Repatriation Acts Amendment Act 1981

No. 160 of 1981

An Act relating to repatriation and related matters

[Assented to 30 October 1981]

BE IT ENACTED by the Queen, and the Senate and the 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 1981.

Commencement

2. (1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(2) Section 19 and sections 30 to 42 (inclusive) and sub-sections 43 (2) and 58 (1) shall come into operation on 1 November 1981.

(3) Section 21 and sub-section 92 (1) shall come into operation on 1 January 1982.

(4) Sections 25 and 26 and sub-sections 92 (2), (3) and (4) shall come into operation on 1 February 1982.

(5) Section 27 and sub-section 58 (2) shall come into operation on 4 February 1982.

(6) Sub-section 60 (2), sections 61, 62 and 75 and sub-section 92 (5) shall come into operation on 12 November 1981.

(7) Part IX shall be deemed to have come into operation on 1 July 1979.

PART II—AMENDMENTS OF THE REPATRIATION ACT 1920

Principal Act

3. The Repatriation Act 19201 is in this Part referred to as the Principal Act.

Interpretation

4. Section 6 of the Principal Act is amended—

(a) by omitting “and includes an acting member of the Commission” from the definition of “Commissioner” in sub-section (1); and

(b) by inserting after the definition of “Department” in sub-section (1) the following definition:

“‘medical practitioner’ means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners;”.

Members of Commission

5. Section 8 of the Principal Act is amended—

(a) by omitting sub-section (4); and

(b) by adding at the end thereof the following sub-section:

“(9) An Acting Commissioner—

(a) shall be numbered among the members of the Commission for the purposes of sub-sections (5), (6) and (6b);

(b) shall be regarded as a Commissioner for the purposes of sub-section (7); and

(c) shall be regarded as a member of the Commission for the purposes of sub-section (8).”.

Appointment to act as Chairman and Secretary

6. Section 8b of the Principal Act is amended by adding at the end thereof the following sub-section:

“(10) A reference in this section to a member of the Commission shall be read as including a reference to an Acting Commissioner.”.

7. After section 8b of the Principal Act the following section is inserted:

Acting Commissioners

“8c. (1) The Minister may appoint a person to act in the office of a Commissioner—

(a) during a vacancy in that office; or

(b) during any period, or during all periods, when the person holding that office—

(i) is absent from duty or from Australia;

(ii) is suspended under section 16;

(iii) is acting as Chairman under section 8b; or

(iv) is, for any other reason, unable to perform the functions of that office.

“(2) A person appointed under sub-section (1) to act during a vacancy shall not continue so to act for more than 12 months.

“(3) An appointment of a person under sub-section (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

“(4) The Minister may determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under this section.

“(5) Where a person is acting as a Commissioner in accordance with paragraph (1) (b), and the office of the Commissioner becomes vacant while that person is so acting, then, subject to sub-section (3), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

“(6) The appointment of a person to act as a Commissioner ceases to have effect if he resigns his appointment by writing signed by him and delivered to the Minister.

“(7) While a person is acting as a Commissioner, he has and may exercise all the powers, and shall perform all the functions, of the Commissioner under this Act or any other law.

“(8) The validity of any thing done by a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had ceased.

“(9) In this section, ‘Commissioner’ does not include the Chairman of the Commission.”.

8. (1) Section 10 of the Principal Act is repealed and the following section substituted:

Terms and conditions of appointment of Commissioners

“10. (1) A Commissioner 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.

“(2) A person who has attained the age of 65 years shall not be appointed as a Commissioner, and a person shall not be appointed as a Commissioner for a period that extends beyond the age of 65 years.

“(3) In this section, ‘appointment’ includes re-appointment.”.

(2) The amendment made by sub-section (1) does not affect the term of a Commissioner who was appointed before the commencement of this section.

Variation of constitution of Board

9. Section 15a of the Principal Act is amended by omitting from sub-section (1) “on the recommendation of the Commission,”.

Acting members of Boards

10. Section 15c of the Principal Act is amended by omitting from sub-section (1) “, upon the recommendation of the Commission,”.

11. (1) After section 17 of the Principal Act the following sections are inserted:

Leave of absence

“17aa. The Minister may grant leave of absence to a Commissioner or an Acting Commissioner or to a member, or an acting member, of a Board upon such terms and conditions as to remuneration or otherwise as the Minister determines.

Resignation

“17ab. (1) A Commissioner or a member of a Board may resign his office by writing signed by him and delivered to the Governor-General.

“(2) An Acting Commissioner or an acting member of a Board may resign his office by writing signed by him and delivered to the Minister.

Retirement

“17ac. The Governor-General may, with the consent of a Commissioner or an Acting Commissioner, retire the Commissioner or the Acting Commissioner on the ground of mental or physical incapacity.”.

(2) Where a Commissioner or an Acting Commissioner was, immediately before the commencement of this section, absent on leave granted by the Governor-General, that leave shall, after the commencement of this section, be deemed to be leave granted by the Minister.

Offices—how vacated

12. Section 18 of the Principal Act is amended by omitting paragraph (2) (b) and substituting the following paragraph:

“(b) he is absent from duty, except on leave of absence granted by the Minister, for 21 consecutive days.”.

Pensions upon death or incapacity

13. Section 24 of the Principal Act is amended—

(a) by omitting paragraph (a) of the proviso to sub-section (1); and

(b) by adding at the end thereof the following sub-section:

“(4) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (3) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Death or mental affliction of claimant

14. (1) Section 24a of the Principal Act is amended—

(a) by omitting from sub-section (1) “, if there is no legal personal representative of the claimant,”; and

(b) by inserting after sub-section (1) the following sub-section:

“(1a) If there is a legal personal representative of the claimant, the Commission shall not approve a person as a representative of the claimant under sub-section (1) unless it is satisfied that—

(a) the person has notified the legal personal representative of the claimant that the legal personal representative has or may have a claim under sub-section (1); and

(b) the legal personal representative has declined to take any action in relation to the matter.”.

(2) An approval of a person as a representative of a claimant under section 24a of the Principal Act that was in force immediately before the commencement of this section continues in force, after the commencement of this section, as if it had been given under section 24a of the Repatriation Act 1920 as in force after the commencement of this section.

Claim for pension to be in accordance with approved form

15. Section 24aa of the Principal Act is amended by omitting from sub-section (3) “the appropriate address prescribed by or under section 123ac” and substituting “any address of the Department”.

Change of status of child to be notified

16. Section 40aa of the Principal Act is amended by omitting from sub-sections (2) and (3) “the appropriate address prescribed by or under section 123ac” (wherever occurring) and substituting “any address of the Department”.

Pensions to certain dependent females

17. Section 42 of the Principal Act is amended by inserting in sub-section (1) “or a Board” after “Commission”.

Interpretation

18. Section 83 of the Principal Act is amended—

(a) by omitting from sub-section (1) the definition of “Dependent female” and substituting the following definition:

“‘Dependent female’ means a woman who is living with a man (in this Division referred to as her husband) as his wife on a bona fide domestic basis, although not legally married to him;”; and

(b) by inserting after paragraph (k) of the definition of “Income” the following paragraph:

“(ka) an attendant’s allowance payable under section 21 of the Seamen’s War Pensions and Allowances Act 1940;”.

Claimant to be resident in Australia

19. Section 85a of the Principal Act is amended by inserting in sub-section (1) “, and is physically present in,” after “in”.

Restrictions as to dual pensions

20. Section 86 of the Principal Act is amended by omitting paragraph (1) (c) and substituting the following paragraph:

“(c) a widow who is in receipt of a war pension in respect of her husband’s death or a child who is in receipt of a war pension in respect of his father’s death is not entitled to receive, at the same time, a service pension as the wife or child, as the case may be, of a member of the Forces.”.

Variation of rate of service pension according to income

21. Section 87 of the Principal Act is amended by omitting from sub-section (3a) “one-half:—” and substituting “60 per cent:”.

Receipt of income to be notified

22. Section 96 of the Principal Act is amended—

(a) by inserting after paragraph (6) (c) the following paragraph:

“(ca) the husband or wife of a service pensioner (being a service pensioner who has attained the age of 70 years) commencing to receive an age pension or an invalid pension under the Social Services Act 1947;”; and

(b) by omitting from sub-sections (1), (2), (6), (7), (8) and (9) “the appropriate address prescribed by or under section 123ac” (wherever occurring) and substituting “any address of the Department”.

Persons resident in Papua New Guinea

23. Section 96a of the Principal Act is amended by omitting from sub-section (2) the words “the appropriate address prescribed by or under section 123ac” and substituting “any address of the Department”.

Service pensioner to furnish information when required

24. Section 97 of the Principal Act is amended by omitting from sub-section (1) the words “the appropriate address prescribed by or under section 123ac” and substituting “any address of the Department”.

Rate of supplementary allowance when spouse overseas

25. Section 98aa of the Principal Act is repealed.

Supplementary assistance

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

(a) by omitting sub-sections (1) to (3c) (inclusive) and substituting the following sub-sections:

“(1) This section applies to a person if—

(a) the person is a service pensioner; and

(b) the person pays, or is liable to pay, rent at an annual rate exceeding $520.

“(2) For the purposes of this section in its application to a married person—

(a) any income of the wife or husband of the married person shall be deemed to be the income of the married person;

(b) where the married person is living with the husband or wife of the married person in their matrimonial home—any rent that the wife or husband of the married person pays, or is liable to pay, in respect of that matrimonial home shall be deemed to be paid, or payable, by the married person; and

(c) where the married person is a person in respect of whom a determination is in force under sub-section 84 (2)—any rent that the wife or husband of the married person pays, or is liable to pay, in respect of the premises occupied by the married

person shall be deemed to be paid, or payable, by the married person.

“(3) Subject to this section, there is payable to a person to whom this section applies, in addition to his service pension, an allowance by way of supplementary assistance.

“(3a) Subject to sub-sections (3b) and (3c), the rate at which an allowance under this section is payable to a person is an amount per annum equal to—

(a) one-half of the amount by which the amount of the annual rent paid, or payable, by that person exceeds $520; or

(b) $416,

whichever is the lesser amount.

“(3b) The annual rate at which an allowance is payable to a person under sub-section (3a) shall be reduced by an amount equal to one-half of the amount of the annual rate of income of the person.

“(3c) Where—

(a) an allowance under this section is payable to a married person who is living with the husband or wife of the person in their matrimonial home; and

(b) there is payable to the husband or wife of the person—

(i) a supplementary assistance allowance under this section;

(ii) an allowance under section 30a of the Social Services Act 1947;

(iii) a supplementary allowance under section 112a of the Social Services Act 1947; or

(iv) an allowance under section 9 of the Tuberculosis Act 1948,

the rate at which the allowance under this section is payable to the person shall be one-half of the rate at which it would be payable to the person but for this sub-section.”; and

(b) by omitting from sub-sections (8) and (9) “the appropriate address prescribed by or under section 123ac” (wherever occurring) and substituting “any address of the Department”; and

(c) by omitting sub-section (10) and substituting the following sub-sections:

“(10) Where a person in receipt of an allowance under this section commences to pay Government rent, he shall, within 14 days after the date on which the first payment of Government rent is due, give a notification, in writing, accordingly to the Secretary at any address of the Department.

“(11) In this section—

‘Government rent’ means—

(a) rent payable to any of the following authorities:

(i) The Housing Commission of New South Wales;

(ii) the Housing Commission established by a law of Victoria;

(iii) The Queensland Housing Commission;

(iv) The Corporation of the Director of Aboriginal and Islanders Advancement established by a law of Queensland;

(v) the South Australian Housing Trust;

(vi) The State Housing Commission established by a law of Western Australia;

(vii) the Director-General of Housing and Construction holding office under a law of Tasmania;

(viii) the Northern Territory Housing Commission;

(ix) any other authority specified by notice in the Gazette for the purposes of the definition of ‘Government rent’ in section 18 of the Social Services Act 1947;

(b) rent payable to the Commonwealth in respect of any accommodation in Glebe in New South Wales; or

(c) rent payable to the Commonwealth in respect of any accommodation in the Australian Capital Territory or the Jervis Bay Territory, other than rent of a kind specified by notice in the Gazette for the purposes of paragraph (c) of the definition of ‘Government rent’ in section 18 of the Social Services Act 1947;

‘married person’ includes a dependent female and the husband of a dependent female, but does not include a person (other than a dependent female or the husband of a dependent female) who is—

(a) a widow;

(b) a widower;

(c) a person whose marriage has been dissolved but who has not remarried; or

(d) a person who is living apart from the spouse of the person—

(i) in pursuance of a separation agreement in writing or of a decree, judgment or order of a court; or

(ii) in such special circumstances that the Commission is satisfied that the person should

not be treated as a married person for the purposes of this section;

‘rent’, in relation to a service pensioner, means rent in respect of premises, or a part of premises, occupied by him as his home, and includes amounts payable by him for lodging or for board and lodging, but does not include Government rent.”.

27. After Division 5b of Part III of the Principal Act the following Division is inserted:

“Division 5c—Extension of Application of Provisions of Division 5 to certain Australian Mariners

Date of commencement of service pension

“98k. The date of commencement of a service pension payable under Division 5, as extended by this Division, shall not be earlier than 4 February 1982.

Extension of application of Division 5 to Australian mariners

“98l. (1) Subject to this Division, the provisions of Division 5 extend to, and in relation to—

(a) an Australian mariner who has served in a theatre of war within the meaning of this Division;

(b) the wife, as defined in sub-section 83 (1), of such an Australian mariner; and

(c) a child, as defined in sub-section 83 (1), of such an Australian mariner.

“(2) For the purposes of the extension of the provisions of Division 5 as provided in sub-section (1)—

(a) a reference in that Division to a member of the Forces or to a member shall be read as a reference to an Australian mariner; and

(b) a reference in that Division to service in a theatre of war shall be read as a reference to service in a theatre of war within the meaning of this Division.

Interpretation

“98m. (1) In this Division, ‘Australian mariner’ and ‘the enemy’ have the same respective meanings as they have in the Seamen’s War Pensions and Allowances Act 1940.

“(2) For the purposes of this Division, an Australian mariner shall be deemed to have served in a theatre of war if, and only if, he was, at any time during the course of his employment as an Australian mariner, on a ship, or in an area, at a time when danger from hostile forces of the enemy was incurred on that ship, or in that area, as the case may be, by the Australian mariner.”.

Liability of Commonwealth to pay pensions to certain male members of the Forces

28. Section 101 of the Principal Act is amended—

(a) by inserting in paragraph (a) of the proviso to sub-section (1) “or a Board” after “Commission”;

(b) by inserting in sub-section (1a) “or a Board” after “Commission”; and

(c) by omitting sub-section (4) and substituting the following sub-section:

“(4) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (3) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Liability of Commonwealth to pay pensions to certain male members of the Forces

29. Section 107c of the Principal Act is amended—

(a) by inserting in sub-section (2) “or a Board” after “Commission”; and

(b) by inserting after sub-section (5) the following sub-section:

“(5a) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (5) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Heading to Division 10 of Part III of Principal Act

30. The heading to Division 10 of Part III of the Principal Act is amended by adding at the end thereof “and to persons who are serving or have served in a Peacekeeping Force”.

Extension of application of Act to members to whom this Division applies

31. Section 107h of the Principal Act is amended—

(a) by omitting paragraph (1) (a) and substituting the following paragraph:

“(a) members to whom this Division applies; and”;

(b) by omitting from paragraph (2) (a) “member of the Forces within the meaning of this Division” and substituting “member to whom this Division applies”;

(c) by omitting from paragraph (2) (b) “member of the Forces” (wherever occurring) and substituting “member to whom this Division applies”; and

(d) by adding at the end of paragraph (2) (c) “or peacekeeping service, as the case may be”.

Interpretation

32. Section 107j of the Principal Act is amended—

(a) by omitting the definition of “Compensation Act” and substituting the following definitions:

“‘Australian contingent’, in relation to a Peacekeeping Force, means a contingent of that Force that has been authorized or approved by the Australian Government;

“‘Australian member’, in relation to a Peacekeeping Force, means a member of that Force whose membership has been authorized or approved by the Australian Government;

“‘authorized travel’, in relation to a member of a Peacekeeping Force, means travel authorized by the appropriate authority, being an authority approved by the Minister for the purpose;”;

(b) by adding “, but does not include any period of peacekeeping service” at the end of the definition of “defence service”;

(c) by inserting after the definition of “effective full-time service” the following definition:

“‘member of a Peacekeeping Force’ means a person who is serving, or has served, with a Peacekeeping Force outside Australia as an Australian member, or a member of the Australian contingent, of that Peacekeeping Force;”; and

(d) by adding at the end thereof the following definitions and sub-sections:

“‘member to whom this Division applies’ means—

(a) a member of the Forces; or

(b) a member of a Peacekeeping Force;

“‘Peacekeeping Force’ means a Force raised or organized by the United Nations or another international body for the purpose of—

(a) peacekeeping in an area outside Australia; or

(b) observing or monitoring any activities of persons in an area outside Australia that may lead to an outbreak of hostilities,

being a Force that is designated by the Minister, by notice published in the Gazette, as a Peacekeeping Force for the purposes of this Division;

“‘peacekeeping service’, in relation to a person, means service with a Peacekeeping Force outside Australia, and includes—

(a) any period after his appointment or allocation to the Peacekeeping Force during which the person was travelling outside Australia for the purpose of joining the Peacekeeping Force; and

(b) any period of authorized travel outside Australia by the person after he ceases to serve with the Peacekeeping Force,

but does not include any period of service or travel before 2 November 1981.

“(2) For the purposes of the definition of ‘peacekeeping service’ in sub-section (1)—

(a) a person who travels from a place in Australia to a place outside Australia shall be deemed to have commenced to travel outside Australia when he departs from his last port (or airport) of call in Australia; and

(b) a person who travels to Australia from a place outside Australia shall be deemed to be travelling outside Australia until he arrives at his first port (or airport) of call in Australia.

“(3) A notice designating a Force for the purposes of the definition of ‘Peacekeeping Force’ in sub-section (1) may specify a date (not being a date earlier than 2 November 1981) on and after which that Force is to be, or to be deemed to have been, a Peacekeeping Force for the purposes of this Division.”.

Liability of Commonwealth to pay pensions to certain members to whom this Division applies

33. Section 107m of the Principal Act is amended—

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

“(1) Upon the incapacity or death of a member to whom this Division applies whose incapacity or death has arisen out of, or is attributable to, his defence service or his peacekeeping service, as the case may be, the Commonwealth is, subject to this Act, liable to pay to the member, to the dependants of the member or to both, as the case may be, pensions in accordance with Division 1, as applied by section 107h.”;

(b) by inserting in sub-section (2) “or his peacekeeping service, as the case may be,” after “defence service” (first occurring);

(c) by inserting in paragraph (2) (a) and (b) “or peacekeeping service, as the case may be” after “defence service” (wherever occurring);

(d) by omitting from paragraph (3) (a) “member” (first occurring) and substituting “member of the Forces”;

(e) by omitting from sub-section (3) “Australia” and substituting “the Commonwealth”;

(f) by inserting after sub-section (3) the following sub-section:

“(3a) Where—

(a) the origin or cause of the incapacity or death of a member of a Peacekeeping Force who has had at least 6 months peacekeeping service with that Force existed before he commenced his peacekeeping service; and

(b) the Commission or a Board is of the opinion that the incapacity from which the member is suffering or from which he died has, or had, been contributed to in a material degree, or has, or had, been aggravated, by the conditions of his peacekeeping service,

the Commonwealth is, subject to this Act, liable to pay to the member, to his dependants or to both, as the case may be, pensions in accordance with Division 1, as applied by section 107h.”;

(g) by omitting from sub-section (4) “Australia” and substituting “The Commonwealth”;

(h) by inserting in sub-section (5) “in respect of the incapacity or death of a member of the Forces” after “granted”; and

(j) by adding at the end thereof the following sub-sections:

“(6) Where a pension is granted in respect of the incapacity or death of a member of a Peacekeeping Force, the Commission or a Board may, subject to this Act, approve of the payment of the pension on and from a date that is not earlier than 1 November 1981 and is not more than 3 months before the date of lodgment of the claim for pension.

“(7) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (5) or (6), as the case may be, to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Conditions of payment of pension to certain dependants of members to whom this Division applies

34. Section 107n of the Principal Act is amended by omitting from sub-sections (1), (2) and (3) “member of the Forces” (wherever occurring) and substituting “member to whom this Division applies”.

Pensions payable to certain dependent females of members of the Forces

35. Section 107p of the Principal Act is amended by omitting paragraph (1) (a) and substituting the following paragraph:

“(a) the Commonwealth is liable to pay pension in respect of the incapacity of a member of the Forces or the death during defence service of a member of the Forces;”.

36. After section 107p of the Principal Act the following section is inserted:

Pensions payable to certain dependent females of members of a Peacekeeping Force

“107pa. (1) Where—

(a) the Commonwealth is liable to pay pension in respect of the incapacity of a member of a Peacekeeping Force or the death during peacekeeping service of a member of a Peacekeeping Force;

(b) a person was, at the time of the death of the member or at the time when the member ceased to serve with the Peacekeeping Force on medical grounds, recognized as the wife of the member although not legally married to him; and

(c) the Commission is satisfied that that person was wholly or partly dependent upon the member at that time,

a pension under this Division in respect of that incapacity or death may be paid to that person at a rate not exceeding the rate of pension that would be payable to her under this Division if she were, or had been at the time of his death, legally married to the member.

“(2) A pension may be paid under this section in addition to any pension payable to the wife or widow, as the case may be, of the member.”.

Dual entitlement

37. Section 107q of the Principal Act is amended—

(a) by omitting sub-section (2) and substituting the following sub-section:

“(2) The right conferred by this Division on a member to whom this Division applies to payment by way of pension in respect of an incapacity, or on a person, other than a member to whom this Division applies, to payment by way of pension in respect of an incapacity or the death of a member to whom this Division applies, is in substitution for the right (if any) of that member or of that other person to a payment in respect of the incapacity, or of the incapacity or death of

the member, as the case may be, to which, but for this sub-section, he would have been entitled under the Naval Defence Act 1910, the Defence Act 1903 or the Air Force Act 1923, and any such right of the member or other person under any of those Acts is, by force of this sub-section, determined.”; and

(b) by omitting from sub-section (3) “a member” and substituting “a member to whom this Division applies”.

38. After section 107q of the Principal Act the following section is inserted:

Maximum rates of pensions in certain cases

“107qa. Notwithstanding anything contained in this Division, where—

(a) a member to whom this Division applies has or had both defence service and peacekeeping service; and

(b) the incapacity or death of the member has or had reference to both his defence service and his peacekeeping service,

the Commonwealth is not liable to pay to any person pensions, in respect of the incapacity or death of the member, at rates that, in the aggregate, exceed the rate at which pension would have been payable to that person if the incapacity or death of the member, or both the incapacity and death of the member, had reference to his defence service only or to his peacekeeping service only.”.

Persons in receipt of payments by way of compensation or damages

39. Section 107r of the Principal Act is amended—

(a) by omitting from sub-section (1) the definition of “compensation” and substituting the following definition:

“‘compensation’ includes—

(a) any payment in the nature of compensation; and

(b) any damages recoverable at law (including any amount paid under a compromise or settlement of a claim for damages at law), whether from the Commonwealth or another person, in respect of the injury or death of a person,

but does not include any amount that represents expenses incurred in medical or hospital treatment;”;

(b) by omitting from paragraphs (3) (a) and (b) “member” (wherever occurring) and substituting “member to whom this Division applies”;

(c) by omitting from sub-sections (4) and (5) “member of the Forces” (wherever occurring) and substituting “member to whom this Division applies”;

(d) by omitting sub-section (7) and substituting the following sub-section:

“(7) For the purposes of sub-section (6)—

(a) a pension payable to a member to whom this Division applies or, in respect of a deceased member to whom this Division applies, to the widow or widower or a woman referred to in

section 107p or 107pa is a preferred pension with respect to any other pension;

(b) a pension payable to the wife or husband of a member to whom this Division applies or, in respect of a living member to whom this Division applies, to a woman referred to in section 107p or 107pa is a preferred pension with respect to any pension payable to a child of the member; and

(c) a pension payable to a child of a member to whom this Division applies is a preferred pension with respect to a pension payable to a younger child of the member.”; and

(e) by omitting sub-section (9) and substituting the following sub-section:

“(9) Where, in respect of a deceased member to whom this Division applies, both a pension and a domestic allowance are payable under this Division to the widow or to a woman referred to in section 107p or 107pa, the domestic allowance shall, for the purposes of this section, be treated as a part of the pension.”.

Power of Commission to request proceedings to be taken against third party or to take proceedings itself

40. Section 107s of the Principal Act is amended—

(a) by omitting from paragraph (1) (a) “member” and substituting “member to whom this Division applies”;

(b) by omitting from sub-sections (2) and (3) “Australia” (wherever occurring) and substituting “the Commonwealth”;

(c) by omitting from sub-section (4) “Australia” and substituting “The Commonwealth”;

(d) by omitting from sub-section (5) “Australia” (wherever occurring) and substituting “the Commonwealth”; and

(e) by adding at the end of sub-section (6) “or 107pa”.

Payment of damages by persons to the Commonwealth

41. Section 107t of the Principal Act is amended—

(a) by omitting “Australia” (wherever occurring) and substituting “the Commonwealth”;

(b) by omitting from sub-sections (1) and (2) “a member” (wherever occurring) and substituting “a member to whom this Division applies”; and

(c) by adding at the end of the definition of “dependant” in sub-section (6) “or 107pa”.

Liability to pay damages to be discharged by payment of pension

42. Section 107v of the Principal Act is amended—

(a) by omitting “Australia” (wherever occurring) and substituting “the Commonwealth”;

(b) by omitting from paragraph (1) (a) “a member” (wherever occurring) and substituting “a member to whom this Division applies”; and

(c) by adding at the end of sub-section (2) “or 107pa”.

Interpretation

43. (1) Section 107va of the Principal Act is amended—

(a) by inserting after the definition of “direction” the following definition:

“‘hearing’ includes re-hearing;”;

(b) by omitting “legally qualified” from the definition of “medical member”; and

(c) by omitting “presidential” from the definition of “presiding member”.

(2) Section 107va of the Principal Act is amended by omitting the definition of “member of the Forces” and substituting the following definition:

“‘member of the Forces’ means—

(a) a person who is a member of the Forces within the meaning of section 23, 100, 105, 107b or 107f;

(b) a person who is a member to whom Division 10 of Part III applies by virtue of the definition of ‘member to whom this Division applies’ in section 107j; or

(c) a person to whom certain provisions of this Act extend by virtue of section 102, 107, 107d or 107g,

whichever is appropriate;”.

44. Section 107ve of the Principal Act is repealed and the following section substituted:

Review of certain decisions refusing applications for service pensions under section 85

“107ve. Where the Commission has made a decision refusing an application by a person for a service pension under section 85 solely on the ground that the person is not permanently unemployable, the person may, within 3 months after the service on the person, in accordance with section 47a, of a copy of the decision of the Commission, make application to the Tribunal for a review of that decision.”.

Application for review

45. Section 107vf of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:

“(1) An application to the Tribunal for a review—

(a) shall be in writing; and

(b) shall be forwarded to the Secretary at any address of the Department,

and may set out a statement of the reasons for the application.”.

Decision of Tribunal

46. Section 107vh of the Principal Act is amended by adding at the end of sub-section (3) “and, for that purpose, the Tribunal may exercise all the powers and discretions that are conferred on the Commission or on the Board, as the case may be.”.

Reasons for decision of Tribunal to be included in statement of decision, &c.

47. (1) Section 107vk of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:

“(1) Where, in a proceeding before the Tribunal, the Tribunal makes a decision relating, in whole or in part, to a prescribed matter, the Tribunal shall cause to be prepared a written statement of the decision and shall include in the statement—

(a) so far as the decision relates to a prescribed matter, the findings on material questions of fact in relation to the prescribed matter, referring to the evidence or other material on which those findings were based; and

(b) the reasons for the decision.”.

(2) The amendment made by sub-section (1) does not apply to, or in relation to, a decision made by the Tribunal before the commencement of this section.

Member ceasing to be member, &c.

48. Section 107vr of the Principal Act is amended by omitting sub-sections (1), (2) and (3) and substituting the following sub-sections:

“(1) Where—

(a) one of the members constituting the Tribunal by virtue of a direction under section 107vq ceases to be a member or ceases to be available for the purposes of a proceeding; and

(b) the applicant consents,

the 2 remaining members shall be deemed to constitute the Tribunal by virtue of the direction given under section 107vq until the President otherwise directs.

“(2) Where the member referred to in paragraph (1) (a) is a Presidential member, the President shall direct which of the 2 remaining members shall preside at any hearing of the proceeding.”.

49. Section 107vze of the Principal Act is repealed and the following sections are substituted:

Dismissal of application

“107vze. (1) If—

(a) an applicant for a review of a decision by the Tribunal fails to appear at a hearing of the proceeding on that review;

(b) the Tribunal serves, or causes to be served, either personally or by post, on the applicant, a notice—

(i) specifying the time and place of the hearing of the proceeding at which the applicant failed to appear;

(ii) requesting the applicant to appear at a further hearing of that proceeding to be conducted at a time (being a time not earlier than the expiration of 28 days after the date of service of the notice) and place specified in the notice; and

(iii) stating that, if the applicant fails to appear as requested, the Tribunal may dismiss the application without proceeding to review the decision; and

(c) the applicant fails to appear as required by the notice,

the Tribunal may dismiss the application without proceeding to review the decision.

“(2) For the purposes of section 107vzd, a decision of the Tribunal under sub-section (1) shall be deemed to be a decision that is adverse to the applicant.

“(3) This section does not apply in relation to an applicant who has requested the Tribunal to proceed with the hearing in his absence.

Withdrawal of application

“107vzea. An applicant for review of a decision by the Tribunal may withdraw his application for review at any time before the Tribunal has commenced to proceed to review the decision and, with the consent of the Tribunal, at any time after the Tribunal has commenced to proceed to review the decision.”.

Limits of retrospective operation

50. Section 107vzg of the Principal Act is amended by inserting in paragraph (1) (f) “(or such longer period as the Commission or the Tribunal considers appropriate in the special circumstances of a case)” after “4 years”.

Appointment of members to Tribunal

51. Section 107vzh of the Principal Act is amended by omitting from paragraph (2) (b) “legally qualified”.

Removal from office

52. Section 107vzq of the Principal Act is amended by omitting from sub-sections (1), (2) and (8) “incapacity” (wherever occurring) and substituting “physical or mental incapacity”.

53. After section 107vzq of the Principal Act the following section is inserted:

Disclosure of interests

“107vzqa. (1) Where a member is, or is to be, a member of the Tribunal as constituted by virtue of a direction under section 107vq for the purposes of a

proceeding and he has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his functions in relation to that proceeding—

(a) he shall disclose the interest to the applicant and the Commission; and

(b) except with the consent of the applicant and the Commission, he shall not take part in the proceeding or exercise any powers in relation to the review by the Tribunal of the relevant decision of the Commission or of the Board.

“(2) Where the President becomes aware that a member is, or is to be, a member of the Tribunal as constituted by virtue of a direction under section 107vq for the purposes of a proceeding and that the member has in relation to that proceeding such an interest as is mentioned in sub-section (1)—

(a) if the President considers that the member should not take part, or should not continue to take part, in the proceeding—he shall give a direction to the member accordingly; or

(b) in any other case—he shall cause the interest of the member to be disclosed to the applicant and to the Commission.”.

Application of Officers’ Rights Declaration Act

54. Section 107vzr of the Principal Act is amended by omitting sub-section (1).

Reference of decisions to Administrative Appeals Tribunal

55. Section 107vzzb of the Principal Act is amended by adding at the end thereof—

“(12) Where, under sub-section (8), the President of the Administrative Appeals Tribunal directs a review by the Administrative Appeals Tribunal of a decision, the parties to the proceeding before the Administrative Appeals Tribunal on that review are—

(a) the applicant under Part IIIa for a review of that decision; and

(b) the Commission.”.

Post-mortem examination

56. Section 120a of the Principal Act is amended by omitting from sub-section (1) “legally qualified”.

Address of Secretary for forwarding claims, &c.

57. Section 123ac of the Principal Act is repealed.

Regulations

58. (1) Section 124 of the Principal Act is amended—

(a) by inserting in sub-paragraph (1aa) (a) (ii) “, or members of a Peacekeeping Force,” after “Forces”; and

(b) by adding at the end of paragraph (1aa) (b) “or 107pa”.

(2) Section 124 of the Principal Act is amended—

(a) by omitting from paragraph (1aa) (a) “and” (last occurring); and

(b) by inserting after paragraph (1aa) (a) the following paragraph:

“(aa) the making of regulations with respect to—

(i) Australian mariners, within the meaning of Division 5c, who have served in a theatre of war, within the meaning of that Division; and

(ii) the wives and children of such mariners; and”.

Schedule 1

59. Schedule 1 to the Principal Act is amended—

(a) by inserting in paragraph 3 “or a Board” after “Commission” (first occurring); and

(b) by inserting in paragraph 3 “or the Board” after “Commission” (second occurring).

Schedule 2

60. (1) Schedule 2 to the Principal Act is amended by inserting “or a Board” after “Commission” (wherever occurring).

(2) Schedule 2 to the Principal Act is amended—

(a) by omitting “$38.64” and substituting “$42.05”; and

(b) by omitting “$77.30” and substituting “$84.10”.

Schedule 3

61. Schedule 3 to the Principal Act is amended—

(a) by omitting from Table A “$55.20” (wherever occurring) and substituting “$60.00”; and

(b) by omitting from Table A “$27.60” and substituting “$30.00”.

Schedule 5

62. Schedule 5 to the Principal Act is amended—

(a) by omitting from column 2 of the table in paragraph 1 “$51.60” and substituting “$56.10”;

(b) by omitting from column 2 of the table in paragraph 1 “$34.80” and substituting “$37.90”;

(c) by omitting from column 2 of the table in paragraph 1 “$30.00” (wherever occurring) and substituting “$32.60”;

(d) by omitting from column 2 of the table in paragraph 1 “$14.90” (wherever occurring) and substituting “$16.20”;

(e) by omitting from column 2 of the table in paragraph 1 “$7.90” (wherever occurring) and substituting”$8.60”;

(f) by omitting from column 2 of the table in paragraph 1 “$11.60” and substituting “$12.60”;

(g) by omitting from column 3 of the table in paragraph 1 “$77.30” and substituting “$84.10”; and

(h) by omitting from column 3 of the table in paragraph 1 “$38.64” (wherever occurring) and substituting “$42.05”.

Formal amendments

63. The Principal Act is amended as set out in Schedule 1.

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

Principal Act

64. The Seamen’s War Pensions and Allowances Act 19402 is in this Part referred to as the Principal Act.

Interpretation

65. Section 3 of the Principal Act is amended—

(a) by inserting in paragraph (d) of the definition of “Australian mariner” in sub-section (1) “, supply ship” after “transport”; and

(b) by inserting after the definition of “fishing vessel” in sub-section (1) the following definition:

“‘medical practitioner’ means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners;”.

Officers of Commission

66. Section 11 of the Principal Act is repealed.

Grant of pensions

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

“(3) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (2) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Rates of pension in respect of partial incapacity

68. Section 23 of the Principal Act is amended by omitting from sub-section (3) “duly qualified medical officer or practitioner” and substituting “medical practitioner”.

Claim for pension to be in accordance with approved form

69. Section 26 of the Principal Act is amended by omitting from sub-section (2) “the appropriate address prescribed by or under section 58b” and substituting “any address of the Department”.

Notifications of marriage or divorce

70. Section 29 of the Principal Act is amended by omitting from sub-section (2) “the appropriate address prescribed by or under section 58b” and substituting “any address of the Department”.

Periodical examination of pensioner

71. Section 33 of the Principal Act is amended by omitting from sub-section (1) “duly qualified medical officer or practitioner” and substituting “medical practitioner”.

Administration of pensions, &c.

72. Section 54 of the Principal Act is amended by omitting from sub-section (1) “or him”.

Change of status of child to be notified

73. Section 54a of the Principal Act is amended by omitting from sub-sections (2) and (3) “the appropriate address prescribed by or under section 58b” (wherever occurring) and substituting “any address of the Department”.

Address of Secretary for forwarding claims, &c.

74. Section 58b of the Principal Act is repealed.

Schedule 2

75. Schedule 2 to the Principal Act is amended—

(a) by omitting from column 2 “38.64” (wherever occurring) and substituting “42.05”; and

(b) by omitting from column 2 “77.30” and substituting “84.10”.

Formal amendments

76. The Principal Act is amended as set out in Schedule 2.

PART IV—AMENDMENTS OF THE INTERIM FORCES BENEFITS ACT 1947

Principal Act

77. The Interim Forces Benefits Act 19473 is in this Part referred to as the Principal Act.

Formal amendments

78. The Principal Act is amended as set out in Schedule 3.

PART V—AMENDMENTS OF THE PAPUA NEW GUINEA (MEMBERS OF THE FORCES BENEFITS) ACT 1957

Principal Act

79. The Papua New Guinea (Members of the Forces Benefits) Act 19574 is in this Part referred to as the Principal Act.

80. After section 3 of the Principal Act the following section is inserted:

Service as member of Police Force

“3a. (1) In this section, ‘prescribed service’ means service, at any time during the period that commenced on 7 December 1941 and ended on 31 December 1945, by a male indigenous inhabitant of Papua New Guinea or of an island in the Pacific Ocean (other than an island forming part of the territory of a State) as a member of the Royal Papuan Constabulary, or of the New Guinea Police Force, under Australian Army command.

“(2) For the purposes of this Act, a person who has prescribed service shall be deemed to be a member of the Forces and that prescribed service shall be deemed to be service by him in the Defence Force.”.

Formal amendments

81. The Principal Act is amended as set out in Schedule 4.

PART VI—AMENDMENTS OF THE REPATRIATION (FAR EAST STRATEGIC RESERVE) ACT 1956

Principal Act

82. The Repatriation (Far East Strategic Reserve) Act 19565 is in this Part referred to as the Principal Act.

Liability of Commonwealth to pay pensions to members of the Forces

83. Section 6 of the Principal Act is amended—

(a) by inserting in sub-section (3) “or a Board” after “Commission”; and

(b) by inserting after sub-section (6) the following sub-section:

“(6a) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (6) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Formal amendments

84. The Principal Act is amended as set out in Schedule 5.

PART VII—AMENDMENTS OF THE REPATRIATION (SPECIAL OVERSEAS SERVICE) ACT 1962

Principal Act

85. The Repatriation (Special Overseas Service) Act 19626 is in this Part referred to as the Principal Act.

Liability of Commonwealth to pay pensions to members of the Forces

86. Section 6 of the Principal Act is amended—

(a) by inserting in sub-section (4) “or a Board” after “Commission”; and

(b) by inserting after sub-section (7) the following sub-section:

“(7a) Where—

(a) a pension is granted following on the lodgment of a claim in accordance with an approved form; and

(b) within a period of 3 months before the date of lodgment of that claim, there had been lodged at any address of the Department a claim (in this sub-section referred to as ‘the informal claim’) for that pension that was in writing but not in accordance with an approved form,

then, in relation to that pension, the reference in sub-section (7) to the date of lodgment of a claim for pension shall be read as a reference to the date of lodgment of the informal claim.”.

Formal amendments

87. The Principal Act is amended as set out in Schedule 6.

PART VIII—AMENDMENTS OF THE REPATRIATION (TORRES STRAIT ISLANDERS) ACT 1972

Principal Act

88. The Repatriation (Torres Strait Islanders) Act 19727 is in this Part referred to as the Principal Act.

Formal amendments

89. The Principal Act is amended as set out in Schedule 7.

PART IX—AMENDMENT OF THE REPATRIATION ACTS AMENDMENT ACT 1979

Principal Act

90. The Repatriation Acts Amendment Act 19798 is in this Part referred to as the Principal Act.

Appeals lodged, but not decided, before commencement of this Part

91. Section 48 of the Principal Act is amended by inserting after sub-section (1) the following sub-sections:

“(1a) Where, before the commencement of this Part—

(a) an appellant in an appeal under sub-section 64 (1) of the Repatriation Act 1920 submitted further evidence to the Commission under sub-section 64 (7) of that Act; and

(b) the Commission had determined that the evidence was not material to, or did not have a substantial bearing on, the appellant’s claim,

the appellant, unless before the commencement of this Part, he had submitted that further evidence to an Appeal Tribunal under sub-section 64 (7aa) of that Act and the Appeal Tribunal had decided that the evidence was material to, and had a substantial bearing on, his claim, may submit that further evidence, in writing, to the President of the Repatriation Review Tribunal.

“(1b) If, upon submission of further evidence by an appellant under sub-section (1a), the President of the Repatriation Review Tribunal notifies the appellant that, in the President’s opinion, that further evidence would have been relevant to the making of the determination the subject of the appeal referred to in paragraph (1a) (a), the appellant shall be treated, for the purposes of the Repatriation Act 1920, as if he had applied under section 107vc of that Act for a review by the Repatriation Review Tribunal of the determination the subject of that appeal and, for the purposes of that review, that determination shall be deemed to be a decision.”.

PART X—APPLICATION OF CERTAIN AMENDMENTS

Application

92. (1) The amendment made by section 21, in so far as it affects instalments of service pension, applies in relation to an instalment of a service pension falling due on the first pension pay-day after 1 January 1982 and to all subsequent instalments.

(2) Subject to sub-section (3), the amendment made by sections 25 and 26 in so far as it affects instalments of service pension, applies in relation to an instalment of service pension falling due on the first pension pay-day after 1 February 1982, and to all subsequent instalments.

(3) Subject to sub-section (4), where, but for this sub-section, the application of the amendments referred to in sub-section (2) in relation to—

(a) a supplementary assistance allowance that commenced to be payable to a person on and from a date before 1 February 1982; or

(b) a supplementary assistance allowance that commences to be payable to a person immediately on the cessation of a supplementary assistance allowance that was, immediately before its cessation, a supplementary assistance allowance to which this sub-section applied,

would result in the supplementary assistance allowance ceasing to be payable or being payable at the same rate or a reduced rate, then—

(c) the Principal Act continues to apply, or applies, in accordance with its tenor, in relation to that allowance; and

(d) sub-section (1) does not apply in relation to any instalment in which that allowance is included.

(4) Sub-section (3) ceases to apply in relation to a supplementary assistance allowance in relation to a person if—

(a) the person ceases to be entitled to supplementary assistance allowance in accordance with the Principal Act, as applied by sub-section (3); or

(b) the application to that supplementary assistance allowance of the amendment referred to in sub-section (2) would result in that allowance becoming payable at an increased rate.

(5) The amendments made by sub-section 60 (2) and sections 61, 62 and 75, in so far as they affect instalments of pensions or allowances, apply in relation to an instalment of a pension or allowance falling due on 12 November 1981 and to all subsequent instalments.

—————

SCHEDULE 1 Section 63

FORMAL AMENDMENTS OF THE REPATRIATION ACT 1920

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 2      Section 76

FORMAL AMENDMENTS OF THE SEAMEN’S WAR PENSIONS AND ALLOWANCES ACT 1940

SCHEDULE 2—continued

SCHEDULE 2—continued

—————

SCHEDULE 3 Section 78

FORMAL AMENDMENTS OF THE INTERIM FORCES BENEFITS ACT 1947

SCHEDULE 3—continued

SCHEDULE 4 Section 81

FORMAL AMENDMENTS OF THE PAPUA NEW GUINEA (MEMBERS OF THE FORCES BENEFITS) ACT 1957

———

SCHEDULE 5 Section 84

FORMAL AMENDMENTS OF THE REPATRIATION (FAR EAST STRATEGIC RESERVE) ACT 1956

SCHEDULE 6 Section 87

FORMAL AMENDMENTS OF THE REPATRIATION (SPECIAL OVERSEAS SERVICE) ACT 1962

———

SCHEDULE 7 Section 89

FORMAL AMENDMENTS OF THE REPATRIATION (TORRES STRAIT ISLANDERS) ACT 1972

NOTES