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Veterans' Affairs Legislation Amendment (2001 Budget Measures) Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 VETERANS’ AFFAIRS LEGISLATION AMENDMENT (2001 BUDGET MEASURES) BILL 2001

 

 

 

 

 

 

 

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 ………………………………………………………….. v

            2          Commencement ……………………………………………………. v

            3          Schedule(s) …………………………………………………………. v

 

 

Schedule 1 - Extension of the Repatriation Pharmaceutical

                       Benefits Scheme  ……………………………….………………..….  1

 

Schedule 2 - Beneficial treatment of superannuation assets for people

                       aged between 55 and pension age  ………………………….……… 8

 

Schedule 3 - Reinstatement of certain pensions and benefits   …………………. 10

 

Schedule 4 - Amendments consequential on changed administrative

                      law arrangements   …………………………………………………… 22

 

 

 

 

 



 

OUTLINE AND FINANCIAL IMPACT

 

Outline and Financial Impact

This Bill gives effect to a number of initiatives announced in the Government’s 2001-02 Budget.

 

 

Schedule 1 - Extension of the Repatriation Pharmaceutical Benefits Scheme

 

 

Overview

These amendments to the VEA are intended to extend the operation of the Repatriation Pharmaceutical Benefits Scheme to Commonwealth veterans, allied veterans and allied mariners with qualifying service during World War 1 or World War 2.

 

Date of Effect

Royal Assent

 

Financial Impact      

 

 

2001 - 2002

2002 - 2003

2003 - 2004

2004 - 2005

Departmental

  2.507

  0.460

  0.443

  0.428

Administered

17.012

32.622

31.143

29.741

TOTAL

19.519

33.082

31.586

30.169

 



 

Schedule 2 - Beneficial treatment of superannuation assets for people aged

between 55 and pension age

 

Overview

These amendments will provide for the full exemption of superannuation assets from the means test for all people aged between 55 and pension age.

 

Date of Effect

1 July 2001

 

Financial Impact                  

 

 

2001 - 2002

2002 - 2003

2003 - 2004

2004 - 2005

Departmental

0.000

0.000

0.000

0.000

Administered

0.350

0.350

0.350

0.350

TOTAL

0.350

0.350

0.350

0.350

 

Schedule 3 - Reinstatement of certain pensions and benefits

 

Overview

These amendments to the VEA will enable the payment of a war widow’s pension and other associated benefits to those widows whose pension was cancelled only because the widow married or re-married on or before

28 May 1984.

 

Date of Effect

1 January 2002

 

Financial Impact                  

 

 

2001 - 2002

2002 - 2003

2003 - 2004

2004 - 2005

Departmental

0.000

  0.000

  0.000

  0.000

Administered

3.490

15.610

18.200

19.610

TOTAL

3.490

15.610

18.200

19.610

 



 

Schedule 4 - Amendments consequential on changed administrative law arrangements

 

Overview

These amendments cater for the possible changes to review arrangements in relation to administrative law.  The amendments will only have effect if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commences.

 

Date of Effect

Subclauses 2(3) and 2(4) provide the commencement dates for this Schedule.  This is explained in more detail in the topic.

 

Financial Impact

The amendments have no financial impact.

 



 

CLAUSES

 

 

Short Title

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

 

Commencement

Clause 2 specifies when the various clauses and Schedules of the amending Act are to commence.

 

Schedule(s)
 

Clause 3 provides that the Acts specified in the Schedules are amended as set out in the items of those Schedules.

 

 



 

 

SCHEDULE 1

 

 

Extension of the Repatriation Pharmaceutical Benefits Scheme

 

Overview

These amendments to the VEA are intended to extend the operation of the Repatriation Pharmaceutical Benefits Scheme to Commonwealth veterans, allied veterans and allied mariners with qualifying service during World War 1 or World War 2.

 

Background

The Repatriation Pharmaceutical Benefits Scheme (RPBS) is a scheme established to make pharmaceutical benefits available to persons at concessional rates for those persons eligible to be provided with treatment under Part V of the VEA.  Persons eligible for treatment under Part V of the VEA include certain veterans, members of the Forces, members of a Peacekeeping Force, war widows and widowers and dependants.

 

Those persons who hold what are referred to as “gold” Repatriation Health Cards can obtain pharmaceutical benefits under the scheme for all their medical conditions.  Those persons who hold what are referred to as “white” Repatriation Health Cards can only obtain pharmaceutical benefits under the scheme for their accepted disabilities.

 

The Repatriation Pharmaceutical Benefits Scheme provides pharmaceutical items to eligible persons at a concessional rate of $3.50.  A safety net applies with a limit of $182 on the total amount payable in any one year with items over the limit supplied at no charge.

 

The Repatriation Pharmaceutical Benefits Scheme provides a wider range of items than does the Pharmaceutical Benefits Scheme and includes a number of medications and other items which meet the specific health needs of veterans and their dependants.

 

 

 
Explanation of the Changes

 

New Part VA has been inserted into the VEA with the title of “Extension of the Repatriation Pharmaceutical Benefits Scheme”.

 

New Part VA extends eligibility for the Repatriation Pharmaceutical Benefits Scheme to Commonwealth veterans, allied veterans and allied mariners with qualifying service during World War 1 and World War 2 to those veterans and mariners over 70 years of age who have been resident in Australia for 10 years or more.

 

The provisions of Part VA clearly state that the eligibility of the veterans and mariners relates solely to their inclusion in the Repatriation Pharmaceutical Benefits Scheme and does not extend eligibility to them for any other treatment benefits under Part V of the VEA.

 

The new Part has been structured into a series of Divisions which deal with the eligibility of the veterans and mariners for a pharmaceutical benefits card and the administration of the scheme.

 

The Divisions include provisions relating to the need for a proper claim to be made, the investigation of the claim and the consideration and determination of the claim.  Provisions relating to the review of certain decisions have also been included.

 

Explanation of the Changes

 

 

Item 1

Item 1 is a technical amendment to subsection 7A(1) replacing the reference to “Part III” with a reference to “Parts III and VA”.  Section 7A establishes the basis upon which a person may be taken to have rendered “qualifying service” for certain purposes of the Act.

 

Item 2

Item 2 inserts new Part VA into the VEA.

 

Division 1 - Interpretation

 

New section 93K provides for a definition of the terms used in new Part VA to describe the benefits being made available to the holders of a pharmaceutical benefits card under the new Part.

 

New subsection 93K(1) provides that the term “pharmaceutical benefits” will have the same meaning as it does in subsection 91(9).  The term “pharmaceutical benefits scheme” is also defined as meaning an “approved scheme” as defined in subsection 91(9).

 

 
Item 2 (Cont.)

 

New subsection 93K(2) provides that a reference in new Part VA to the “holder of a pharmaceutical benefits card under this Part” will mean that there is in force a determination under new section 93X a “determination that the person is entitled to a pharmaceutical benefits card” under new Part VA.

 

Division 2 - Pharmaceutical benefits may be obtained

 

New section 93L provides eligibility to the Repatriation Pharmaceutical Benefits Scheme to certain Commonwealth veterans, allied veterans and allied mariners who would otherwise be ineligible under the provisions of Part V.

 

Subsection 93L(1) provides that a Commonwealth veteran, allied veteran or allied mariner will be eligible for benefits under the pharmaceutical benefits scheme if the veteran or mariner is the holder of a pharmaceutical benefits card under new Part VA.

 

New subsection 93L(2) provides that new section 93L does not entitle a Commonwealth veteran, allied veteran or allied mariner to eligibility for the provision of any other form of treatment under Part V.

 

Division 3 - Eligibility for, and entitlement to, pharmaceutical benefits card

 

The conditions to be satisfied in order for a person to be eligible for a Repatriation Pharmaceutical Benefits Scheme card are set out in subsection (1) of new section 93M.  To be eligible a Commonwealth veteran, allied veteran or an allied mariner must:

·          be aged 70 years or over;

·          have qualifying service during either World War 1 or World War 2;

·    have been an Australian resident for a continuous period of 10 years.

 

Subsection 93M(2) provides an exception to the residency requirements.  An exception to the requirement is provided to those persons who do not have 10 years continuous residency but who do have an aggregate period in excess of 10 years with the longest of the periods being more than 5 years.

 

New section 93N requires the person to be “the holder of a pharmaceutical benefits card” in addition to being eligible for the card under Part VA in order to be provided with pharmaceutical benefits under the pharmaceutical benefits scheme.  The Note to the section signposts the definition of the term “holder of a pharmaceutical benefits card under this Part”.

 

 

Item 2 (Cont.)

 

Division 4 - Claim for pharmaceutical benefits card under this Part

 

To be granted a pharmaceutical benefits card, a person must make a proper claim for the card (new section 93P).  New section 93Q describes who may claim for the card.  It may be a person who wishes to be granted a card or another person whom the claimant for the card approves.  Subsection 93Q(2) allows the Repatriation Commission to approve another person to claim the card where the claimant is unable to lodge the claim due to physical or mental incapacity.

 

The following criteria will make a claim for a pharmaceutical benefits card under Part VA a proper claim:

·          it must be in writing, on a form approved by the Repatriation Commission and include any evidence the claimant considers relevant (new section 93R);

·          it must be lodged at an office of the Department of Veterans' Affairs in Australia or at a place or with a person in Australia approved by the Repatriation Commission (new section 93S);

·          the person making the claim, or on whose behalf the claim is made, must be an Australian resident and in Australia when lodging the claim (new section 93T).

 

The note to new section 93T signposts the definition of “Australian resident”.

 

If the claimant or the person representing the claimant for a pharmaceutical benefits card under Part VA seeks to withdraw a claim for a card before it is determined, then the claim will not be taken to have been made (new subsections 93U(1) and (2)).  The withdrawal of the claim can be made orally or in writing (new subsection 93U(3).  A written withdrawal must be lodged at an office of the Department in Australia (new subsection 93U(4)).  An oral withdrawal must be made to a person in an office of the Department in Australia (new subsection 93U(5)).  New subsections 93U(6) and (7) set out the additional safeguards for oral withdrawals.  The Secretary is required to provide a written acknowledgment of the oral withdrawal and give the person 28 days to reconsider his or her decision to withdraw the claim.  If the person advises the Secretary within 28 days of receiving the acknowledgment notice that he or she wishes to continue with the claim, the oral withdrawal is taken not to have been made.

 

The note after subsection 93U(7) advises the reader that the person’s decision to revoke the oral withdrawal will reactivate the claim without affecting the commencement date of the claim.

 

 
Item 2 (Cont.)

 

 

Division 5 - Investigation of the claim

 

New section 93V provides that where a person has made a proper claim for a pharmaceutical benefits card under Part VA, the Secretary must investigate matters raised in the claim.  The Secretary will then submit the claim to the Repatriation Commission for determination.  When the claim is submitted to the Repatriation Commission, it will be accompanied by all the evidence the claimant has provided, all documents obtained by the Department in its investigations and any other documents under the control of the Department relevant to the claim.

 

Division 6 - Consideration and determination of claim

 

New section 93W describes the duties of the Repatriation Commission when a claim for a pharmaceutical benefits card under part VA has been submitted to it.  The note to this section alerts the reader that the claimant has a right of review to the Repatriation Commission decision under section 93Z.

 

If the Repatriation Commission is satisfied that the claimant is eligible, then the Repatriation Commission must determine that the claimant is entitled to the card (new section 93X).

 

The date of effect of a determination about entitlement will be the day of the determination or such other day as is specified in the determination but cannot be a date before 1 January 2002 (new section 93Y).

 

Division 7 - Review of decisions

 

A person who is dissatisfied with a decision in relation to a claim for a pharmaceutical benefits card under part VA, can request the Repatriation Commission to review the decision (new section 93Z refers).

 

New subsection 93ZA(1) provides that a request made under new section 93Z for a review of a decision can only be made within three months after the person was notified of the Repatriation Commission’s decision.  This new section would also require that a request for review must be in writing and state the reasons for the appeal.  New subsection 93ZA(2) requires the Commission to review the disputed decision if a proper request is made under new subsection (1).

 

New section 93ZB sets out the powers of the Repatriation Commission when reviewing a decision.  It must affirm or set aside the original decision. If it sets aside its previous decision, it must make a new decision.

 

The note to the section alerts the reader to the location of the Repatriation Commission’s information gathering powers as these powers are relevant to its proper performance of its review function.

 

 
Item 2 (Cont.)

 

A substituted decision granting a person’ entitlement to pharmaceutical benefits card under Part VA takes effect from the date specified in the determination.  This date cannot be earlier than the date the Repatriation Commission could have determined the person to be entitled had its original decision been favourable (new section 93ZC refers).

 

New section 93ZD requires the Repatriation Commission to provide a written statement of any decision it makes following a review.  The decision must include a statement of the Repatriation Commission’s findings on material questions of fact, evidence or material that these findings were based on and include reasons for the decision.

 

New section 93ZE requires the Repatriation Commission to provide a written copy of its decision to the person who requested the review and include details of any right of appeal the person has to the Administrative Appeals Tribunal.  New subsection 93ZE(2) restricts the information provided to the person, if in the opinion of the Repatriation Commission, the information contained in the statement is confidential or would be prejudicial to the person’s well being.

 

New subsection 93ZF(1) enables the Repatriation Commission or its delegate, in reviewing a decision to take evidence on oath or affirmation for the purposes of the review and to adjourn a hearing from time to time.

 

New subsection 93ZF(2) enables the presiding member of the Repatriation Commission or a person who has the delegated authority of the Repatriation Commission for the purposes of the review, to summon a person to appear at a hearing to give evidence and to produce such documents as are referred to in the summons and require the person appearing at the hearing to take an oath or make an affirmation.  The presiding member or Repatriation  Commission delegate may also administer an oath or affirmation to the person so appearing.

 

New subsections 93ZF(3) and (4) provide that the applicant for review is a competent and compellable witness and that an oath or affirmation taken or made by a person is an oath or affirmation that the evidence given by the person will be true.

 

New subsection 93ZF(5) deals with the exercise of the power to take evidence on oath or affirmation within or outside Australia, subject to the limitations specified by the Repatriation Commission.

 

 
Item 2 (Cont.)

 

New subsection 93ZF(6) confers on a person approved under new 93ZF(5)(a)(ii), to take evidence for the purpose of the review, all the powers provided under new subsections 93ZF(1) and (2).

 

New subsection 93ZF(7) defines a “Commissioner’s delegate”.

 

New section 93ZG deals with the withdrawal of a request for a review.  Under this section a person who requests a review under new section 93Z may withdraw the request at any time before it is determined by the Repatriation Commission.  This is provided that the request is made to the Secretary in writing and the notice is lodged at an office of the Department in Australia.

 

The withdrawal of a request for review should not affect the person’s right to make another request for review of the same decision at some other date.  This is subject to the person meeting the time limits set out in new section 93ZA.  A note after this section alerts the reader to the specific time limit.

 

Item 3

Item 3 inserts new subsection 175(2AAAA) into the Act.  Section 175 provides for the circumstances in which a person may make an application to the Administrative Appeals Tribunal for the review of a decision by the Veterans' Review Board or the Repatriation Commission.  New subsection 175(2AAAA) provides that a person may make an application to the Administrative Appeals Tribunal for a review of a decision by the Repatriation Commission to affirm a decision or to substitute a decision made under section 93ZB.

 

Item 4

Item 4 is a technical amendment to subsection 175(2A).  Subsection 175(2A) provides that the right to apply to the Administrative Appeals Tribunal under section 175 is subject to section 29 of the Administrative Appeals Tribunal Act 1975 which sets out the requirement for an application for a review.  The amendment includes subsection 175(2AAAA) in the list of those applications for review which will be subject to those requirements.

 

Commencement

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

 



 

SCHEDULE 2

 

Beneficial treatment of superannuation assets for people aged between 55 and pension age

 

Overview

These amendments will provide for the full exemption of superannuation assets from the means test treatment for all people aged between 55 and pension age.

 

Background

Before the passing of the Social Security Legislation Amendment (Further Budget and Other Measures) Act 1996 the Veterans’ Entitlements Act 1986 and the Social Security Act 1991 had mirrored provisions in respect of the treatment of superannuation funds held by persons who had not reached pension age.

 

The amounts held in superannuation funds were not subject to the income and assets tests and early withdrawals by persons under pension age were treated in the same way under both Acts ie. an amount equal to one fifty-second of the assessable growth component of an early withdrawal was treated as being the ordinary income of the person during each week of a 12 month period from the date of the withdrawal.

 

The 1996 Act changed the provisions of the SSA relating to the treatment of superannuation assets held by certain persons aged 55 and over who were under pension age.  One of the effects of the amendments was that early withdrawals from superannuation funds were more harshly treated than they had been previously.  Similar amendments were not made to the VEA at that time.

 

The Family and Community Services and Veterans’ Affairs Legislation Amendment (Further Assistance for Older Australians) Act 2001 amended the SSA to provide for the exemption of superannuation assets from the social security means test for all people aged between 55 and age pension age.

 

One of the amendments to the SSA had the effect of providing for an exemption from the income test for early withdrawals from superannuation funds for persons who are age 55 and over.  This means that early withdrawals from superannuation funds by persons aged 55 and over are more favourably treated under the SSA then they would be under the VEA.

 

 

 
Explanation of the Changes

 

From 1 July 2001 early withdrawals from superannuation funds by persons aged 55 or over will be exempt from the income and assets tests.

 

Sections 46Q and 46R which deal with the treatment of superannuation funds investments before pension age and early withdrawals from superannuation funds have been amended so that the provisions are only applicable to those persons aged under 55 years.

 

 

Explanation of the Items

 

Item 1

Item 1 amends paragraph 46Q(e) by inserting the words “before the person turns 55” after the words “if the investment is realised”.  Section 46Q provides that the return on an investment in a superannuation or similar fund will not be treated as ordinary income and that if the investment is realised before pension age the return will be spread across the following 12 months as provided for in section 46R.

 

Items 2 and 3

Item 2 amends paragraph 46R(a) by omitting the words “before the person reaches pension age”.  Section 46R provides that a person will be taken to have received one fifty-second of the assessable growth component of an early withdrawal from a superannuation or similar fund as ordinary income during each week of the 12 month period following the withdrawal.

 

Item 3 inserts new paragraph 46R(aa) which provides that the section will only be applicable in cases where the person has not yet turned 55.

 

Item 4

Item 4 inserts new subsection 46R(2) which will apply in those cases where a person who was aged 54 at the time of the early withdrawal turns 55 during the 12 month period where the assessable growth component is treated as ordinary income.

 

New subsection 46R(2) provides that the section will not apply to the person for the week that the person turns 55 and for any later weeks of the 12 month period.

 

Commencement

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

1 July 2001.

 



 

 

SCHEDULE 3

 

 

Reinstatement of certain pensions and benefits

 

Overview

These amendments to the VEA will enable the payment of a war widow’s pension and other associated benefits to those widows whose pension was cancelled only because the widow married or re-married on or before 28 May 1984.

   

Background

The Repatriation Act 1920 (the Repat. Act) and the Seamen’s War Pensions and Allowances Act 1940 (the SWPA Act) and now the VEA provide for two types of pension for veterans and their dependants.  The first type of pension is a disability pension or war widow or widowers pension and it is paid by way of compensation to the veteran or war widow/er.  In the case of the incapacity of a veteran or member of the Defence Force or a member of a Peacekeeping Force from a war-caused or defence-caused injury or disease, the pension is paid to the veteran or member.  In the case of the compensable death of the veteran or member, the pension is paid to the veteran or member’s widow or widower.   It is the war widow’s pension that is the subject of these amendments to the VEA.  These pensions are paid under Parts II and IV of the VEA.

 

The second type of pension payable under the VEA is an income support pension by way of a service pension or income support supplement. These pensions are paid under Parts III and IIIA of the VEA and are not affected by these amendments to the VEA. 

 

The war widows pension was established to compensate Australian women whose husbands died on active duty or from war-caused injuries or illness following their return from service.  The pension is now also paid to widows of members of the Forces and members of Peacekeeping Forces where the member’s death was defence-caused.  The pension is also payable in certain other circumstances, such as where the veteran or member was in receipt of a TPI pension when he died.  These pensions are paid under Part II of the VEA - Pensions, other than service pensions - and Part IV of the VEA - Pensions for members of Defence Force of Peacekeeping Force and their dependants.

 

 
Background (Cont.)

 

The War Pensions Act 1914 provided that a war widow’s pension was to be cancelled on re-marriage.  In 1916 the matter was reconsidered and the Parliament decided that the pension should continue for two years after a re-marriage.  This provision was included in the Repat. Act when it came into operation in 1920.  The two-year continuation provision was discontinued by the Financial Emergency Act 1931 , the pre-1916 situation was reinstated whereby the pension was cancelled on re-marriage.

 

On 2 November 1950, the legislation was amended to provide a re-marriage gratuity.  As a result, war widows who re-married immediately relinquished their pension and any associated benefits and received a gratuity equivalent to 12 months of the war widow’s pension.

 

On 29 May 1984 the then Minister for Veterans’ Affairs announced the continuation of pension benefits for war widow’s who re-married or married.  Legislation was enacted as part of the VEA.  The continuation applied only to those widows who married or re-married on or after 29 May 1984.

 

Explanation of the Changes

These amendments to the VEA will enable the payment of a war widow’s pension and associated benefits to those war widows whose pensions were cancelled only because the widow re-married or married on or before 28 May 1984.

 

The associated benefits that a war widow, being a dependant of a veteran,  may receive are:

 

·          income support supplement (means tested)

·          treatment for any condition (Gold Card);

·          counselling services;

·          funeral benefits;

·          special assistance; and

·          travelling expenses for treatment purposes.

 

This measure provides for the payment of a pension where that pension was originally granted under one of a number of Acts which have now been repealed.  Under the repealed Acts the terms “member of the Forces” or “Australian Mariner” were used to describe what we now term a “veteran” as defined in subsection 5C(1) of the VEA.

 

 
Explanation of the Changes (Cont.)

 

The measure requires an amendment to the definition of “dependant” in subsection 11(1) so that the affected widows are included as a “dependant” for the purposes of the VEA.  Their re-inclusion as a “dependant” establishes their eligibility for associated benefits, namely treatment for all conditions, counselling services, funeral benefits, special assistance and travelling expenses for treatment purposes.

 

Their reinstatement as a “war widow”, as defined in subsection 5E(1) by virtue of the restoration of their pension payable under Part II or Part IV at a rate determined under or by reference to subsection 30(1) of the VEA, establishes their eligibility for one of the criteria for income support supplement.  They will still need to meet the other criteria specified for income support supplement in Part IIIA of the VEA.

      

Explanation of the Items

 

Item 1

Item 1 inserts a new entry in alphabetical order into the index of definitions in section 5 of the VEA.  The new entry being “reinstated pensioner”. 

 

Item 2

Item 2 inserts a new paragraph (ca) after paragraph (c) in the definition of dependant in subsection 11(1) of the VEA.  The new category of person provided for by new paragraph (ca), to be included as a “dependant”, is that of a “reinstated pensioner”.  “Reinstated pensioner” is defined at new section 11AA in Item 4.

 

It should be noted that a “dependant” may be a “dependant” of a deceased veteran or a “dependant” of a deceased member of the Forces or a deceased member of a Peacekeeping Force by virtue of subsection 11(3) of the VEA.

 

Item 3

This item repeals the note at the end of subsection 11(1) and inserts new notes.  The current note becomes Note 1.  New note 2 directs the reader to the meaning of “reinstated pensioner” in new section 11AA and new note 3 alerts the reader that subsection 11(4) affects the meaning of “widow” in paragraph 11(1)(c) of the definition of “dependant”.

 

 
Item 4

 

Item 4 inserts two amendments to the VEA.  It adds a new subsection (4) at the end of section 11 and a new section 11AA after section 11.

 

New subsection 11(4) provides that a “widow” for the purposes of paragraph 1(c) of the definition of “dependant” in section 11, does not include a “reinstated pensioner”.  This is because a “widow” for the purposes of the definition of “dependant” in paragraph 11(1)(c), is restricted to a “widow” who has not married or re-married.

 

This description allows only a widow who has not re-married or married since the veteran died to make a claim for pension in respect of the veteran’s death.

 

However, it should be made clear that a “reinstated pensioner” is not excluded from the definition of a “widow” or a “war widower” in subsection 5E(1) as that definition does not exclude a person who subsequently married or re-married.  For the purposes of these definitions, a “reinstated pensioner” would also meet these criteria.

 

Item 4 also inserts a new section 11AA which provides a definition of a reinstated pensioner .  New section 11AA provides that a “reinstated pensioner” is a person who the Commission has determined to be so in accordance with new section 13AG.

 

Item 5

This item inserts a new subsection 13(7A) after subsection 13(7).  New subsection 13(7A) provides that the Commonwealth is liable to pay a pension to a “reinstated pensioner”.  This provision authorises the payment of a pension under Part II of the VEA to a “reinstated pensioner”.

 

Item 6

Item 6 amends subsection 13(8) by inserting the words “a reinstated pensioner or” after the word “being”.  So the provision will now read, in part, that:

 

Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) re-marries or marries …

 

Subsection 13(8) precludes the Commonwealth’s liability to pay a pension to a widow who re-married or married after the commencement of the VEA but before the date from which pension could be paid.  This amendment makes it clear that subsection 13(8) does not apply to a “reinstated pensioner”. 

 

Item 7

A new note is inserted at the end of subsection 13(8) by item 7.  The note advises that the meaning of “reinstated pensioner” can be found in new section 11AA.

 

 
Item 8

 

This item does for section 13(8A) what item 6 did for section 13(8).  That is it inserts the words “a reinstated pensioner or” after the word “being”.  So the provision will now read, in part, that:

 

Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) has re-married or married …

 

The transitional provisions in the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provided for persons who remarried or married during the period between 29 May 1984 and the commencement of the VEA.  Subsection 13(8A) provides a similar limitation of the Commonwealth’s liability as in subsection 13(8) in respect of a widow who re-married or married on or before 28 May 1984.  This amendment makes it clear that subsection 13(8A) does not apply to a “reinstated pensioner”. 

 

Item 9

A new note is inserted at the end of subsection 13(8A) by item 9.  The note advises that the meaning of “reinstated pensioner” can be found in new section 11AA.

 

Item 10

Item 10 amends subsection 13(11) by omitting the word “subsections” and inserting the words “subsections (7A)”.  This results in a reference to a veteran in new section 13(7A) being read to include a person in respect of whom a pension is, or pensions are, payable under subsection 13(6). The application of new section 13(7A) will therefore be to a person who meets the definition of a “veteran” in paragraph (a) of that definition in subsection 5C(1) which includes a person in respect of whom a pension is, or pensions are, payable under subsection 13(6).  This means that the widow of such a person may be eligible to apply to be a person who is a “reinstated pensioner”.

  

Item 11

Item 11 inserts a new Division 2A after Division 2 in Part II of the VEA. 

 

Division 2A - Verification determinations for reinstated pensioners

 

Application for verification determination

 

New section 13AA provides that a person must make a proper application if they wish to be determined, by the Repatriation Commission (the Commission), to be a “reinstated pensioner”.  This determination is referred to as a verification determination.

 

 
Item 11 (Cont.)

 

Who may apply

 

New section 13AB specifies who may apply for a verification determination.  New paragraph 13AB(1)(a) enables the person who is to be the subject of the verification determination to apply on their own behalf.  New paragraph 13AB(1)(b) enables another person to apply on behalf of the person who is to be the subject of the verification determination.

 

New subsection 13AB(2) provides that where an applicant is unable to approve a person to apply on their behalf, then the Commission may approve another person to make the application.  A person may be unable to approve a person to apply on their behalf because of physical or mental incapacity.

 

Application for verification determination

 

New section 13AC sets out the requirement for an application for a verification determination.  It provides that an application for a verification determination must be:

 

·          in writing; and

·          in accordance with a form approved by the Commission; and

·          accompanied by any relevant evidence available to the applicant; and

·          forwarded or delivered to an Australian office of the Department of Veterans’ Affairs.

 

Lodgement of Application

 

New section 13AD sets out the requirements for the lodgement of the application.

 

New subsection 13AD(1) provides that to be a proper application, the application must be lodged either:

 

·          at an Australian office of the Department of Veterans’ Affairs; or

·          at a place that the Commission has approved for the lodgement of applications; or

·          with a person the Commission has approved for the receiving of applications.

 

New subsection 13AD(2) requires that a place or person approved under new subsection 13AD(1) must be a place or person in Australia.

 

 
Item 11 (Cont.)

 

New subsection 13AD(3) stipulates that the lodgement of the application is taken to have happened on the day it is received either:

 

·          at the Australian office of the Department of Veterans’ Affairs; or

·          at the place approved by the Commission; or

·          by the person approved by the Commission.

 

Investigation by Secretary

 

New subsection 13AE sets out the requirements for the investigation by the Secretary of the matters relating to the verification determination.

 

New subsection 13AE(1) provides that if an application is made for a verification determination the Secretary must investigate matters that relate to the application.

 

New subsection 13AE(2) requires the Secretary to submit the application to the Commission after the Secretary has completed the investigation.  The application is submitted to the Commission so that it may consider the application and make a determination in relation to the application.

 

New subsection 13AE(3) requires that when the application is submitted to the Commission it must be accompanied by:

 

·          any evidence supplied by the applicant in connection with the application; and

·          any relevant documents or other evidence obtained by the Department in the course of the investigation; and

·          any other relevant documents or other relevant evidence under the control of the Department.

 

Duties of Commission in relation to application for verification determination

 

New section 13AF sets out the required duties of the Commission in relation to an application for a verification determination.

 

New subsection 13AF(1) provides that where an application is submitted to Commission in accordance with subsection 13AE(2), the Commission must consider all matters that, in the Commission’s opinion, are relevant to the application and determine all matters relevant to the determination of the application.

 

 
Item 11 (Cont.)

 

New subsection 13AF(2) requires the Commission, when determining a verification determination, to consider matters such as the evidence and the documents submitted with the application and any further evidence that may subsequently be submitted.

 

Verification determination

 

New section 13AG sets out the criteria that must be met for a person to be determined by the Commission, through a verification determination, to be a “reinstated pensioner”.

 

New subsection 13AG(1) sets out the criteria that must be met for a person to be determined to be a “reinstated pensioner”.  The criteria, all of which must be met are:

 

·          the person must have been eligible for and receiving a pension on or before 28 May 1984; and

·          the pension must have been granted under one of the repealed Acts because the person was a widow of a deceased member of the Forces or a widow of a deceased Australian Mariner; and

·          the person must have been married or re-married on or before

      28 May 1984; and

·          the person’s pension must have been cancelled, under the repealed Act, only because the person married or re-married on or before 28 May 1984.

 

If all these criteria are met the Commission must make a verification determination that the person is a “reinstated pensioner”.

 

New subsection 13AG(2) provides that the verification determination under new section 13AG must be in writing and takes effect only from the day that the pension becomes liable to be paid under section 13B, to the “reinstated pensioner”.  New section 13B, being inserted by item 12, stipulates when a pension is liable to be paid to a “reinstated pensioner”.  The Commonwealth is liable to pay a pension to a “reinstated pensioner” from either 1 January 2002 or from the date of lodgement of the application for a verification determination, whichever is the later date.  So if a person applies for a verification determination before 1 January 2002, and is determined by the Commission to be a “reinstated pensioner”, the pension will not be payable before 1 January 2002, but will commence to be payable from 1 January 2002.  This determination also grants the “reinstated pensioner’s” eligibility for associated benefits such as treatment and counselling services etc. from the later of the aforementioned dates.  For those who apply after 1 January 2002, and are determined to be a “reinstated pensioner”, the pension is payable from the date of lodgement of the application for a verification determination.

 

 
Item  11(Cont.)

 

New subsections 13AG(3) and (4) define a number of terms used in the new subsection 13AG(1).

 

An Australian Mariner   for the purposes of subsection 13AG(1) has the same meaning that it had in the Seamen’s War Pensions and Allowances Act 1940

 

A pension for the purposes of subsection 13AG(1) means, when referring to a pension that was granted under a repealed Act listed in paragraph (a) of the definition of repealed Act a pension, other than a service pension, that is payable to a widow under that repealed Act in respect of the death of the member. 

 

A pension for the purposes of subsection 13AG(1) means, when referring to a pension that was granted under the Seamen’s War Pensions and Allowances Act 1940 a pension that was payable to a widow under that Act in respect of the death of an Australian Mariner.

 

Repealed Act means an Act specified in Part I, II, III, IV or V of Schedule 1 of the VEA or the Seamen’s War Pensions and Allowances Act 1940.

 

A member of the Forces for the purposes of subsection 13AG(1) means:

 

·          a member of the Forces as defined in:

·          Divisions 1,6 and 8 of Part III of the Repatriation Act 1920 ; or

·          the Repatriation (Far East Strategic Reserve) Act 1956 ; or

·          the Repatriation (Special Overseas Service) Act 1962; and

 

·          a member of the Forces, or a member of a Peacekeeping Force as defined by subsection 68(1) of the VEA; and

 

·          a member of the Interim Forces as defined in the Interim Forces Benefits Act 1947 ; and

 

·          a person whose incapacity or death was taken to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces, in accordance with section 7A of the Repatriation (Special Overseas Service) Act 1962.

 

 

 
Item 12

 

A new section 13B is inserted after section 13A by item 12 to provide that a reinstated pension will be automatically paid a pension without having to make a claim for a pension.

 

New subsection 13B(1) requires a pension to be paid to a person whom the Commission has determined to be a “reinstated pensioner”  without the person needing to make a claim for pension under section 14 of the VEA and without the Commission having to make a determination under section 19 of the VEA (that is, a determination on the service relationship of the veteran’s death). 

 

This is because the Commonwealth has previously accepted liability for a pension that was paid to these “reinstated pensioner’s”.  It is therefore not necessary for the Commission to need to redetermine the Commonwealth’s liability. 

 

New subsection 13B(2) details when the Commonwealth’s liability to pay a pension to a “reinstated pensioner” commences.  A pension is to be paid to a “reinstated pensioner” from either 1 January 2002 or the date of lodgement of an application for a verification determination, whichever is the later date. 

 

Thus, if a person applies for a verification determination before 1 January 2002, and is determined by the Commission to be a “reinstated pensioner”, the pension will commence to be payable from 1 January 2002.  This determination also grants the “reinstated pensioner’s” eligibility for associated benefits, such as treatment, from the later of the aforementioned dates.  For those who apply after 1 January 2002, and are determined to be a “reinstated pensioner”, the pension is payable from the date of lodgement of the application for a verification determination.

 

Item 13

This item amends subsection 14(1) to provide that a dependant of a deceased veteran, other than a “reinstated pensioner”, may make a claim for a pension under section 14.  This makes it clear that a “reinstated pensioner” is not required to make a claim in accordance with section 14.

 

 
Item 14

 

Item 14 amends subsection 30(1) which specifies the rates at which pension is payable to a dependant of a deceased veteran, the dependant being a person who is a widow or widower of a deceased veteran.  The amendment inserts the words “or a reinstated pensioner in relation to the veteran” after the second occurrence of the word “veteran”.   The amended provision thus provides that:

 

Subject to subsection (3) the rate at which pension is payable under this Part to a dependant of a deceased veteran, being a person who is a widow or widower of the veteran or a reinstated pensioner in relation to the veteran, is a rate per fortnight …. 

 

This amendment changes subsection 30(1) so that the provision specifically stipulates that a pension payable at a rate prescribed under subsection 30(1) is the rate of pension that is payable to a “reinstated pensioner” .

 

Item 15

Item 15 inserts a new subsection 70(10B) after section 70(10A).  New subsection 70(10B) provides that the Commonwealth is liable to pay a pension to a “reinstated pensioner” in respect of a member of the Forces or a member of a Peacekeeping Force.  This provision authorises the payment of a pension to a “reinstated pensioner”. It is the same provision as that made to section 13 by item 5 for a “reinstated pensioner” in respect of a veteran.

 

Item 16

Item 16 amends subsection 70(11) by inserting the words “a reinstated pensioner or” after the word “being”.  So the provision will now read, in part, that:

 

Where a dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a reinstated pensioner or a child of the member) re-marries or marries …

 

This is the same amendment that item 6 made to subsection 13(8) for a “reinstated pensioner” in respect of a veteran.

 

 

Item 17

A new note is inserted at the end of subsection 70(11) by item 17.  The note advises that the meaning of “reinstated pensioner” can be found in new section 11AA.

 

Item 18

This item amends subsections 71(1), (2) and (4) by inserting “(2A)” before “3” in each subsection.  These amendments provide that new Division 2A in Part II of the VEA applies to a “reinstated pensioner” in respect of a member of the Forces or a member of a Peacekeeping Force in the same manner as it applies to a “reinstated pensioner” in respect of a veteran.

 

 
Item 19

 

Item 19 inserts a new subsection 86(2A) after subsection 86(2).   New subsection 86(2A) grants treatment eligibility for a “reinstated pensioner”. Treatment eligibility may only commence from the date that a pension under Part II becomes payable or would have become payable to the “reinstated pensioner”.  In accordance with new subsection 13B, a pension may be payable from either 1 January 2002 or the date of lodgement of the application for the verification determination, whichever is the later date.

 

Treatment may be provided to a “reinstated pensioner” for any injury suffered or disease contracted regardless of when the injury was suffered or the disease contracted.  This is generally referred to as a Gold Card entitlement.

 

Item 20

This item repeals subsection 100(1) and inserts a new subsection 100(1).  This amendment provides funeral benefits eligibility for a deceased “reinstated pensioner” by virtue of new paragraph (b) in new subsection 100(1).

 

Item 21

Item 21 inserts a new subsection 175(1A) after subsection 175(1).  New subsection 175(1A) provides that a person may apply to the Administrative Appeals Tribunal for a review of a decision if the Commission, under subsection 13AG, decides not to make a verification determination in respect of the person.

 

Item 22

Subsection 175(2A) is amended by item 22 to include new subsection 175(1A) so that the person’s right to apply to the Administrative Appeals Tribunal, under new subsection 175(1A), is subject to section 29 of the Administrative Appeals Tribunal Act 1975

 

Commencement

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

 



 

 

Schedule 4

Amendments consequential on changed administrative law arrangements

 

Overview

These amendments cater for the possible changes to review arrangements in relation to administrative law.  The amendments will only have effect if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence.

 

Item 1

Item 1 will change the reference to the “Administrative Appeals Tribunal” in new paragraph 93ZE(1)(c) to a reference to the “Administrative Review Tribunal”.

 

Item 2

Item 2 will change the reference to the “Administrative Appeals Tribunal” in new subsection 175(1A) to a reference to the “Administrative Review Tribunal”.

 

Item 3

Item 3 will change the reference to the “Administrative Appeals Tribunal” in new subsection 175(2AAAA) to a reference to the “Administrative Review Tribunal”.

 

Commencement

Subclause 2(3) provides that items 1 and 3 of this Schedule commence on the later of the following dates:

 

·          the time that is immediately after the commencement of Schedule 1 of this Act; and

·          the time when Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence.

 

Subclause 2(4) provides that item 2 of this Schedule commences on the later of the following dates:

 

·          the time that is immediately after the commencement of Schedule 3 of this Act; and

·          the time when Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence.