation. 

 

Item 38

Item 38 repeals subparagraph 99(4)(b)(iii) and replaces it with a new one to remove the requirement for the Commission to have approved the treatment, merely that the Commission arranged for the treatment.  In other words, the treatment has been provided in accordance with Part V of the VEA.

  

Commencement

Subclause 2(1) provides that this Part commences on Royal Assent.

 

 



 

SCHEDULE 1 - PART 10

 

Amendments Relating to Compensation Measures in Connection with the Implementation of A New Tax System

 

Overview

These changes make consequential amendments to the VEA as a result of the A New Tax System (Compensation Measures Legislation Amendment) Act 1999 .

 

Background

As part of the Government’s Tax Reform Package, pension rates are to be increased by 4% from 1 July 2000, to compensate for the effects of the GST. 

 

The A New Tax System (Compensation Measures Legislation Amendment) Act 1999  provides the 4% increase to pensions and allowances paid to veterans and eligible dependants.

 

These increases will be achieved through a pension supplement to be added to the person maximum basic rate of pension.

 

The GST will also affect the amount reimbursed by the Department for medical evidence submitted to the VRB or the SMRC for the purposes of a review.

 

Explanation of the Changes

Certain technical amendments were not undertaken by the A New Tax System (Compensation Measures Legislation Amendment) Act 1999.    Those technical amendments make up Part 11 of this Schedule.

 

Explanation of the Items

 

Items 39 - 45

Sections 45UF, 45UH  and 45UI of the VEA assist in the calculation of the amount of pension bonus that is payable to a person.  One of the factors taken into account in calculating the amount of pension bonus payable to a person is their basic rate of pension at the time it is granted. 

 

These items ensure that the 4% pension supplement is included when determining the person’s basic rate of pension.

 

Item 46

Section 49J sets out the farmers’ income test for the Retirement Assistance for Farmers Scheme.  To qualify for the Scheme, a farmer must, amongst other things, satisfy the farmers income test.  To be able to satisfy the test, a farmer’s income over the three years prior to the transfer of the farm, must be less than the person’s maximum basic entitlement for service pension for the same period. 

 

Item 49 amends subsection 49J(4) to ensure that, when calculating a farmer’s maximum basic entitlement, the 4% pension supplement is included as part of that calculation.

 

Items 47, 48 and 51

These items make technical amendments to various provisions in the VEA to ensure that the 4% pension supplement is included in calculations.

 

Items 49 and 50

These items amend paragraphs 170A(3)(a) and (b) and 196ZN(2)(a) and (b) so that the maximum amount to be paid for medical expenses incurred for a review is a prescribed amount, rather than a set amount.  The amount will be prescribed by Regulation.  This will allow for more efficient adjustments of the amount in the future, including an adjustment to cater for the GST. 

 

Commencement

Subclause 2(4) provides that Part 11 of Schedule 1 is taken to have commenced on 1 July 2000.

 

 

 



 

SCHEDULE 2 - AMENDMENT OF THE DEFENCE SERVICE HOMES ACT 1918

 

Overview

These amendments to the Defence Service Homes Act 1918 (DSH Act) will enable certain subsidised advances, such as those provided through the Home Support Advance Scheme, to be provided by a credit provider other than the Westpac Banking Corporation which continues to administer the Defence Service Homes Scheme (the DSH Scheme).

 

Background

The DSH Act provides assistance to certain veterans, other persons and members of the Defence Force to acquire a home. Assistance is provided by the payment of a subsidy on the interest rate on loans granted under the DSH Scheme to eligible persons. The subsidy has exclusively been paid to the Westpac Banking Corporation since their purchase of the Defence Service Homes Scheme in 1988.

 

The Veterans’ Affairs Legislation Amendment Act (No. 1) 1999 (No. 171 of 1999) provided for a new type of subsidised advance, the Home Support Advance. These advances are intended to assist eligible persons with the costs of home maintenance, modification and repairs by providing for a subsidised advance of up to $10,000.

 

Home Support Advances are available to two different groups. The first group are eligible persons who have an outstanding loan balance of less than $10,000 under the existing DSH Scheme and who are unable to obtain a current DSH Scheme advance for the required purpose. Home Support Advances would also be available to a group of persons outside the existing DSH Scheme comprising other veterans, members of the Forces, members of Peacekeeping Forces and widows and widowers.

 

It is the provision of subsidised advances to persons who are not eligible under the existing DSH Scheme that has created the need for an alternative provider for the loans. While the Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment Act (No. 1) 1999 stated that Westpac will provide the subsidised Home Support Advances, an agreement with the bank could not be reached on terms acceptable to both Westpac and the Commonwealth.

 

Amendments proposed to the DSH Act would remove the reference to Westpac as being the exclusive provider of subsidised advances.

 

Explanation of the Changes

The DSH Act and the agreement with Westpac (including the supplementary agreements) are closely linked with the agreement and the first supplementary agreement forming schedules to the DSH Act. As such the DSH Act makes many references to terms being defined in the agreement and to specific provisions of the agreement.

 

The proposed amendments to the DSH Act will allow for another lender to make subsidised Home Support Advances while retaining Westpac as the provider of all the other types of subsidised advances under the DSH Scheme. The amendments will mean that some terms and provisions will apply in general to either Westpac or another lender while other terms and provisions will exclusively refer to the agreement with Westpac.

 

Those provisions of the DSH Act which deal solely with matters concerning the original purchase of the DSH Scheme will not be affected.

 

Provisions of the DSH Act that will apply in general will use the inclusive term “credit provider” to refer to the provider of a subsidised advance as being either Westpac or another lender. As well any references in the DSH Act to “the agreement” will become a reference to either the agreement with Westpac or to an agreement or arrangement that the Commonwealth has entered into with another credit provider.

 

The use of such general terms will also give the Commonwealth the flexibility to obtain the best arrangements for the provision of subsidised advances, other than those in the DSH Scheme administered by Westpac.

 

There is also a clear need to differentiate between the “old” advances provided by Westpac under the terms of the agreement and the “new” advances provided by alternative lenders under the terms of new agreements or arrangements entered into with the Commonwealth.

 

Those provisions which will continue to apply to the agreement with Westpac will use the exclusive terms “the Bank” and the “Bank agreement” to indicate that the provision is not concerned in any way with an alternative lender.

 

Explanation of the Changes (cont.)

These changes to the DSH Act have resulted in amendments which:

 

·          provide an alternative definition for the term “agreement” which has previously referred only to the agreement between the Commonwealth and Westpac for the purchase of the Defence Service Homes Scheme and the right to exclusively provide subsidised advances under the DSH Scheme. A definition for the term “the agreement” has been inserted which will apply to either the agreement with Westpac or any other agreement or arrangement by the Commonwealth with a credit provider for the provision of subsidised advances;

 

·          insert a definition for the term “the Bank agreement” which will be used to refer specifically to the original agreement between the Commonwealth and Westpac for Westpac to exclusively provide subsidised advances under the Defence Service Homes Scheme;

 

·          insert a definition of the term “credit provider” which provides that it is an inclusive reference which applies to either Westpac or to any other “credit provider” (as that term is defined in the Privacy Act 1988 ) that is a party to an agreement or arrangement with the Commonwealth regarding the provision of subsidised advances;

 

·          provide an amended definition of the term “subsidised advance” which explicitly defines it in the DSH Act as being either an advance made by a credit provider in accordance with a certificate of entitlement or an initial advance taken to have been made by Westpac under the provisions of section 37;

 

·          provide amended definitions of terms associated only with the purchase of the Defence Service Homes Scheme which will clearly indicate that the terms are defined in “the Bank agreement” rather than in the DSH Act. The relevant terms are “Corporation advance”, “other portfolio agreement”, “portfolio asset”, “portfolio contract of sale”, “portfolio mortgage” and “portfolio supplementary agreement”;

 

·          substitute the inclusive term “credit provider” for the exclusive term “Bank” in the various provisions of the DSH Act where either the alternative lender or Westpac may be the provider of a subsidised advance; and

 

·          substitute the term “Bank agreement” for the term “agreement” in the various provisions of the DSH Act where the reference is specifically to a matter which involves the application of one of the provisions of the Westpac agreement.

 

 

 

 

Explanation of the Items

 

 Item 1

Item 1 repeals the definition of agreement from subsection 4(1). The definition is being replaced by a definition of the term “the agreement” which will be inserted (refer to Item 19) in alphabetical order into subsection 4(1).

 

Item 2

Item 2 repeals the definition of Corporation advance from subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 3

Item 3 inserts the inclusive term credit provider in subsection 4(1) which provides that it refers to either “the Bank” being Westpac or to any other “credit provider” (as that term is defined in the Privacy Act 1988 ) that is party to an agreement with the Commonwealth for the provision of subsidised advances.

 

Item 4

Item 4 substitutes in the definition of “guarantor” in subsection 4(1) the inclusive term “a credit provider” for the exclusive term “the Bank”.

 

Item 5

Item 5 substitutes in the definition of “Holding” in paragraph 4(1)(h) the inclusive term “a credit provider” for the exclusive term “the Bank”.

 

Item 6

Item 6 substitutes in the definition of “mortgage” in paragraph 4(1)(b) the inclusive term “a credit provider’s” for the exclusive term “the Bank’s”.

 

Item 7

Item 7 substitutes in the definition of “mortgagor” in subsection 4(1) the inclusive term “a credit provider” for the exclusive term “the Bank”.

 

Item 8

Item 8 repeals the definition of other portfolio agreement in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 9

Item 9 repeals the definition of portfolio asset in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 10

Item 10 repeals the definition of portfolio contract of sale in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 11

Item 11 repeals the definition of portfolio mortgage in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 12

Item 12 repeals the definition of portfolio supplementary agreement in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 13

Item 13 repeals the definition of specified portfolio asset in subsection 4(1) and inserts a new definition that provides that the term is defined in “the Bank agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 14

Item 14 repeals the definition of subsidised advance from subsection 4(1) and inserts a more inclusive definition at paragraph (a) that provides that it is an advance made by a credit provider in accordance with a certificate of entitlement. At paragraph (b) the existing definition is retained, that is,  that it is an initial advance taken to have been provided by Westpac under section 37.

 

Item 15

Item 15 repeals the definition of subsidised advance loan account from subsection 4(1) and inserts a more inclusive definition that provides that it is either an account established by Westpac to administer specified portfolio assets or an account established by any credit provider for the purposes of administering subsidised advances.

 

Item 16

Item 16 repeals the definition of subsidy from subsection 4(1) and inserts a more inclusive definition that provides that a subsidy is payable under Part IV of the Act by the Commonwealth to a credit provider in accordance with the terms of the agreement between the Commonwealth and the credit provider.

 

Item 17

Item 17 repeals paragraphs (a) and (b) of the definition of supplementary agreement from subsection 4(1) and inserts new paragraphs which refer to subsequent agreements which, at paragraph (a), amend the agreement with Westpac, and, at paragraph (b), are expressed to be supplementary agreements.

 

Item 18

Item 18 amends the definition of the Bank by inserting the word “Bank” before the word “agreement” so that it is clear that the terms of the arrangement between the Commonwealth and Westpac are governed not only by the Act but also by the terms of the agreement.

 

Item 19

Item 19 inserts the term the agreement which is a replacement term for the repealed term “agreement”. The new definition provides that the term is a reference to either the “Bank agreement” being the original or varied agreement with Westpac or an agreement or arrangement in force between the Commonwealth and a “credit provider” other than Westpac.

 

Item 20

Item 20 inserts the term the Bank agreement in subsection 4(1) which provides that it refers to the original agreement made between the Commonwealth and Westpac on 9 November 1988 involving the purchase of the loan portfolio of the Defence Service Homes Scheme and the continuing rights to provide subsidised home loans under the Scheme. The term is to apply to that agreement as it is subsequently varied or affected by supplementary agreements. The amendment is required as a consequence of the amended definition of “agreement”.

 

Item 21

Item 21 amends subsection 4(9) which provides that a reference in the Act to a person seeking an advance will have the same meaning whether or not it is on their own behalf or on the behalf of an assignee. The amendment replaces the term “the Bank” with the inclusive term “a credit provider”.

 

Item 22

Item 22 amends section 4B which ratified the original agreement between the Commonwealth and Westpac by inserting the word “Bank” before “agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

 Item 23

Item 23 amends sections 6B and 6C which determined the vesting dates relating to the transfer of Defence Service Homes Scheme assets to Westpac and allowed Westpac to deal with those assets in the place of the Defence Service Homes Corporation. The amendments require the insertion of the word “Bank” before the term “agreement” wherever the term occurs. The sections deal specifically with matters relating to the purchase of the Scheme by Westpac and the amendments are required as a consequence of the amended definition of “agreement”.

 

Item 24

Item 24 amends paragraphs 15(1)(b), (c) and (d) that refer to applications for a certificate of entitlement for a subsidised advance, a transfer or for instalment relief. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Items 25 and 26

Items 25 and 26 amend subsection 17(1) which provides that the Secretary will issue a certificate of entitlement certifying that a subsidy is payable by the Commonwealth to the lender. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 27

Item 27 amends subsections 18(1), (2) and (3); 20(1) and (2) and 21(1). The subsections set out the criteria to be met before a certificate of entitlement is issued. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Items 28 and 29

Items 28 and 29 amend section 21A which sets out the criteria to be met before a certificate of entitlement is issued for a Home Support advance. The amendments require the replacement of references to the exclusive term “the Bank” with references to the inclusive terms “a credit provider” and “credit provider

 

Item 30

Item 30 amends paragraph 22(1A)(c) which refers to the transfer of a right of residence in a retirement village. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “relevant credit provider”.

 

Item 31

Item 31 amends paragraph 22(2)(a) which prevents the issue of a certificate of entitlement relating to a transfer where it is not reasonable for the Secretary to do so. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

 Item 32

Item 32 amends paragraph 22(7)(a) which permits transfers in situations where a lender is exercising powers available under the relevant mortgage or other security. The amendment requires the replacement of the exclusive phrase “to the Bank as a result of the exercise by the Bank” with the inclusive phrase “to a credit provider as a result of the exercise by the credit provider”.

 

Item 33

Item 33 amends subsection 23(1) which provides for the issue of certificates of entitlement for instalment relief. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 34

Item 34 amends subsections 23(3) and (4) which relate to the actions of the Secretary in determining an amount of instalment relief and providing a copy of the certificate of entitlement to the lender. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 35

Item 35 amends subsection 23A(1) which provides for the issue of certificates of assignment on the application of eligible persons on behalf of other persons. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 36

Item 36 amends paragraph 23A(2)(b) which will not permit the Secretary to issue a certificate of assignment unless satisfied of certain conditions relating to a right of residence in a retirement village. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 37

Item 37 amends subsection 23B(1) which refers to a list of matters to be considered by a court in determining whether a contract, mortgage or guarantee associated with a subsidised advance is unjust. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 38

Item 38 amends paragraphs 23B(1)(k), (l), (m) and (n) which list some of the matters that are to be considered by the court. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 39

Item 39 repeals subparagraph 23B(2)(a)(i) which states that the court is to have regard to the fact that there is an agreement between the Commonwealth and Westpac for the provision of subsidised advances. The amended and expanded subparagraph refers to “the relevant credit provider” and the “agreement or arrangement” for the provision by the “credit provider” of subsidised advances “or other benefits” under the Act.

 

Item 40

Item 40 amends subparagraphs 23B(2)(a)(ii), (iv) and (b)(i) which refer to other matters that the court is to have regard to. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 41

Item 41 amends paragraph 23E(d) which lists some of the orders which may be made by a court which has reopened a transaction under the provisions of section 23A. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 42

Item 42 amends subsections 23F(2) and (3) which refer to the matters to be considered by a court in a review of unconscionable fees and charges. The amendments require the replacement of the exclusive term “Bank’s” with the inclusive term “credit provider’s”.

 

Item 43

Item 43 amends section 23G which applies a time limit for applications under sections 23A and 23F to reopen unjust transactions or to review unconscionable fees and charges. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 44

Item 44 amends subsection 24(1) which refers to the subsidy payable by the Commonwealth to Westpac on subsidised advances. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 45

Item 45 amends subsection 24(2) which provides for the payment of a subsidy in cases where the interest of the purchaser or borrower was transferred to another person where a certificate of entitlement under section 22 has been issued. The amendment requires the insertion of the words “to any credit provider in relation to” before the words “a subsidised advance”. The amendment is required to distinguish the provision of subsidised advances by any lender with which there is an agreement or arrangement from the provision of a subsidy which relates to portfolio assets held by Westpac.

 

Item 46

Item 46 amends subsection 25(1) which refers to the maximum amounts on which a subsidy is payable. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 47

Item 47 amends subparagraph 26(2)(b)(iii) which refers to the cancellation of the subsidy where there is a transfer of the right of residence in a retirement village to a person not entitled to a subsidised advance. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 48

Item 48 amends paragraph 26(2A)(c) which refers to circumstances where no security is held by Westpac for a subsidised advance for a right of residence in a retirement village. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 49

Item 49 amends subsection 26(2C) which refers to the cancellation of a subsidy on assigned advances. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 50

Item 50 amends subsection 26(3) which provides for the cancellation of a subsidy in relation to an advance by Westpac or a vested portfolio asset where Westpac has taken action under the security to enforce a remedy but 3 months has elapsed since Westpac took that action without the matter being resolved. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 51

Item 51 amends paragraph 26(5)(a) which requires the Secretary to provide a copy of the notice of cancellation to Westpac. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

 Item 52

Item 52 amends section 27 which refers to a separate subsidy cancellation mechanism in the case of certain portfolio assets. It specifically applies to the agreement between the Commonwealth and Westpac. The amendment requires the insertion of the word “Bank” before the term “agreement”. The amendments are required as a consequence of the amended definition of “agreement”.

 

Item 53

Item 53 amends subsections 27A(4) and (6) which refer to the cancellation of the subsidy in circumstances where the eligible person has died and where the cancellation is appropriate. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 54

Item 54 repeals section 28 which refers to the circumstances where under the terms of the agreement between the Commonwealth and Westpac the payments of subsidy may be deferred. The replacement section uses the inclusive term “credit provider” and refers to the circumstances where the deferment of the subsidy is permitted under the terms of the agreement.

 

Item 55

Item 55 amends paragraph 29(3)(a) which provides for the recovery of a subsidy in circumstances where a notice under sections 26, 27 or 27A has been issued. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 56

Item 56 amends paragraph 29(5)(a) which provides for the recovery of the subsidy from Westpac in circumstances where Westpac has taken action to enforce its security. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 57

Item 57 amends subsection 29(5) which provides for giving of notice and the recovery of the subsidy in circumstances where action has been taken to enforce a security. The amendments require the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 58

Item 58 amends subsection 29(6) which provides for the Commonwealth to be paid recovered subsidy from the proceeds of the sale of the security and the discharge of the liability of the person subject to the notice. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

 Item 59

Item 59 amends subsection 29(6) which provides for the recovery of a subsidy from the proceeds of the sale of the security. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 60

Item 60 amends sections 31 to 33 which specify the rate of interest to apply on initial, widow or widower and additional advances. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 61

Item 61 amends subsection 34(1) which stipulates the rate of interest a person would pay on a further advance from Westpac. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 62

Item 62 amends paragraph 34(2)(a) which stipulates the rate of interest to apply on a further advance where a previous advance has been discharged. The amendment requires the replacement of the exclusive term “Bank” with the inclusive term “credit provider”.

 

Item 63

Item 63 amends section 35 which stipulates the rate of interest to apply on advances for essential repairs. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 64

Item 64 amends section 35AAA which stipulates the rate of interest to apply on Home Support advances. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Items 65 and 66

Items 65 and 66 amend subsections 35A(1), (2) and (4) which refer to modifications to the agreement with Westpac and other instruments. The amendments require the insertion of the word “Bank” before “agreement”. The amendments are required as a consequence of the amended definition of “agreement”.

 

Item 67

Item 67 amends subsection 35AA(2) which refers to the calculation of the level of the reduced benchmark rate as it is set out in the agreement between the Commonwealth and Westpac. The reduced benchmark rate is used to reduce the interest rates payable on subsidised advances and in relation to portfolio assets. The amendment requires the substitution of the words “the Bank agreement or the corresponding provision of another agreement (whichever is applicable)” for the term “the agreement”. The amendments are required as a consequence of the amended definition of “agreement”.

 

Item 68

Item 68 amends subsection 36(1) which provides for a maximum term for advances of twenty five years. The amendment requires the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 69

Item 69 amends subparagraph 38E(1)(b)(iv) which provides for the termination of insurance in circumstances where a certificate of entitlement has ceased to have effect under the terms of the agreement between the Commonwealth and Westpac. The amendment requires the insertion of the word “Bank” before “agreement”. The amendment is required as a consequence of the amended definition of “agreement”.

 

Items 70 and 71

Items 70 and 71 amends section 41 which allows for the appropriation of funds from the Consolidated Revenue Fund. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider” and the repeal of paragraph 41(b). In place of the repealed paragraph 41(b) the replacement paragraph will refer to the appropriation of payments under the terms of the agreement between the Commonwealth and Westpac or under the corresponding provisions of any other agreement.

 

Item 72

Item 72 amends subsections 43(7) and 44(1) and (3) which refer to the review of reviewable decisions by either the Secretary or the Administrative Appeals Tribunal. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 73

Item 73 amends subsections 45(1), (2), (3) and (4) which provides that certain provisions of the agreement between the Commonwealth and Westpac cannot be revoked or amended. The amendments require the insertion of the word “Bank” before “agreement”. The amendments are required as a consequence of the amended definition of “agreement”.

 

Item 74

Item 74 amends paragraph 45A(1)(b) which refers to the bankruptcy of a purchaser or borrower. The amendments require the replacement of the exclusive term “the Bank” with the inclusive term “a credit provider”.

 

Item 75

Items 75 and 77 amend subsections 45B(1) and (2) which refer to the exchange of information between Westpac and the Commonwealth under the terms of the agreement. The amendments require the insertion of the word “Bank” before “agreement”. The amendments are required as a consequence of the amended definition of “agreement”.

 

Items 76 and 78

Items 76 and 78 insert subsections 45B(1A) and 45B(3) into section 45B which refers to the exchange of information between Westpac and the Commonwealth under the terms of the agreement. The subsections provide for a similar arrangement where it is to be provided under an agreement between the Commonwealth and a credit provider other than Westpac.

 

Commencement

Subclause 2(1) provides that this Schedule commences on Royal Assent.