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Veterans' Affairs Legislation Amendment Bill (No. 1) 2002

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2002

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT BILL (No. 1) 2002

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

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

The Honourable Danna Vale MP)

 





Table of Contents

 

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

 

            1          Short Title…………………………………………………….          vi

            2          Commencement………………………………………………          vi

            3          Schedule(s)…………………………………………………...          vi

 

 

 

Schedule 1 -   Amendment of the Social Security Act 1991                                     1

 

Schedule 2 -   Amendment of the Social Security (Administration Act) 1999      11

 

Schedule 3 -   Amendment of the Aged Care (Consequential Provisions)
Act 1997                                                                                             14

 

Schedule 4 -   Amendment of the Social Security and Veterans’ Affairs

Legislation Amendment (Family and Other Measures)

Act 1997                                                                                             16

 

Schedule 5 -    Amendment of the Veterans’ Affairs Legislation Amendment

                        (Budget and Compensation Measures) Act 1997                           18

 

Schedule 6 - Amendment of the Veterans’ Entitlements Act 1986                       20

 

Schedule 7 - Amendment of the Veterans’ Affairs Legislation Amendment

Act (No. 1) 2000                                                                                 41

 

 

 

 

 

 



OUTLINE AND FINANCIAL IMPACT

 

 

Schedule 1 - Amendment of the Social Security Act 1991

 

 

 
Outline
 

These amendments to the Social Security Act 1991 are a consequence of the introduction of the payment of Income Support Supplement under the VEA in 1994.

 

At that time consequential amendments were made to those provisions of the Social Security Act 1991 most affected by the introduction of the payment.  These amendments provide for the completion of all of the amendments required as a consequence of the introduction of the payment.

 

 
Date of Effect
 

Royal Assent

 

Financial Impact

 

No financial impact.

 

 

Schedule 2 - Amendment of the Social Security (Administration ) Act 1999

 

 

 

Outline

 

These amendments to the Social Security (Administration) Act 1999 (SSAA) are a consequence of the introduction of the payment of Income Support Supplement under the VEA in 1994.

 

At the time the SSAA was introduced the appropriate references to the “income support supplement” were not included.

 

 

Date of Effect

 

Royal Assent

 

Financial Impact
 

No financial impact.

 



Schedule 3 - Amendment of the Aged Care (Consequential Provisions) Act 1997

 

 

 
Outline
 

These amendments to the Aged Care (Consequential Provisions) Act 1997 are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made .

 

 

Date of Effect

 

20 September 1998

 

Financial Impact
 

No financial impact.

 

Schedule 4 - Amendment of the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997

 

 

 
Outline

 

This amendment to the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997 is a technical amendment to correct a misdescribed amendment that resulted in the intended amendment not being made.

 
Date of Effect

 

1 January 1998

 

Financial Impact

 

No financial impact.

 



Schedule 5 -Amendment of the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997

 

 

 
Outline

 

These amendments to the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made.

 
Date of Effect

 

Refer to section 2 .

 

Financial Impact

 

No financial impact

 

Schedule 6 - Amendment of the Veterans’ Entitlements Act 1986

 

 

 
Outline

 

These amendments are minor technical amendments to correct incorrect legislative references, redundancies, omissions and other typographical errors in the Veterans’ Entitlements Act 1986 .

 
Date of Effect

 

Refer to section 2 .

 

Financial Impact

 

No financial impact.

 



Schedule 7 - Amendment of the Veterans’ Affairs Legislation Amendment Act (No. 1) 2000

 

 

 
Outline

 

These amendments to the Veterans’ Affairs Legislation Amendment Act (No. 1) 2000 are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made.

 
Date of Effect

 

24 November 2000 .

 

Financial Impact

 

No financial impact

 

 

 



 

Clauses

 

 
Short Title

 

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

 

 
Commencement

 

Clause 2 sets out 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

 

Amendment of the Social Security Act 1991

 

 

Overview

 

These amendments to the Social Security Act 1991 are a consequence of the introduction of the payment of Income Support Supplement under the VEA in 1994.

 

At that time consequential amendments were made to those provisions of the Social Security Act 1991 most affected by the introduction of the payment.  These amendments provide for the completion of all of the amendments required as a consequence of the introduction of the payment.

 

 

Background

 

The payment of the Income Support Supplement under the Veterans’ Entitlements Act 1986 (VEA) commenced from 20 March 1995.  The amendments introducing the payment were included in the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (No. 98 of 1994) (the amending Act).

 

The payment is an income and asset tested amount available to war widows and widowers who do not receive an age or invalidity service pension.  The payment is provided as an alternative to the income support payments that are payable under the Social Security Act 1991 (SSA), and allows war widows and widowers to receive both the war widow or widower pension and income support payment from the Department of Veterans’ Affairs.

 

The amending Act inserted new Part IIIA into the VEA to provide for the assessment and payment of the supplement.  The amending Act also made consequential amendments to the SSA to prevent a war widow or widower from receiving a social security payment unless the person was receiving the payment prior to 20 March 1995 and made an election to continue to receive the payment.

 

Further consequential amendments were made by subsequent Acts and appropriate references to the receipt of an “income support supplement” have been included in amendments made to the SSA since those made by amending Act.

 

The overall position is that the consequential amendments are incomplete and the deficiencies have created anomalies in the administration of social security law.  These anomalies have resulted in the need on some occasions for an “Act of grace” payment where a person has been ineligible for a bereavement payment.

 

 

 

Explanation of the Changes

 

 

These amendments give effect to the all of the remaining consequential amendments to the Social Security Act 1991 resulting from the amendments to the Veterans’ Entitlements Act 1986 made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (No. 98 of 1994).

 

 

Explanation of the Items

 

 

Items 1 to 14 insert a reference where appropriate to either an “income support supplement” or “supplement” into the various provisions of Part 1.2 which define terms for the purposes of the Social Security Act 1991 .

 

 

Items 15 and 16, 19 and 20, 26, 28, 31, 39, 43, 48, 52 and 53 amend sections 82, 146F, 514A, 567, 592, 660YKC, 728PA, 768A and 822, which provide for the payment of a bereavement payment to a person on the death of the person’s partner where the deceased partner was receiving income support payment under the SSA or a service pension.

 

The payment is made to a surviving partner who is in receipt of an income support payment under the SSA.  The amendments insert a reference in the provisions to the deceased partner receiving an “income support supplement”.

 

 

Items 17, 21, 39, 50 and 51, 54 and 55 and 57 amend sections 83, 146G, 660YKB, 771NU, 823 and 1033 which provide for the period that bereavement payments are payable to the surviving partner or guardian.

 

The amendments insert a reference in the provisions to either the deceased partner or the guardian receiving an “income support supplement”.

 

 

Items 18, 22 and 56 amend sections 91, 146Q and 830 which provide for the payment of an accrued instalment of an income support payment on the death of the intended recipient.

 

The accrued instalment is payable to the estate of the deceased person or to another person at the discretion of the Secretary where the deceased was single or was the partner of a person not in receipt of an income support payment.

 

The amendments insert a reference to the deceased person’s partner not being in receipt of an “income support supplement”.

 

 

Item 23 amends the Note to subsection 236A(1).  Subsection 236A(1) provides that a bereavement lump sum payment may be payable on the death of a care receiver who is not the carer’s partner.

 

The Note to subsection 236A(1) is to be amended to include a reference to the partner of the person who died being eligible for a bereavement payment if in receipt of an “income support supplement”.

 

 

Items 24 and 25, 27, 30, 34 and 35, 37 and 38, 41 and 42 and 46 and 47 amend sections 408CF, 552, 578, 614, 660YCF, 686, and 735 to include a person in receipt of “income support supplement” in the provisions relating to multiple entitlement exclusion.

 

The multiple entitlement provisions prevent a pension or allowance being payable under Social Security law to a person in receipt of certain payments under Social Security or the Veterans’ Entitlements Act 1986 .

 

 

Item 29 amends the table in section 573A.  Section 573A provides a table listing the various pension payments and benefits received by a person’s partner that will exclude a person from the application of the austudy assets test.

 

The table is being amended to include a reference to a person’s partner receiving an “income support supplement” under section 45A of the VEA.

 

 

Item 32 amends paragraph 593(4)(a).   Section 593 provides for the payment of the Newstart Allowance.  Paragraph 593(4)(a) provides that a person will be qualified for the payment from the first day of the payment period if the claim for the allowance is made within 14 days after the payment of the last instalment of social security or service pension.

 

The paragraph is being amended to include a reference to the person receiving a last instalment of “income support supplement”.

 

 

Items 33, 40 and 45 amend sections 612, 681 and 734.  Sections 612, 681 and 734 respectively provide the method for treating the value of the assets held by both members of a couple for the purposes of the assets test when one of the members is applying for the payment of the Newstart Allowance, sickness allowance or special benefit.

 

Subparagraphs (1)(b)(i) and (2)(b)(i) of the respective sections are being amended respectively to include a reference to the partner of the applicant either not being in receipt of an “income support supplement” or being in receipt of the payment.

 

 

Item 36 amends section 660YBA which provides for the payment of a mature age allowance (post 30 June 1996) to those persons qualified for the payment.

 

One of the qualifications for the payment is that a person must have been receiving either a social security pension, other benefits or a service pension at any time during the 13 week period before the claim for the allowance is made.

 

Paragraph 660YBA(3)(c) is being amended to include a reference to the person receiving an “income support supplement” during that period.

 

 

Item 44 amends section 729 which provides for the payment of a special benefit in certain circumstances.

 

Subsection 729(6) provides that a person who was previously receiving a social security or service pension will be qualified for the payment of the special benefit from the first day of the payment period if the claim for special benefit is made within 14 days after the payment of the last instalment of social security or service pension.

 

Paragraph 729(6)(a) is being amended to include a reference to the person receiving an instalment of “income support supplement”.

 

 

Item 49 amends section 771HA which provides for the payment of a partner allowance to those persons qualified for the payment.

 

One of the qualifications for the payment is that the partner of the applicant must be receiving a social security pension or benefit or a service pension.

 

Subparagraph 771HA(1)(c)(i) is being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Item 58 amends section 1061PJ which provides that a person will be eligible to receive a pensioner education supplement if they are receiving a social security or service pension.

 

Paragraph 1061PJ(3)(b) is being amended to include a reference to the person receiving an “income support supplement”.

 

 

Items 59 to 66 amend Table DA in point 1064-D2, point 1064-D4 and Table D in point 1064-D5.

 

Table DA determines the amount of the rent threshold that is applicable for the purposes of determining the amount of rent assistance that is payable under Part 3.3 of the SSA.

 

Point 1064-D4 defines the term “partner with a rent increased pension” for the purposes of the Rent Assistance Module in Part 3.3 of the SSA

 

Point 1064-D5 provides Table D which determines the amount of rent assistance payable under Part 3.3 of the SSA.

 

Items 4, 5 and 6 of Table DA in point 1064-D2, paragraphs 1064-D4(b) and (c) and items 4, 5 and 6 of Table D in point 1064-D5 are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 67 to 74 amend Table EAA in point 1066A-EA2A, point 1066A-EA11 and Table EA in 1066A-EA12.

 

Table EAA determines the amount of the rent threshold that is applicable for the purposes of determining the amount of rent assistance that is payable under Part 3.4A of the SSA to persons aged under 18.

 

Point 1066A-EA11 defines the term “partner with a rent increased pension” for the purposes of the Rent Assistance Module in Part 3.4A of the SSA

 

Point 1066A-EA12 provides Table EA which determines the amount of rent assistance payable under Part 3.4A of the SSA to persons aged under 18.

 

Items 5, 6 and 7 of Table EAA in point 1066A-EA2A, paragraphs 1066A-EA11(b) and (c) and items 5, 6 and 7 of Table EA in point 1066A-EA12 are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 75 to 82 amend Table EBA in point 1066A-EB2A, point 1066A-EB12 and Table EB in 1066A-EB13.

 

Table EBA determines the amount of the rent threshold that is applicable for the purposes of determining the amount of rent assistance that is payable under Part 3.4A of the SSA to persons aged 18 or more.

 

Point 1066A-EB12 defines the term “partner with a rent increased pension” for the purposes of the Rent Assistance Module in Part 3.4A of the SSA

 

Point 1066A-EB13 provides Table EB which determines the amount of rent assistance payable under Part 3.4A of the SSA to persons aged 18 or more.

 

Items 5, 6 and 7 of Table EBA in point 1066A-EB2A, paragraphs 1066A-EB12(b) and (c) and items 5, 6 and 7 of Table EB in point 1066A-EB13 are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 83 and 84 amend point 1067G-D3 which defines the term “partner with a rent increased pension” for the purposes of the Rent Assistance Module D for Part 3.5 of the SSA.

 

Paragraphs 1067-D3(b) and (c) are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 85 and 86 amend points 1067G-H2 and 1067G-H27 of the Module H Income Test for Part 3.5 of the SSA.

 

Point 1067G-H2 provides for the determination of the ordinary income of a member of a couple.

 

Point 1067G-H27 provides for the determination of the amount of partner income excess of a member of a couple.

 

Point 1067G-H2 and paragraph 1067G-H27(b) are being amended to include a reference to the partner either receiving or not receiving an “income support supplement”.

 

 

Items 87 and 88 amend Module L of the Youth Allowance Rate Calculator in section 1067G.  Module L provides a table listing the various types of pensions, benefits and allowances that are referred to in Part 3.5 and provides a reference to the provisions under which they are payable.

 

Item 7 of the Module L of section 1067G refers to a person receiving a “partner service pension” and is being amended to refer to the person’s “partner” receiving a service pension rather than to the person’s husband receiving a service pension.

 

A new item 7A is being inserted in the Module to include a person in receipt of an “income support supplement” under section 45A of the VEA.

 

 

Items 89 and 90 amend points 1067L-D2 and 1067L-D26 of the Module D Income Test for Part 3.5A of the SSA.

 

Point 1067L-D2 provides for the determination of the ordinary income of a member of a couple.

 

Point 1067L-D26 provides for the determination of the amount of partner income excess of a member of a couple.

 

Points 1067L-D2 and 1067L-D26 are being amended to include a reference to the partner either receiving or not receiving an “income support supplement”.

 

 

Items 91 to 93 amend Table B in point 1068-B1.  Table B in point 1068-B1 provides for the determination of the maximum basic rate of the benefits payable under Part 3.6 of the SSA.

 

Items 4, 4B and 5 of Table B in point 1068-B1 are being amended to include a reference to the person either receiving or not receiving an “income support supplement”.

 

 

Items 94 and 95 amend point 1068-F2 which defines the term “partner with a rent increased pension” for the purposes of Rent Assistance Module F in Part 3.6 of the SSA.

 

Paragraphs 1068-F2(b) and (c) are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 96 to 98 amend points 1068-G1, 1068-G2 and 1068-G10 of the Module G Income Test for Part 3.6 of the SSA.

 

Point 1068-G1 provides the Method Statement for determining the ordinary income of a member of a couple.

 

Point 1068-G2 provides for the determination of the amount of income for each of the members of a couple.

 

Point 1068-G10 provides for the determination of the amount of partner income excess of a member of a couple.

 

Points 1068-G1, 1068-G2 and 1068-G10 are being amended to include a reference to the partner either receiving or not receiving an “income support supplement”.

 

 

Item 99 amends point 1068-J4 which defines the term remote area allowance” for the purposes of the Remote Area Allowance Module J of Part 3.6 of the SSA.

 

The obsolete reference in point 1068-J4 to the applicable provisions of the VEA is being amended to include a reference to the current provisions.

 

 

Items 100 and 101 amend points 1068B-D2 and 1068B-D23 of the Module D Income Test for Part 3.6A of the SSA.

 

Point 1068B-D2 provides for the determination of the ordinary income of a member of a couple.

 

Point 1068B-D23 provides for the determination of the amount of partner income excess of a member of a couple.

 

Points 1068B-D2 and 1068B-D23 are being amended to include a reference to the partner either receiving or not receiving an “income support supplement”.

 

 

Items 102 and 103 amend point 1068B-F3 which defines the term “partner with a rent increased pension” for the purposes of Rent Assistance Module F in Part 3.6A of the SSA.

 

Paragraphs 1068B-F3(b) and (c) are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Item 104 amends point 1068B-G3 which defines the term remote area allowance” for the purposes of the Remote Area Allowance Module J of Part 3.6A of the SSA.

 

The obsolete reference in point 1068B-G3 to the applicable provisions of the VEA is being amended to include a reference to the current provisions.

 

 

Item 105 amends section 1106 which provides for a test for determining whether a person is to be regarded as having disposed of income.

 

A person will be regarded as having disposed of income if the dominant purpose of various courses of conduct was to obtain “ a social security advantage”.

 

Subsection 1106(2) defines what constitutes a “social security advantage” and includes references to a person or their partner receiving a “service pension”.

 

Paragraphs 1106(2)(a) and (b) are being amended to include a reference to the person or the person’s partner obtaining an “income support supplement”.

 

 

Item 106 amends section 1123 which provides for a test for determining whether a person is to be regarded as having disposed of an asset.

 

A person will be regarded as having disposed of an asset if the dominant purpose of various courses of conduct was to obtain “ a social security advantage”.

 

Subsection 1123(2) defines what constitutes a “social security advantage” and includes references to a person or their partner receiving a “service pension”.

 

Paragraphs 1123(2)(a) and (b) are being repealed and replaced with paragraphs that include a reference to the person or the person’s partner obtaining an “income support supplement”.

 

 

Item 107 amends Table A in section 1188C.  Section 1188C provides for a reduction in social security payments where the recipient or the recipient’s partner is receiving payments under the CDEP scheme.

 

Table A provides a listing of the various threshold amounts applicable for determining the amount of the reduction.  Table A lists the various social security and other benefits payable in certain family situations with a reference to the location of the threshold amount and includes references to a person receiving a service pension.

 

Items 17, 18, 24 and 25 of Table A in section 1188C are being amended to include a reference to a person receiving an “income support supplement”.

 

 

Items 108 and 109 amend section 1190.  Section 1190 lists the various payments under the SSA that are to be adjusted for indexation.

 

The pension payments and benefits for persons in various situations are listed in a Table with a reference to the location of the provision specifying the amount to be adjusted.

 

Items 55 and 56 of the Table which refer to a person’s partner either getting or not getting a “telephone allowance” and a “service pension” are to be amended to remove the reference to the partner receiving a "service pension”.

 

 

Item 110 amends paragraph 63(10)(d) of Schedule 1A by replacing the reference to “clause 4” with a reference to “clause 5”.

 

Amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 had renumbered the clauses of Schedule 5 of the VEA with the result that what had been clause 4 was renumbered as clause 5.

 

 

Item 111 amends clause 120A of Schedule 1A.  Clause 120A of Schedule 1A is a transitional provision dealing with persons who had entered into a binding arrangement for the provision of an income stream and who were in receipt of a social security or service pension on 19 September 1998.

 

The equivalent provision in the VEA includes a person in receipt of an “income support supplement”.

 

Paragraph 120A(2)(b) of Schedule 1A is being amended to include a reference to a person receiving an “income support supplement”.

 

 



 

Schedule 2

 

Amendment of the Social Security (Administration )Act 1999

 

 

Overview

 

These amendments to the Social Security (Administration) Act 1999 (SSAA) are a consequence of the introduction of the payment of Income Support Supplement under the VEA in 1994.

 

At the time the SSAA was introduced the appropriate amendments referring to the “income support supplement” were not made.

 

Background

 

The payment of the Income Support Supplement under the Veterans’ Entitlements Act 1986 (VEA) commenced from 20 March 1995.  The amendments introducing the payment were included in the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (No. 98 of 1994) (the amending Act).

 

The payment is an income and asset tested amount available to war widows and widowers who do not receive an age or invalidity service pension.  The payment is provided as an alternative to the income support payments that are payable under the Social Security Act 1991 (SSA), and allows war widows and widowers to receive both the war widow or widower pension and income support payment from the Department of Veterans’ Affairs.

 

 

Explanation of the Changes

 

 

These amendments give effect to the consequential amendments to the Social Security (Administration) Act 1999 resulting from the introduction of the payment of the “income support supplement”.

 

 



Explanation of the Items

 

 

Item 1 amends section 90 which provides for the automatic termination of a person’s social security or benefit (the old payment) if another social security pension or benefit (the new pension or benefit or a service pension becomes payable to the person.

 

Subparagraph 90(1)(b)(ii) is being amended to include a reference to a person being eligible for an “income support supplement”.

 

 

Items 2 and 3 amend section 91 which provides that a person’ parenting payment will be automatically cancelled from the day before the day that is the person’s start day for a new social security benefit (other than benefit (PP) partnered) or social security  or service pension.

 

Paragraph 91(2)(b) and subsection 91(2) are being respectively amended to include a reference to an “income support supplement” becoming payable to the person.

 

 

Item 4 amends section 96 which provides that the Secretary may suspend rather than cancel a disability support pension of a person who has obtained paid work.

 

The disability support pension may be suspended in the circumstances where a person has obtained paid work for at least 30 hours per week and has informed the Secretary within the notification period.

 

Subsection 96(5) provides that if a person’s disability support pension is suspended, and the person’s partner is receiving age, disability or service pension, then for the duration of the suspension, the person’s partner is taken to be “partnered (partner getting neither pension nor benefit)”.

 

Subparagraph 96(5)(b)(ii) is being amended to include a reference to the partner receiving an “income support supplement” for the purposes of the definition.

 

 

Items 5 and 6 amend section 98.  Section 98 is applicable where the partner of a social security recipient starts to receive a social security pension or benefit or service pension, and as a consequence the person’s social security payment is reduced from that date.

 

Subparagraph 98(b)(ii) and paragraph 98(c) are being amended to include a reference to the partner receiving an “income support supplement”.

 

 

Items 7 and 8 amend section 101.  Section 101 is applicable where a person who is a member of a couple receiving parenting payment.  When a social security or a service pension becomes payable to the person at a rate which results in a reduction in the rate of the parenting payment, the reduced rate is payable from the day on which the social security or service pension becomes payable to the person.

 

Paragraph 101(b) and section 101 are being amended to include a reference to an “income support supplement” becoming payable to the person.

 

 

Item 9 amends section 110.  Section 110 provides for the date of effect of a favourable determination of the Department following notification under a section 68 notice.

 

Subsection 110(5) refers to the death of a person’s partner where the partner was not in receipt of a social security or service pension.

 

Subsection 110(5) is being amended to include a reference to the person’s partner not being in receipt of an “income support supplement”.

 

 



Schedule 3

 

Amendment of the Aged Care (Consequential Provisions) Act 1997

 

 

Overview

 

Schedule 3 amends the Aged Care (Consequential Provisions) Act 1997 .

These are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made.

 

 

Background

 

The amendments made by Schedule 4 of the Aged Care (Consequential Provisions) Act 1997 (the amending Act) were consequential to amendments made by the Aged Care Act 1997 .

 

The amendments made by Part 1 of the amending Act removed the residential care allowance from the VEA.

 

The amendments made by Part 2 of the amending Act provided for the inclusion in the VEA of the different “in care” definitions.

 

Items 60 and 75 of Part 2 of Schedule 4 of the amending Act purported to replace the terms previously used with the new terms that applied.  The amendments were misdescribed and were not made.

 

 

Explanation of the Changes

 

The amendments correct the two misdescribed amendments and allow for the proposed amendments to paragraphs 5L(7)(d) and 5R(6)(c) to be made.

 

 



Explanation of the Items

 

 

Item 1 amends the proposed amendment to be made by Item 60 of Schedule 4 of the Aged Care (Consequential Provisions) Act 1997 .

 

Item 60 has been amended so that the words “started to be in a relevant care situation” in paragraph 5L(7)(d) are replaced with the words “started to be either in a care situation or an aged care resident”.

 

 

Item 2 amends the proposed amendment to be made by Item 75 of Schedule 4 of the Aged Care (Consequential Provisions) Act 1997 .

 

Item 75 has been amended so that the words “has entered the approved respite care” in paragraph 5R(6)(c) are replaced with “is in respite care”.

 

 



Schedule 4

 

Amendment of the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997

 

 

Overview

 

Schedule 4 amends the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997 .

 

This is a technical amendment to correct a misdescribed amendment that resulted in the intended amendment not being made.

 

 

Background

 

The amendments made by Schedule 19 of the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997 (the amending Act) removed the entitlement to rent assistance of any person who pays rent for living in premises for which a public housing tenant receives subsidised accommodation.

 

Item 5 of Schedule 19 of the amending Act purported to amend section 5N of the VEA by inserting new subsection 5N(4A), to provide the general rule that if a person pays, or is liable to pay, rent for living in premises in respect of which someone else is paying Government rent, the rent paid or payable by the person for living in those premises is taken to be Government rent unless the rent payable by the other person is at the market rate.

 

The amendment was misdescribed and was not made.

 

 

Explanation of the Changes

 

 

The amendment corrects the misdescribed amendment and allows for the proposed amendment to section 5N to be made.

 

 



Explanation of the Item

 

 

Item 1 amends the proposed amendment to be made by Item 5 of Schedule 19 of the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997 .

 

Item 5 has been amended so that new subsection 5N(4) is inserted after subsection 5N(3B).

 

 



Schedule 5

 

Amendment of the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997

 

 

Overview

 

Schedule 5 amends the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .

 

These are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made.

 

B ackground

 

The amendments made by Part 5 of Schedule 1 of the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 (the amending Act) removed all the carer provisions from the VEA, allowing the recipients to transfer to a similar payment under the Social Security Act 1991 .

 

Item 97 of Schedule 1 of the amending Act purported to remove the reference to a person receiving a carer service pension from the note to subsection 56J(2).

 

The amendments made by Part 9 of Schedule 8 of the amending Act were minor technical amendments to correct incorrect legislative references, redundancies, omissions and other typographical errors in Veterans’ Affairs legislation.

 

Item 28 of Part 9 of Schedule 8 of the amending Act renumbered the duplicate paragraph 5H(8)(zl) as paragraph 5H(8)(zm).  The commencement date of the amendment was the date of Royal Assent, 3 November 1997.  The proposed amendment should have backdated the amendment to commence from 4 July 1996, as that was the date of commencement of the provision inserting the last occurrence of paragraph 5H(8)(zl).

 

The amendments were misdescribed and were not made .

 

 

Explanation of the Changes

 

 

The amendments correct the misdescribed amendments and allow for the proposed amendment to be made.

 



Explanation of the Items

 

 

Item 1 inserts new commencement provision, subsection 2(16A) into the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .

 

Subsection 2(16A) provides that Item 287 of Schedule 8 is taken to have commenced on 4 July 1996 immediately after the commencement of Schedule 7 of the Veterans’ Affairs Legislation Amendment (1995-96 Budget Measures) Act (No. 2) 1995 .

 

 

Item 2 amends the proposed amendment to be made by Item 97 of Schedule 1 of the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .

 

Item 97 has been amended so that the reference to a person receiving a carer service pension has been removed from the note to subsection 56J(2).

 

 



Schedule 6

 

Amendment of the Veterans’ Entitlements Act 1986

 

 

Overview

 

Schedule 6 provides for a series of minor technical amendments to correct incorrect legislative references, obsolete references, omissions and other typographical errors in the Veterans’ Entitlements Act 1986 .

 

 

 



Explanation of the Items

 

 

Item 1 inserts a series of definitions into the section 5 (index of definitions).  The definitions relate to the compensation recovery definitions inserted in section 5NB by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No. 2) 1994 .

 

 

Item 2 repeals the definitions of “child in receipt of income”, “pension increase child” and “prescribed student child” from the section 5 (index of definitions).

 

The listings of the definitions should have been repealed at the same time as the amendments contained in the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .  The amendments made by the Act related to the transfer of child related payments to the Department of Social Security.

 

 

Item 3 amends the listing of the definition of “defined benefit income stream” in the section 5 (index of definitions).  The subsection 5J(1E) definition and the listing were inserted as part of the amendments made by the Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1997 .

 

The reference in the listing to the definition was incorrect as it referred to subsection “5J(IE)” not to “5J(1E)” as it should have.

 

 

Items 4 and 14 repeal the listing of “exempt assets” from the section 5 (index of definitions) and also repeal the definition of the term in subsection 5L(1).

 

The term was defined in subsection 5L(1) and was used in section 52ZE in relation to the Pension Loans Scheme.  Section 52ZE was repealed and substituted in amendments made by the Social Security and Veterans’ Affairs Legislation Amendment Act 1995 .  The definition of “exempt assets” in subsection 5L(1) and the listing in section 5 should have been repealed at that time.

 

 

Item 5 repeals and substitutes a new listing for “illness separated couple” in the section 5 (index of definitions) which lists the location of the definition as subsection 5R(5).

 

The current listing was inserted by an amendment included in the Veterans’ Affairs Legislation Amendment and Repeal Act 1995 .  The amendment incorrectly referred to the location of the definition as subsections “5R(5) and (5A)”.  The reference is redundant as subsection 5R(5A) does not and has not existed.

 

 

Items 6 and 13 repeal the listing of “presently payable” from the section 5 (index of definitions) and also repeal the definition of the term in subsection 5J(1).

 

The term was defined in subsection 5J(1) by reference to the definition provided by subsection 5J(3).  Subsection 5J(3) was repealed in amendments made by the Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998 .  The definition of “presently payable” in subsection 5J(1) and the listing in section 5 should have been repealed at that time.

 

 

Items 7 and 9 repeal the listing of “receiving full-time education at a school, college or university” from the section 5 (index of definitions) and also repeal the definition of the term in subsection 5F(1).

 

The term was defined in subsection 5F(1) by reference to the definition provided by subsection 5F(5).  Subsection 5F(5) was repealed in amendments made by the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 .  The definition of “receiving full-time education at a school, college or university” in subsection 5F(1) and the listing in section 5 should have been repealed at that time.

 

 

Item 8 repeals and substitutes the listing for “retirement age” in the section 5 (index of definitions).

 

The term is defined in subsection 5Q(1) and the definition and listing were inserted by amendments made by the Social Security and Veterans’ Affairs Legislation Amendment (Retirement Assistance for Farmers) Act 1998 .

 

The reference in the listing to the definition was incorrect as it referred to subsection “5Q1” not to “5Q(1)” as it should have.

 

 

Item 10 amends the definition of “adjusted income” in subsection 5H(1) inserted as part of the amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 to provide for the payment of the “income support supplement”.

 

The definition of “adjusted income” in subsection 5H(1) states that it is applicable to a person “claiming, or entitled to, income support supplement”.  The amendment replaces those words with the following “for the purpose of assessment of the rate of income support supplement”.

 

Module E of the Schedule 6 Rate Calculator provides for the application of the income test in assessing the rate of service pension or income support supplement payable to a member of a couple.  Point SCH-E3 states that if a person is a member of a couple “add the annual rates of the couple’s ordinary/ adjusted incomes and divide by 2 to work out the amount of the person’s ordinary/ adjusted income”.

 

The amended definition correctly reflects that the “adjusted income” of a person is used for the purposes of assessing the rate of income support supplement.

 

 

Item 11 amends Note 1 to the definition of “ordinary income” in subsection 5H(1) by replacing the reference to the location of the definition of “exempt lump sum”.

 

The amendment corrects an error in an amendment made by the Aged Care Amendment (Omnibus) Act 1999 .  That Act inserted the definition of “exempt lump sum” in subsection 5H(12) and also incorrectly amended Note 1 to the definition of “ordinary income” in subsection 5H(1) by including a reference to the location of the definition of “exempt lump sum” as being in subsection 5H(8).

 

 

Item 12 amends the definition of “assessable period” in subsection 5J(1) by including a reference to a person receiving an “income support supplement”.

 

The amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 provided for the payment of the “income support supplement”.

 

An amendment to the definition of “assessable period” in subsection 5J(1) was overlooked at that time and not included in the consequential amendments made by that Act.

 

 

Item 15 amends subsection 5R(11) by replacing the reference to “a pensioner add-on child or an income support supplement add-on child (as the case may be)” with a reference to “an FTB child”.

 

The reference should have been replaced with a reference to “FP child” at the same time as the amendments contained in the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .  The amendments made by the Act related to the transfer of child related payments to the Department of Social Security.

 

Subsequent amendments made by the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No.2) 1999 replaced references to “FP child” with the term “FTB child”.

 

 

Item 16 amends the subsection 6B(5) reference to operational service by Australian mariners by replacing the reference to service by a “member” with a reference to the service of a “person”.

 

The error was contained in the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .

 

 

Item 17 amends the paragraph 6D(2)(a) reference to operational service by a member of the Defence force by replacing the reference to service by a member of the “Defence force” with a reference to the service of a member of the “Defence Force”.

 

The error was contained in the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .

 

 

Item 18 amends subsection 13(5) by replacing the obsolete reference to paragraphs 6(1)(f) and (g) with a reference to the replacement provisions, item 3 of the table in subsection 6A(1) and subsection 6C(2).

 

Section 13 provides that a veteran with operational service will be eligible for a disability pension if they have become incapacitated from a war-caused injury or disease.

 

Item 3 of the table in subsection 6A(1) and subsection 6C(2) refer to the operational service of members of Commonwealth and allied forces who were domiciled in Australia immediately before enlistment in those forces.

 

 

Item 19 is a minor amendment to paragraph 22(5)(b) by correcting the order in which the sections referred to in that paragraph are put.

 

An amendment made by the Veterans’ Affairs Legislation Amendment Act 1994 incorrectly inserted a reference to section “30P” after the reference to section 79 in paragraph 22(5)(b).

 

 

Items 20, 55, 58, 59, 63, 66 and 68 amend a number of the provisions of the VEA that provide for the making of subordinate legislative instruments.

 

The amendment insert new subsections 29(2A), 90(5A), 90A(3A), 91(2A), 105(2A), 115B(2A) and 117(2A).

 

The new subsections provide for the incorporation of non-legislative documents that are in force or existing at a particular time or are as in force from time to time.

 

The amendments will provide for more flexibility in the operation of the provisions and will prevent the need for amendments to the instruments when there are changes to the specifications referred to in non-legislative documents that have been incorporated into provisions of the instruments.

 

While the amendments run contrary to the intention to the provisions of section 49A of the Acts Interpretation Act 1901 they can be made on the basis that the section will allow such provisions where that contrary intention has been expressly stated.

 

 

Items 21 and 22 amend some minor errors in section 29.

 

A grammatical error in subsection 29(8) has been amended by replacing the words “that have been so approved” with the words “that has been so approved”.

 

The word “of” has been inserted after the word “application” in subsection 29(10) so that the first few words of the subsection can now be read as “For the purpose of the application of the provisions of the Acts Interpretation Act 1901 ....”.

 

 

Item 23 amends the reference in paragraph 30C(4)(b) to a pension payable under Part II of the VEA so that it correctly refers to paragraphs 30C(1)(c), (2)(c) or (3)(c).

 

Section 30C was inserted by the Veterans’ Affairs Legislation Amendment Act 1994 and the references in paragraph 4(b) incorrectly referred to “paragraphs (1)(b), (2)(b) or (3)(b)”.

 

 

Items 24, 25, 26 and 29 amend the notes to subsections 36L(4), 37L(4), 38L(4) and 45Q(4).  Sections 36L, 37L, 38L and 45Q respectively set out the duties of the Repatriation Commission in relation to the consideration and determination of a claim for an age service pension, invalidity service pension, partner service pension or an income support supplement.

 

The notes to subsection (4) of those sections refer a claimant to apply to the Repatriation Commission for a review under “Division 16” of the VEA of a determination under the section.

 

The amendments to the notes correctly refer the reader to “Division 16 of Part IIIB”.

 

 

Item 27 amends paragraph 45B(c) which refers to one of the circumstances in which an income support supplement will not be payable even though a person is eligible for the payment.

 

The reference in paragraph 45B(c) to a person receiving an “income support pension” of the type referred to in section 45D is to be replaced with a reference to a person receiving “an age service pension, an invalidity service pension, a social security pension or a social security benefit” of the type referred to in section 45D.

 

The term “income support pension” had been defined in subsection 5Q(1) but the definition was repealed by amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No. 2) 1994 .

 

 

Item 28 amends section 45B by inserting new subsections 45B(2) and (3).  The new subsections insert into section 45B similar provisions to those found in the equivalent sections of Part III relating to the various types of service pension. The relevant sections are 36A, 37A and 38A.

 

Section 45B refers to the circumstances in which an income support supplement will not be payable even though a person is eligible for the payment.

 

Subsection (2) in the Part III service pension provisions provides with some exceptions that a service pension will not be payable if the rate of service pension “would be nil”.

 

An exception is made by subsection (4) in the Part III service pension provisions for those circumstances where the rate is nil because of an advance payment of pension under Part IVA.

 

New subsections 45B(2) and (3) mirror the provisions found in subsections (2) and (4) of the Part III equivalents of section 45B.

 

 

Item 30 is a minor amendment to subsection 45S(1).  Section 45S provides that the rate of income support supplement is, subject to subsections (2) and (3), to be calculated in accordance with the Rate Calculator.

 

Subsection 45S(3) was repealed by amendments included in the Payment Processing Legislation Amendment (Social Security and Veterans’ Entitlements) Act 1998 .

 

Subsection 45S(1) is being amended to replace the reference to “subsections (2) and (3)” with a reference to “subsection (2)”.

 

 

Item 31 repeals the redundant section 46G definition of “money that attracts interest”.  The term had been used in sections 46D to 46F.

 

Amendments made by the Veterans’ Affairs Legislation Amendment (1996-97 Budget Measures) Act 1997 removed the references to “money that attracts interest” from sections 46D to 46F.

 

 

Items 32 and 35 repeal subsections 48(2) and 52E(2) which provide that the value of any “granny flat interest” will not be considered to be consideration received by the person for the purposes of subsections 48(1) and 52E(1).

 

Subsection 48(1) defines the meaning of “disposes of ordinary income” for the purposes of the income test.

 

Subsection 52E(1) defines the meaning of “disposes of assets” for the purposes of the assets test.

 

The amendments inserting new subsections 48(2) and 52E(2) were made subsequent to amendments made by the Social Security and Veterans’ Affairs Legislation Amendment Act (No. 2) 1990 which provided that from the 22 August 1990 the establishment of a “granny flat interest” was to be treated under the VEA in the same way as an entry contribution to a retirement village.

 

Amendments made by that Act provided that the exemption from the application of the assets and income tests that applied to “granny flat interest” was to be limited to acquisitions made prior to 22 August 1990.

 

Subsections 48(2) and 52E(2) were inserted as part of the amendments made by the Veterans’ Entitlements (Rewrite) Transition Act 1991 .  The purpose of the amendments was to provide that where a person has a right or interest in his or her principal home which is in the form of a granny flat, the value of that right or interest is not regarded as valuable consideration for the purposes of the income or assets tests.

 

The exemptions were only applicable to acquisitions made prior to 22 August 1990 and should have specified such a limitation.

 

As the deprivation period applying to the disposal of an asset is 5 years there is now no need for any amendment to the provisions.

 

 

Item 33 amends section 48E which provides for the disregarding for the purposes of the income test of dispositions of ordinary income that take place 5 years before a person becomes eligible for a service pension.  The amendments to section 48E include a reference to a person becoming eligible for “an income supplement’.

 

The amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 provided for the payment of the “income support supplement”.

 

The amendments to section 48E were overlooked at that time and not included in the consequential amendments made by that Act.

 

 

Item 34 repeals and substitutes a new section 52D.  Section 52D provides that the value of the assets of a person will include the unpaid principal of any loan made by the person after 22 May 1986.

 

The amendment makes no changes to the words previously used in section 52D but removes the unnecessary emphasis placed on the phrase “value of the assets” by the use of bold print.

 

 

Items 36 and 37 amend paragraph 53D(1)(b) and subsection 53D(2) by replacing the redundant references to paragraphs 6(1)(f) and (g) with a reference to the replacement provisions, item 3 of the table in subsection 6A(1) and subsection 6C(2).

 

Section 53D provides that certain veterans in receipt of an age or invalidity service pension will be eligible for treatment under Part V of the VEA.

 

Item 3 of the table in subsection 6A(1) and subsection 6C(2) refer to the operational service of members of Commonwealth and allied forces who were domiciled in Australia immediately before enlistment in those forces.

 

 

Item 38 repeals note 1 to subsection 56(2).  The note was inserted as part of the amendments included in the rewrite of the VEA by the Veterans’ Entitlements Amendment Act 1991 .

 

The note refers to there being “no automatic rate reduction” in a service pension or income support supplement where a person provides notification of an event or change in circumstances within the notification period.

 

The note became redundant when subsection 56(3) was inserted as part of the amendments made by the Payment Processing (Social Security and Veterans’ Entitlements) Act 1998 .  Subsection 56(3) provides for an automatic rate reduction where a person complies with a notice within the notification period.

 

 

Items 39 and 40 amend subsection 56EC by including references to an “income support supplement” not being payable to a person because the rate has been determined to be nil.  Section 56EC

 

The amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 provided for the payment of the “income support supplement” from 20 March 1995.

 

Although section 56EC was subsequently inserted in amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No.2) 1994 the references to “income support supplement” were not included as the commencement date of the provision was 1 January 1995.

 

 

Item 41 amends subsection 56H(1) by including a reference to section 56EC.  Subsection 56H(1) provides that the day on which an adverse determination takes effect is to be determined in accordance with the provisions of section 56H

 

Section 56EC was inserted in amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No.2) 1994.

 

An amendment to subsection 56H(1) was overlooked at that time and not included in the consequential amendments made by that Act.

 

 

Items 42 and 43 amend subsection 56J(2) by inserting note 2 alerting the reader to the possibility that the cancellation of veterans’ service pension may make the veteran ineligible for treatment under Part V of the VEA.

 

Section 56J provides that the Repatriation Commission may cancel a person’s service pension or income support supplement at their request.

 

 

Items 44 and 45 amend paragraphs (a) and (b) of note 1 to section 56N by deleting references to repealed provisions of the VEA.  Note 1 provides that section 56N does not apply where there has been an automatic rate reduction or termination under various provisions of the VEA.

 

Section 56N provides that changes to the rates of service pension and income support supplement that result from the operation of computer programs approved by the Repatriation Commission are to be regarded as having been made because of a determination of the Repatriation Commission.

 

Amendments made by the Veterans’ Affairs Legislation Amendment (1996-97 Budget Measures) Act 1997 and the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 repealed sections 56BB and 56BC and 56BA respectively.

 

Amendments to paragraphs (a) and (b) of note 1 to section 56N were overlooked at that time and not included in the consequential amendments made by those Acts.

 

 

Item 46 amends subsection 59B by repealing item 2 of the CPI Indexation Table.

 

Amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 repealed Item 5 of the table of “Indexed and Adjusted Amounts” in section 59A referring to “permissible child earnings”.

 

The amendment to subsection 59B was overlooked at that time and not included in the consequential amendments made by that Act.

 

 

Item 47 repeals and substitutes steps 4 and 5 of the method statement for determining the indexed amount that is contained in subsection 59C(2).

 

Amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 amended step 4 and inserted new step 5 in the method statement.

 

The unintended effect of the different commencement of the amendments was to make amendments to step 4 that were intended for step 5.

 

 

Item 48 amends subsection 59Q(7) by correcting the reference to point SCH6-D7 in the definition for the “rate of pharmaceutical allowance” used in the formula provided in paragraph 59Q(7)(b).

 

Paragraph 59Q(7)(b) provides for the formula used in the calculation of the lump sum preclusion period for a lump sum received on or after 20 March 1997.  The lump sum preclusion period refers to the period in which a compensation affected pension will not be payable.

 

The amendment to the subsection 59Q(7) definition of “rate of pharmaceutical allowance” was included in the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .

 

 

Item 49 amends paragraph 59U(2)(d) by deleting all references to the “compensation affected component” of a person’s pension.

 

Section 59U is included in the compensation recovery provisions of Part IIIC.

 

The amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 removed the provisions relating to child related payments as responsibility for the payments was transferred to the SSA.

 

Included in the amending Act were amendments to the provisions of Part IIIC to delete the references to the “compensation affected component” of a person’s pension as there was no longer any need to distinguish between the “dependent child component” and the “compensation affected component” in the application of the compensation recovery provisions of Part IIIC.

 

The amendment to paragraph 59U(2)(d) was overlooked at that time and not included in the consequential amendments made by the amending Act.

 

 

Item 50 inserts a note to subsection 68(1) referring the reader to the fact that the Military Compensation Act 1994 commenced on 7 April 1994.

 

Section 68 is an interpretation provision for Part IV of the VEA which provides for the payment of pensions to members of the Defence and Peacekeeping Forces and their dependants.

 

 

Item 51 amends subsection 74(2) by deleting the words “that was defence-caused”

 

The amendment removes an anomaly in the way in which war widow/ war widower pensions payable under different parts of the VEA are treated in relation to compensation received by the pensioners.

 

Disability and war widow/ war widower pensions are payable under both Parts II and IV of the VEA.  Pensions are payable under Part II to veterans and dependants of veterans who served in wars in which Australia was directly involved, and conflicts in which Australia played a supportive role.  Pensions are payable under Part IV for members of the Defence Force or members of peacekeeping forces and their dependants.

 

Amendments to Part II made by the Veterans' Affairs Legislation Amendment Act 1994 extended to disability and war widow/ war widower pensions payable under Part II, similar provisions to those in Part IV which limited the Commonwealth’s liability to pay dual benefits.  The provisions applied only to compensation payments for the same injury, disease or death in respect of which liability to pay pension arises under the VEA.

 

Section 30C is the Part II equivalent of section 74.  The Explanatory Memorandum stated that although subsections 30C(1), (2) and (3) are expressed differently they are intended to mirror subsections 74(2), (3), (3A) and (3B).

 

The effect of section 74 was referred to in Explanatory Memorandum to the VEA as being to ”provide that a pension payable under this Part (Part IV) will be reducible to the extent that the pensioner has received payment by way of compensation or damages from some other source in respect of the incapacity or death for which pension is to be payable under this Part.”

 

The purpose of the provisions was also stated in the Explanatory Memorandum as being to “maintain the provisions of section 107R of the Repatriation Act 1920 .”

 

Section 107R was inserted by the Repatriation Act (No. 3) 1973 .  The Departmental Notes state that:

 

The proposed section 107R avoids double compensation, where a member of the Forces or his dependants would be entitled to compensation or to damages at common law in addition to any entitlement under the Repatriation Act.

 

The section provides that any payments so received are set off against Repatriation pension entitlements and Repatriation payments are reduced accordingly.

 

 

 

The repealed legislation clearly states that the compensation has to have been paid in respect of the same injury, disease or death.  Subsection 107R(4) stated that:

 

Where, in respect of a period, the amount, or the aggregate of the amounts, per fortnight paid by way of compensation in respect of an injury or the death of a member of the Forces equals or exceeds the amount, or the aggregate of the amounts, per fortnight of pension under this Division that would, but for this section, be payable in respect of an incapacity of the member resulting from that injury or in respect of the death of the member, no pension under this Division is payable in respect of that incapacity or death.

 

Section 74 provides for a disability pension to be reduced by the amount of any “compensation” (as defined in subsection 74(1)) received in respect of the same injury or disease.  Subsection 74(2) provides that the compensation will only be used to offset the amount of pension where the death of the member was “defence caused”.

 

However, subsection 70(2) provides that a pension is payable to the dependants of a member of the Forces or a member of a Peacekeeping Force “by way of compensation” in certain circumstances where the death of the member “was not defence-caused”.

 

In rewriting the provisions of the Repatriation Act 1920 relating to the receipt of compensation for the VEA it is apparent that an anomaly has been created.  Section 107R of that Act did not make any distinction as to whether or not the death of the veteran was “defence-caused”, any compensation payable because of the death was to be used to offset the pension paid to the widow of the veteran.

 

The treatment of compensation received by a war widow/ war widower receiving a pension under Part IV is therefore different to the treatment of compensation received by a war widow/ war widower under Part II.

 

The amendment to section 74 removes the anomaly that was created in the drafting of the VEA and properly reflects the intention of the original legislation.

 

 

Items 52 and 53 amend subparagraphs 80(2)(c)(i) and 80(2)(c)(ii) by replacing the redundant reference to paragraphs 6(1)(f) and (g) with a reference to the replacement provisions, item 3 of the table in subsection 6A(1) and subsection 6C(2) and by replacing the reference to enlistment “in those forces” with a reference to “for that service”.

 

Section 80 is an interpretation provision for Part V which provides for the eligibility for veterans and their dependants for treatment under Part V of the VEA.

 

Item 3 of the table in subsection 6A(1) and subsection 6C(2) refer to the operational service of members of Commonwealth and allied forces who were domiciled in Australia immediately before enlistment in those forces.

 

 

Item 54 amends paragraph 85(4)(b) by replacing “War” with “war” in the phrase “war to which this Act applies” in relation to the eligibility of a veteran for treatment under Part V of the Act.

 

The necessity for the amendment arises because the phrase is defined separately in the Act.

 

Subsection 5B(1) defines “war to which this Act applies” as meaning “World War 1 or World War 2”.

 

 

Items 56 and 60 amend the definitions of “eligible person” in subsections 90(8) and 93D(1) by omitting the references to sections 87 and 88.  Both definitions include a reference to the sections in listing the sections under which a person is eligible for treatment.

 

Sections 87 and 88 were repealed in amendments made by the Veterans’ Affairs Legislation Amendment Act (No. 1) 2000 to remove obsolete references to the provision of treatment in hospitals operated by the Repatriation Commission.

 

 

Item 57 amends subsection 90A(3) by giving the Repatriation Commission the power to revoke the Repatriation Private Patient Principles at any time.  The Repatriation Private Patient Principles set out the circumstances in which treatment is provided to eligible persons as private patients under the Act.

 

The provisions of section 90 set out the formal requirements for the preparation and approval of the Treatment Principles.  Subsection 90(4) is the equivalent of subsection 90A(3) and provides the Repatriation Commission with the power to revoke the Treatment Principles at any time.

 

The amendments to subsection 90A(3) will align the provisions of sections 90 and 90A giving the Repatriation Commission the same powers in respect of both the subordinate legislative instruments.

 

 

Item 61 is a minor amendment to subsection 93M(2) to include a reference to a “mariner” in the description of the persons to which paragraph 93M(1)(c) is applicable.

 

Section 93M sets out the conditions to be satisfied in order for a Commonwealth and allied veterans and mariners to be eligible for a Repatriation Pharmaceutical Benefits Card.

 

Paragraph 93M(1)(c) provides that a Commonwealth or allied veteran or mariner must have been an “Australian resident for a period of at least 10 years”.

 

 

Item 62 amends paragraph 99(2)(c) by omitting the words “the Commission receives information from which he or she is satisfied” and substituting the words “information is received which satisfies the Commission”.

 

Subsection 99(2) was inserted as part of the amendments made by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No. 2) 1994 .  The amended subsection incorrectly inferred that the Commission was either male or female.

 

Item 64 amends subsection 113(1) by repealing paragraphs (c) and (d).  Subsection 113 provides for the time limits that apply to applications for a funeral benefit under sections 99 and 100.

 

Paragraphs 113(1)(c) and (d) referred specifically to funeral benefits that had been payable under section 101 which was repealed as part of the amendments made by the Social Security and Veterans’ Affairs Legislation Amendment Act (No. 4) 1989 .

 

The amendments to paragraphs 113(1)(c) and (d) were overlooked at that time and not included in the consequential amendments made by the amending Act.

 

 

Item 65 amends subsection 115(5) by replacing the incorrect references to “section Division” with references to “Division”.

 

References in subsection 115(5) to section “59” had been incorrectly replaced with references to “Division 19 of Part III” by amendments included in the Veterans’ Entitlements (Rewrite) Transition Act 1991 .

 

 

Item 67 amends subsection 115D(2) by clarifying the definition of the “second period” of the partial pension reduction of five years.

 

Section 115D provides for the transition from the special or intermediate rate to the general rate of disability pension to pensioners who undertake a vocational rehabilitation program.  The rate of pension is reduced for the first two years (the “initial period”) followed by 10 smaller reductions over the next five year period (the ‘second period”).

 

Section 115D was inserted as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 .  The section as inserted did not clearly define when the “second period” commenced or finished.

 

 

Item 69 amends subparagraph 118AA(a)(i) by including a reference to a person receiving an “invalidity service pension” in the list of those persons eligible to receive an education entry payment.

 

Section 118AA was included in new Part VIIAA inserted by amendments included in the Veterans; Affairs (1994-95 Budget Measures) Legislation Amendment (No. 2) Act 1994 .

 

Part VIIAA only provided for the payment of an education entry payment to persons receiving a partner service pension or an income support supplement to assist with the costs of enrolling in a course of study.  The equivalent amendments to the Social Security Act 1991 included those persons receiving a disability support pension.

 

The amendment removes the anomaly in the eligibility of similar persons receiving the equivalent pension under either Act for the payment.

 

 

Items 70 to 74 renumber the incorrectly numbered section 118ZAA and its provisions as 118ZZA and also correct the references to the section in notes 3, 4 and 5 of subsections 118V(1), (2) and (3).

 

Section 118ZAA of Division 8 of Part VIIC was included as part of the amendments made by the Veterans’ Affairs Legislation Amendment Act 1994 which inserted new Part VIIC relating to the issue of the Seniors Health Card.

 

Section number 118ZAA was the incorrect number as the new section was included in Division 8 to follow section 118ZZ of Division 7.

 

 

Items 75 and 76 amend section 128A which refers to the provision of tax file numbers.

 

The amendments replace the reference in subparagraph 128A(3)(b)(ii) and 128A(4)(d) to “Commissioner” which is used in reference to the Commissioner of Taxation with that reference.

 

The amended references to the full title of the person holding that office prevent any confusion with any of the Repatriation Commissioners.

 

 

Item 77 amends the subsection 132(12) list of the relevant sections of the Act under which a claim for travelling expenses may be made by omitting the obsolete reference to section 39D.

 

Section 39D was repealed as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 which repealed the carer service pension provisions of the Act.

 

The amendment to subsection 132(12) was overlooked at that time and not included in the consequential amendments made by the amending Act.

 

 

Item 78 amends subsection 160(3) by correcting the reference to the Remuneration Tribunal Act 1973 .  Section 160 refers to the remuneration and allowances payable to members of the Veterans’ Review Board.

 

Subsection 160(3) had always incorrectly referred to the Act as the Remuneration Tribunals Act 1973 .

 

 

Item 79 amends section 161 by providing for the appointment of an acting member of the Veterans’ Review Board at any time during a vacancy in that office.

 

Section 161 had previously only provided for the appointment of an acting member for the period during which a full-time or part-time member was unable to perform the duties of the office.

 

 

Item 80 inserts a new heading “Division 4 - Payment of medical and travelling expenses” after section 196ZM.

 

Amendments included in the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act (No. 2) 1994 had inserted new sections 196ZN, 196ZO and 196ZP into Part XIB of the Act.

 

The new sections were inserted into Division 3 of that Part which refers to staff of the Specialist Medical Review Council.

 

The amending Act should have created a new Division to include the new sections.

 

 

Items 81 and 82 amend sections 213 and 214 which provide for the delegation of the powers of the Repatriation Commission and the Secretary to a person “appointed or engaged” under the Public Service Act 1999 , the VEA, the regulations or other Acts.

 

The amendments to subsections 213(1) and 214(1) provide for the powers of the Commission and the Secretary to be delegated under any of the other legislative instruments made under the Act.

 

 

Item 83 amends subclause 1(1) of Schedule 5 by replacing the obsolete reference to “section 41” with a reference to “Schedule 6”.  Clause 1 of Schedule 5 was inserted as part of the amendments made by the Veterans’ Affairs (1995-96 Budget Measures) Legislation Amendment Act 1995 .

 

Clause 1 of Schedule 5 provides for number of savings and transitional provisions to protect the rate of service pension of those persons being assessed on the basis that they were “partnered, partner getting neither pension nor benefit” as at 1 October 1995.

 

Subclause 1(1) states that it has effect despite “section 41” which was previously one of the Rate Calculator provisions.  Section 41 and the other Rate Calculators were repealed and amalgamated into new Schedule 6 in amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .

 

 

Item 84 repeals clause 2 of Schedule 5. Clause 2 of Schedule 5 was inserted (originally as clause 5) as part of the amendments made by the Social Security and Veterans’ Affairs Legislation Amendment Act 1995.

 

Clause 2 of Schedule 5 provided for a transitional period of 12 months which was to end no later than 30 June 1996 for those persons who were taken to have received weekly income under repealed sections 46B and 46J.

 

Repealed sections 46B and 46J provided that certain managed investments would have capital growth assessed as income only when investments were realised.  When the investments were realised the return on the investment was assessed for a period of 12 months from the date of realisation.

 

The introduction of the deeming rules applying to all investments meant that the provisions are no longer applicable and the transitional period has ended.

 

 

Item 85 inserts new subclause (2A) into clause 9 of Schedule 5.  Clauses 9 and 10 of Schedule 5 were inserted as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 which removed the provisions of the VEA relating to child related payments as responsibility for the payments was transferred to the SSA.

 

Clause 9 of Schedule 5 is a transitional provision which clarifies the position where backdating might be required after the repeal of the provisions relating to the child related payments.

 

Clause 10 of Schedule 5 preserved the child related payments in the service pension or income support supplement payments of all those persons who would have been disadvantaged by the transfer.

 

The amending Act also made amendments to the compensation recovery provisions of Part IIIC to delete the references to the “compensation affected component” of a person’s pension making the compensation recovery provisions applicable to the full amount of any “compensation affected pension”.

 

A “compensation affected pension” is defined for the purposes of Part IIIC as being an invalidity service pension, partner service pension or income support supplement received by a person who has not reached pension age.

 

New subclause 9(2A) of Schedule 5 provides that the invalidity service pension, partner service pension or income support supplement of any person who has not reached pension age will not include the child-related amount.  The amendment has the effect of excluding the child-related payment component of a person’s “compensation affected pension” from the Part IIIC compensation recovery provisions.

 

 

Item 86 amends the clause 12 of Schedule 5 with the heading “Amendments relating to the treatment of income streams” by renumbering it as clause 11A.

 

The clause was inserted as part of the amendments made by the Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998 .

 

The need to renumber the clause arose because an additional clause 12 of Schedule 5 was inserted as part of the amendments made by the Aged Care Amendment (Omnibus) Act 1999 .

 

 

Item 87 makes a minor amendment to step 4 of Method statement 4 in subpoint SCH6-A1(5) by removing the emphasis placed by the use of a bold print face on the word “person’s” in the bold printed phrase “person’s rate of service pension”.

 

 

Items 88 to 90 amend points SCH6-A3 to SCH6-A9 by repealing the note to point SCH6-A9 which referred the reader to subsection 5Q(1) for a definition of the term “war widow/ war widower” and by inserting the note in points SCH6-A3 to SCH6-A8.

 

 

Item 91 repeals and substitutes paragraph SCH6-C3(a).  Paragraph SCH6-C3(a) refers to a person not being eligible for rent assistance where they are a person for whom a “residential care subsidy is paid to an approved provider”.  The substituted paragraph refers to the person not being “an aged care resident”.

 

Item 92 repeals and substitute note 1 to point SCH6-C3.  Note 1 to point SCH6-C3 refers the reader to subsection 5Q(1) for a definition of the term “approved respite care” which is not used in point SCH6-C3.

 

Point SCH6-C3 was inserted as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 and was using terms which were to be included in an Act being drafted at that same time, the Aged Care Consequential Provisions Act 1997.   The final version of that Act changed some of the terms that had been used in point SCH6-C3.

 

 

Items 93 and 94 amend paragraph SCH6-C5(b) and subparagraph SCH6-C5(c)(i) respectively by including a reference to a person receiving an “income support supplement” and to a person receiving “income support supplement or social security pension”.

 

Module C of Schedule 6 provides for the calculation of the level of rent assistance.  Point SCH6-C5 defines for the purposes of the Module the meaning of the term “partner with a rent increased pension”.

 

The inclusion of the references to “income support supplement” and “social security pension” were overlooked when the Rate Calculators were consolidated and moved into Schedule 6 as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .

 

 

Items 95 and 96 amend the headings to columns 3 and 4 of Table E-1 in point SCH6-E6.  Point SCH6-E6 refers to the calculation of the ordinary/ adjusted income free area for the purposes of the income test and was inserted as part of the amendments made by the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 .

 

The amendments omitted a reference to the free area applying to a person’s income from the headings to columns 3 and 4 of Table E-1 in point SCH6-E6.

 

 



Schedule 7

 

Amendment of the Veterans’ Affairs Legislation Amendment (No. 1) Act 2000

 

 

Overview

 

Schedule 7 amends the Veterans’ Affairs Legislation Amendment (No. 1) Act 2000 .

 

These are technical amendments to correct misdescribed amendments that resulted in the intended amendments not being made.

 

Background

 

The amendments to subsections 213(1) and 214(1) of the VEA made by the Public Employment (Consequential and Transitional) Amendment Act 1999 replaced the words “an officer or employee of the Australian Public Service” with the words “a person appointed or engaged under the Public Service Act 1999 ”.

 

Sections 213 and 214 provide for the delegation of the powers of the Repatriation Commission and the Secretary to person “appointed or engaged” under the Public Service Act 1999 , the VEA, the regulations or other Acts.

 

Amendments included in Veterans’ Affairs Legislation Amendment (No. 1) Act 2000 purported to amend subsections 213(1) and 214(1) by respectively replacing the words “a commissioner, or to an officer or employee of the Australian Public Service” and “an officer or employee of the Australian Public Service” with the words “ a person referred to in subsection (4)”.

 

Subsections 213(4) and 214(4) were inserted by that Act and provide a list of the persons to whom a power under the VEA may be delegated under subsections 213(1) and 214(1).  Both subsections include a reference to a person who is an “APS employee”.  An “APS employee” is defined in the Public Service Act 1999 .

 

The amendments were misdescribed as the reference to “an officer or employee of the Australian Public Service” had by the time of the commencement of the amendments been replaced with a reference to “a person appointed or engaged under the Public Service Act 1999 ”.

 

Explanation of the Changes

 

 

The amendments correct the misdescribed amendments and allow for the proposed amendment to be made.

 

 



Explanation of the Items

 

 

Items 1 and 2 repeal and substitute Items 17 and 19 of Schedule 1 of the Veterans’ Affairs Legislation Amendment (No. 1) Act 2000 .

 

The substituted items provide that references to “a person referred to in subsection(4)” will replace the respective references to “a commissioner, or to a person appointed or engaged under the Public Service Act 1999 ” and “a person appointed or engaged under the Public Service Act 1999 ”.