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Veterans’ Affairs Legislation Amendment (Partner Service Pension and Other Measures) Bill 2019

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2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

VETERANS’ AFFAIRS LEGISLATION AMENDMENT (PARTNER SERVICE PENSION AND OTHER MEASURES) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans and Defence Personnel,

 The Honourable Darren Chester MP)

 

 

 

 

 

 

 

 

Table of Contents

 

 

Outline and Financial Impact

i

 

Statement of Compatibility

iii

 

Veterans’ Affairs Legislation Amendment (Partner Service Pension and Other Measures) Bill 2019

 

               

Short title

1

               

Commencement

1

               

Schedules

1

 

 

 

Schedule 1

 

Schedule 2   

Extended eligibility for partner service pension             

 

Extended service on submarine special operations

 

2

 

11

Schedule 3

Other amendments

13

 

 

 

 

 

 





VETERANS’ AFFAIRS LEGISLATION AMENDMENT (PARTNER SERVICE PENSION AND OTHER MEASURES) BILL 2019

 

OUTLINE AND FINANCIAL IMPACT

 

The Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment (Partner Service Pension and Other Measures) Bill 2019 provides a description of amendments being made by the Bill.

 

Schedule 1 -Extended eligibility for partner service pension

 

The amendments proposed to be made by Schedule 1 would amend the Veterans’ Entitlements Act 1986 (VEA) to streamline eligibility for Partner Service Pension (PSP) by removing the inequities which currently exist between married and non-married former partners. The amendments will align eligibility for PSP to create a modern legislative provision which recognises different types of relationships, and removes any associated discrimination.

 

The amendments would result in all former partners of veterans, regardless of marital status, being eligible for an extension of PSP for 12 months on separation from the veteran, and indefinitely where specified circumstances exist, such as a domestic violence.

 

The amendments would also result in all former partners of veterans, regardless of marital status, being eligible to continue to receive PSP indefinitely after the death of the former veteran partner.

 

Former partners of veterans will lose eligibility for PSP if they become a member of a new couple.

 

Schedule 2 - Extended service on Australian submarine special operations

 

The amendments proposed to be made by Schedule 2 would amend the VEA to reclassify service by a member of the Defence Force on Submarine Special Operations (SSO) during the period 1 January 1993 to 12 May 1997 as operational and qualifying service.  Currently, service on SSO during that period is classified as peacetime service and only service on SSO during the period 1 January 1978 to 31 December 1992 is classified as operational and qualifying service.

 

Schedule 3 - Other amendments

 

The amendments proposed to be made by Schedule 3 are technical amendments which would amend the definitions of ‘widow’ and ‘widower’ in the Defence Service Homes Act 1918 and the VEA to ensure consistency with changes to the definition of marriage made by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (the Marriage Amendment Act).

 

The Marriage Amendment Act amended the Marriage Act 1961 to remove the restrictions that limit marriage in Australia to the union of a man and a woman and allowed two people the freedom to marry in Australia, regardless of their sex or gender.

 

Financial Impact

 

Extension of eligibility for Partner Service Pension will cost $6.2M over the forward estimates and $1.4 million per year ongoing.

 

Extended service on submarine special operations will cost $3.2M over the forward estimates increasing to a cost of $2.1M per year by 2041-42.

 

The financial impact resulting from the changes to the definition of ‘widow’ and ‘widower’ in the Defence Service Homes Act 1918 and VEA, due to expanded classes of eligible people under these Acts is expected to be negligible as the Veterans’ Affairs’ portfolio legislation and policy has recognised same sex relationships since the legislation was amended on 9 December 2008 by the Same-sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 .

 

 



 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 

VETERANS AFFAIRS LEGISLATION AMENDMENT (PARTNER SERVICE PENSION AND OTHER MEASURES) BILL 2019

 

The Veterans’ Affairs Legislation Amendment (Partner Service Pension and Other Measures) Bill 2019 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Schedule 1 - Extended eligibility for partner service pension

 

Overview of the Schedule

 

The amendments proposed to be made by Schedule 1 would amend the Veterans’ Entitlements Act 1986 (VEA) to streamline eligibility for Partner Service Pension (PSP) by removing the inequities which currently exist between married and non-married former partners. The amendments will align the eligibility of former de facto partners of veterans; divorced spouses of veterans; and persons who were formerly in a registered relationship with a veteran with the PSP eligibility which currently exists for separated (but not yet divorced) married partners of veterans defined as the “non-illness separated spouse”.

 

The amendments would ensure that former de facto partners of a veteran, persons who were formally in a registered relationship with a veteran, and persons divorced from a veteran can continue to receive PSP for 12 months after separating from the veteran (or until they enter into a new relationship), and beyond this period either indefinitely (or until they enter into a new relationship) where the Repatriation Commission is satisfied that special domestic circumstances exist or they are of pension age (as defined in section 5QB). Special domestic circumstances include scenarios where the domestic environment shared by the person with the veteran was, because of the veteran’s behaviour, unsafe or abusive for the partner or any child of the partner.

 

The amendments would also result in all former partners of veterans, regardless of marital status, being eligible to continue to receive PSP either indefinitely or until they enter into a new relationship, after the death of the former veteran partner.

 

Under current provisions of the VEA, former unmarried partners of veterans lose their eligibility for PSP on separation from the veteran partner, and the separated spouse of a veteran loses their eligibility for PSP on divorce. These groups of former partners of veterans are also currently not eligible for the extension of payment of PSP beyond 12 months on the grounds that special domestic circumstances such as domestic violence exist.

 

The amendments commence on 20 September 2019.

 

 

 

Human rights implications

 

Right to social security

 

The amendments proposed to be made by Schedule 1 engage both Article 9 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically, the right to social security and Article 11 of the ICESR.

 

Article 9 of the ICESCR states that “States Parties … recognize the right of everyone to social security, including social insurance”.

 

Article 11 of the ICESCR states that “States Parties … recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”.   

 

The amendments promote the right to social security and the right to an adequate standard of living by making all former partners of veterans, regardless of marital status, eligible for an extension of PSP on separation from the veteran for 12 months, and indefinitely where special domestic circumstances (such as domestic violence ) exist.

 

The amendments further promote the right to social security and an adequate standard of living by making all former partners of veterans, regardless of marital status, eligible for an extension of PSP after the death of the former veteran partner, and make the person eligible to continue to receive PSP indefinitely where the person has separated from the veteran and special domestic circumstances existed.

 

The amendments proposed to be made by Schedule 1 also engage Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the ICESCR, which provide that all persons “are equal before the law and are entitled without any discrimination to the equal protection of the law without discrimination on any ground” and “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion”.

 

Conclusion

 

This Schedule is compatible with the right to social security as it supports the right of all former partners of veterans to receive income support payments for 12 months after their relationship with the veteran has ended, and to continue to receive payments beyond this period where special circumstances exist.

 

It is also compatible with the rights to an adequate standard of living as recognised in Article 11 of the ICESCR and the rights to equality before the law as recognised in Article 26 of the ICCPR and the exercise of rights without discrimination as recognised in Article 2(2) of the ICESCR.



 

Schedule 2 - Service on submarine special operations

 

Overview of the Schedule

 

The amendments to be made by Schedule 2 will ensure that service on SSO by members of the Defence Force during the period from 1 January 1993 to 12 May 1997 is classified as operational and qualifying service for the purposes of the VEA. 

 

Defence Force members with operational service will be eligible for treatment for conditions accepted as being due to their service and will be issued with a DVA Health Card - Specific Conditions, usually referred to as a “White Card”, providing them with more streamlined access to treatment. The members will also be eligible for compensation for injuries and disease that can be attributed to their service.

 

Members with qualifying service will be eligible for a service pension at age 60 and for Gold Card benefits at age 70 years.  

 

These amendments commence on the day after this Act receives the Royal Assent.

 

Human rights implications

 

Right to Social Security

 

The amendments made by Schedule 2 engage the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 9 of the ICESCR states “States Parties … recognize the right of everyone to social security, including social insurance”.  

 

General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including “States parties should … ensure the protection of workers who are injured in the course of employment or other productive work”.

 

Right to health

 

Article 12 of the ICESCR refers to “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

 

The amendments will provide for a more effective delivery of treatment to persons with operational service on SSO through the arrangements with health providers maintained by the  Department of Veterans’ Affairs.

 

Conclusion

 

This Schedule is compatible with the right to social security and the right to health as it will ensure that members of the Defence Force on SSO during the period from 1 January 1993 to 12 May 1997 will be eligible to receive entitlements and benefits under the VEA currently available only to those on SSO between 1 January 1978 and 31 December 1992.  

 

Specified submariners will be able to receive full entitlements and benefits where they have been deemed to have operational and qualifying service.  This service provides veterans with more favourable entitlements and benefits under the VEA.  

 

Schedule 3 - Other amendments

 

Overview of the Schedule

 

Most of the amendments proposed to be made by Schedule 3 would amend the definitions of ‘widow’ and ‘widower’ in the Defence Service Homes Act 1918 and the VEA to ensure consistency with changes to the definition of marriage made by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (the Marriage Amendment Act).

 

The Marriage Amendment Act amended the Marriage Act 1961 to remove the restrictions that limit marriage in Australia to the union of a man and a woman and allowed two people the freedom to marry in Australia, regardless of their sex or gender.

 

The proposed amendment to the Defence Service Homes Act 1918 would amend the definition of ‘widow’ and ‘widower’ to include any surviving spouse, regardless of their sex or gender. The amendment would put beyond doubt that all surviving spouses are entitled to subsidised housing loans under the Act. The amendment will have the effect of expanding the class of eligible veterans and other persons in respect of whom a subsidy may be payable.

The proposed amendment to the VEA would amend the definition of ‘widow’ and ‘widower’ in the Act, to include any surviving spouse, regardless of sex or gender. T he amendment will have the effect of expanding the class of persons who will be dependants in respect of whom pensions may be payable under the Act.

The remaining amendment is of a technical nature replacing a reference to a “direction” made under subsection 5R(5) of the VEA with a reference to the more appropriate term “determination”. The amendment does not engage any of the applicable rights or freedoms.

 

These amendments commence the day after Royal Assent.

 

Human rights implications

 

The schedule engages the following rights:

 

Right to equality before the law and to non-discrimination

The Schedule promotes the rights to equality before the law and non-discrimination contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provide that all persons are equal before the law and are entitled to the equal protection of the law without discrimination on any ground. The Schedule provides for equal treatment of married couples, regardless of the parties’ sex or gender.



 

Right to marry and found a family

The Schedule also promotes the right to marry and found a family , contained in Article 23 of the ICCPR. Under current human rights instruments and jurisprudence, including the United Nations Human Rights Committee decision in Joslin v New Zealand , the right to marry does not oblige states to legislate to allow same-sex couples to marry. However, it is clear that there are no legal impediments to Australia taking this step. 

The Schedule recognises the diversity of relationships and families in the Australian community, and ensures their equal status under Commonwealth law.

These measures in the Schedule protect and promote the right to respect for the family.

Conclusion

The Bill is compatible with human rights because it advances the protection of human rights, particularly the rights to equality and non-discrimination.



VETERANS’ LEGISLATION AMENDMENT (PARTNER SERVICE PENSIONS AND OTHER MEASURES) BILL 2019

 

Short Title                  Clause 1 provides that the Act is the Veterans’ Legislation Amendment (Partner Service Pensions and Other Measures) Bill 2019 .

 

Commencement            Clause 2 sets out the commencement date of the provisions of the Act . For convenience the commencement information is replicated below.

 

Schedules                    Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

20 September 2019.

20 September 2019

3.  Schedule 2

1 July 2019.

1 July 2019

4.  Schedule 3

The day after this Act receives the Royal Assent.

 

 

This Explanatory Memorandum uses the following abbreviations:

 

DSHA means the Defence Services Homes Act 1918

DVA means the Department of Veterans’ Affairs

MRCA means the Military, Rehabilitation and Compensation Act 2004

PSP means Partner Service Pension

SSO means Submarine Special Operations

VEA means the Veterans’ Entitlements Act 1986



Schedule 1 - Extended eligibility for partner service pension

Veterans’ Entitlements Act 1986

 

Background

 

The amendments proposed to be made by Schedule 1 would amend the Veterans’ Entitlements Act 1986 (VEA) to streamline eligibility for Partner Service Pension by removing the inequities which currently exist between married and non-married former partners. The amendments will align eligibility to create a modern legislative provision which recognises different types of relationships, and removing any associated discrimination.

 

The amendments would extend the PSP eligibility of de facto separated partners of a veteran,  former members of a registered relationship with a veteran, and persons divorced from a veteran. The proposed amendments would provide for PSP eligibility for all eligible former partners consistent with the eligibility arrangements which currently apply for non-illness separated spouses who have PSP extended for an additional 12 months from the first day on which the person was living separately and apart from the veteran on a permanent basis or until they enter into a new relationship.

 

The amendments would also ensure that de facto separated partners of a veteran, former member of a registered relationship with a veteran, and persons divorced from a veteran can continue to receive PSP indefinitely or until they enter a new relationship where the Repatriation Commission is satisfied that special domestic circumstances exist, such as the domestic environment shared by the partner and the veteran was, because of the veteran’s behaviour, unsafe or abusive for the partner or any child of the partner.

 

Currently under the VEA, a spouse of a veteran who separates from the veteran on grounds which are not related to illness is eligible to have their PSP extended for an additional 12 months from the first day on which the person was living separately and apart from the veteran on a permanent basis. A spouse of a veteran who has separated from the veteran due to a specified circumstances determination made under section 38(2AD) of the VEA can have their PSP extended indefinitely beyond the 12 months or until they enter into a new relationship.

 

Under existing provisions of the VEA however, former de facto partners of veterans lose their eligibility for PSP on separation from the veteran partner, and separated spouses of a veteran lose their eligibility for PSP on divorce. Persons who were formerly in a registered relationship with a veteran but who separate from the veteran also lose their eligibility for PSP on separation.

 

The proposed amendments would result in all former partners of veterans being eligible for an extension of PSP on separation from the veteran for 12 months, and indefinitely where special domestic circumstances exist, regardless of the person’s marital status. The amendments would also result in all former partners of veterans being eligible to continue to receive PSP indefinitely after the death of the former veteran partner, regardless of the person’s marital status.

 

The amendments would provide that all former partners of a veteran, regardless of marital status, who commence a new de facto relationship or marry another person, lose their eligibility for the PSP.

 

Notes on Clauses

 

Item 1 would amend paragraph 38(1)(b) to insert, after the words “is a person”, the words “in relation to which the following apply” . This is to ensure that all the criteria listed under paragraph 38(1)(b) need to exist for a person to be eligible for PSP under the subsection.

 

Items 2 would repeal subparagraph 38(1)(b)(i) which reads “ who is the non-illness separated spouse of a veteran; and”, and substitute a new subparagraph that states “subsection (1AA) applies to the person”. This would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AA) (inserted by Item 30). 

 

Item 3 would amend subparagraph 38(1)(b)(ii) by omitting the words “whose non-illness separated spouse” and substitute the words “the veteran”. This amendment would make it clear subparagraph 38(1)(b)(i) is referring to the veteran.

 

Item 4 would amend paragraph 38(1)(c) to insert, after the words “is a person”, the words “in relation to which the following apply”. This is to ensure that all the revised criteria listed under paragraph 38(1)(c) need to exist for a person to be eligible for PSP under the paragraph.

 

Item 5 would repeal subparagraph 38(1)(c)(i) which reads “who is the widow or widower of a veteran” and substitute it with a new subparagraph which states that “the person is an eligible person in relation to a veteran who has died (see subsection (1AB);”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AB)(inserted by Item 30).   

 

Item 6 would amend subparagraph 38(1)(c)(ia) by omitting the words “whose partner or non-illness separated spouse” and substitute the words “the veteran”. This amendment would make it clear that subparagraph 38(1)(c)(ia) is referring to the veteran.  

 

Item 7 would amend subparagraph 38(1)(c)(ia) by omitting the word “and”. This is technical amendment resulting from the amendment at Item 5.

 

Item 8 would amend subparagraph 38(1)(c)(ii) by omitting the word “who” and substituting it with “the person”. This is a technical amendment as a result of the amendment made to subparagraph 38(1)(c)(i) at Item 5.

 

Item 9 would amend paragraph 38(1)(d) to insert after the words “is a person”, the words “in relation to which the following apply”. This is to ensure that all the criteria listed under paragraph 38(1)(d) need to exist for a person to be eligible for PSP under the paragraph.

 

Item 10 would repeal subparagraph 38(1)(d)(i), which reads “who is the widow or widower of a veteran; and” substitute it with a new subparagraph which states “the person is an eligible person in relation to a veteran who has died (see subsection (1AB);”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection (1AB).  

Items 11 and 12 would amend subparagraph 38(1)(d)(ii) by omitting the word “who” and substituting the word “the person” and omitting the word “and” . The amendments are technical amendments resulting from the amendment at Item 10.

 

Item 13 would amend subparagraph 38(1)(d)(iii) by omitting the words “ whose partner or non-illness separated spouse” and substitute the words “the veteran”. This amendment would make it clear that subparagraph 38(1)(d)(iii) is referring to the veteran. 

 

Item 14 would amend paragraph 38(1)(e) to insert after the words “is a person” the words “in relation to which the following apply”. This is to ensure all the revised criteria listed under paragraph 38(1)(e) need to exist for a person to be eligible for PSP under the paragraph.

 

Item 15 would repeal subparagraph 38(1)(e)(i) that reads “who is the widow or widower of a veteran who has rendered qualifying service; and”, and substitute a new subparagraph that states “the person is an eligible person in relation to a veteran who has died (see subsection (1AB) and who has rendered qualifying service;”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AB) and the veteran has rendered qualifying service.

 

Item 16 would amend subparagraph 38(1)(e)(ii) by omitting the word “who” and substituting the word “the person”. This is a technical amendment resulting from the amendment at Item 15.

 

Item 17 would amend subparagraph 38(1)(g) to insert after the words “is a person”, the words “in relation to which the following apply”. This is to ensure all the revised criteria listed under paragraph 38(1)(g) need to exist for a person to be eligible for PSP under the paragraph.

 

Item 18 would repeal subparagraph 38(1)(g)(i) that reads “who is the non-illness separated spouse of a veteran”, and substitute it with new subparagraph 38(1)(g) that states “subsection (1AA) applies to the person;”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AA).

 

Item 19 would amend subparagraph 38(1)(g)(ii) by omitting the words “whose non-illness separated spouse” and substituting the words “the veteran”. This amendment would make it clear that subparagraph 38(1)(g)(ii) is referring to the veteran. 

 

Item 20 would amend paragraph 38(1)(h) to insert after the words “is a person”, the words “in relation to which the following apply”. This is to ensure all the revised criteria listed under paragraph 38(1)(h) need to exist for a person to be eligible for PSP under the paragraph.

   

Item 21 would repeal subparagraph 38(1)(h)(i) that states “who is the widow or widower of a veteran”, and substitute it with new subparagraph 38(1)(h)(i) that states “the person is an eligible person in relation to a veteran who has died (see subsection (1AB) ”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AB).

 

Item 22 would amend subparagraph 38(1)(h)(ii) by omitting the words “whose partner or non-illness separated spouse” and substituting the words “the veteran”. This amendment would make it clear that subparagraph 38(1)(h)(ii) is referring to the veteran. 

 

Items 23 and 24 would amend subparagraph 38(1)(h)(ii) by omitting the word “and” and by omitting the word “who” and substituting the words “the person”. These are technical amendments resulting from the amendment at Item 20.

 

Item 25 would amend paragraph 38(1)(i) to insert after the words “is a person”, the words “in relation to which the following apply”. This is to ensure all the revised criteria listed under paragraph 38(1)(i) need to exist for a person to be eligible for PSP under the paragraph.

 

Item 26 would repeal subparagraph 38(1)(i)(i) that states “who is the widow or widower of a veteran”, and substitute it with a new subparagraph 38(1)(i)(i) that states “the person is an eligible person in relation to a veteran who has died (see subsection (1AB)); ”. This amendment would provide that a person may be eligible for PSP if the person meets one of the criteria under new subsection 38(1AB) (inserted by Item 30).

 

Items 27 and 28 would amend subparagraph 38(1)(i)(ii) by omitting the word “who” and substituting the word “the person” and by omitting the word “and”. These are technical amendments resulting from the amendment at Item 25.

 

Item 29 would amend subparagraph 38(1)(i)(iii) by omitting the words “whose partner or non-illness separated spouse” and substituting the words “the veteran”. This amendment would make it clear that subparagraph 38(1)(i)(iii) is referring to the veteran.

 

Item 30 would insert new subsections 38(1AA) and 38(1AB). New paragraph 38(1AA)(a) provides that the new subsection applies to a person if the person is a non-illness separated spouse of a veteran, or if any of paragraphs 38(1AA)(b), (c), (d) or (e) is applicable to the person.

 

Under new and revised subparagraphs 38(1)(b)(i) and (ii) (as inserted and amended by Items 2 and 3) a person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AA) and, in accordance with subparagraph 38(1)(b)(ii), the person’s partner is a veteran in receipt of or eligible for an age or invalidity service pension.

 

Under new and revised subparagraphs 38(1)(g)(i) and (ii) (as inserted and amended by Items 18 and 19) a person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AA) and, in accordance with subparagraph 38(1)(g)(ii), the person’s partner is a veteran who is registered as member of the pension bonus scheme under Part IIIAB of the VEA.

 

New paragraph 38(1AA)(b) provides that subsection 38(1AA) is applicable to a person where the following requirements are met:

 

·          a relationship between the person and a veteran (whether of the same sex or a different sex) is registered under the law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

 

·          the person and the veteran have separated and the person is living separately and apart from the veteran on a permanent basis;

 

·          the separation has not resulted in a determination by the Repatriation Commission under subsection 5R(5) of the VEA that the two persons are members of an “illness separated couple” for the purposes of the VEA. Such a determination may be made if the Commission is satisfied that:

o    the two persons are members of a couple;

o    unable to live in their home as a result of the illness or infirmity of either or both of the persons;

o    because of their inability to live together their living expenses are likely to be greater than they would be otherwise; and

o    their inability to live together is likely to continue indefinitely.

 

New paragraph 38(1AA)(c) provides that subsection 38(1AA) is also applicable to a person where the following requirements are met:

 

·          the person and a veteran were, in the opinion of the Repatriation Commission in a de facto relationship (formed as mentioned in section 11A of the VEA);

 

·          the person and the veteran have separated and the person is living separately and apart from the veteran on a permanent basis;

 

·          the separation has not resulted in a determination by the Repatriation Commission under subsection 5R(5) of the VEA that the two persons are members of an “illness separated couple” for the purposes of the VEA;

 

·          the person and the veteran are not within a prohibited relationship as defined under subsection 5E(6) of the VEA.

 

New paragraph 38(1AA)(d) provides that subsection 38(1AA) is also applicable where the following requirements are met:

 

·          the person becomes divorced from a veteran;

 

·          immediately before the divorce, the person was a non-illness separated spouse of a veteran (paragraph 38(1AA)(a) was applicable).

 

New paragraph 38(1AA)(e) provides that subsection 38(1AA) is also applicable where the following requirements are met:

 

·          a relationship described in subparagraph 38(1AA)(b)(i) between the person and a veteran (which is a relationship between the person and a veteran (whether of the same sex or a different sex) that was registered under the law of a State or Territory) ceases to be registered;

 

·          immediately before the relationship ceases to be registered, all the requirements set out in paragraph 38(1AA)(b) applied in relation to the person and the veteran.

 

Under the revised and amended subparagraphs 38(1)(c)(i),(ia) and (ii) (as inserted and amended by Items 5 to 8) the person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AB) and in accordance with subparagraphs 38(1)(c)(ia) and (ii) the veteran immediately before his or her death was in receipt of or eligible for an age or invalidity service pension and the person was in receipt of partner service pension or social security pension immediately before the veterans’ death.

 

Under the revised and amended subparagraphs 38(1)(d)(i), (ii) and (iii) (as inserted and amended by Items 10 to 13) the person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AB) and in accordance with subparagraphs 38(1)(d)(ii) and (iii) the person had made a claim for PSP before the death of the veteran who immediately before his or her death was in receipt of or eligible for an age or invalidity service pension or who had made a claim for an age or invalidity service pension that would have been granted had the veteran not died.

 

Under the revised and amended subparagraphs 38(1)(e)(i) and (ii) (as inserted and amended by Items 15 and 16) the person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AB) and in accordance with subparagraphs 38(1)(e)(i) and (ii) the veteran has rendered qualifying service and was qualified for an age pension under the Social Security Act 1991 (SSA).

 

Under new and revised subparagraphs 38(1)(h)(i), (ii) and (iii) (as inserted and amended by Items 21 to 24) a person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AB) and in accordance with subparagraphs 38(1)(h)(ii) and (iii) the person’s partner is a veteran who is registered as member of the pension bonus scheme under Part IIIAB of the VEA, was in receipt of or eligible for an age or invalidity service pension and the person was immediately before the veteran’s death, registered as a member of the Pension Bonus Scheme under Part IIIAB of the VEA or the corresponding scheme under Part 2.2A of the SSA or was receiving a partner service pension or social security pension.

 

Under the revised and amended subparagraphs 38(1)(i)(i), (ii) and (iii) (as inserted and amended by Items 26 to 29) the person will be eligible for a partner service pension if a person meets one of the criteria set out in new subsection 38(1AB) and in accordance with subparagraphs 38(1)(i), (ii) and (iii) the person had made a claim for PSP before the death of the veteran which had not been determined and the veteran was immediately before his or her death, registered as a member of the pension bonus scheme under Part IIIAB of the VEA.

 

New paragraph 38(1AB)(a) provides that the person will be an “eligible person” for the purposes of section 38 if the person is the widow or widower of the veteran, or if any of paragraphs 38(1AB)(b), (c), (d) or (e) is applicable to the person.

 

New paragraph 38(1AB)(b) provides that the person will be an “eligible person” for the purposes of section 38 where the following requirements are met:

 

·          immediately before the veteran died a relationship between the person and the veteran (whether of the same sex or a different sex) was registered under the law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

 

·          immediately before the veteran died, the person and the veteran had separated and the person was living separately and apart from the veteran on a permanent basis;

 

·          the person had not been a member of a couple at any time since the person had commenced to live separately and apart from the veteran on a permanent basis before the death of the veteran.

 

New paragraph 38(1AB)(c) provides that the person will be an “eligible person” for the purposes of section 38 where the following requirements are met:

 

·          at any time before the death of the veteran, the person and a veteran were, in the opinion of the Repatriation Commission, in a de facto relationship (formed as mentioned in section 11A of the VEA);

 

·          immediately before the veteran died, the person and the veteran had separated and the person was living separately and apart from the veteran on a permanent basis;

 

·          immediately before the veteran died, the person and the veteran were not within a prohibited relationship as defined under subsection 5E(6) of the VEA;

·          the person had not been a member of a couple at any time since the person had commenced to live separately and apart from the veteran on a permanent basis before the death of the veteran.

 

New paragraph 38(1AB)(d) provides that the person will be an “eligible person” for the purposes of section 38 where the following requirements are met:

·          at any time before the death of the veteran, the person became divorced from the veteran;

 

·          immediately before the divorce, the person was a non-illness separated spouse of a veteran (paragraph 38(1AA)(a) was applicable);

·          the person had not been a member of a couple at any time since the first day on which the person was living separately and apart from the veteran on a permanent basis before the death of the veteran.

 

New paragraph 38(1AB)(e) provides that the person will be an “eligible person” for the purposes of section 38 where the following requirements are met:

·          at any time before the death of the veteran, a relationship described in subparagraph 38(1AA)(b)(i) between the person and a veteran (which is a relationship between the person and a veteran (whether of the same sex or a different sex) that was registered under the law of a State or Territory) ceases to be registered;

 

·          immediately before the relationship ceased to be registered, all of the requirements set out in paragraph 38(1AA)(b) applied in relation to the person and the veteran;

 

·          the person had not been a member of a couple at any time since the first day on which the person was living separately and apart from the veteran on a permanent basis before the death of the veteran.

 

Item 31 repeals existing subsection 38(2A) which had provided that a person’s eligibility for PSP under paragraphs 38(1)(b) or (g) ceases if the Repatriation Commission had formed an opinion that the person was in a de facto relationship with another person on 1 July 2009, or the person entered into a relationship with another person after 1 July 2009 and in the Commission’s opinion the relationship was a de facto relationship.

 

Note 1 of the existing subsection 38(2A) provides that the Commission’s opinion is to be formed as mentioned under section 11A of the VEA. Note 2 of the existing subsection provides that if the person starts living permanently again with his or her veteran non-illness separated spouse, the person regains eligibility for a PSP. 

 

New subsection 38(2A) provides that a person’s eligibility under paragraphs 38(1)(b), (c), (d), (e), (g), (h) or (i) of the VEA ceases if the person becomes a member of a couple. This provision would ensure that, where a person has been eligible for PSP, either where the former veteran partner is still alive (under paragraphs 38(1)(b) and (g)), or has died (under paragraphs 38(1)(c), (d), (e), (h) or (i)), and the person becomes a member of a new couple, their eligibility for PSP ceases.

 

A Note included under new subsection 38(2A) would provide that the person may become eligible for PSP under paragraph 38(1)(a), (aa) or (f). The effect of this provision is that the person may become eligible for PSP if they become a member of new couple and the new partner is a veteran.

 

Item 32 would repeal existing subsections 38(2B), (3) and (3A). These provisions are now redundant due to new subsection 38(2A).

 

Item 33 inserts an application provision for the purposes of determining eligibility for partner service pension for the period in accordance with subitem 33(1) commencing on the day the amendments made by Schedule 1 of this Bill commence, 20 September 2019.

 

Subitem 33(2) provides that new paragraph 38(1AA)(b) (as inserted by Item 30) is applicable in the circumstances where:

·          a relationship between the person and the veteran (whether of the same sex or a different sex) that was registered before, on or after 20 September 2019 under the law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 is a kind of relationship prescribed for the purposes of that section; and

·          a separation occurs on or after 20 September 2019.

 

Subitem 33(3) provides that new paragraph 38(1AA)(c) (as inserted by Item 30) is applicable in the circumstances where:

·          a de facto relationship was entered into before, on or after 20 September 2019; and

·          a separation occurs on or after 20 September 2019.

 

Subitem 33(4) provides that new paragraph 38(1AA)(d) (as inserted by Item 30) is applicable in the circumstances of a divorce occurring on or after 20 September 2019 where the separation had also occurred before, on or after that date.

Subitem 33(5) provides that new paragraph 38(1AA)(e) (as inserted by Item 30) is applicable in the circumstances of a registered relationship ceasing to be registered on or after 20 September 2019 where the separation had also occurred on or after 20 September 2019.

Subitem 33(6) provides that new paragraph 38(1AB)(b) (as inserted by Item 30) is applicable in the circumstances where:

·          the death of a veteran occurred on or after 20 September 2019;

·          a relationship between the person and the veteran (whether of the same sex or a different sex) was registered before, on or after 20 September 2019 under the law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

·          a separation occurs on or after 20 September 2019.

 

Subitem 33(7) provides that new paragraph 38(1AB)(c) (as inserted by Item 30) is applicable in the circumstances where:

·          the death of a veteran occurred on or after 20 September 2019;

·          a de facto relationship was entered into before, on or after 20 September 2019; and

·          a separation occurs on or after 20 September 2019.

 

Subitem 33(8) provides that new paragraph 38(1AB)(d) (as inserted by Item 30) is applicable in the circumstances where:

·          the death of a veteran occurred on or after 20 September 2019;

·          the divorce occurred on or after 20 September 2019;

·          the separation had occurred before, on or after 20 September 2019.

 

Subitem 33(9) provides that new paragraph 38(1AB)(e) is applicable in the circumstances where:

·          the death of a veteran occurred on or after 20 September 2019;

·          the relationship ceased to be registered on or after that date; and

·          the separation had occurred on or after that date.

 

Commencement

 

The amendments in Schedule 1 commence 20 September 2019.



 

Schedule 2 - Extended service on submarine special operations

Veterans’ Entitlements Act 1986

 

Background

 

  In 2010, the Government reclassified Submarine Special Operations (  SSO) that were undertaken in the period between   1 January 1978  and  31 December 1992   as operational and qualifying service for the purposes of the VEA. Previously, they had been classified as peacetime service. 

Service regarded as operational service provides eligibility for disability, war widow and war widower pensions, treatment and other benefits and the more beneficial reasonable hypothesis standard of proof is used to determine pension claims.  Qualifying service provides eligibility for service pension and associated benefits. 

Eligibility for both qualifying and operational service on SSO is determined on the basis of the claimant being eligible for, or having received, the Australian Service Medal with clasp “SPECIAL OPS” in respect of SSO during the relevant period.  Due to the continuing high level of secrecy around these clandestine operations, it proved difficult to obtain precise information about claimants. 

In response, the Government amended the VEA in 2018 to ensure that members of the Defence Force who served on SSO between 1 January 1978 and 31 December 1992 were deemed to have operational service for any time they served on a submarine during this period, provided the member was eligible for, or in receipt of, the Australian Service Medal with Clasp “Special Ops”.  This simplified the claims process by removing the requirement for the claimant to prove that an incident occurred during a period of service on a classified operation. 

The Government has now agreed to reclassify service on SSO for the period from 1 January 1993 to 12 May 1997 as operational service and qualifying service.  The proposed amendments will ensure that service on SSO by members of the Defence Force during that period will be regarded as operational and qualifying service for the purposes of the VEA.  Consequently, members of the Defence Force deployed on SSO between 1 January 1993 and 12 May 1997 will be eligible under the VEA for benefits currently available to those on SSO from 1 January 1978   to 31 December 1992.  The benefits under the VEA are:

·          service pension at age 60 under Part III;

·          other benefits which include the pension supplement and the Commonwealth Seniors Health Card;

·          disability pensions under Part II;

·          treatment under Part V for injuries and disease incurred while on or as a result of operational service;

·          assessment of claims under the more beneficial reasonable hypothesis standard of proof;

·          treatment for other conditions provided under Part V on a “non-liability” basis; and

 

·          the issue of a Department of Veterans’ Affairs (DVA) Health Card for All Conditions (Gold Card) at age 70.

However, service during the period from 13 May 1997 to 30 June 2006 will be the subject of “non-warlike” determinations under both the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) as the SSO do not meet the criteria for “warlike” service extant after 1997.  

Those persons with “non-warlike” service on SSO during the period from 13 May 1997 to 30 June 2006 will be regarded as having rendered operational service and are eligible for a more limited range of benefits, including pensions under Part II of the VEA and treatment under Part V for conditions attributed to service during that period.  They are also eligible for treatment for other conditions provided under Part V of the VEA on a “non-liability” basis.

A similar framework of “warlike” and “non-warlike” determinations applies under the MRCA that is applicable to service on or after 1 July 2004. Those persons with service on SSO from 1 July 2004 to 30 June 2006 will be eligible under the MRCA for rehabilitation and compensation for any service-related conditions and of claims under the more beneficial reasonable hypothesis standard of proof.

 

Notes on Clauses

 

Item 1 amends table item 4B of section 6.  Section 6 provides a general outline of the type of operational service covered by the provisions set out in sections 6A to 6F.

 

Table item 4B refers to the service on submarine special operations that is determined under section 6DB. The consequential amendment to table item 4B of section 6 to remove the reference “from 1978 to 1992” reflects the effect of the amendments made by this Schedule.

 

Items 2 and 3 amend section 6DB.  A consequential amendment to the heading removes the redundant reference to “from 1978 to 1992” and paragraphs 6DB(a) and (b) are amended to remove the words “31 December 1992” to replace them with “12 May 1997”. 

Item 4 would omit from subparagraphs 7A(1)(a)(v) and (vi) the words “31 December 1992” and replace them with “12 May 1997”. 

Commencement

The amendments in Schedule 2 commence 1 July 2019.

 

 

 



 

Schedule 3 - Other amendments

Defence Services Homes Act 1918

 

Veterans’ Entitlements Act 1986

 

Background

The amendments proposed to be made by Schedule 3 would amend the definitions of ‘widow’ and ‘widower’ in the DSHA and the VEA to ensure consistency with changes to the definition of marriage made by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (the Marriage Amendment Act).

 

The Marriage Amendment Act amended the Marriage Act 1961 (Cth) to remove the restrictions that limit marriage in Australia to the union of a man and a woman and allowed two people the freedom to marry in Australia, regardless of their sex or gender.

The proposed amendment to the DSHA would amend the definition of ‘widow’ and ‘widower’ to include any surviving spouse, regardless of their sex or gender. The amendments will remove gendered language within the definitions of ‘widow’ and ‘widower’ in paragraph 4(1) and would put beyond doubt that all surviving spouses of qualified persons are entitled to subsidised housing loans under the DSHA.

The DSHA provides subsidised housing loans to recognise the contribution of men and women who have served in the Australian Defence Forces, either during war or peacetime, and who first enlisted before 15 May 1985 or served in Namibia. Loans can be provided to eligible veterans and eligible persons, including a widow and widower of a person who is a veteran, an eligible person or a member of the Forces or a member of a Peacekeeping Force.

The proposed amendment to the VEA would amend the definition of ‘widow’ and ‘widower’ in the VEA to include any surviving spouse, regardless of sex or gender. The amendments will remove gendered language within the definitions of ‘widow’ and ‘widower’ in section 5E.  

This amendment would not increase the benefits available or widen the eligibility criteria, but would put beyond doubt that all surviving spouses are entitled to pensions payable under the VEA.

Under Veterans’ Affairs portfolio legislation same-sex relationships have been recognised since 9 December 2008 when amendments were made to the legislation by the Same-sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008.

NOTES ON CLAUSES

Defence Services Homes Act 1918

Item 1 would amend the definition of ‘widow’ under subsection 4(1) of the DSHA from being an inclusive definition (‘includes’) to being an exhaustive definition (‘means’). The amended definition provides that a widow means a woman who was legally married to, or the de facto partner of, a person immediately before the person died. The term applies regardless of the sex or gender of the person to whom the woman was married or partnered.

Item 2 would amend the definition of ‘widower’ under subsection 4(1) of the DSHA from being an inclusive definition (‘includes’) to being an exhaustive definition (‘means’). The amended definition provides that a widower means a man who was legally married to, or the de facto partner of, a person immediately before the person died. The term applies regardless of the sex or gender of the person to whom the man was married or partnered.

Item 3 would amend subsections 20(1) and 23(1) of the DSHA by inserting a note at the end of the subsections to clarify that the meaning of ‘widowed parent’ corresponds to the meaning of ‘widow’ and ‘widower’ in subsection 4(1) of the Act. The note puts beyond doubt that the meaning of those terms flows through to corresponding terms, as provided in section 18A of the Acts Interpretation Act 1901 .

Veterans’ Entitlements Act 1986

Item 4 is a minor amendment to paragraph (b) of the definition of ‘non-illness separated spouse” in subsection 5E(1) of the VEA to replace the reference to a “direction” made under subsection 5R(5) of the VEA with a reference to the more appropriate term “determination”.

Item 5 amends paragraph (b) of the definition of ‘widow’ under subsection 5E(1) of the VEA by replacing the reference to “a woman who was legally married to a man, but living separately and apart from him on a permanent basis, immediately before he died” to read “a woman who was legally married to a person, but living separately and apart from the person on a permanent basis, immediately before the person died”. This ensures the definition is consistent with the definition of marriage in the Marriage Act 1961 and includes the surviving spouse of a marriage, regardless of the sex or gender of the parties.

Item 6 amends paragraph (b) the definition of ‘widower’ under subsection 5E(1) of the VEA   by replacing the reference to “a man who was legally married to a woman, but living separately and apart from him on a permanent basis, immediately before she died” to read “a man who was legally married to a person but living separately and apart from the person on a permanent basis immediately  before the person died”. This ensures the definition is consistent with the definition of marriage in the Marriage Act 1961 and includes the surviving spouse of a marriage, regardless of the sex or gender of the parties.

 

Commencement

The amendments in Schedule 3 commence the day after this Act receives the Royal Assent.