No. 56 of 1977

An Act relating to Repatriation and related Matters.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—

PART I—PRELIMINARY

Short title.

1. This Act may be cited as the Repatriation Acts Amendment Act 1977.

Commencement.

2. (1) Sections 1, 2, 3 and 12 shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall come into operation on 1 October 1977.

PART II—AMENDMENTS OF THE REPATRIATION ACT 1920

Principal Act.

3. The Repatriation Act 1920 is in this Part referred to as the Principal Act.

Interpretation.

4. Section 6 of the Principal Act is amended—

(a) by inserting in sub-section (1), after the definition of “Commissioner”, the following definition:—

“‘Department’ means the Department of Veterans’ Affairs; and

(b) by adding at the end of sub-section (1) the following definition:—

“‘Secretary’ means the Secretary to the Department.”.

Appointment of Secretary as Chairman of the Commission.

5. Section 8a of the Principal Act is amended by omitting the word “Repatriation” and substituting the words “Veterans’ Affairs”.

Appointment to act as Chairman and Secretary.

6. Section 8b of the Principal Act is amended by omitting the word “Repatriation” (wherever occurring) and substituting the words “Veterans’ Affairs”.

7. (1) Sections 14 and 15 of the Principal Act are repealed and the following sections substituted:—

Repatriation Boards.

“14. (1) The Governor-General may, by instrument in writing, establish such number of Repatriation Boards as appears to him to be required, from time to time, for the purposes of this Act.

“(2) A Repatriation Board shall consist of a Chairman, a Services member, who shall be selected from a list submitted in accordance with a request made under sub-section (4), and a third member.

“(3) The members of Repatriation Boards shall be appointed by the Governor-General on the recommendation of the Commission.

“(4) The Commission may, from time to time, request organizations representing returned soldiers throughout Australia to submit to the Commission lists of names of persons from which the organization concerned recommends that a selection be made of persons to serve as Services members of Repatriation Boards.

“(5) A member of a Repatriation Board may be appointed as a full-time member or as a part-time member.

“(6) A member of a Repatriation Board shall be appointed for such period, not exceeding 3 years, as the Governor-General specifies in the instrument of appointment, and on such terms and conditions as the Governor-General determines, and is eligible for re-appointment.

“(7) A person who has attained the age of 65 years shall not be appointed or re-appointed as a member of a Repatriation Board, and a person shall not be appointed or re-appointed as such a member for a period that extends beyond the date on which he will attain the age of 65 years.

Boards to consult and co-operate with Commission.

“15. (1) In the performance of its functions under this Act, a Board shall consult and co-operate with the Commission.

“(2) The Commission may make available to Boards—

(a) statements of principles applied by the Commission in deciding appeals under section 28 and in conducting reviews under section 31;

(b) statements of principles governing the decision of appeals by War Pensions Entitlement Appeal Tribunals and Assessment Appeal Tribunals, being principles deduced by the Commission from the statements of reasons for determinations of those Tribunals prepared in accordance with sub-section (2) of section 47a; and

(c) such other material as the Commission considers may be of assistance to Boards in the exercise of their powers or the performance of their functions under this Act.

“(3) The Minister may give a direction to a Board, or to Boards generally, for the purpose of facilitating, ensuring or requiring consultation or co-operation by that Board, or by Boards generally, with the Commission with respect to a matter or matters specified in the direction.

“(4) Where the Minister gives a direction under sub-section (3), he shall furnish to the Commission a copy of that direction and the Commission shall set out the terms of that direction in its next report under section 122.

“(5) Nothing in this section authorizes the Minister or the Commission to direct a Board with respect to its consideration or determination of a particular claim or application.

Variation of constitution of Board.

“15a. (1) The Minister may, on the recommendation of the Commission, by writing signed by him, direct that the constitution of a Board may, during a specified period, be varied in one or more of the following ways:—

(a) the Chairman shall be a person specified in the direction, being a person who is the Chairman of another Board;

(b) the Services member shall be a person specified in the direction, being a person who is the Services member of another Board;

(c) the third member shall be a person specified in the direction, being a person who is the third member of another Board.

“(2) The Minister shall cause a direction under sub-section (1) to be served on each member of a Board who is specified in the direction.

“(3) Where a direction under sub-section (1) is served on a member of a Board in accordance with sub-section (2), the member shall, in accordance with the direction, serve as a member of the Board to which the direction relates, and that service shall, for the purposes of his entitlement to remuneration and allowances, be deemed to be service with the Board of which he is a member.

Remuneration and allowances of members of Repatriation Boards.

“15b. (1) A member of a Board shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

“(2) A member of a Board shall be paid such allowances as are prescribed.

“(3) This section has effect subject to the Remuneration Tribunals Act 1973.

Acting members of Boards.

“15c. (1) Where—

(a) there is a vacancy in the office of a member of a Board; or

(b) a member of a Board, being a full-time member, is absent from duty or from Australia or is suspended from office, or, being a part-time member, is unable, whether on account of illness or otherwise, to perform the duties of his office or is suspended from office,

the Minister may, upon the recommendation of the Commission, appoint a person to act in the vacant office or in the place of that member, as the case may be, until the filling of the vacancy or during the period during which that member is absent or is suspended or is unable to perform the duties of his office, as the case may be.

“(2) A person appointed under sub-section (1) to act in a vacant office or in the place of a member of a Board has all the functions, powers and duties that he would have if he were the holder of the vacant office or all the functions, powers and duties of the member in whose place he is acting, as the case may be.

“(3) The Minister may—

(a) subject to this Act and having regard to the terms and conditions of appointment applicable to members of Boards, determine terms and conditions of appointment (including remuneration and allowances) of a person appointed under this section; and

(b) at any time, terminate such an appointment.

“(4) A person appointed under sub-section (1) to act in a vacant office shall not continue so to act after the expiration of a period of 12 months after the occurrence of the vacancy.

“(5) The validity of a decision of a Board shall not be questioned in any proceedings on a ground arising from the fact that the occasion for the appointment of a person purporting to be appointed under this section had not arisen or that an appointment of a person under this section had ceased to have effect.

Meetings of Repatriation Boards.

“15d. (1) At a meeting of a Board, 2 members form a quorum.

“(2) The Chairman shall preside at any meeting of a Board at which he is present and, in the absence of the Chairman from a meeting, the members present shall choose one of their number to preside at that meeting.

“(3) Any question that arises at a meeting of a Board, shall be decided by a majority of votes of members present and voting.”.

(2) At any time after this Act receives the Royal Assent and before the commencement of this section, the Commission may request an organization to submit to it a list referred to in sub-section (4) of section 14 set out in sub-section (1) of this section as if this section had come into operation, and, if a list is so submitted, then, for the purposes of making an appointment under that section, whether by virtue of section 4 of the Acts Interpretation Act 1901 or otherwise, that list shall be deemed to be a list submitted in accordance with a request made under sub-section (4) of section 14.

Commissioners and members of Boards not subject to Public Service Act.

8. Section 21 of the Principal Act is amended by omitting the word “shall” (second and third occurring) and substituting the words “, whether the Board to which he is appointed or another Board, shall”.

9. After section 24a of the Principal Act the following sections are inserted:—

Claim for pension to be in accordance with the approved form.

“24aa. (1) A claim for pension—

(a) shall be in accordance with the approved form; and

(b) shall be accompanied by such evidence available to the claimant as he considers may support the claim.

“(2) Sub-section (1) shall not be taken as imposing any onus of proof on a claimant.

“(3) A claim for pension shall be forwarded to the Secretary at the appropriate address prescribed by or under section 123ac.

“(4) In this section—

‘approved form’ means a form approved by the Commission;

‘pension’ does not include a service pension.

Investigation of claims, &c.

“24ab. (1) Where a claim for pension is lodged with the Department, the Secretary shall cause an investigation to be made into the matters to which the claim relates.

“(2) Subject to any direction of the Commission under sub-section (2) of section 27, the Secretary shall, after completion of an investigation under sub-section (1) in relation to a claim, cause the claim to be submitted to a Board for its consideration and determination.

“(3) A claim submitted to a Board or to the Commission for its consideration and determination shall be accompanied by—

(a) any evidence furnished by the claimant in support of the claim; and

(b) all the records and other documents relevant to the claim that are under the control of the Department, together with a report of the results of the investigation in relation to the claim carried out under sub-section (1).”.

Change of status of child to be notified.

10. Section 40aa of the Principal Act is amended by omitting from sub-sections (2) and (3) the words “notify the Commission or a Board accordingly” and substituting the words “give a notification accordingly to the Secretary at the appropriate address prescribed by or under section 123ac”.

11. After section 40aa of the Principal Act the following section is inserted:—

Notifications under section 40aa to be referred to Commission or a Board.

“40ab. The Secretary shall cause to be referred to the Commission or to a Board every notification received by him under section 40aa.

12. (1) Section 47 of the Principal Act is repealed and the following section substituted:—

Hearing and determination of claims, &c.

“47. (1) The Commission, a Board, an Appeal Tribunal or an Assessment Appeal Tribunal, in hearing, considering, determining or deciding a claim, application or appeal—

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to—

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities.

“(2) The Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal shall grant the claim or application or allow the appeal, as the case may be, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.”.

(2) The amendment made by sub-section (1) applies in relation to—

(a) the hearing or consideration, after the commencement of this section, of a claim, application or appeal, whether or not the hearing or consideration commenced before the commencement of this section; and

(b) a determination or decision made after the commencement of this section in respect of a claim, application or appeal.

Medical Reports.

13. Section 48 of the Principal Act is amended by omitting from sub-section (3) the words “of Repatriation”.

Receipt of income to be notified.

14. Section 96 of the Principal Act is amended—

(a) by omitting from sub-section (1) the words “Commission, or a Board for the State or Territory in which he resides” and substituting the words “Secretary at the appropriate address prescribed by or under section 123ac”;

(b) by omitting from sub-section (2) the words “Commission, or a Board for the State or Territory in which he resides” and substituting the words “Secretary at the appropriate address prescribed by or under section 123ac”;

(c) by omitting from sub-section (6) the words “notify the Commission, or the Board for the State or Territory in which he resides, accordingly, within fourteen days after the occurrence of the event” and substituting the words “give a notification accordingly, within 14 days after the occurrence of the event, to the Secretary at the appropriate address prescribed by or under section 123ac”;

(d) by omitting from sub-section (7) the words “Commission, or the Board for the State or Territory in which he resides” and substituting the words “Secretary at the appropriate address prescribed by or under section 123ac”;

(e) by omitting from sub-section (8) the words “notify the Commission, or the Board for the State or Territory in which the child resides, accordingly” and substituting the words “give a notification accordingly to the Secretary at the appropriate address prescribed by or under section 123ac”; and

(f) by omitting from sub-section (9) the words “notify the Commission, or the Board for the State or Territory in which the child resides, accordingly” and substituting the words “give a notification accordingly to the Secretary at the appropriate address prescribed by or under section 123ac”.

Persons resident in Papua New Guinea.

15. Section 96a of the Principal Act is amended by omitting from sub-section (2) the word “Commission” (first occurring) and substituting the words “Secretary at the appropriate address prescribed by or under section 123ac”.

Service pensioner to furnish information when required.

16. Section 97 of the Principal Act is amended by omitting from sub-section (1) the words “Commission or Board, as the case may be,” and substituting the words “Secretary at the appropriate address prescribed by or under section 123ac”.

Supplementary assistance.

17. Section 98a of the Principal Act is amended—

(a) by omitting from sub-section (8) the words “notify the Commission in writing accordingly” and substituting the words “give a notification, in writing, accordingly to the Secretary at the appropriate address prescribed by or under section 123ac”; and

(b) by omitting from sub-section (9) the words “notify the Commission in writing of the grant” and substituting the words “give a notification, in writing, of the grant to the Secretary at the appropriate address prescribed by or under section 123ac”.

18. After section 123ab of the Principal Act the following section is inserted:—

Address of Secretary for forwarding claims, &c.

“123ac. (1) For the purposes of this Act or a related Act, a person may forward a claim, application, notification or other document to the Secretary at—

(a) where the person resides in a State—the address, or any address, of the Department in the State; or

(b) in any other case—the appropriate address in accordance with the regulations.

“(2) In this section, ‘related Act’ means—

(a) the Interim Forces Benefits Act 1947;

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

PART III—AMENDMENTS OF THE SEAMEN’S WAR PENSIONS AND ALLOWANCES ACT 1940

Principal Act.

19. The Seamen’s War Pensions and Allowances Act 1940 is in this Part referred to as the Principal Act.

Interpretation.

20. Section 3 of the Principal Act is amended—

(a) by omitting from sub-section (1) the definition of “Deputy Commissioner for Repatriation” and substituting the following definition:—

“‘Department’ means the Department of Veterans’ Affairs;”; and

(b) by inserting in sub-section (1), after the definition of “relevant date”, the following definition:—

“‘Secretary’ means the Secretary to the Department;”.

Seamen’s Pensions and Allowances Committees.

21. Section 4 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:—

“(1) The Governor-General may, by instrument in writing, establish such number of Seamen’s Pensions and Allowances Committees as appears to him to be required, from time to time, for the purposes of this Act.”; and

(b) by inserting after sub-section (2) the following sub-sections:—

“(2a) A member of a Pensions Committee may be appointed as a full-time member or as a part-time member.

“(2b) A person who has attained the age of 65 years shall not be appointed or re-appointed as a member of a Pensions Committee, and a person shall not be appointed or re-appointed as such a member for a period that extends beyond the date on which he will attain the age of 65 years.

22. Section 4a of the Principal Act is repealed and the following sections are substituted:—

Pensions Committees to consult and co-operate with Commission.

“4a. (1) In the performance of its functions under this Act a Pensions Committee shall consult and co-operate with the Commission.

“(2) The Commission may make available to Pensions Committees—

(a) statements of principles applied by the Commission in deciding appeals under section 7 and in conducting reviews under section 8;

(c) such other material as the Commission considers may be of assistance to Pensions Committees in the exercise of their powers or the performance of their functions under this Act.

“(3) The Minister may give a direction to a Pensions Committee, or to Pensions Committees generally, for the purpose of facilitating, ensuring or requiring consultation or co-operation by that Pensions Committee, or Pensions Committees generally, with the Commission with respect to a matter or matters specified in the direction.

“(4) Where the Minister gives a direction under sub-section (3), he shall furnish to the Commission a copy of that direction.

“(5) Nothing in this section authorizes the Minister or the Commission to direct a Pensions Committee with respect to its consideration or determination of a particular claim or application.

Remuneration of members of Pensions Committees.

“4b. (1) A member of a Pensions Committee shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

“(2) A member of a Pensions Committee shall be paid such allowances as are prescribed.

“(3) This section has effect subject to the Remuneration Tribunals Act 1973.”.

Special Magistrates and Registrars.

23. Section 9 of the Principal Act is repealed.

Power to summon witnesses, take evidence, &c.

24. Section 10 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:—

“(1) The Chairman of the Commission or the Chairman of a Pensions Committee, or any person authorized in writing by the Chairman of the Commission or of a Pensions Committee, for the purpose of any inquiry that the Commission or the Pensions Committee has power to make, may summon any person to appear before the Commission or the Pensions Committee, as the case may be, and require that person to answer questions and to produce documents and, for any such purpose, may administer oaths or affirmations. and

(b) by omitting from sub-section (2) the words “, Pensions Committee, a Special Magistrate or a Registrar of Seamen’s Pensions” and substituting the words “or a Pensions Committee”.

Grant of pensions.

25. Section 12 of the Principal Act is amended by adding at the end thereof the following sub-section:—

“(2) Where a pension is granted under this Act, the Commission or a Pensions Committee may, subject to this Act, approve of the payment of the pension from and including a date not earlier than 3 months before the date of lodgement of the claim for pension.”.

Medical reports.

26. Section 14 of the Principal Act is amended by omitting from sub-section (3) the words “of Repatriation”.

27. Section 26 of the Principal Act is repealed and the following sections are substituted:—

Claim for pension to be in accordance with approved form.

“26. (1) A claim for pension—

(a) shall be in accordance with the approved form; and

(b) shall be accompanied by such evidence available to the claimant as he considers may support the claim.

“(2) A claim for pension shall be forwarded to the Secretary at the appropriate address prescribed by or under section 58b.

“(3) In this section, ‘approved form’ means a form approved by the Commission.

Investigation of claims.

“26a. (1) Where a claim for pension is lodged with the Department, the Secretary shall cause an investigation to be made into the matters to which the claim relates.

“(2) The Secretary shall, after completion of an investigation under sub-section (1) in relation to a claim, cause the claim to be submitted to a Pensions Committee, or to the Commission, for its consideration and determination.

“(3) A claim submitted to a Pensions Committee or to the Commission for its consideration and determination shall be accompanied by-

(a) any evidence furnished by the claimant in support of the claim; and

Notifications of marriage or divorce.

28. Section 29 of the Principal Act is amended by omitting from sub-section (2) the words “Deputy Commissioner of Repatriation for the State in which she resides” and substituting the words “Secretary at the appropriate address prescribed by or under section 58b”.

Administration of pensions, &c.

29. Section 54 of the Principal Act is amended—

(a) by omitting from sub-section (1) the words “or a Deputy Commissioner for Repatriation”;

(b) by omitting from sub-section (1) the words “or Deputy Commissioner”; and

Change of status of child to be notified.

30. Section 54a of the Principal Act is amended—

(a) by omitting from sub-section (2) the words “notify the Commission accordingly” and substituting the words “give a notification accordingly to the Secretary at the appropriate address prescribed by or under section 58b”; and

(b) by omitting from sub-section (3) the words “notify the Commission accordingly” and substituting the words “give a notification accordingly to the Secretary at the appropriate address prescribed by or under section 58b”.

31. After section 58a the following section is inserted:—

Address of Secretary for forwarding claims, &c.

“58b. For the purposes of this Act, a person may forward a claim, application, notification or other document to the Secretary at—

(a) where the person resides in a State—the address, or any address, of the Department in the State; or

(b) in any other case—the appropriate address in accordance with the regulations.”.