Part VI—Allowances and other benefits
Division 1—Preliminary
94 Interpretation
In this Part, unless the contrary intention appears:
(a) a reference to a hospital or other institution shall be read as including a reference to a home, a hostel, a medical centre, an out‑patient clinic and a rehabilitation or training establishment; and
(b) treatment has the same meaning as it has in Part V.
96 Application
(1) Without prejudice to its effect apart from this section, this Part has effect in relation to a person who is, or has been:
(a) a member of the Forces as defined by subsection 68(1); or
(b) a member of a Peacekeeping Force as defined by subsection 68(1);
and in relation to a dependant of such a person who has died, in like manner as it has effect in relation to a veteran and a dependant of a deceased veteran, respectively.
(2) For the purpose only of applying this Part as provided in subsection (1):
(a) a reference in this Part to a veteran shall be read as a reference to a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1);
(b) a reference in this Part to a war‑caused injury shall be read as a reference to a defence‑caused injury;
(c) a reference in this Part to a war‑caused disease shall be read as a reference to a defence‑caused disease;
(d) a reference in this Part to the death of a veteran that was war‑caused shall be read as a reference to the death of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), that was defence‑caused;
(e) a reference in this Part to a pension under Part II shall be read as a reference to a pension under Part IV;
(f) the references in subparagraph 102(1)(b)(ii) and subsections 108(8) and (9) to section 26 shall be read as references to section 26 (in its application to pensions under Part IV) or subsection 74(8); and
(g) a reference in this Part to a claim or application under Part II shall be read as a reference to a claim or application made under section 14 or 15, in its application to pensions under Part IV.
Division 2—Eligibility for allowances and other benefits
97 Clothing allowance
(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called clothing allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1:
Column 1 | Column 2 |
Kinds of incapacity | Rate per fortnight
$ |
1. One leg and one arm amputated | 7.20 |
2. One leg or one arm amputated | 3.30 |
3. Both legs or both arms amputated | 4.60 |
4. One leg amputated, causing essential hip disarticulation | 4.60 |
5. Blinded in both eyes | 3.30 |
(2) Where the Commission is satisfied that it is necessary for a veteran who is being paid a clothing allowance under subsection (1) by reason of a kind of incapacity described in item 2, 3 or 4 (in column 1) of the table in subsection (1) to use a crutch or crutches in addition to any artificial aid, that subsection has effect as if the rate specified in that item (in column 2) were an amount per fortnight equal to the amount specified in item 1 (in column 2) of that table.
(3) Where:
(a) a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind other than a kind described in column 1 of the table in subsection (1); and
(b) exceptional wear and tear, or exceptional damage, to the clothing of the veteran occurs by reason of the kind of incapacity from which the veteran is suffering;
the Commission may grant to the veteran a clothing allowance at such rate, not exceeding an amount per fortnight equal to the amount specified in item 2 (in column 2) of that table, as the Commission deems fit.
(4) Where a veteran is granted a clothing allowance under subsection (1) and is also granted a clothing allowance under subsection (3), clothing allowance shall be paid to the veteran at a rate per fortnight equal to the sum of:
(a) the rate per fortnight at which the allowance was granted under subsection (1); and
(b) the rate per fortnight at which the allowance was granted under subsection (3).
(5) For the purpose of this section:
(a) amputation of a hand of a veteran shall be treated as amputation of an arm of the veteran; and
(b) amputation of a foot of a veteran shall be treated as amputation of a leg of the veteran.
(6) Clothing allowance may be paid to a veteran by fortnightly instalments, or in such other manner as is determined by the Commission, but the amount, or sum of the amounts, of clothing allowance paid to a veteran in any period of 12 consecutive months shall not exceed an amount equal to the sum of 26 fortnightly instalments.
98 Attendant allowance
(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran:
Column 1 | Column 2 |
Kinds of incapacity | Rate per fortnight
$ |
1. Blinded in both eyes | 84.30 |
2. Blinded in both eyes together with total loss of speech or total deafness | 168.60 |
3. Both arms amputated | 168.60 |
4. Both legs amputated and one arm amputated | 84.30 |
5. Both legs amputated at the hip or one leg amputated at the hip and the other leg amputated in the upper third | 84.30 |
(2) Where:
(a) a veteran is being paid a pension under Part II in respect of incapacity:
(i) from a war‑caused injury or a war‑caused disease affecting the cerebro‑spinal system; or
(ii) from a war‑caused injury or a war‑caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro‑spinal system; and
(b) the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
(3) For the purposes of the application of the table in subsection (1) to and in relation to a veteran, a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated.
(4) Where a veteran is cared for, at public expense, in a hospital or other institution, attendant allowance is not payable to the veteran in respect of the period commencing on the day of the first pension period occurring after the veteran commences to be so cared for and ending on the day on which the veteran ceases to be so cared for.
(4B) Attendant allowance is not payable to a veteran if carer payment under Part 2.5 of the Social Security Act:
(a) is payable to a person because the person is caring for the veteran; or
(b) would be payable to a person because the person is caring for the veteran, apart from:
(i) the payment being suspended under the social security law; or
(ii) the rate of the payment being nil because of action taken in relation to the payment under Chapter 5 of the Social Security Act 1991 (about overpayments and debt recovery).
(5) Where the Commission makes a decision with respect to an application for attendant allowance under this section, section 34 applies to and in relation to the decision in like manner as it applies to and in relation to a decision with respect to a claim for pension in accordance with section 14.
98A Bereavement payment in respect of partnered veterans receiving pensions by way of compensation
(1) This section applies where a veteran dies if the veteran was, immediately before his or her death:
(a) a member of a couple; and
(b) receiving a pension under Part II or IV (other than a pension payable to a person as a dependant of a deceased veteran).
(2) The widow or widower of the deceased veteran is entitled, in respect of the period of 12 weeks after the deceased veteran’s death, to payments at:
(a) if the deceased veteran was, immediately before his or her death, in receipt of that pension at a rate under subsection 22(4), 23(4), (5) or (6) or 24(4), (5), (5A) or (6)—the rate at which that pension would have been payable to him or her, if he or she had not died, on the first available pension pay day after the Commission becomes aware of the death; or
(b) in any other case—the lower of the following:
(i) the rate at which that pension would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the Commission becomes aware of the death;
(ii) the general rate in force on that pension pay day.
(3) Where:
(a) the widow or widower dies within 12 weeks after the death of the deceased veteran; and
(b) the Commission has not become aware of the death of the deceased veteran before the death of the widow or widower;
there is payable, to such person as the Commission thinks appropriate, in respect of the deceased veteran, an amount worked out using the formula:
where:
deceased veteran’s amount means:
(a) if the deceased veteran was, immediately before his or her death, in receipt of the pension covered by paragraph (1)(b) at a rate under subsection 22(4), 23(4), (5) or (6) or 24(4), (5), (5A) or (6)—the amount of that pension that would have been payable to him or her, if he or she had not died, on the first available pension pay day after the death of the widow or the widower; or
(b) in any other case—the lower of the following:
(i) the amount of the pension covered by paragraph (1)(b) that would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the death of the widow or the widower;
(ii) the amount that would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the death of the widow or widower, at the general rate in force on that pension pay day.
(4) Subsection (2) does not apply:
(a) if the Commission does not become aware of the veteran’s death until after the death of the widow or widower; or
(b) in respect of any pension pay day after the death of the widow or widower.
(5) Where:
(a) within the period of 12 weeks after the death of a veteran, an amount to which the veteran would have been entitled if he or she had not died has been paid by way of a pension covered by paragraph (1)(b) into an account with a bank; and
(b) this section applies in relation to the death of the veteran; and
(c) the bank pays to the widow or widower of the deceased veteran, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (a);
then, in spite of anything in any other law, the bank is not liable to the Commonwealth, the personal representative of the deceased veteran, or anyone else, for any loss incurred because of the payment of that money to the widow or widower.
(6) In this section:
first available pension pay day, in relation to the death of a veteran, means the first pension pay day after the Commission becomes aware of the death for which it is practicable to terminate or adjust the payments being made by way of pension covered by paragraph (1)(b) in respect of the deceased veteran.
98AA Bereavement payments in respect of certain single veterans receiving pensions by way of compensation
(1) The Commission must pay an amount (bereavement payment), worked out in accordance with subsection (2), to the estate of a deceased veteran if:
(a) immediately before the veteran died, he or she was not a member of a couple; and
(b) immediately before the veteran died, he or she was being paid a pension under Part II as a veteran to whom subsection 22(4) or section 24 applied; and
(c) the veteran died in indigent circumstances; and
(d) an application for the bereavement payment is made in accordance with sections 111 and 112.
(2) The amount of the bereavement payment is 6 times the amount of the pension that would have been payable to the veteran, if he or she had not died, on the first pension pay day after he or she died.
98B Funeral benefits—automatic grant to estate of certain deceased veterans
(1) The Commission is to grant a benefit (funeral benefit) to the estate of a deceased veteran if, immediately before the veteran died:
(a) he or she was being paid a pension under Part II at the rate specified in subsection 22(4); or
(b) he or she was being paid a pension under Part II as a veteran to whom section 24 applied; or
(c) he or she was being paid a pension under Part II at a rate that had been increased under section 27 because the veteran was incapacitated from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(d) the Commission was satisfied that the veteran had, before the MRCA commencement date, been made a prisoner of war at a time when the veteran was rendering operational service.
(2) The amount of the funeral benefit is $2,000.
99 Further funeral benefits—veterans
(1) The Commission may grant a benefit, called a funeral benefit, towards the funeral expenses incurred in respect of the funeral of:
(a) a veteran whose death was war‑caused;
(d) a veteran who has died in indigent circumstances; or
(e) subject to subsection (3), a veteran who has died:
(i) in an institution;
(ii) while travelling to or from an institution;
(iii) after having been discharged from an institution in which the veteran was being treated for a terminal illness; or
(iv) while being treated for a terminal illness at the veteran’s home instead of at an institution.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(2) The Commission may grant a benefit (funeral benefit) towards the funeral expenses incurred in respect of the funeral of a veteran if, after the death of the veteran:
(a) a pension is granted to the veteran that is determined to be payable, from a date before the veteran’s death:
(i) at a rate that is worked out under subsection 22(4); or
(ii) at a rate that is worked out under section 24; or
(iii) at a rate that is worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(b) the rate of a pension that was payable to the veteran under Part II is increased, as from a date before the veteran’s death because:
(i) subsection 22(4) or section 24 applied to the veteran as from that date; or
(ii) section 27 applied to the veteran as from that date because of incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(c) information is received which satisfies the Commission that the veteran was, before the MRCA commencement date, made a prisoner of war at a time when the veteran was rendering operational service.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(3) A funeral benefit must not to be granted under paragraph (1)(e) unless:
(a) if subparagraph (1)(e)(i) or (ii) applies—treatment is or was provided in the institution; and
(b) in any case—the treatment is or was arranged:
(i) by the Commission under Part V of this Act; or
(ii) by the Military Rehabilitation and Compensation Commission under Chapter 6 of the MRCA.
(3A) A funeral benefit is not to be granted under subsection (2) in respect of a veteran if a funeral benefit has been granted to his or her estate under section 98B.
(4) A funeral benefit under this section in respect of a deceased veteran consists of:
(a) a sum of $2,000 or an amount equal to the amount paid or payable in respect of the funeral of the deceased veteran, whichever is less; and
(b) subject to subsection (5), if:
(i) the veteran died at a place other than the veteran’s ordinary place of residence; and
(ii) the veteran was absent from the veteran’s ordinary place of residence for the purpose of obtaining medical treatment; and
(iii) the Commission or the Military Rehabilitation and Compensation Commission arranged for the provision of the treatment; and
(iv) a charge was made by the funeral director expressly for transporting the body of the deceased veteran from the place where the veteran died to the place where the veteran ordinarily resided immediately before the veteran died;
a sum equal to a reasonable charge for so transporting the body of the deceased veteran.
(5) Paragraph (4)(b) does not apply to a charge made by a funeral director for transporting the body of the deceased veteran:
(a) outside Australia; or
(b) from one place in the metropolitan area of a capital city to another place in the metropolitan area of that city.
(6) For the purposes of subparagraph (4)(b)(ii), but without limiting the generality thereof, a veteran shall be deemed to be absent from the veteran’s ordinary place of residence for the purpose of obtaining medical treatment:
(a) if the veteran is travelling from his or her ordinary place of residence for the purpose of obtaining medical treatment;
(b) if the veteran is returning to his or her ordinary place of residence after having obtained medical treatment;
(c) if the veteran is being provided with medical treatment at a place other than his or her ordinary place of residence; or
(d) if the veteran is away from his or her ordinary place of residence on the recommendation of his or her doctor by way of treatment for an injury or disease.
(7) In paragraph (4)(a), the amount paid or payable in respect of the funeral of a deceased veteran means, in a case where the deceased veteran was, immediately before his or her death, a member of a contributory funeral benefit fund, the amount by which the cost of the funeral exceeds the amount of the benefit payable from that fund in relation to the deceased veteran.
100 Funeral benefits—dependants of deceased veterans
(1) If:
(a) a dependant (other than a reinstated pensioner) of a deceased veteran, being:
(i) a veteran whose death was war‑caused; or
(ii) a veteran who, immediately before his or her death, was being paid pension under Part II as a veteran to whom section 24 applied; or
(iii) a veteran who, immediately before his or her death, was being paid pension under Part II at a rate that had been increased under section 27 by reason that the veteran was incapacitated from a war‑caused injury or a war‑caused disease of a kind described in item 1, 2, 3, 4, 5, 6, 7 or 8 in the table in subsection 27(1); or
(b) a reinstated pensioner;
has died in indigent circumstances, the Commission may grant a benefit, called funeral benefit, towards the funeral expenses incurred in respect of the funeral of the dependant.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(1A) The Commission may grant a benefit towards the funeral expenses incurred in respect of a person’s funeral if:
(a) either:
(i) the person was a wholly dependent partner of a deceased member; or
(ii) the person was both an eligible young person, and a dependant of a deceased member, immediately before the member’s death; and
(b) the person died in indigent circumstances; and
(c) section 12 of the MRCA applies in respect of the member.
Note: Expressions used in this subsection have the same meanings as they have in the MRCA (see subsection (4)).
(2) A funeral benefit under this section in respect of a deceased dependant of a deceased veteran is a sum of $2,000 or an amount equal to the amount paid or payable in respect of the funeral of the deceased dependant, whichever is less.
(3) In subsection (2), the amount paid or payable in respect of the funeral of a deceased dependant means, in a case where the dependant was, immediately before his or her death, a member of a contributory funeral benefit fund, the amount by which the cost of the funeral exceeds the amount of the benefit payable from that fund in relation to the deceased dependant.
(4) Expressions used in subsection (1A) have the same meanings as they have in the MRCA.
102 Decoration allowance
(1) Subject to this section, the Commission may grant an allowance, called decoration allowance, to a veteran who has been awarded an eligible decoration or eligible decorations if the veteran:
(a) is in receipt of a pension under Part II; or
(b) would be in receipt of a pension under Part II but for:
(i) the cancellation, under subsection 124(1), of a pension that had been granted to the veteran under Part II; or
(ii) section 26, 30C or 30D.
(4) Decoration allowance granted to a veteran under this section is payable at the rate of $2.10 per fortnight.
(5) In this section:
eligible decorations means:
(a) the following decorations awarded for gallantry during a war to which this Act applies or during warlike operations:
(i) the Victoria Cross;
(ii) the Cross of Valour;
(iii) the Star of Courage;
(iv) the Distinguished Service Order;
(v) the Distinguished Service Cross;
(vi) the Military Cross;
(vii) the Distinguished Flying Cross;
(viii) the Distinguished Conduct Medal;
(ix) the Conspicuous Gallantry Medal;
(x) the Distinguished Service Medal;
(xi) the Military Medal;
(xii) the Distinguished Flying Medal;
(xiii) the member of the Most Excellent Order of the British Empire (Military Division);
(xiv) the Medal of the Most Excellent Order of the British Empire (Military Division) (1919‑1958);
(xv) the Medal of the Most Excellent Order of the British Empire (Military Division) with Gallantry Emblem (1958‑1974);
(xvi) the Victoria Cross for Australia;
(xvii) the Star of Gallantry;
(xviii) the Medal for Gallantry; and
(b) the George Cross; and
(c) the George Medal; and
(d) such other decorations, awarded for gallantry during a war to which this Act applies or during warlike operations, as are prescribed.
103 Victoria Cross allowance
(1) Subject to this section, the Commission may grant an allowance, called Victoria Cross allowance, to a veteran who has been awarded the Victoria Cross or the Victoria Cross for Australia.
(2) Victoria Cross allowance granted to a veteran under this section is in addition to any decoration allowance that has been or may be granted to the veteran under section 102.
(4) Victoria Cross allowance granted to a veteran under this section is payable at the rate of $3,230 per year.
Note: The amount fixed by this subsection is indexed annually in line with CPI increases. See section 198FA.
104 Recreation transport allowance
(1) Subject to this section, the Commission may grant an allowance, called recreation transport allowance, to a veteran who is suffering an incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table:
Column 1 | Column 2 |
Description of incapacity | Rate per fortnight
$ |
1. Both legs amputated above the knees | 44.80 |
2. Negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only | 44.80 |
3. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2 | 44.80 |
4. Both arms amputated at or above the wrists | 22.40 |
5. Both legs amputated below the knees | 22.40 |
6. One leg amputated above the knee and the other below the knee | 22.40 |
7. One leg amputated above or below the knee and one arm amputated below the elbow | 22.40 |
8. Blinded in both eyes | 22.40 |
9. Incapacitated to an extent that, in the opinion of the Commission, is similar in effect or severity to the extent of incapacity associated with a disability described in item 4, 5, 6, 7 or 8 | 22.40 |
10. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar in degree to the handicap with regard to locomotion associated with a disability described in item 5, 6, 7 or 8 | 22.40 |
(2) For the purposes of subsection (1):
(a) a leg that has been rendered permanently and wholly useless above the knee or below the knee shall be treated as if it had been amputated above the knee or below the knee, as the case may be; and
(b) an arm that has been rendered permanently and wholly useless at or above the wrist or below the elbow, shall be treated as if it had been amputated at or above the wrist, or below the elbow, as the case may be.
(3) Recreation transport allowance is payable to a veteran, in respect of the costs incurred by the veteran in travelling for recreational purposes, at the rate specified in column 2 of the table in subsection (1) opposite to the kind of incapacity described in column 1 from which the veteran is suffering.
(4) Recreation transport allowance is not payable to a veteran under subsection (1):
(a) in respect of any period during which the veteran is being cared for, at public expense, in a hospital or other institution; or
(b) if the veteran has participated, or is participating, in the Vehicle Assistance Scheme:
(i) during the period of 2 years commencing on, and including, the date on which the veteran was first provided with a vehicle under that Scheme;
(ii) during the period of 2 years commencing on, and including, the date on which a replacement motor vehicle grant was or is made under that Scheme in respect of the veteran;
(iii) during any period during which there is, under that Scheme, due and payable by the veteran to the Commission the whole or part of an amount equal to the cost to the Commission of providing the veteran with a motor vehicle under that Scheme; or
(iv) during any other period during which the veteran is, under that Scheme, eligible to be paid an allowance as a contributor towards the running and maintenance of a vehicle provided for the veteran under that Scheme.
(5) For the purpose of the application of subsection (4), a vehicle provided for a veteran before 22 May 1986 under the scheme known as the “Gift Car Scheme” shall, after the commencement of this subsection, be deemed to have been provided under the Vehicle Assistance Scheme.
105 Vehicle Assistance Scheme
(1) The Commission may, in writing, determine a scheme for the provision of motor vehicles to veterans eligible under this section to participate in the scheme and for the payment of allowances towards the cost of running and maintaining vehicles so provided.
(5) A veteran is, subject to subsection (7), eligible to participate in the scheme if the veteran is incapacitated from war‑caused injury or war‑caused disease by reason of:
(a) amputation of both legs above the knee;
(b) amputation of one leg above the knee and, in addition:
(i) amputation of the other leg at or above the ankle and amputation of one arm at or above the wrist; or
(ii) amputation of both arms at or above the wrists;
(c) complete paraplegia resulting in the total loss of voluntary power in both legs to the extent that there is insufficient power for purposeful use for stance or locomotion; or
(d) a condition that, in the opinion of the Commission, is similar in effect or severity to a condition described in paragraph (a) or (b).
(7) For the purposes of subsection (5):
(a) a leg that has been rendered permanently and wholly useless above the knee shall be treated as if it had been amputated above the knee;
(b) a veteran shall not be taken to be incapacitated by reason of the disability described in paragraph (5)(c) unless the disability is such that surgical or other therapeutic measures are not reasonably capable of restoring power for purposeful use for stance or locomotion.
Determination must be approved by the Minister
(8) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(9) A determination under subsection (1) approved by the Minister and as in force from time to time is the Vehicle Assistance Scheme.
Variation or revocation of Vehicle Assistance Scheme
(10) The Commission may, by written determination, vary or revoke the Vehicle Assistance Scheme.
(11) A determination under subsection (10) has no effect unless the Minister has approved it in writing.
Legislative instruments
(12) A determination under subsection (1) or (10) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
Provision of benefits
(13) The Commission may provide benefits for veterans referred to in subsection (5) under and in accordance with the provisions of the Vehicle Assistance Scheme.
106 Special assistance
(1) Subject to subsection (2), the Commission may, in such circumstances, and subject to such conditions (if any), as are prescribed in a legislative instrument made by the Commission for the purposes of this subsection, in its discretion, grant to a veteran, or to a dependant of a veteran or deceased veteran, assistance or benefits of such a kind, and of such an amount or value, as it deems fit in all the circumstances of the case.
(2) The Commission must not grant assistance or benefits to a person under subsection (1):
(a) in circumstances in which the person is eligible to be granted an allowance or assistance under another provision of this Act; or
(b) to a veteran, or a dependant of a veteran or a deceased veteran, if the veteran is only a veteran because of service rendered after the MRCA commencement date.
Note: The Military Rehabilitation and Compensation Commission can grant assistance or benefits to veterans who render service after the MRCA commencement date, or to dependants of such veterans (see section 424 of the MRCA).
108 Loss of earnings allowance
(1) The Commission may grant an allowance, called loss of earnings allowance, to a person in accordance with the provisions of this section.
(2) Loss of earnings allowance may be granted to a veteran, in respect of any loss of salary or wages, or loss of earnings on his or her own account from an occupation in which he or she is engaged, suffered by reason of:
(a) the veteran’s undergoing treatment for incapacity from a war‑caused injury or a war‑caused disease;
(b) the veteran’s having to wait for the supply of, or repairs to, an artificial replacement or other surgical aid or appliance necessitated by such an incapacity;
(c) an investigation of a claim or application made by the veteran under Part II or of a pension granted to the veteran under that Part; or
(d) the veteran’s undergoing treatment associated with such an investigation;
for the period in respect of which the veteran suffered that loss.
(3) Where:
(a) a veteran travels for the purpose of:
(i) obtaining treatment;
(ii) restoration of his or her health;
(iii) being fitted with surgical aids or appliances or artificial replacements;
(iv) an investigation referred to in paragraph (2)(c); or
(v) any other matter related to the payment of a pension; and
(b) the Commission authorizes a person to accompany the veteran as his or her attendant;
loss of earnings allowance may be granted to the attendant, in respect of any loss of salary or wages, or loss of earnings on his or her own account, suffered by reason of having so accompanied the veteran, for the period in respect of which the attendant suffered that loss.
(4) Where a claim for pension for a veteran or a dependant of a veteran:
(a) is made by another person, as provided by section 16, on behalf of the veteran or dependant; or
(b) is prosecuted by a person who is the legal personal representative of the claimant, or by a person approved under section 126, following the death of the claimant;
loss of earnings allowance may be granted to the person, in respect of any loss of salary or wages, or loss of earnings on his or her own account, suffered by reason of an investigation under section 17 of the claim for the period in respect of which the person suffered that loss.
(5) Subject to subsection (6), where, in any year, a veteran who is an employee of another person:
(a) was granted leave of absence on account of illness for a period in respect of which the veteran was absent from his or her employment for a reason referred to in paragraph (2)(a), (b), (c) or (d);
(b) was, during a subsequent period of that year, absent from his or her employment by reason of:
(i) any illness or disease; or
(ii) undergoing treatment related to any illness or disease;
other than a war‑caused illness or a war‑caused disease; and
(c) has incurred loss of salary or wages as a result of absence from his or her employment referred to in paragraph (b) of this subsection;
loss of earnings allowance may be granted to the veteran, in respect of that loss of salary or wages, for the period in respect of which the veteran suffered that loss.
(6) Where, in a year, the period, or aggregate of the periods, for which loss of earnings allowance is payable to a veteran by virtue of subsection (5) has equalled:
(a) the period, or aggregate of the periods, referred to in paragraph (5)(a) for which the veteran has been absent from his or her employment in that year; or
(b) a period equal to the period credited, or notionally credited, in respect of the veteran for that year, under the terms and conditions of his or her employment, by way of sick leave credit (however described);
whichever is the less, loss of earnings allowance is not payable to the veteran by virtue of subsection (5) in respect of any part of the remainder of that year.
(7) Loss of earnings allowance is not payable to a person under this section in respect of any period in respect of which the person is paid pension under Part II at the rate specified in subsection 24(4).
(8) The amount of loss of earnings allowance payable to a veteran by virtue of subsection (2) or (5) in respect of loss of salary or wages, or of earnings on his or her own account, (in this subsection referred to as the relevant loss of remuneration) suffered by the veteran in respect of a period (in this subsection referred to as the relevant period) is:
(a) an amount equal to:
(i) unless subparagraph (ii) or (iii) applies—the amount of pension that would be payable to the veteran in respect of the relevant period if the veteran were a veteran to whom section 24 applied and the veteran’s pension were required to be calculated at the rate specified in subsection 24(4) (in this subsection that amount of pension is referred to as the maximum amount in respect of the relevant period);
(ii) if the veteran is in receipt of a pension under Part II—the amount by which the maximum amount in respect of the relevant period exceeds the amount of pension under Part II that is payable to the veteran in respect of the relevant period; or
(iii) if the veteran is not in receipt of a pension under Part II but would be in receipt of such a pension but for the provisions of section 26, 30C or 30D or is in receipt of a pension under Part II that has been reduced in accordance with the provisions of that section—the amount by which the maximum amount in respect of the relevant period exceeds the amount of pension under Part II that would be payable to the veteran in respect of the relevant period if section 26, 30C or 30D, as the case requires, were omitted from this Act; or
(b) an amount equal to the amount that the veteran would have earned, or could reasonably be expected to have earned, from the occupation referred to in subsection (2) of this section or from the employment referred to in subsection (5) of this section, as the case may be, in respect of the relevant period by way of salary or wages or of earnings on his or her own account less an amount equal to the sum of:
(i) the amount (if any) earned by the veteran from that occupation or employment, or from any other occupation or employment, in respect of the relevant period by way of salary or wages or earnings on his or her own account;
(ii) the amount (if any) that the veteran receives, or is entitled to receive, in respect of the relevant period, by way of compensation for the relevant loss of remuneration, under a law of the Commonwealth, a State, a Territory or a country other than Australia that makes provision for the payment of compensation or other benefits to persons in respect of incapacities arising out of, or in the course of, employment or caused by, or arising out of, the use of motor vehicles;
(iii) the amount (if any) that the veteran receives, or is entitled to receive, from his or her employer by way of gratuity or other payment in respect of the relevant loss of remuneration suffered by the veteran in respect of the relevant period; and
(iv) the amount (if any) that the veteran receives, or is entitled to receive, in respect of the relevant loss of remuneration suffered by the veteran in respect of the relevant period, under a contract, arrangement or agreement (including a contract of insurance), whether or not the veteran is a party to the contract, arrangement or agreement, but not being an amount of a kind referred to in subparagraph (ii) or (iii);
whichever is the lesser amount.
(9) The amount of loss of earnings allowance payable to a person by virtue of subsection (3) in respect of a period is:
(a) the amount that would be payable to the person in respect of the period in accordance with paragraph (8)(b) if the person were a veteran who was entitled to be paid that allowance by virtue of subsection (2); or
(b) the amount that would be payable to the person in respect of the period by way of pension under Part II if the person were eligible to be paid a pension under that Part, section 24 applied to the person and section 26, 30C or 30D did not apply to the person;
whichever is the lesser amount.
(10) The amount of loss of earnings allowance payable to a person by virtue of subsection (4) in respect of a period is such amount as the Commission considers reasonable in all the circumstances but not exceeding the amount that the person would have earned, or could reasonably be expected to have earned, in the period by way of salary and wages, or earnings on his or her own account.
(11) Loss of earnings allowance is not payable to a person under this section unless the person furnishes to the Commission such information (including certificates of medical practitioners or other persons) as is required by the regulations to be so furnished.
(12) In this section:
leave of absence on account of illness, in relation to a veteran who is an employee of another person, means leave of absence from the veteran’s employment granted to the veteran without loss of earnings by reason of any illness or incapacity or treatment provided for an illness or incapacity.
year, in relation to a veteran who is an employee of another person, means the period of 12 months that commenced on the date on which, under his or her terms and conditions of employment, the veteran was last credited, or last notionally credited, with a period by way of sick leave (however described).
Note: If section 25A applies to a veteran, the rate at which loss of earnings allowance is payable to the veteran is reduced in accordance with that section.
109 Advances on account of loss of earnings allowance
(1) Where the Commission is satisfied:
(a) that a person may reasonably be expected to become entitled to be paid loss of earnings allowance under section 108 in respect of a period (in this section called the period of entitlement); and
(b) that it is, in all the circumstances, appropriate for the person to be paid an advance on account of the loss of earnings allowance that the person is expected to become entitled to be paid in respect of a period (in this section called the period of advance), being the whole or a part of the period of entitlement;
the Commission may authorize payment to the person of an advance accordingly in respect of the period of advance.
(2) The amount paid to a person by way of advance under subsection (1) in respect of a period of advance, or the aggregate of the amounts so paid to a person in respect of the periods of advance included in a period of entitlement, as the case may be, shall not exceed the amount estimated by the Commission to be the amount of loss of earnings allowance likely to be payable to the person in respect of that period of advance or those periods of advance, as the case may be.
(3) If the amount of the advance, or the sum of the amounts of advances, paid to a person in relation to a period of entitlement exceeds the amount of loss of earnings allowance that becomes payable to the person in respect of that period of entitlement, the person is liable to pay an amount equal to the excess to the Commonwealth.
110 Travelling expenses
(1) Where a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, for the purpose of:
(a) obtaining treatment;
(b) restoration of his or her health; or
(c) being fitted with surgical aids or appliances or artificial replacements;
the veteran, or the dependant, as the case may be, is, subject to this section and to such conditions as are prescribed, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.
(1A) If:
(a) a veteran travels, with the approval of the Commission under subsection (1), for the purpose of obtaining treatment; and
(b) the treatment is of a kind prescribed in an instrument under subsection (6); and
(c) the veteran’s partner travels for the purpose of participating in that treatment;
the veteran’s partner is, subject to this section and to such conditions as are prescribed by the regulations, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed by the regulations.
Note: For treatment see section 94 and Part V.
(2) Subject to such conditions as are prescribed, where:
(a) a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, as described in subsection (1); and
(b) the Commission authorises a person to accompany the veteran or dependant as his or her attendant;
the attendant is, subject to this section, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.
(2A) An approval under subsection (1) or an authorisation under paragraph (2)(b) may be given before or after the travel is completed.
(3) Travelling expenses are not payable under this section in respect of travel outside Australia.
(3A) Travelling expenses are not payable under this section in respect of treatment obtained under subsection 85(2A) (treatment for certain injuries covered by the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988).
Note: Travelling expenses incurred in respect of treatment obtained under subsection 85(2A) may be payable under section 16 of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
(4) Where the Commission is satisfied:
(a) that a person may reasonably be expected to become entitled to be paid travelling expenses under this section; and
(b) that it is in all the circumstances appropriate for the person to be paid an advance on account of the travelling expenses that the person is expected to become entitled to be paid;
the Commission may authorise payment to the person of an advance on account of the travelling expenses that the person is expected to become entitled to be paid.
(5) If the amount of the advance paid to a person on account of any travelling expenses in respect of any travel of the person exceeds the amount of travelling expenses that become payable to the person in respect of that travel, the person is liable to repay an amount equal to the excess to the Commonwealth.
(6) The Commission may, by legislative instrument, prescribe kinds of treatment for the purposes of paragraph (1A)(b).
Division 3—Procedural
111 Application
(1) Each of the following allowances, payments or benefits is a benefit to which this section applies, namely:
(a) clothing allowance;
(b) attendant allowance;
(ba) bereavement payment under section 98AA;
(c) funeral benefit under section 99 or 100;
(d) Victoria Cross allowance;
(e) recreation transport allowance;
(g) loss of earnings allowance;
(h) travelling expenses.
(2) An application for a benefit to which this section applies:
(a) shall be in accordance with a form approved by the Commission;
(b) shall be accompanied by such certificates and other evidence (relevant to the applicant’s entitlement to the benefit) as are required to be furnished by this Act, the regulations or the form of application; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(3) An application for a benefit to which this section applies may be made:
(a) by the person eligible to be granted the benefit; or
(b) with the approval of that person or of the Commission under subsection (4), by another person on behalf of that person.
(4) Where a person eligible to be granted a benefit to which this section applies is unable, by reason of physical or mental ailment, to approve a person to make an application for that benefit on his or her behalf, the Commission may approve a person to make the application on his or her behalf.
(5) Where an application for a benefit to which this section applies is made by a person on behalf of another person, the other person on whose behalf the application is made, and not the person making the application on behalf of that other person, shall be treated as the applicant.
(6) For the purposes of this Division, where:
(a) a person makes an application in writing for an allowance or benefit to which this section applies, but otherwise than in accordance with a form approved for the purposes of subsection (2); and
(b) the person subsequently makes an application for the allowance or benefit in accordance with a form so approved:
(i) at a time when the person had not been notified by the Department, in writing, that it would be necessary to make the application in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified;
the Commission may treat the application referred to in paragraph (b) as having been received at an office of the Department in Australia on the date on which the application referred to in paragraph (a) was so received.
(7) An applicant for a benefit to which this section applies may, at any time before the application is determined by the Commission, by notice in writing forwarded to the Commission at an office of the Department in Australia, withdraw the application.
(8) The withdrawal of an application for a benefit to which this section applies does not prevent the applicant from subsequently making another application for such a benefit.
112 Time for applying for certain benefits
(1A) An application for bereavement payment under section 98AA in respect of a deceased veteran must be made within 12 months after the death of the veteran.
(2) An application for loss of earnings allowance for a period in respect of which a person has suffered a loss of salary or wages, or loss of earnings on his or her own account, as set out in subsection 108(2), (3), (4) or (5), shall be made within 12 months after the commencement of that period.
(3) An application for travelling expenses in connection with travel referred to in subsection 110(1), (1A) or (2) must be made within:
(a) 12 months after the completion of that travel; or
(b) if the Commission thinks that there are exceptional circumstances that justify extending that period—such further period as the Commission allows.
(4) An application made to the Commission for the grant of:
(aa) bereavement payment under section 98AA; or
(b) loss of earnings allowance; or
(c) travelling expenses;
after the expiration of the period applicable to the application by virtue of subsection (1A), (2) or (3), as the case requires, is of no force or effect.
113 Time for applying for funeral benefit
(1) Subject to this section, application may be made to the Commission for the grant of a funeral benefit under section 99 or 100 in respect of the funeral of a person, being:
(a) a deceased veteran;
(b) a deceased dependant of a deceased veteran;
within 12 months after the death of the person.
(2) Where, after the death of a veteran, a decision is made under this Act:
(a) determining that the death was war‑caused;
(b) granting a pension under Part II in respect of the veteran, as from a date before the death of the veteran:
(i) at a rate that is worked out under subsection 22(4); or
(ii) at a rate that is worked out under section 24; or
(iii) at a rate that is worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(c) increasing the rate of the pension granted to the veteran under Part II as from a date before the death of the veteran:
(i) to a rate worked out under subsection 22(4) or section 24; or
(ii) to a rate worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1);
application for the grant of a funeral benefit under section 99 in respect of the funeral of the veteran may be made to the Commission within the period of 12 months after the date on which that decision was made or within the period of 3 months after the date on which the Veterans’ Affairs Legislation Amendment Act 1987 received the Royal Assent, whichever last expires.
(3) Where, after the death of a veteran, the Commission gives an approval of a kind referred to in subsection 99(3) in relation to the veteran, application may be made to the Commission for the grant of a funeral benefit under section 99 in respect of the funeral of the veteran within 12 months after the date on which that approval was given.
(5) Application made to the Commission for the grant of a funeral benefit under section 99 or 100 in respect of the funeral of a person after the expiration of the period specified in subsection (1), (2) or (3) of this section, whichever is applicable, is of no force or effect.
114 Commencement of payment of certain allowances
(1) Subsection (2) applies to:
(a) clothing allowance;
(b) attendant allowance; and
(c) recreation transport allowance.
(2) An allowance to which this subsection applies payable to a veteran by reason that the veteran is suffering incapacity from a war‑caused injury or a war‑caused disease is payable:
(a) if application for the allowance is made within 3 months after the date on which the determination was made under this Act determining that the injury was a war‑caused injury or the disease was a war‑caused disease, as the case may be—as from the date on which that determination was made; or
(b) in any other case—as from the date on which the veteran’s application for the allowance in respect of that war‑caused injury or war‑caused disease is received at an office of the Department in Australia.
115 Review of decision etc.
(1) Subject to subsection (2), a person who is dissatisfied with a decision of the Commission in respect of an application for:
(a) clothing allowance; or
(aa) bereavement payment under section 98AA; or
(b) funeral benefits under section 99 or 100; or
(c) decoration allowance; or
(d) Victoria Cross allowance; or
(e) recreation transport allowance; or
(g) loss of earnings allowance;
may request the Commission, in writing, to review the decision, and, where such a request is duly made, the Commission shall review the decision, or cause the decision to be reviewed by a person to whom the Commission has delegated its powers under this section (not being the person who made the decision).
(1A) A request under subsection (1) must be lodged with the Commission at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(2) A request under subsection (1) to review a decision of the Commission shall set out particulars of the grounds on which the request is made, and may be made within 3 months after service on the person to whom the decision relates of notice of the decision, but not otherwise.
(3) Where the Commission reviews a decision under subsection (1), the Commission may affirm or set aside the decision and, if it sets aside the decision, it shall make such other decision as it considers to be in accordance with this Act.
(4) Where the Commission makes a decision, in substitution for the decision set aside, granting an application for an allowance specified in subsection (1), it may approve payment of the allowance as from a date not earlier than the date as from which the Commission could have approved payment of the allowance if it had made the substituted decision in place of the original decision.
(5) Sections 57D, 57E and 57F apply to a review under this section in like manner as they apply to a review under Division 16 of Part IIIB and, for the purpose of their application to a review under this section:
(a) references in sections 57D, 57E and 57F to Division 16 of Part IIIB shall be read as references to this section; and
(b) references in section 57F to a review shall be read as references to a review under subsection (1) of this section.
(6) A reference in subsection (1) to a decision in respect of an application for funeral benefits under section 99 shall be read as not including a reference to a decision of the Commission to grant, or refuse to grant, an approval of a kind referred to in paragraph 99(3)(a) or (b).
Part VIA—Rehabilitation
Division 1—Preliminary
115A Definitions
(1) In this Part, unless the contrary intention appears:
CPI indexation day means:
(a) for the purposes of section 115D—the day that begins each relevant period within the meaning of that term in section 198; and
(b) for the purposes of section 115G—a day that is an indexation day for the maximum basic rate under subsection 59B(1).
member of a Peacekeeping Force has the same meaning as in subsection 68(1).
member of the Forces has the same meaning as in subsection 68(1).
unaffected pension rate means the rate of pension that a veteran would have received if the veteran had not undertaken a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
unemployment includes:
(a) retirement from remunerative work; and
(b) undertaking less than 16 hours of remunerative work in a pension period;
but does not include any period of paid leave.
veteran means:
(a) a person:
(i) who is, because of section 7, taken to have rendered eligible war service; or
(ii) in respect of whom a pension is payable under subsection 13(6); or
(iii) who satisfies subsection 37(3); or
(b) a member of the Forces; or
(c) a member of a Peacekeeping Force.
work and pension income rate of a veteran, in relation to a pension period, has the meaning given by subsections (2) and (3).
Veteran to whom section 23 applies
(2) If section 115D applies to a veteran because of subsection 115D(1), then the work and pension income rate of the veteran for a pension period is worked out using the following formula:
Veteran to whom section 24 applies
(3) If section 115D applies to a veteran because of subsection 115D(1A), then the work and pension income rate of the veteran for a pension period is worked out using the following formula:
115B Veterans’ Vocational Rehabilitation Scheme
(1) The Commission may, in writing, determine a scheme to assist specified classes of veterans who render service before the MRCA commencement date to find employment and to continue in employment.
Note: A rehabilitation program that is being provided to a veteran under the scheme might cease if the veteran is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(5) Without limiting the powers of the Commission under subsection (1), the scheme may make provision for and in relation to:
(a) the provision of rehabilitation programs, under the scheme, to specified veterans; and
(b) the provision of vocational guidance and assistance, under the scheme, to specified veterans; and
(c) the payment of financial assistance, under the scheme, to specified veterans in respect of education or training that is being undertaken under the scheme by the veterans; and
(d) the provision of services in relation to the assessment of veterans for participation in rehabilitation programs; and
(da) the provision of services, under the scheme, to specified veterans for the management of medical conditions of those veterans; and
(db) the provision of psychosocial services, under the scheme, to specified veterans; and
(e) the payment of financial assistance, under the scheme, to specified veterans in respect of transport costs arising from the veterans’ participation in the scheme; and
(f) the payment of financial assistance, under the scheme, to specified veterans in respect of aids that enable the veterans to participate in, or assist veterans to participate in, the scheme; and
(g) the provision for review of determinations under section 115F; and
(h) the payment of financial assistance, under the scheme, to specified employers in respect of the provision by the employers of employment to veterans as mentioned in subsection (1).
Determination must be approved by the Minister
(6) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(7) A determination under subsection (1) approved by the Minister and as in force from time to time is the Veterans’ Vocational Rehabilitation Scheme.
Variation or revocation of Veterans’ Vocational Rehabilitation Scheme
(8) The Commission may, by written determination, vary or revoke the Veterans’ Vocational Rehabilitation Scheme.
(9) A determination under subsection (8) has no effect unless the Minister has approved it in writing.
Legislative instruments
(10) A determination under subsection (1) or (8) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
Consultation
(11) Before making a determination under subsection (1) or (8), the Commission must consult such organisations and associations, representing the interests of the veteran community, as the Commission thinks appropriate.
Division 2—Provisions relating to the income of veterans who participate in vocational rehabilitation programs
115C Rate of pension while on program
(1) Subject to sections 115D and 115G, this section applies while a veteran is undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
(2) If this section applies to a veteran, the rate of pension payable to the veteran is equal to the amount the veteran would receive if the veteran were not undertaking the program.
115D Reduced daily pension amount—pensions under Parts II and IV
Application of section
(1) This section applies to a veteran if:
(a) section 23 applies to the veteran; and
(b) the veteran is engaged in remunerative work of 20 hours or more per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
The section sets out how to work out the veteran’s reduced daily pension amount.
Note 1: This amount is used to work out the rate of pension payable under section 23.
Note 2: This section does not apply to certain veterans: see subsections (5) and (6).
(1A) This section also applies to a veteran if:
(a) section 24 applies to the veteran; and
(b) the veteran is engaged in remunerative work of more than 8 hours per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
The section sets out how to work out the veteran’s reduced daily pension amount.
Note 1: This amount is used to work out the rate of pension payable under section 24.
Note 2: This section does not apply to certain veterans: see subsections (5) and (6).
Reduced daily pension amount during the initial period
(2) A veteran’s reduced daily pension amount for a pension period that occurs within the initial period is worked out using the following formula:
Note 1: Expressions used in this subsection are defined in subsection (7).
Note 2: The Commission can increase a reduced daily pension amount under section 115F.
Reduced daily pension amount during the second period
(3) A veteran’s reduced daily pension amount for a pension period that occurs within the second period is worked out using the following formula:
Note 1: Expressions used in this subsection are defined in subsection (7).
Note 2: The Commission can increase a reduced daily pension amount under section 115F.
Reduced daily pension amount 5 years after the initial period
(4) A veteran’s reduced daily pension amount for a pension period that occurs more than 5 years after the end of the initial period is nil.
Note: The Commission can increase a reduced daily pension amount under section 115F.
Veteran who is unemployed for at least 2 weeks
(5) This section does not apply to a veteran who is unemployed for a continuous period of at least 2 weeks in respect of the pension periods within that 2 week period.
Veteran who is blinded in both eyes
(6) This section does not apply to a veteran for a pension period if the veteran is receiving a pension for the period at the special rate because of subsection 24(3).
Definitions
(7) In this section:
CPI amount means the amount worked out using the following formula:
daily above general rate for a veteran means the rate worked out using the following formula:
initial period for a veteran means the period:
(a) that begins on the day after the day the veteran first commenced remunerative work as a result of undertaking a vocational rehabilitation program; and
(b) that ends immediately before the first CPI indexation day that occurs more than 2 years after that day.
pension rate on commencement for a veteran means the rate of pension under this Act that was payable to the veteran on the day on which the veteran commenced his or her vocational rehabilitation program.
second period means the period:
(a) that begins immediately after the initial period; and
(b) runs for 5 years.
taper amount for a veteran means the following amount:
(a) if the veteran’s average weekly hours are 40 hours or more—zero;
(b) if subsection (1) applies and the veteran’s average weekly hours are less than 40 hours—the amount worked out using the following formula:
(c) if subsection (1A) applies and the veteran’s average weekly hours are less than 40 hours—the amount worked out using the following formula:
115E Application for increase in reduced daily pension amount
(1) This section applies if, because of the application of section 115D in respect of the rate of pension payable to a veteran, the work and pension income rate of the veteran in relation to a pension period is or would be less than the unaffected pension rate for the veteran in relation to that period.
(2) A veteran to whom this section applies may apply to the Commission to have the reduced daily pension amount under section 115D increased.
(3) An application must be:
(a) in writing; and
(b) in accordance with a form approved by the Commission; and
(c) accompanied by any relevant documentary evidence in relation to salary, wages and other earnings from remunerative work for the period to which the application relates; and
(d) lodged at an office of the Department in Australia in accordance with section 5T.
(4) An application lodged in accordance with section 5T is taken to have been made on a day determined under that section.
115F Determination by the Commission
(1) This section applies if, after considering an application under section 115E, the Commission is satisfied that the rate at which a pension has been, is being or is to be paid, to a veteran resulted, or would result, in a work and pension income rate for the applicant in relation to a pension period that is less or would be less than the unaffected pension rate in relation to that period.
(2) If this section applies, the Commission may increase in writing the veteran’s reduced daily pension amount under section 115D, for a past, present or future pension period, to the amount that the Commission is satisfied results in the work and pension income rate being equal to the unaffected pension rate.
(3) A determination takes effect on the day on which the determination is made.
115G Excluded income amount—invalidity service pensions
(1) The excluded income amount in respect of a veteran for a pension period that occurs within the period (the initial period) that begins on the day after the veteran first commenced remunerative work as a result of undertaking the vocational rehabilitation program and ends immediately before the first CPI indexation day that is more than 2 years after the beginning of the initial period is half of the earnings of the veteran in each pension period.
(2) The excluded income reduction amount in respect of a veteran for each pension period that occurs within each consecutive 6 month period during the 5 years that begins immediately after the initial period is worked out using the following formula:
where:
no. of 6 month periods means the number of consecutive 6 month periods that have begun in the 5 year period.
earnings means salary, wages or earnings from remunerative work in each pension period.
(2A) If the veteran does not undertake any remunerative work in a continuous period of at least 6 months:
(a) in working out the length of the initial period, or the 5‑year period mentioned in subsection (2), in relation to the veteran, disregard that continuous period; and
(b) in doing calculations under subsection (1) or (2) in relation to the veteran, disregard that continuous period.
(3) This section has effect only for the purposes of working out the amount of a veteran’s invalidity service pension.
(4) This section is subject to section 46AD (about no double income reductions under this section and section 46AA).
Division 3—Recovery of cost of rehabilitation
115H Recovery of cost of rehabilitation
(1) In this section, compensation, in relation to a person who is undertaking, or has undertaken, a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme, means an amount that is by way of compensation or damages, or is, in the opinion of the Commission, in the nature of compensation or damages, in respect of the disease, disability or condition because of which the rehabilitation program is being, or has been, undertaken.
(2) This section applies if a veteran who is undertaking, or has undertaken, a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme:
(a) has made a claim against another person for compensation, or may be, or may become, entitled to be paid compensation by another person, in relation to the disease, disability or condition because of which the rehabilitation program is being, or has been, undertaken; or
(b) is entitled, whether because of an order of a court, a settlement of a claim for compensation or otherwise, to be paid compensation by another person; or
(c) has been paid compensation by another person, whether because of an order of a court, a settlement of a claim for compensation or otherwise.
(3) A reference in subsection (2) to another person includes a reference to the Commonwealth, a State, a Territory or an authority of the Commonwealth, a State or a Territory.
(4) If this section applies, the Commission may give to the veteran a written notice requiring the veteran to pay for:
(a) a rehabilitation program or any part of such a program that has been undertaken by the veteran under the Veterans’ Vocational Rehabilitation Scheme before the day on which the notice was given to the veteran; and
(b) a rehabilitation program or any part of such a program undertaken at any time on or after the day on which the notice was given to the veteran;
in relation to the disease, disability or condition.
(5) On being given the notice, the veteran becomes, by force of this section, liable to pay to the Commonwealth an amount equal to the cost, or amounts equal to the sum of the costs, as determined by the Commission, of and incidental to:
(a) a rehabilitation program or any part of such a program that has been undertaken by the veteran under the Veterans’ Vocational Rehabilitation Scheme before the day on which the notice was given to the veteran; and
(b) a rehabilitation program or any part of such a program undertaken at any time on or after the day on which the notice was given to the veteran.
(6) If the veteran is, under subsection (5), liable to make payment to the Commonwealth for a rehabilitation program provided by the Commission, the Commission may, by written notice given to a person who:
(a) may be, or may become, liable; or
(b) is liable;
to pay compensation to, or for the benefit of, the veteran in respect of the disease, disability or condition, inform the person that the veteran is liable to make payment to the Commonwealth for a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme, whether undertaken before or after the giving of the notice.
(7) A reference in subsection (6) to a person includes a reference to an insurer who, under a contract of insurance, is liable to indemnify the person or is liable to pay compensation to, or for the benefit of, the veteran against that liability.
115J Where a person receives a notice under subsection 115H(6)
(1) This section applies to a person if the person has been given a notice under subsection 115H(6).
(2) If the person:
(a) is, on being given the notice, liable to pay compensation to, or for the benefit of, the veteran to whom the notice relates in respect of the disease, disability or condition to which the notice relates; or
(b) becomes, after receiving the notice, so liable to pay compensation; or
the person becomes liable, because of this subsection, to pay to the Commonwealth:
(c) an amount equal to the cost of the rehabilitation program that the veteran is liable, or may become liable, under subsection 115H(5), to pay; or
(d) an amount equal to the amount of compensation that the person is liable, or becomes liable, so to pay;
whichever is the less.
(3) If, before the notice was given to the person, the person paid to, or for the benefit of, the veteran the whole of the compensation that the person was liable to pay in respect of the disease, disability or condition to which the notice relates, the notice has no effect.
(4) If a person is liable, or becomes liable, to pay an amount to the Commonwealth under subsection (2), the person must not, without the permission of the Commission, pay the compensation, or any part of the compensation, to, or for the benefit of, the veteran.
(5) Payment to the Commonwealth of an amount under subsection (2) operates, to the extent of the payment:
(a) as a discharge to the person of his or her liability to pay compensation to the veteran entitled to receive the compensation; and
(b) as a discharge of the veteran’s liability under subsection 115H(5).
115K Recovery of amount by the Commonwealth
The Commonwealth may recover in a court of competent jurisdiction an amount that a person is liable to pay to the Commonwealth under subsection 115H(5) or 115J(2).
115L Determination of amount of costs of rehabilitation programs
(1) This section applies if the Commission determines, in writing, the amount of the cost of, or incidental to, a rehabilitation program under a Veterans’ Vocational Rehabilitation Scheme for a veteran during a specified period in respect of a disease, disability or condition in relation to which a notice has been given under subsection 115H(4).
(2) The Commission may give a notice to the veteran containing a copy of that determination, or notices to the veteran and the person referred to in subsection 115H(6) containing copies of that determination.
(3) If the Commission gives a copy of a determination to a veteran or a person under subsection (2), the copy is, for all purposes, prima facie evidence:
(a) that the copy of the determination set out in the notice is a true copy of the determination of which it purports to be a copy; and
(b) that the determination was duly made by the Commission; and
(c) that the amount specified in the determination is the amount which the veteran is liable, by force of subsection 115H(5), to pay to the Commonwealth as the cost of and incidental to the rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme during the period so specified for and in relation to that disease, disability or condition.
(4) The giving of a notice, or notices, under subsection (2) does not prevent the making of a further determination or determinations, and the giving by the Commission of a further notice or further notices under that subsection.
Part VIB—Prisoner of war recognition supplement
Division 1—Eligibility for prisoner of war recognition supplement
115M Eligibility for prisoner of war recognition supplement
World War 2 internments—European States
(1) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of an enemy State at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945.
(2) A civilian is eligible for a prisoner of war recognition supplement if:
(a) the civilian was interned by the military forces of an enemy State at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945; and
(b) the civilian was domiciled in Australia immediately before the civilian’s internment.
World War 2 internments—Japan
(3) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of Japan at any time during the period beginning on 7 December 1941 and ending at the end of 29 October 1945.
(4) A civilian is eligible for a prisoner of war recognition supplement if:
(a) the civilian was interned by the military forces of Japan at any time during the period beginning on 7 December 1941 and ending at the end of 29 October 1945; and
(b) the civilian was domiciled in Australia immediately before the civilian’s internment.
North Korean internments
(5) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of North Korea at any time during the period beginning on 27 June 1950 and ending at the end of 19 April 1956.
One supplement only
(6) A person is not entitled to more than one prisoner of war recognition supplement.
Definitions
(7) In this section:
civilian means a person who is not a veteran.
enemy State means:
(a) a European State that was at war with the Crown at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945; or
(b) a European ally (whether or not a State) of a State covered by paragraph (a).
interned means:
(a) confined in a camp, building, prison, cave or other place (including a vehicle); or
(b) restricted to residing within specified limits.
military forces means air forces, naval forces, land forces or other military forces (however described).
115N When prisoner of war recognition supplement is payable
(1) If, on 20 September 2011, the Commission is satisfied that a person is eligible for a prisoner of war recognition supplement, the supplement is payable to the person without the person having to make a claim for the supplement under Division 3.
(2) If subsection (1) does not apply in relation to a person, a prisoner of war recognition supplement is not payable to the person unless the person makes a claim for the supplement under Division 3.
(3) A prisoner of war recognition supplement is not payable to a person in relation to a pension period if before the start of that period:
(a) the person had elected not to be covered by this Part; and
(b) that election had not been withdrawn.
(4) An election, or a withdrawal of an election, under this section:
(a) must be by document lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been made on a day determined under that section.
Division 2—Rate of prisoner of war recognition supplement
115P Rate of prisoner of war recognition supplement
The rate of prisoner of war recognition supplement under section 115M is $500.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198D.
Division 3—Claims for prisoner of war recognition supplement
115Q Making of claims
(1) A claim for a prisoner of war recognition supplement must be made in accordance with procedures determined by the Commission under subsection (2).
Note: A prisoner of war recognition supplement will be made automatically to those eligible persons the Department is aware of.
(2) The Commission may, in writing, determine the procedures for making claims.
(3) A determination made under subsection (2) is not a legislative instrument.
115R Determination of claims
(1) Claims are to be determined by the Commission.
(2) If the Commission determines that a prisoner of war recognition supplement is payable to a person, the determination takes effect on the day on which the determination is made or on such earlier day as is specified in the determination.
(3) A person who is dissatisfied with the Commission’s decision on a claim may apply to the Administrative Appeals Tribunal for review of the decision.
Part VIC—Acute support
115S Acute support package
Acute support package
(1) The Commission may, by legislative instrument, make provision for and in relation to the granting of a package (an acute support package) of assistance or benefits of a specified kind to a person:
(a) who is a veteran; or
(b) who is or was a related person of a veteran or a deceased veteran;
to assist the person to adjust to challenging life circumstances.
Note: Decisions of the Commission under the instrument are reviewable (see section 135A).
Eligibility criteria for an acute support package
(2) The instrument must provide that a person is not eligible for an acute support package unless the criteria mentioned in subsection (3), (4), (5), (5A) or (6) are satisfied.
(3) If the person is a veteran, the criteria are as follows:
(a) the person is under 65 years of age at the time the person’s eligibility for an acute support package is determined;
(b) the person is receiving, or is eligible to receive, a pension at a rate provided for by section 23, 24 or 25 or a veteran payment;
(c) the Commission is satisfied that the person, or a related person, is experiencing, or is at risk of experiencing, crisis.
(4) If the person is a related person of a veteran, the criteria are as follows:
(a) the veteran is under 65 years of age at the time the person’s eligibility for an acute support package is determined;
(b) the veteran is receiving, or is eligible to receive, a pension at a rate provided for by section 23, 24 or 25 or a veteran payment;
(c) the Commission is satisfied that the person is experiencing, or is at risk of experiencing, crisis.
(5) If the person is a war widow or war widower, the criterion is that the person is under 65 years of age at the time the person’s eligibility for an acute support package is determined.
(5A) If the person is a parent or step‑parent of:
(a) a deceased veteran; or
(b) a war widow or war widower in relation to a deceased veteran; or
(c) another person who was the partner of a deceased veteran;
the criteria are as follows:
(d) the Commission is satisfied that the person is parenting a child of the deceased veteran;
(e) at the time the person’s eligibility for an acute support package is determined, the child is under 18 years;
(f) the Commission is satisfied that the person, or the child, is experiencing, or is at risk of experiencing, crisis.
(6) If the person was the partner of a veteran, the criteria are as follows:
(a) the person is under 65 years of age at the time the person’s eligibility for an acute support package is determined;
(b) at the time the person’s eligibility for the package is determined, either or both of the following apply:
(i) the person ceased being the veteran’s partner within the previous 12 months;
(ii) a child of the veteran who is under 18 years lives with the person;
(c) the Commission is satisfied that the person is experiencing, or is at risk of experiencing, crisis.
Instrument may deal with various matters
(7) Without limiting subsection (1), the instrument may make provision for and in relation to the following:
(a) additional eligibility criteria for an acute support package;
(b) criteria for the granting of assistance or benefits;
(c) the kinds of assistance or benefits that may be granted, which may include child care, counselling, household assistance, services to build capacity and academic and extra‑curricular support for children;
(d) the conditions on which assistance or benefits are granted;
(e) limits (whether financial or otherwise) on the provision of assistance or benefits;
(f) the suspension or cancellation of the provision of assistance or benefits;
(g) arrangements for the payment of assistance or benefits.
(8) Without limiting paragraph (7)(a) or (b), the criteria may depend on the Commission being satisfied of one or more specified matters.
Meaning of related person etc.
(9) For the purposes of this section, a related person of a veteran is:
(a) any of the following persons:
(i) the partner of the veteran;
(ii) a parent or step‑parent of the veteran;
(iii) a parent or step‑parent of the partner of the veteran;
(iv) a grandparent of the veteran;
(v) a child of the veteran;
(vi) a child of the partner of the veteran;
(vii) a grandchild of the veteran;
(viii) a sibling of the veteran; or
(b) a person in respect of whom the veteran stands in the position of a parent; or
(c) a person who stands in the position of a parent to the veteran.
(10) For the purposes of this section, the partner of a veteran is a person in respect of whom at least one of the following applies:
(a) if the veteran is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands—the person is recognised as the veteran’s husband, wife or spouse by the custom prevailing in the group to which the veteran belongs;
(b) the person is legally married to the veteran;
(c) a relationship between the person and the veteran (whether the person and the member are the same sex or different sexes) is registered under a 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;
(d) the person (whether of the same sex or a different sex to the member):
(i) is, in the Commission’s opinion, in a de facto relationship with the veteran; and
(ii) is not an ancestor, descendant, brother, sister, half‑brother or half‑sister of the veteran.
(11) The definition of child in subsection 5F(1) does not apply for the purposes of this section.
Part VII—Veterans’ Children Education Scheme
116 Interpretation
(1) In this Part, unless the contrary intention appears:
eligible child means:
(a) an eligible child of a member of the Forces, or of a member of a Peacekeeping Force; or
(b) an eligible child of a veteran.
eligible child of a member of the Forces, or of a member of a Peacekeeping Force means:
(a) a child of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, being a member:
(i) whose death was defence‑caused; or
(ii) who was, immediately before his or her death, a member to whom subsection 22(4) or section 24 applied; or
(iii) who was, immediately before his or her death, in receipt of a pension under Part IV in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(b) a child of a member of the Forces, or of a member of a Peacekeeping Force, being a member:
(i) to whom subsection 22(4) or section 24 applies; or
(ii) who is in receipt of a pension under Part IV in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1).
eligible child of a veteran means:
(a) a child of a deceased veteran, being a veteran:
(i) whose death was war‑caused; or
(ii) who was, immediately before his or her death, a veteran to whom subsection 22(4) or section 24 applied; or
(iii) who was, immediately before his or her death, in receipt of a pension under Part II in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(iv) who was a prisoner of war at a time when the veteran was on operational service; or
(b) a child of a veteran, being a veteran:
(i) to whom subsection 22(4) or section 24 applies; or
(ii) who is in receipt of a pension under Part II in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(d) a child of a deceased veteran, being a child who is in receipt of, or is eligible to be granted, a pension under subsection 13(4); or
(e) a person determined under subsection 116C(2) to be included in a class that has been determined by the Commission under subsection 116A(1) for the purposes of this paragraph.
eligible grandchild of a Vietnam veteran means a person determined under subsection 116CC(2) to be included in a class of persons that has been determined by the Commission under subsection 116CA(1) for the purposes of this definition.
grandchild of a veteran means a person who is a child of a person who is a child of the veteran. The definition of child in subsection 5F(1) does not apply for the purposes of this definition.
Note: Section 10 deals with interpreting references to a child of a veteran or to a child of a person who is not a veteran.
member of the Forces and member of a Peacekeeping Force have the same respective meanings as they have in Part IV.
Vietnam service means operational service in Vietnam that is covered by section 6C, 6E or 6F.
(2) If, after the death of a member of the Forces, or of a member of a Peacekeeping Force, a pension is granted in respect of the member under Part IV, or the rate of the pension granted to the member under Part IV is increased, as from a date before the death of the member in circumstances where:
(a) subsection 22(4) or section 24 applied to the member; or
(b) the member was suffering from an incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1);
then, the member is taken, for the purposes of the definition of eligible child of a member of the Forces, or of a member of a Peacekeeping Force in subsection (1), to have been:
(c) if paragraph (a) applies—a member to whom subsection 22(4) or section 24 applied immediately before his or her death; or
(d) if paragraph (b) applies—in receipt of that pension or of pension at that increased rate, as the case may be, immediately before his or her death.
(3) If, after the death of a veteran, a pension is granted in respect of the veteran under Part II, or the rate of the pension granted to the veteran under Part II is increased, as from a date before the death of the veteran in circumstances where:
(a) subsection 22(4) or section 24 applied to the veteran; or
(b) the veteran was suffering from an incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1);
then, the veteran is taken, for the purposes of the definition of eligible child of a veteran in subsection (1), to have been:
(c) if paragraph (a) applies—a veteran to whom subsection 22(4) or section 24 applied immediately before his or her death; or
(d) if paragraph (b) applies—in receipt of that pension or of pension at that increased rate, as the case may be, immediately before his or her death.
(4) Where:
(a) before an eligible child attains the age of 25 years, approval is given under the Veterans’ Children Education Scheme for the child to undertake a course of education or training;
(b) the child attains the age of 25 years before completing that course; and
(c) the child continues, after attaining the age of 25 years, to undertake that course for the purpose of completing it;
this Part applies to and in relation to the continued undertaking of that course by the child after he or she attained the age of 25 years as if he or she were under the age of 25 years.
116A Determination of class of persons for the purposes of paragraph (e) of the definition of eligible child in subsection 116(1)
(1) The Commission may, by legislative instrument, determine a class of persons for the purposes of paragraph (e) of the definition of eligible child of a veteran in subsection 116(1). However, the persons must be the children of veterans who render service before the MRCA commencement date.
Variation or revocation
(2) The Commission may, by legislative instrument, vary or revoke a determination under subsection (1).
116B Eligible child of a veteran—person may apply for determination under subsection 116C(2)
(1) An application for a determination under subsection 116C(2) to be made in respect of a person who is, or was, the child of a veteran may be made, in writing, to the Commission:
(a) in the case of a person (the child) who is, or was, the child of a veteran and who is over the age of 18 years:
(i) by the child; or
(ii) with the approval of the child, by another person on behalf of the child; or
(iii) if the child is unable, by reason of physical or mental incapacity, to approve a person to make the claim or application on his or her behalf—by another person, being a person approved by the Commission, on behalf of the child; or
(b) in the case of a person who is, or was, the child of a veteran and who is under the age of 18 years:
(i) by a parent or guardian of the child; or
(ii) by another person approved by a parent or guardian of the child; or
(iii) if there is no parent or guardian of the child alive, or willing and able to make, or approve a person to make, such an application on behalf of the child—by another person, being a person approved by the Commission;
on behalf of the child.
(2) An application under subsection (1) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
116C Eligible child of a veteran—Commission may determine that a person is a member of a class under section 116A
(1) If an application has been made under section 116B in respect of a person, the Commission must decide whether the person the subject of the application falls within a class of persons determined by the Commission under subsection 116A(1).
(2) If the Commission decides that the person falls within a class of persons determined by the Commission under subsection 116A(1), the Commission must determine, in writing, that the person is included in the specified class.
(3) The Commission must give the person written notice of the Commission’s decision under subsection (1).
116CA Determination of class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran in subsection 116(1)
(1) The Commission may, by legislative instrument, determine a class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran in subsection 116(1). However, the persons must be the grandchildren of veterans who have rendered Vietnam service.
Note: The Veterans’ Children Education Scheme already covers children of veterans who have rendered Vietnam service.
Variation or revocation
(2) The Commission may, by legislative instrument, vary or revoke a determination under subsection (1).
116CB Eligible grandchild of a Vietnam veteran—person may apply for determination under subsection 116CC(2)
(1) An application for a determination under subsection 116CC(2) to be made in respect of a person who is, or was, the grandchild of a veteran may be made, in writing, to the Commission:
(a) in the case of a person who is, or was, the grandchild of a veteran and who is over the age of 18 years:
(i) by the grandchild; or
(ii) with the approval of the grandchild, by another person on behalf of the grandchild; or
(iii) if the grandchild is unable, by reason of physical or mental incapacity, to approve a person to make the claim or application on the grandchild’s behalf—by another person, being a person approved by the Commission, on behalf of the grandchild; or
(b) in the case of a person who is, or was, the grandchild of a veteran and who is under the age of 18 years:
(i) by a parent or guardian of the grandchild; or
(ii) by another person approved by a parent or guardian of the grandchild; or
(iii) if there is no parent or guardian of the grandchild alive, or willing and able to make, or approve a person to make, such an application on behalf of the grandchild—by another person, being a person approved by the Commission;
on behalf of the grandchild.
(2) An application under subsection (1) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
116CC Eligible grandchild of a Vietnam veteran—Commission may determine that a person is a member of a class under section 116CA
(1) If an application has been made under section 116CB in respect of a person, the Commission must decide whether the person the subject of the application falls within a class of persons determined by the Commission under subsection 116CA(1).
(2) If the Commission decides that the person falls within a class of persons determined by the Commission under subsection 116CA(1), the Commission must determine, in writing, that the person is included in the specified class.
(3) The Commission must give the person written notice of the Commission’s decision under subsection (1).
116D Review of Commission’s decisions
(1) A person who is dissatisfied with a decision of the Commission under subsection 116C(1) or 116CC(1) may, in writing, request the Commission to review the decision.
(1A) A request under subsection (1) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(2) If a written request is made, the Commission must review the decision, or cause the decision to be reviewed by a person to whom the Commission has delegated its powers under this section (not being the person who made the decision).
(3) When the Commission reviews a decision under subsection (2), it must make a written record of its decision (the review decision) upon review.
(4) The written record must include a statement that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the review decision.
(5) If the review decision affirms or sets aside a decision under subsection 116C(1) or 116CC(1), it must give the person who requested the review of the decision:
(a) a copy of the Commission’s review decision; and
(b) subject to subsection (6), a copy of the statement about the review decision; and
(c) a statement that the person has a right to apply to the Administrative Appeals Tribunal for a review of the review decision.
(6) If the statement referred to in paragraph (5)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who requested review, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
117 Veterans’ Children Education Scheme
(1) The Commission may, in writing, determine a scheme for providing education and training for eligible children and eligible grandchildren of Vietnam veterans.
(5) Without limiting the powers of the Commission under subsection (1), the scheme may make provision for and in relation to:
(a) the provision of free scholarships at schools, colleges and universities for allocation, under the scheme, to eligible children or eligible grandchildren of Vietnam veterans; and
(b) the payment of maintenance allowances in respect of eligible children for whom education or training is being provided under the scheme; and
(c) the making of applications for the provision of education or training for eligible children or eligible grandchildren of Vietnam veterans; and
(d) the investigation and determination of applications referred to in paragraph (c); and
(e) the establishment, membership and operation of Education Boards to perform such functions, and exercise such powers, in, and in connection with, the operation of the scheme as are conferred on them by or under the scheme; and
(f) guidance and counselling services.
Determination must be approved by the Minister
(6) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(7) A determination under subsection (1) approved by the Minister and as in force from time to time is the Veterans’ Children Education Scheme.
Variation or revocation of Veterans’ Children Education Scheme
(8) The Commission may, by written determination, vary or revoke the Veterans’ Children Education Scheme.
(9) A determination under subsection (8) has no effect unless the Minister has approved it in writing.
Legislative instruments
(10) A determination under subsection (1) or (8) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
118 Commission may provide benefits under Veterans’ Children Education Scheme
(1) The Commission may provide benefits for, and in respect of, eligible children or eligible grandchildren of Vietnam veterans under and in accordance with the Veterans’ Children Education Scheme.
(2) The Commission may provide guidance and counselling services under the Veterans’ Children Education Scheme for such other people as the Minister, by legislative instrument, determines.
(3) This section does not apply in relation to a person if the person is receiving a veteran payment.
Part VIIAA—Education entry payment
118AA Eligibility
A person is eligible for an education entry payment under this section if:
(a) either:
(i) the person is receiving a partner service pension, an invalidity service pension or income support supplement, and the person has not reached pension age; or
(ii) the person is receiving a veteran payment, and the person has not reached pension age (within the meaning of subsections 5QB(2), (3), (4) and (5)); and
(c) the person is qualified, or if he or she were not in receipt of financial supplement under the Student Financial Supplement Scheme constituted by Part 4A of the Student Assistance Act 1973 or established under Chapter 2B of the Social Security Act 1991 would be qualified, to receive pensioner education supplement under the Social Security Act or the Student Assistance Act 1973; and
(d) either:
(i) the Commission is satisfied that the person intends to enrol in a full‑time or part‑time course of education that is the subject of a determination made under section 5D of the Student Assistance Act 1973 by the Minister administering that Act; or
(ii) the person is enrolled in such a course; and
(e) the person has not received a payment under this Part for which he or she made a claim in the current calendar year.
118AAB Need for a claim
(1) A person who wants to be granted an education entry payment must make a claim for the payment:
(a) in writing; and
(b) in a form approved by the Commission.
(1A) A claim under subsection (1) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(2) A claim may be withdrawn at any time before it is determined, either orally or by document lodged at an office of the Department in Australia in accordance with section 5T.
(2A) A withdrawal by document lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(3) A claim that is withdrawn is taken not to have been made.
118AAC Entitlement to and amount of payment
(1) An education entry payment is payable to the person if, after considering the claim, the Commission determines that the claim is to be granted.
(2) The amount of an education entry payment is $208.
118AAD Payment to be refunded
If:
(a) the Commission determined that a claim for education entry payment was to be granted to a person because the Commission was satisfied that the person intended to enrol in a course referred to in subparagraph 118AA(d)(i); and
(b) an amount of education entry payment was paid to the person; and
(c) subsequently the person is not enrolled in the course;
the person must repay to the Commonwealth the amount of the payment.
Part VIIA—Veterans supplement
Division 1—Eligibility for veterans supplement
118A Veterans supplement for dependants of deceased veterans or for persons eligible for pharmaceutical benefits
(1) Subject to this section, a person is eligible for veterans supplement under this section if:
(a) the person is receiving a pension whose rate is specified under subsection 30(2); or
(b) but for subsection 13(7), a pension would have been payable to the person at a rate specified under subsection 30(2); or
(c) the person is eligible for pharmaceutical benefits under the Repatriation Pharmaceutical Benefits Scheme.
(2) A person is not eligible for veterans supplement under this section if:
(a) the person is receiving a social security payment; or
(b) the person is receiving a service pension or a veteran payment; or
(c) the person is a war widow/war widower—pensioner.
Note: For war widow/war widower—pensioner see section 5Q.
(3) A person who leaves Australia otherwise than temporarily is not eligible for veterans supplement under this section after the day on which he or she left Australia.
(4) A person who is temporarily absent from Australia and has been so absent for more than 26 weeks is not eligible for veterans supplement under this section after the first 26 weeks of the absence.
118B Veterans supplement for certain Part II and Part IV pensioners or for World War 1 veterans
(1) Subject to this section, a person is eligible for veterans supplement under this section if:
(a) the person is eligible for a pension at a rate specified in subsection 22(4); or
(b) the person is eligible for a pension at a rate specified in section 24; or
(c) the person is eligible for a pension, the rate of which is increased under subsection 27(2) by an amount specified in any of items 1 to 8 of the table in subsection 27(1); or
(d) the person is eligible for a pension at the rate specified in subsection 30(1) and the person is under qualifying age.
Note: For qualifying age see section 5Q.
(2) Subject to this section, a person is eligible for veterans supplement under this section if the person is:
(a) a veteran who rendered eligible war service during World War 1; or
(b) a Commonwealth veteran who rendered continuous full‑time service during World War 1; or
(c) an allied veteran who rendered continuous full‑time service during World War 1.
Note: For World War 1 see subsections 5B(1) and (3).
(3) A person is not eligible for veterans supplement under this section if:
(a) the person is receiving a social security payment; or
(b) the person is receiving a service pension, income support supplement or a veteran payment; or
(c) the person is receiving energy supplement under Part VIIAD of this Act or Part 2.25B of the Social Security Act; or
(d) the person is receiving MRCA supplement under Division 4 of Part 7 of Chapter 4, or Division 5 of Part 2 of Chapter 5, of the MRCA.
(4) A person who leaves Australia otherwise than temporarily is not eligible for veterans supplement under this section after the day on which he or she left Australia.
(5) A person who is temporarily absent from Australia and has been so absent for more than 26 weeks is not eligible for veterans supplement under this section after the first 26 weeks of the absence.
Division 2—Rate of veterans supplement
118C Rate of veterans supplement—section 118A
The rate of veterans supplement under section 118A is $6.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198F.
118D Rate of veterans supplement—section 118B
The rate of veterans supplement under section 118B is $6.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198F.
Part VIIAD—Energy supplement
Division 1—Eligibility
118P Eligibility for energy supplement
Person holds a seniors health card
(1) A person is eligible for energy supplement if:
(a) the person is the holder of a seniors health card; and
(aa) the person:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks; and
(b) the person is not receiving any of the following:
(i) a service pension;
(ii) income support supplement;
(iii) a social security pension or social security benefit;
(iv) energy supplement under Part 2.25B of the Social Security Act.
(1A) Subject to subsections (1C), (1E) and (1G), subsection (1) applies to a person on or after the commencement of this subsection only if on 19 September 2016:
(a) energy supplement was payable to the person under section 118PA; or
(b) energy supplement was payable to the person under section 1061UA of the Social Security Act 1991.
Note: For subsection (1) to apply to the person on a day on or after that commencement, the person needs to satisfy paragraphs (1)(a) to (b) on that day.
(1B) Subject to subsection (1G), if:
(a) energy supplement was payable to a person under section 118PA, or section 1061UA of the Social Security Act 1991, on 19 September 2016; and
(b) energy supplement ceases to be payable to the person under either of those sections on or after 20 September 2016;
then subsection (1) of this section does not apply, and never again applies, to the person from:
(c) if the cessation occurred before the commencement of this subsection—the start of the day this subsection commences; or
(d) if the cessation occurred on or after the commencement of this subsection—the start of the day of that cessation.
(1C) If:
(a) a person was not eligible for energy supplement under subsection (1) on 19 September 2016; and
(b) on 19 September 2016 the person was receiving an income support payment (within the meaning of the Social Security Act 1991), where energy supplement was used to work out the rate of that payment; and
(c) on a day (the cessation day) on or after the commencement of this subsection the person ceases to be in receipt of any income support payment (within the meaning of the Social Security Act 1991); and
(d) on the day before the cessation day the person was receiving an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(e) the person is required to make a claim for a seniors health card in order for such a card to be granted to the person;
the person can become eligible for energy supplement under subsection (1) only if the person makes a claim for a seniors health card within the period of 6 weeks beginning on the cessation day.
(1D) Subject to subsection (1G), if:
(a) as a result of a claim mentioned in subsection (1C), a person becomes the holder of a seniors health card on a day; and
(b) energy supplement ceases to be payable to the person under section 118PA on or after that day;
then subsection (1) of this section does not apply, and never again applies, to the person from the start of the day of that cessation.
(1E) If:
(a) a person was not eligible for energy supplement under subsection (1) on 31 December 2016; and
(b) on that day, the person was receiving a service pension and an amount of energy supplement was added to the rate of that pension; and
(c) under subsection 118XA(3), the Commission made a determination under section 118ZG that the person is entitled to a seniors health card;
the person can become eligible for energy supplement under subsection (1) of this section because of being the holder of that card.
(1F) Subject to subsection (1G), if:
(a) as mentioned in paragraph (1E)(c), a person becomes the holder of a seniors health card on a day; and
(b) energy supplement ceases to be payable to the person under section 118PA on or after that day;
then subsection (1) of this section does not apply, and never again applies, to the person from:
(c) if the cessation occurred before the commencement of this subsection—the start of the day this subsection commences; or
(d) if the cessation occurred on or after the commencement of this subsection—the start of the day of that cessation.
(1G) If:
(a) on a day on or after 20 September 2016 the person ceases to hold a seniors health card under this Act or the Social Security (Administration) Act 1999; and
(b) on that day the person receives an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(c) on a day (the cessation day) on or after the commencement of this subsection the person ceases to be in receipt of any income support payment (within the meaning of the Social Security Act 1991); and
(d) on the day before the cessation day the person was receiving an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(e) the person is required to make a claim for a seniors health card in order for such a card to be granted to the person;
the person can become eligible for energy supplement under subsection (1) only if the person makes a claim for a seniors health card within the period of 6 weeks beginning on the cessation day.
Person holds a gold card
(2) A person is eligible for energy supplement if:
(a) the person is the holder of a gold card; and
(b) the person has reached qualifying age; and
(c) the person:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks; and
(d) the person is not receiving any of the following:
(i) a service pension;
(ii) income support supplement;
(iii) a social security pension or social security benefit;
(iv) energy supplement under Part 2.25B of the Social Security Act.
(3) In this section:
gold card means a card known as the Repatriation Health Card—For All Conditions, that evidences a person’s eligibility, under this Act, the Military Rehabilitation and Compensation Act 2004, the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 or the Treatment Benefits (Special Access) Act 2019, to be provided with treatment for all injuries or diseases.
Portability
(4) If:
(a) on 19 September 2016 energy supplement was payable to a person under section 118PA; and
(b) either:
(i) the person is absent from Australia on 19 September 2016 and has been so for a continuous period not exceeding 6 weeks; or
(ii) the person leaves Australia on a day on or after 20 September 2016 and, on the day before so leaving, energy supplement was payable to the person under section 118PA; and
(c) the person returns to Australia, where the period of that absence has exceeded 6 weeks but not exceeded 19 weeks; and
(d) the person is the holder of a seniors health card on the day before the person returns to Australia;
then the person is taken to have been eligible for energy supplement under this section on each day that occurs in the period beginning on the day after the end of that 6‑week period of absence and ending at the end of the day before the person returned to Australia.
(5) Subsection (4) does not limit section 118PB.
Note: After the person’s period of absence exceeds 6 weeks, there will be no daily rate of energy supplement for the person: see subsection 118PB(2).
118PA When energy supplement is payable
(1) Energy supplement is payable to a person in relation to each day on which the person is eligible for the supplement.
(2) However, energy supplement is not payable to the person in relation to a day if:
(a) before that day:
(i) the person had elected not to be covered by this Part; and
(ii) that election had not been withdrawn; or
(b) subsection 122A(1C) (failing to nominate a bank account) applies to the person.
Division 2—Rate of energy supplement
118PB Rate of energy supplement
(1) If subsection (2) applies to the person on a day, the person’s daily rate of energy supplement, for that day, is 1/364 of the amount worked out using the following table:
Energy supplement |
Item | Person’s family situation | Amount of energy supplement |
1 | Not a member of a couple | $366.60 |
2 | Partnered | $275.60 |
3 | Member of an illness separated couple | $366.60 |
4 | Member of a respite care couple | $366.60 |
Note: For member of a couple, partnered, illness separated couple and respite care couple see subsections 5E(1) and (5) and 5R(5) and (6) respectively.
(2) This subsection applies to a person on a day if on that day the person is residing in Australia and either:
(a) is in Australia; or
(b) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks.
Division 3—Payment of energy supplement
118PC Payment of energy supplement
(1) Energy supplement under this Part is to be paid by instalments.
(2) An instalment of energy supplement is to be paid to a person as soon as is reasonably practicable after the end of an instalment period.
(3) The amount of the instalment is worked out by:
(a) working out the person’s amount of energy supplement for each day in the instalment period (using the daily rate of the supplement for that day); and
(b) adding up the amounts resulting from paragraph (a).
(4) In this section:
instalment period means a period:
(a) in relation to each day of which energy supplement is payable to the person; and
Note: For when energy supplement is payable to the person, see section 118PA.
(b) that either begins on any 20 March, 20 June, 20 September or 20 December or does not include any such day; and
(c) that either ends on any 19 March, 19 June, 19 September or 19 December or does not include any such day; and
(d) that is not included in a longer instalment period.
Part VIIC—Seniors health card
Division 1—Eligibility for and entitlement to a seniors health card
Subdivision A—Eligibility
118V Eligibility for seniors health card
(1) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) has reached pension age; and
(d) is an Australian resident; and
(f) is not receiving a service pension; and
(fa) is not receiving a veteran payment; and
(g) is not receiving a social security pension or benefit; and
(h) satisfies the seniors health card income test.
Note 1: For qualifying service see section 7A.
Note 2: For Australian resident see section 5G.
Note 3: For seniors health card income test see section 118ZZA.
Note 4: For pension age see section 5QA.
(1A) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if the person:
(a) is a war widow or a war widower; and
(b) has reached qualifying age; and
(c) is an Australian resident; and
(e) is not receiving income support supplement; and
(f) satisfies the seniors health card income test; and
(g) is not eligible for a seniors health card under subsection (1).
Note 1: For Australian resident see section 5G.
Note 2: For seniors health card income test see section 118ZZA.
Note 3: For war widow and war widower see subsection 5E(1).
Note 4: For qualifying age see section 5Q.
Partner of person eligible for card under subsection (1)
(2) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if:
(a) the person is a member of a couple; and
(b) the person’s partner is eligible for a seniors health card under subsection (1); and
(c) the person has reached:
(i) if the person is not a veteran—pension age; or
(ii) if the person is a veteran—the age that would be the pension age for that person if he or she were not a veteran; and
(d) the person is an Australian resident; and
(f) the person is not receiving a service pension; and
(fa) the person is not receiving a veteran payment; and
(g) the person is not receiving a social security pension or benefit; and
(h) the person satisfies the seniors health card income test; and
(i) the person is not eligible for a seniors health card under subsection (1) or (1A).
Note 1: For member of couple and partner see section 5E.
Note 3: For Australian resident see section 5G.
Note 4: For seniors health card income test see section 118ZZA.
Note 5: For pension age see section 5QB.
(3) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if:
(a) the person is:
(i) the non‑illness separated spouse of a person who is receiving an age or invalidity service pension; or
(ii) the non‑illness separated spouse of a person who is eligible for a seniors health card under subsection (1); or
(iii) a widow or widower of a veteran; and
(b) the person is eligible for a partner service pension; and
(c) the person has reached:
(i) if the person is not a veteran—pension age; or
(ii) if the person is a veteran—the age that would be the pension age for that person if he or she were not a veteran; and
(d) the person is an Australian resident; and
(f) the person is not receiving a service pension; and
(fa) the person is not receiving a veteran payment; and
(g) the person is not receiving a social security pension or benefit; and
(h) the person satisfies the seniors health card income test; and
(i) the person is not eligible for a seniors health card under subsection (1) or (1A).
Note 1: For non‑illness separated spouse, widow and widower see subsection 5E(1).
Note 2: For veteran see subsection 5C(1).
Note 3: For pension age see section 5QB.
Note 4: For Australian resident see section 5G.
Note 5: For seniors health card income test see section 118ZZA.
(4) A person is not eligible for a seniors health card at a particular test time if:
(a) the person has failed to comply with section 118ZJA in respect of the reference tax year; or
(b) where the person has made an estimate of taxable income for the reference tax year and the estimate was accepted—the person did not give the Commission a copy of a notice of assessment of the person’s taxable income for that tax year within 12 months after the end of that tax year.
Note: If a person is eligible for a seniors health card, the Commission must not determine that the person is entitled to the card if the person fails to comply with a request in subsection 128A(3) or (3A) (about provision of tax file numbers).
(5) In subsection (4):
taxable income, test time and reference tax year have the same meanings as in the Seniors Health Card Income Test Calculator.
Subdivision B—Entitlement
118W Entitlement to a seniors health card
Even though a person is eligible for a seniors health card, it is only if the person is the holder of a seniors health card that benefits and concessions of various kinds relating to the person’s health may be made available to the person by the Commonwealth.
Note 1: If there is a determination in force that a person is entitled to a seniors health card, the person is the holder of a seniors health card. For holder of a seniors health card see section 5PB.
Note 2: A person who is the holder of a seniors health card generally has access to concessional pharmaceutical benefits under the National Health Act 1953.
118X Social Security cardholder not entitled
If a person is the holder of a seniors health card within the meaning of the Social Security Act, the person is not entitled to a seniors health card under this Act.
Subdivision C—Modifications of provisions in this Division
118XA Modifications if person’s rate of service pension or income support supplement is nil on 1 January 2017
(1) This section applies in relation to a person if:
(a) immediately before 1 January 2017, the person was receiving a service pension or income support supplement; and
(b) the Commission is satisfied that the rate of that pension or supplement is nil on 1 January 2017 because of the operation of the amendments made by Part 1 of Schedule 3 to the Social Services Legislation Amendment (Fair and Sustainable Pensions) Act 2015.
Seniors health card income test does not apply
(2) In determining whether the person is eligible for a seniors health card at any time on or after 1 January 2017, paragraphs 118V(1)(h), (1A)(f), (2)(h) and (3)(h) do not apply to the person.
Entitlement to seniors health card
(3) If the person is eligible for a seniors health card under this Part on 1 January 2017 and section 118X does not prevent the person from being entitled to a seniors health card, the Commission must make a determination under section 118ZG that the person is entitled to a seniors health card.
Note: The person does not need to make a claim for the card.
118XB Other modifications because of social security law
If section 1061ZJA of the Social Security Act 1991 applies in relation to a person, then, in determining whether the person is eligible for a seniors health card under this Part at any time on or after 1 January 2017, paragraphs 118V(1)(h), (1A)(f), (2)(h) and (3)(h) do not apply to the person.
Division 2—Claim for seniors health card
118Y Need for a claim
(1) A person who wants to be granted a seniors health card must make a proper claim.
Note: For proper claim see section 118ZA (form), section 118ZB (manner of lodgment) and section 118ZC (residence/presence in Australia).
(2) However, subsection (1) does not apply to a person if, because of subsection 118XA(3), the Commission made a determination under section 118ZG that the person is entitled to a seniors health card and the determination is in force.
118Z Who can claim?
(1) Subject to subsection (2), a claim must be made by:
(a) the person who wants to be granted a seniors health card; or
(b) with the approval of the person—another person on the person’s behalf.
(2) If the person is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.
118ZA Making a claim
(1) To be a proper claim, the claim must be:
(a) made in writing; and
(b) in accordance with a form approved by the Commission; and
(c) accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim; and
(d) lodged at an office of the Department in Australia in accordance with section 5T.
(2) A claim lodged in accordance with section 5T is taken to have been made on a day determined under that section.
118ZC Claimant must be an Australian resident and in Australia
A claim is not a proper claim unless the person making the claim, or on whose behalf the claim is being made, is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: For Australian resident see section 5G.
118ZD Claim may be withdrawn
(1) A claimant for a seniors health card or a person on behalf of a claimant may withdraw a claim that has not been determined.
(2) A claim that is withdrawn is taken to have not been made.
(3) A withdrawal may be made either orally or by document lodged at an office of the Department in Australia in accordance with section 5T.
(4) A withdrawal made by lodging a document in accordance with section 5T is taken to have been so made on a day determined under that section.
Oral withdrawal of a claim
(5) An oral withdrawal of a claim must be made to a person in an office of the Department in Australia.
Acknowledgment of oral withdrawal of a claim
(6) As soon as practicable after receiving an oral withdrawal of a claim, the Secretary must give the claimant an acknowledgment notice in writing stating that:
(a) an oral withdrawal of the claim was made; and
(b) the claimant, or a person on behalf of the claimant, may, within 28 days from the day the acknowledgment notice is given, request the Secretary to treat the withdrawal as if it had not been made.
Reactivating the withdrawn claim
(7) If, within 28 days from the day on which the Secretary gave the acknowledgment notice, a claimant, or a person on behalf of a claimant, requests the Secretary to treat the oral withdrawal of the claim as if it had not been made, the oral withdrawal is taken not to have been made.
Note: A request made under paragraph (6)(b) has the effect of reactivating the claim. In particular, the commencement day of the claim stays the same.
Division 3—Investigation of claim
118ZE Secretary to investigate claim and submit it to Commission
(1) If a person makes a proper claim for a seniors health card, the Secretary must investigate the matters to which the claim relates.
(2) When the investigation is completed, the Secretary must submit the claim to the Commission for consideration and determination.
(3) When the claim is submitted to the Commission it must be accompanied by:
(a) any evidence supplied by the claimant in support of the claim; and
(b) any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the claim; and
(c) any other documents or other evidence under the control of the Department that are relevant to the claim.
Division 4—Consideration and determination of claim
118ZF Duties of Commission in relation to claim
Determination of claim
(1) When the claim is submitted to the Commission, the Commission must consider all matters that are, in the Commission’s opinion, relevant to the claim and must then determine the claim.
(2) In considering the claim, the Commission must:
(a) satisfy itself with respect to; or
(b) determine;
(as the case requires) all matters relevant to the determination of the claim.
(3) Without limiting subsection (1), the Commission, in considering the claim, must consider:
(a) the evidence submitted with the claim under section 118ZE; and
(b) any further evidence subsequently submitted to the Commission in relation to the claim.
Record of determination and reasons
(4) When the Commission determines the claim it must make a written record of its determination.
(5) The Commission must also make a statement in writing about the determination that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the Commission’s determination.
Notification of determination
(6) As soon as practicable after the Commission determines a claim under subsection (1), the Commission must give the person who made the claim:
(a) a copy of the record of the Commission’s determination; and
(b) subject to subsection (7), a copy of the statement about the determination referred to in subsection (5); and
(c) particulars of the right of the person who made the claim to have the determination reviewed by the Commission.
(7) If the statement referred to in paragraph (6)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who made the claim, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
Note: A claimant may apply to the Commission for review of a determination made under this section (see section 118ZS).
118ZG Entitlement determination
Subject to section 118X and subsection 128A(2A), the Commission is to determine that a person is entitled to a seniors health card if the Commission is satisfied that the person is eligible for the card.
118ZH Date of effect of determination
A determination under section 118ZG takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Division 5—Cardholder’s obligations
118ZI Secretary may require notice of the happening of event or a change in circumstances
(1) The Secretary may give a person who is the holder of a seniors health card a notice that requires the person to inform the Department, or an officer specified in the notice, if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
Note: For holder of a seniors health card see section 5PB.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect whether the person is eligible for the card.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) subject to subsection (3A), must specify how the person is to give the information to the Department or specified officer; and
(d) must specify the period within which the person is to give the information to the Department or specified officer.
(3A) A document lodged as a consequence of a notice issued under subsection (1) that requires a person to inform the Department in writing of the occurrence, or likely occurrence, of a specified event or change of circumstances:
(a) is to be lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been lodged on a day determined under that section.
(4) The period specified under paragraph (3)(d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not fail to comply with a notice under subsection (1).
Penalty: Imprisonment for 6 months.
(5A) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5B) Subsection (5) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5B). See subsection 13.3(3) of the Criminal Code.
(5C) Subsection (5) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5C). See subsection 13.3(3) of the Criminal Code.
(6) A person must not, in purported compliance with a notice under subsection (1), knowingly furnish information that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
(8) In this section, officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.
118ZJ Secretary may require particular information relevant to eligibility for seniors health card
(1) The Secretary may give a person who is the holder of a seniors health card a notice that requires the person to give the Department, or an officer specified in the notice, a statement in writing about a matter that might affect whether the person is eligible for the card.
Note: For holder of a seniors health card see section 5PB.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) subject to subsection (3A), must specify how the statement is to be given to the Department or specified officer; and
(d) must specify the period within which the person is to give the statement to the Department or specified officer.
(3) The period specified under paragraph (2)(d) must end at least 14 days after the day on which the notice is given.
(3A) A document lodged as a consequence of a notice issued under subsection (1) that requires a person to give the Department a statement about a matter of a kind specified in that subsection:
(a) is to be lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been lodged on a day determined under that section.
(4) A statement given in response to a notice under subsection (1) must be in accordance with a form approved by the Commission.
(5) A person must not fail to comply with a notice under subsection (1).
Penalty: Imprisonment for 6 months.
(5A) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5B) Subsection (5) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5B). See subsection 13.3(3) of the Criminal Code.
(5C) Subsection (5) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5C). See subsection 13.3(3) of the Criminal Code.
(6) A person must not, in purported compliance with a notice under subsection (1), knowingly furnish information that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
(8) In this section, officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.
118ZJA When copy of notice of assessment of taxable income to be given to Department
(1) If a person who is the holder of a seniors health card receives a notice of assessment or amended assessment of his or her taxable income for a particular tax year, the person must, if requested by the Secretary to do so, give a copy of the notice to the Department within 3 months after the day on which the notice was received.
(2) In this section:
taxable income has the same meaning as in the Seniors Health Card Income Test Calculator.
Division 6—Continuation, variation and termination
118ZK Continuing effect of determination
A determination that a person is entitled to a seniors health card continues in effect until:
(a) the person ceases to be entitled to the card under section 118ZL or 118ZM; or
(b) a further determination under section 118ZN or 118ZO or subsection 128A(2B) has taken effect.
118ZL Person ceases to be entitled to card automatically—recipient complying with section 118ZI notification obligations
If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZI; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person ceases to be eligible for the card; and
(f) a determination is not made that the person ceases to be entitled to the card before the end of the notification period;
the person continues to be entitled to the card until the end of the notification period and the person then ceases to be entitled to the card.
Note: For holder of a seniors health card see section 5PB.
118ZM Person ceases to be entitled to card automatically—recipient not complying with section 118ZI notification obligations
If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZI; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances the person ceases to be eligible for the card;
the person ceases to be entitled to the card immediately after the day on which the event or change in circumstances occurs.
Note: For holder of a seniors health card see section 5PB.
118ZN Determination that a person ceases to be entitled to a seniors health card
(1) If the Commission is satisfied that a person is, or was, the holder of a seniors health card when the person is not, or was not, eligible for the card, the Commission is to determine that the person ceases to be entitled to the card.
Note 1: For holder of a seniors health card see section 5PB.
Note 2: A determination under this section is not necessary in a case where an automatic loss of eligibility is produced by section 118ZL or 118ZM.
Note 3: For the date of effect of a determination under this section see section 118ZR.
(2) A determination under subsection (1) must be in writing.
118ZO Person may cease to be entitled to a seniors health card for failure to comply with section 118ZJ notice
(1) If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZJ; and
(b) the person does not comply with the requirements set out in the notice;
the Commission may determine that the person ceases to be entitled to the card.
Note 1: For holder of a seniors health card see section 5PB.
Note 2: This section will not apply in a case where section 118ZN applies.
Note 3: For the date of effect of a determination under this section see section 118ZR.
(2) A determination under subsection (1) must be in writing.
118ZP Resumption of entitlement
(1) If the Commission:
(a) determines that a person ceases to be entitled to a seniors health card under section 118ZN or 118ZO; and
(b) reconsiders that decision; and
(c) becomes satisfied that because of that decision:
(i) the person was not entitled to a seniors health card when in fact the person was eligible for the card; or
(ii) the person is not entitled to a seniors health card when in fact the person is eligible for the card;
the Commission is to determine that the person was or is entitled to the card.
(2) The reconsideration referred to in paragraph (1)(b) might be a reconsideration on a claim under section 118ZS for review or a reconsideration on the Commission’s own initiative.
(3) A determination under subsection (1) must be in writing.
Note: For the date of effect of a determination under this section see section 118ZQ.
118ZQ Date of effect of favourable determination
A determination under section 118ZP takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
118ZR Date of effect of adverse determination
(1) The day on which a determination under section 118ZN or 118ZO or subsection 128A(2B) (the adverse determination) takes effect is worked out in accordance with this section.
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4) and (5), the day specified under paragraph (2)(b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person’s entitlement to a seniors health card is affected by the adverse determination and the person has contravened a provision of this Act (other than subsection 118ZI(5), 118ZJ(5) or 128(4)); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made.
False statement or misrepresentation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the person became the holder of a seniors health card when in fact the person was not eligible for the card;
the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made.
Division 7—Review of decisions
118ZS Review of certain decisions
(1) A claimant who is dissatisfied with a decision of the Commission in relation to a claim for a seniors health card may request the Commission to review the decision.
(2) A person who is dissatisfied with a decision of the Commission that the person ceases to be entitled to a seniors health card may request the Commission to review the decision.
118ZT Application for review
(1) A request for review of a decision under section 118ZS must:
(a) be made within 3 months after the person seeking review was notified of the decision; and
(b) set out the grounds on which the request is made; and
(c) be in writing; and
(d) be lodged at an office of the Department in Australia in accordance with section 5T.
(1A) A request lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(2) If a request for review of a decision is made in accordance with subsection (1), the Commission must review the decision.
(3) If the Commission has delegated its powers under this section to the person who made the decision under review, that person must not review the decision.
118ZU Commission’s powers where request for review
(1) If the Commission reviews a decision under this Division, the Commission must affirm the decision or set it aside.
(2) If the Commission sets the decision aside it must, subject to subsection (3), substitute a new decision in accordance with this Act.
(3) If the decision set aside is a decision that a person ceases to be entitled to a seniors health card, the Commission need not substitute another decision.
Note: For the Commission’s evidence gathering powers see section 118ZY.
118ZV Date of effect of certain review decisions
(1) If the Commission sets aside a decision and substitutes for it a decision that a person is entitled to a seniors health card, the substituted decision takes effect from a date specified by the Commission.
(2) The date specified by the Commission must not be earlier than the date from which, had the Commission determined that the person is entitled to a seniors health card, such a determination could have taken effect.
118ZW Commission must make written record of review decision and reasons
(1) When the Commission reviews a decision under this Division it must make a written record of its decision upon review.
(2) The written record must include a statement that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the Commission’s decision.
118ZX Person who requested review to be notified of decision
(1) When the Commission affirms or sets aside a decision under this Division it must give the person who requested the review of the decision:
(a) a copy of the Commission’s decision; and
(b) subject to subsection (2), a copy of the statement about the decision referred to in subsection 118ZW(1); and
(c) if the person has a right to apply to the Administrative Appeals Tribunal for a review of the Commission’s decision—a statement giving the person particulars of that right.
(2) If the statement referred to in paragraph (1)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who requested review, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
118ZY Powers of Commission to gather evidence
(1) The Commission or the Commission’s delegate may, in reviewing a decision under this Division:
(a) take evidence on oath or affirmation for the purposes of the review; and
(b) adjourn a hearing of the review from time to time.
(2) The presiding member of the Commission or the Commission’s delegate may, for the purposes of the review:
(a) summon a person to appear at a hearing of the review to give evidence and to produce such documents (if any) as are referred to in the summons; and
(b) require a person appearing at a hearing of the review for the purpose of giving evidence either to take an oath or to make an affirmation; and
(c) administer an oath or affirmation to a person so appearing.
(3) The person who applied for the review under this Division is a competent and compellable witness upon the hearing of the review.
(4) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
(5) The Commission’s power under paragraph (1)(a) to take evidence on oath or affirmation:
(a) may be exercised on behalf of the Commission by:
(i) the presiding member or the Commission’s delegate; or
(ii) by another person (whether a member or not) authorised by the presiding member or the Commission’s delegate; and
(b) may be exercised within or outside Australia; and
(c) must be exercised subject to any limitations specified by the Commission.
(6) Where a person is authorised under subparagraph (5)(a)(ii) to take evidence for the purposes of a review, the person has:
(a) all the powers of the Commission under subsection (1); and
(b) all the powers of the presiding member under subsection (2);
for the purposes of taking that evidence.
(7) In this section:
Commission’s delegate means a person to whom the Commission has delegated its powers under section 118ZT and who is conducting the review in question.
118ZZ Withdrawal of request for review
(1) A person who requests a review under section 118ZS may withdraw the request at any time before it is determined by the Commission.
(2) To withdraw the request, the person must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia in accordance with section 5T.
(3) Subject to section 118ZT, a person who withdraws a request for review may subsequently make another request for review of the same decision.
Note: Section 118ZT provides that a person who wants to request a review of a decision must do so within 3 months after the person has received notice of the decision.
Division 8—Seniors Health Card Income Test Calculator
118ZZA Seniors Health Card Income Test Calculator
The Seniors Health Card Income Test Calculator at the end of this section is to be used in working out whether a person satisfies the seniors health card income test for the purposes of this Act.
Seniors Health Card Income Test Calculator
Satisfying the seniors health card income test
118ZZA‑1 This is how to work out whether a person satisfies the seniors health card income test at a particular time (the test time).
Method statement
Step 1. Work out the amount of the person’s adjusted taxable income for the reference tax year.
Step 1A. If, at the test time, the person, or the person’s partner (if any), has at least one long‑term financial asset (see point 118ZZA‑12), work out the person’s deemed income amount under:
(a) if, at the test time, the person is not a member of a couple—point 118ZZA‑10A; or
(b) if, at the test time, the person is a member of a couple—point 118ZZA‑10B.
Step 1B. Work out the sum of the amounts at step 1 and step 1A (if any).
Step 2. Work out the person’s seniors health card income limit using point 118ZZA‑11.
Step 3. Work out whether the amount at step 1B exceeds the seniors health card income limit.
Step 4. If the amount at step 1B is less than the person’s seniors health card income limit, the person satisfies the seniors health card income test.
Step 5. If the amount at step 1B is equal to or exceeds the person’s seniors health card income limit, the person does not satisfy the seniors health card income test.
Reference tax year
118ZZA‑2(1) In the ordinary case, a person’s reference tax year is:
(a) if the person has received a notice of assessment of his or her taxable income for the tax year immediately preceding the tax year in which the test time occurred—that immediately preceding tax year; or
(b) otherwise—the tax year immediately preceding the tax year applicable under paragraph (a).
(2) However, if the person has informed the Secretary in writing that the person wishes to have his or her entitlement to a seniors health card determined by reference to his or her adjusted taxable income for the tax year in which the test time occurred (the current tax year), the person’s reference tax year is the current tax year.
Adjusted taxable income
118ZZA‑3 For the purposes of this Division, a person’s adjusted taxable income for a particular tax year is the sum of the following amounts (income components):
(a) the person’s taxable income for that year, disregarding the person’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for that year;
(b) the person’s fringe benefits value for that year;
(c) the person’s target foreign income for that year;
(d) the person’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year;
(e) the person’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year.
Note 1: For taxable income see point 118ZZA‑4.
Note 2: For fringe benefits value see point 118ZZA‑5.
Note 3: For target foreign income see point 118ZZA‑6.
Taxable income
118ZZA‑4(1) In this Division:
taxable income has the same meaning as in the Income Tax Assessment Act 1997.
(2) For the purposes of this Division, a person’s taxable income for a particular tax year is:
(a) the person’s assessed taxable income for that year; or
(b) if the person does not have an assessed taxable income for that year—the person’s accepted estimate of taxable income for that year.
(3) For the purposes of this Division, a person’s assessed taxable income for a particular tax year at a particular time is the most recent of:
(a) if, at that time, the Commissioner of Taxation has made an assessment or an amended assessment of that taxable income—that taxable income according to the assessment or amended assessment; or
(b) if, at that time, a tribunal has amended an assessment or an amended assessment made by the Commissioner—that taxable income according to the amendment made by the tribunal; or
(c) if, at that time, a court has amended an assessment or an amended assessment made by the Commissioner or an amended assessment made by a tribunal—that taxable income according to the amendment made by the court.
Fringe benefits value
118ZZA‑5(1) For the purposes of this Division, a person’s fringe benefits value for a particular tax year is the person’s accepted estimate of the amount by which the total of the assessable fringe benefits received or to be received by the person in the tax year exceeds $1,000.
(2) In this point:
assessable fringe benefit has the meaning given by subsection 10A(2) of the Social Security Act 1991.
(3) The value of an assessable fringe benefit is to be worked out in accordance with Part 3.12A of the Social Security Act 1991 except that references in that Part to the Minister and to the Secretary are to be taken to be references to the Minister for Veterans’ Affairs and to the Secretary of the Department of Veterans’ Affairs, respectively.
Target foreign income
118ZZA‑6(1) In this Division:
foreign income, in relation to a person, means:
(a) an income amount earned, derived or received by the person from a source outside Australia for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance from a source outside Australia; or
(c) a periodical benefit by way of gift or allowance from a source outside Australia.
target foreign income means foreign income that is not:
(a) taxable income; or
(b) received in the form of a fringe benefit.
(2) For the purposes of this Division, a person’s target foreign income for a particular tax year is the person’s accepted estimate of the amount of that income for that year.
Total net investment loss
118ZZA‑7 For the purposes of this Division, a person’s total net investment loss for a particular tax year is the person’s accepted estimate of the amount of that loss for that year.
Accepted estimate
118ZZA‑8 For the purposes of this Division, a person’s accepted estimate of an income component for a particular tax year is that income component according to the most recent notice given by the person to the Secretary under point 118ZZA‑9 and accepted by the Commission for the purposes of this Part.
Notice estimating income component
118ZZA‑9(1) A person may give the Secretary a notice, in a form approved by the Commission, setting out the person’s estimate of an income component of the person for a tax year.
(2) The notice is to contain, or be accompanied by, such information as is required by the form to be contained in it or to accompany it, as the case may be.
(3) The Commission is to accept a notice only if the Commission is satisfied that the estimate is reasonable.
Adjusted taxable income of members of couples
118ZZA‑10 If a person is a member of a couple, add the couple’s adjusted taxable incomes for the reference tax year and divide by 2 to work out the amount of the person’s adjusted taxable income for the reference tax year.
Deemed income amount
118ZZA‑10A This is how to work out the person’s deemed income amount under this point:
Method statement
Step 1. Work out the total value of all of the person’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 2. Work out under section 46D the amount of ordinary income the person would be taken to receive per year on his or her financial assets:
(a) on the assumption that the only financial assets of the person were the financial assets referred to in step 1; and
(b) on the assumption that the total value of the person’s financial assets were the amount at step 1.
Step 3. The result at step 2 is the person’s deemed income amount.
118ZZA‑10B This is how to work out the person’s deemed income amount under this point:
Method statement
Step 1. Work out the total value of all of the person’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 2. If, at the test time, the person’s partner has reached the minimum age mentioned in section 301‑10 of the Income Tax Assessment Act 1997, work out the total value of all of the person’s partner’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 3. Work out under section 46E the amount of ordinary income the couple would be taken to receive per year on their financial assets:
(a) on the assumption that the only financial assets of the person and the person’s partner were the financial assets referred to in steps 1 and 2; and
(b) on the assumption that the total value of the couple’s financial assets were the sum of the amounts at steps 1 and 2.
Step 4. Divide the amount at step 3 by 2: the result is the person’s deemed income amount.
Seniors health card income limit
118ZZA‑11 A person’s seniors health card income limit is worked out using the Seniors Health Card Income Limit Table. Work out which family situation in the table applies to the person. The person’s seniors health card income limit is the corresponding amount in column 3 plus an additional corresponding amount in column 4 for each dependent child of the person.
Seniors Health Card Income Limit Table |
Column 1 Item | Column 2 Person’s family situation | Column 3 Amount per year | Column 4 Additional dependent child Amount per year |
1 | Not member of couple | $90,000 | $639.60 |
2 | Partnered | $72,000 | $639.60 |
3 | Member of illness separated couple | $90,000 | $639.60 |
4 | Member of respite care couple | $90,000 | $639.60 |
Note 1: For member of couple and partnered, see section 5E.
Note 2: For illness separated couple and respite care couple, see section 5R.
Note 3: For dependent child, see section 5F.
Note 4: The amounts in column 3 are to be indexed annually on 20 September in line with CPI increases (see section 198FAA).
Long‑term financial asset
118ZZA‑12 For the purposes of this Division, a long‑term financial asset is:
(a) a financial investment within the meaning of paragraph (i) of the definition of financial investment in subsection 5J(1), where the asset‑tested income stream (long term) arises under a complying superannuation plan (within the meaning of the Income Tax Assessment Act 1997) that is not a constitutionally protected fund (within the meaning of that Act); or
(b) a financial investment within the meaning of paragraph (j) of the definition of financial investment in subsection 5J(1).
Note: Schedule 7 to the Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Act 2014 preserves the rules in this Calculator for a certain kind of long‑term financial asset that was being provided to a person immediately before 1 January 2015 where the person held a seniors health card immediately before that day provided that, since that day, the person has held a seniors health card.
Part VIII—General provisions applicable to pensions etc.
119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application or the grant of a veteran payment;
(b) a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension, a veteran payment or qualifying service;
(ba) a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus and pension bonus bereavement payment); or
(c) a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;
(d) the suspension or cancellation, under subsection 31(6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31(8);
(da) a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;
(e) the suspension, cancellation or variation of a pension or a veteran payment; or
(ee) a review, under subsection 115(1), of a decision of the Commission in respect of an application for an allowance, payment or benefit specified in that subsection;
the Commission:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) 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; and
(ii) the 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 veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2) In subsection (1):
application means:
(a) an application to increase the rate of:
(i) a pension granted under Part II or IV; or
(ii) a service pension granted under Part III; or
(iii) income support supplement granted under Part IIIA; or
(b) an application for a pension under Part II or IV made in accordance with subsection 15(2); or
(c) an application to be provided with treatment under Part V; or
(d) an application for an allowance, payment or benefit specified in subsection 111(1); or
(e) an application under Part IIIAB for registration as a member of the pension bonus scheme.
claim means:
(a) a claim for a pension under Part II or IV; or
(b) a claim for service pension or other benefit under Part III; or
(c) a claim for a qualifying service determination under Part III; or
(d) a claim for income support supplement under Part IIIA; or
(e) a claim for a pension bonus or pension bonus bereavement payment under Part IIIAB; or
(f) a claim for prisoner of war recognition supplement under Part VIB.
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
(c) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence‑caused injury, that the disease was a defence‑caused disease or that the death of the member was defence‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b) a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces; or
(iii) the British nuclear test defence service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
121 Instalments of pension
Payment in arrears in relation to pension periods
(1) Pension is payable:
(a) in arrears; and
(b) by instalments relating to each pension period.
Total instalment relating to a pension period
(2) Subject to subsections (3) and (4), the amount payable to a person as an instalment of pension in relation to a pension period is the total amount of pension payable to the person for the days in that period on which pension was payable to the person.
Circumstances in which no instalment is payable in relation to a pension period
(3) If a person who is receiving a pension is ineligible for payment in respect of the last day of a pension period, no amount is payable to the person as an instalment of pension in relation to the pension period.
(4) Subject to subsection (4A), if a person who is receiving a pension dies, no amount is payable to the person as an instalment of pension in relation to the pension period in which the person died.
Exception—prisoner of war recognition supplement
(4A) If a person who is receiving a prisoner of war recognition supplement under Part VIB dies, an amount is payable to the person’s estate as an instalment of that supplement in relation to the pension period in which the person died.
Pensions generally payable fortnightly
(5) Unless subsection (5A) applies to the person, an instalment of pension is payable to a person on the next payday after the end of the pension period to which the instalment relates.
Pensions may be payable weekly
(5A) The Commission may determine, in writing, that the total amount of an instalment of pension payable to a person in relation to a pension period is payable to the person in 2 payments (the part payments) if the person is a member of a class specified under subsection (5C).
(5B) A determination made under subsection (5A) is not a legislative instrument.
(5C) The Commission may, by legislative instrument, specify a class of persons for the purposes of subsection (5A).
(5D) The first of the part payments:
(a) is not to exceed the total of the amount of pension (calculated in accordance with this section) payable to the person for days that:
(i) are days on which the pension was payable to the person; and
(ii) are included in the first 7 days of the pension period; and
(c) is payable at a time determined by the Commission that is after the first 7 days of the pension period.
(5E) The other of the part payments:
(a) is the excess of the amount that is payable to the person as the instalment of pension in relation to the pension period over the first of the part payments; and
(b) is payable at a time determined by the Commission that is after the end of the pension period.
(5F) If the total amount of pension payable to a person in relation to a pension period is payable to the person in part payments, then it is taken for the purposes of this Act that:
(a) a single instalment of the pension is payable in relation to the period; and
(b) that instalment is payable when the last of the part payments is, or is to be, made; and
(c) that instalment is equal to the total of the part payments.
Note: The total of the part payments equals the amount worked out under subsection (2) as the amount payable to the person as the instalment of the pension in relation to the pension period.
(5G) However, section 122B (about deductions from instalments) applies as if each of the part payments were a separate instalment.
Calculation of rate of pension payable
(6) For the purpose of the calculation of the amount of an instalment of pension, the rate of pension payable to a person for a day is calculated by dividing the fortnightly rate of pension by 14.
Special rules for energy supplement payable under section 62A or 62B
(6B) For energy supplement payable under section 62A or 62B:
(a) this section has effect subject to section 62D (which is about quarterly payment of energy supplement); and
(b) subsection (2) of this section has effect as if energy supplement covered by an election in force under section 62D by a person on a day were not payable to the person for the day.
Definitions
(7) In this section:
pension includes energy supplement payable under section 62A or 62B, prisoner of war recognition supplement under Part VIB, veterans supplement under Part VIIA or an allowance under this Act, other than Victoria Cross allowance under section 103 or loss of earnings allowance under section 108, but does not include a pension or allowance to which section 58A applies.
122 Payment of pension
(1) Subject to subsection (2), a pension shall be paid to the person (the pensioner) to whom the pension is payable.
(2) Where the pensioner, by document lodged at an office of the Department in Australia in accordance with section 5T, requests the Commission to do so, the Commission may, in writing, approve payment of the pension to a person specified in the request for such period as is specified in the approval.
(2A) A request lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(3) The Commission shall not approve payment of the pension to the person specified in the request unless the Commission is satisfied that the person has agreed to receive payment as agent of the pensioner.
(3A) Where a payment of pension is made to a person in accordance with an approval under subsection (2):
(a) the payment shall, for all purposes, be deemed to be a payment of the pension to the pensioner;
(b) neither the Commonwealth nor the Commission is bound to oversee the application of the payment by the person; and
(c) the person shall be taken to receive the payment as agent of the pensioner.
(4) A pension shall be paid in such manner as the Commission determines.
Note: For the procedure to be followed if the Commission determines that a person’s pension is to be paid into an account see section 122A.
(5) Where, by reason of a public holiday or a bank holiday or for any other reason, an instalment of, or the amount of, a pension cannot be paid on the day on which it would normally be paid, the instalment or amount of the pension may be paid on an earlier day.
(6) In this section, pension means a pension, allowance or other pecuniary benefit payable under this Act, and includes an instalment of such a pension, allowance or other benefit.
122A Pension or supplement may be paid to bank etc.
(1) The Commission may direct that the whole or a part of the amount of a pension is to be paid, at such intervals as it directs, to the credit of an account nominated from time to time by the pensioner, being an account maintained by the pensioner, either alone or jointly or in common with another person, with:
(a) a bank; or
(b) if the pensioner is physically outside Australia—a foreign corporation that takes money on deposit.
(1AA) If the Commission gives a direction under subsection (1), the pension is payable in accordance with the direction.
(1A) If the payment is of an amount of pension that is not energy supplement under Part VIIAD and the person has not nominated an account for the purposes of subsection (1), the amount is not to be paid.
(1B) If:
(a) an amount has not been paid because of subsection (1A); and
(b) the person nominates an account for the purposes of subsection (1);
the amount is to be paid under subsection (1AA).
(1C) If the payment is of an amount of energy supplement under Part VIIAD and the person has not nominated an account for the purposes of subsection (1) by the end of the period of 28 days (or such longer period determined by the Commission) starting on the day on which the Commission requested the person to do so, the supplement ceases to be payable to the person.
(1D) However, if the person referred to in subsection (1C) nominates an account for the purposes of subsection (1) after the end of the 28 day or other period, then subsection (1C) ceases to apply to the person on the day the person does so.
(1E) If:
(a) there is no nomination of an account by the person in force for the purposes of subsection (1); and
(b) there is a nomination of an account (the existing account) by the person in force for the purposes of section 430 of the Military Rehabilitation and Compensation Act 2004;
the existing account is taken to be an account nominated by the person for the purposes of subsection (1) of this section.
(1F) Subsection (1E) ceases to apply in relation to the person if, in accordance with subsection (1), the person nominates an account for the purposes of subsection (1).
(2) In this section:
pension means a pension, allowance or other pecuniary benefit payable under this Act, and includes an instalment of such a pension, allowance or other benefit.
pensioner means a person to whom a pension is payable, whether on his or her own behalf or on behalf of another person.
122AA Use and disclosure of account details
Use
(1) The Commission, a commissioner of the Commission or a staff member assisting the Commission may use the details of an account referred to in paragraph 122A(1E)(b) for the purposes of section 122A.
(2) A person to whom the details of an account are disclosed under subsection 430A(3) of the Military Rehabilitation and Compensation Act 2004 may use those details for the purposes of section 122A of this Act.
Disclosure
(3) The Commission, a commissioner of the Commission or a staff member assisting the Commission may disclose the details of an account obtained for the purposes of section 122A to the Military Rehabilitation and Compensation Commission (the MRCC), a member of the MRCC or a staff member assisting the MRCC for the purposes of section 430 of the Military Rehabilitation and Compensation Act 2004.
Interaction with Privacy Act 1988
(4) For the purposes of the Privacy Act 1988:
(a) the use of the details of an account in accordance with subsection (1) or (2) is taken to be a use that is authorised by this Act; and
(b) the disclosure of the details of an account in accordance with subsection (3) is taken to be a disclosure that is authorised by this Act.
122B Direct deductions at person’s request
(1) This section applies if a person is receiving instalments of a pension, allowance or other pecuniary benefit payable under this Act of a class approved by the Commission for the purposes of this section.
(2) The person may request the Commission to make deductions from the instalments for the purpose of making:
(a) payments to the Commissioner of Taxation; or
(b) payments in a class approved by the Commission for the purposes of this section.
(3) The request must be in the form approved by the Commission for the purposes of this section.
(4) If a request is made:
(a) the Commission may make the requested deductions; and
(b) if it does so—the Commission must pay the amounts deducted in accordance with the request.
(5) The Commission may, for the purposes of this section, approve:
(a) classes of pensions; and
(b) classes of allowances; and
(c) classes of pecuniary benefits; and
(d) classes of payments.
(6) An approval under subsection (5) is a legislative instrument.
122C Payment of pension or allowance outside Australia
If a pension, allowance or other pecuniary benefit under this Act, other than a pension or allowance to which section 58A applies, is payable to a person who is physically outside Australia, then it may be paid:
(a) in the manner determined by the Commission; and
(b) in the instalments determined by the Commission.
123 Interpretation
(1) In this section and sections 123A to 123E (inclusive):
applicable sections means this section and sections 123A to 123E (inclusive).
child, in relation to a person who has died (in this definition called the deceased), means:
(a) a person who is a child of the deceased within the meaning of section 10;
(b) a person who was a natural child of the deceased; or
(ba) someone who was a child of the deceased within the meaning of the Family Law Act 1975; or
(c) a person who was adopted by the deceased or by the deceased and the deceased’s partner or non‑illness separated spouse.
parent, in relation to a person who has died, means someone whose child the person was.
sibling, in relation to a person who has died, means someone who was a sister, half‑sister, brother or half‑brother of the person.
waiting period, in relation to a person, means the period of 12 months commencing on:
(a) if subparagraph 123A(2)(c)(i) applies to the person—the death of the person; or
(b) if subparagraph 123A(2)(c)(ii) applies to the person—the date of the grant of the claim.
(2) For the purposes of paragraph (a) of the definition of child in subsection (1), a person shall be taken to be a child even though the person is in receipt of a pension, benefit or allowance of a kind referred to in the definition of child in subsection 5F(1).
(3) A reference in the applicable sections to an executor of a will includes a reference to:
(a) an executor of the will by representation; and
(b) if probate of the will has been granted and a person has subsequently been granted administration of the unadministered assets covered by the will—that person.
(4) A reference in the applicable sections to the person to whom a grant of letters of administration with a will annexed has been made includes a reference to a person who has subsequently been granted administration of the unadministered assets covered by the will.
(5) A reference in the applicable sections, in relation to an approval of a payment, to a person who is known is a reference to a person:
(a) who is alive at the time of the approval; and
(b) whose existence and whereabouts are known to the Commission at that time.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
123A Payment of pension etc. on death of person
(1) The objects of the applicable sections are:
(a) to ensure that moneys payable under this Act to a person who has died are paid out as promptly as possible;
(b) to pay those moneys, so far as is consistent with paragraph (a), in accordance with the person’s will;
(c) to ensure that not more than $20,000, or the amount prescribed for the purposes of subsection 123B(6), is paid out without probate of the will having been obtained or letters of administration with the will annexed having been granted; and
(d) to ensure that, in the event of intestacy, the payment of those moneys is made on principles that are uniform throughout Australia.
(2) Where:
(a) a person (in the applicable sections called the deceased) dies;
(b) an amount (in the applicable sections called the distributable amount) of a pension, allowance or other pecuniary benefit is payable under this Act to the deceased; and
(c) the distributable amount:
(i) has accrued, and was unpaid, on the deceased’s death; or
(ii) has become payable after the deceased’s death in respect of a period or event before that death by reason of the grant, after that death, of a claim for the pension, allowance or benefit made before that death;
the Commission shall deal with the distributable amount in accordance with the applicable sections and the distributable amount shall not, subject to subsections 123B(2) and (3), form part of the deceased’s estate.
(3) Where an amount is paid in accordance with an approval given under the applicable sections, the Commonwealth is not liable to any action, claim or demand for payment in respect of that amount.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
123B Distribution where deceased leaves valid will
(1) This section applies where the Commission is satisfied that:
(a) the deceased left a valid will; and
(b) but for the applicable sections, the will would dispose of the deceased’s right to the distributable amount (either expressly or as part of the residue of the deceased’s estate).
(2) Where this section applies and the Commission is satisfied that the will appointed an executor or executors, the Commission may, subject to subsection (6), approve payment of the whole or part of that amount to an executor of the will.
(3) Where this section applies and the Commission is satisfied that:
(a) no‑one is executor of the will; and
(b) a person has applied for and obtained a grant of letters of administration with the will annexed;
the Commission may approve payment of the whole or part of that amount to the person to whom the grant was made.
(4) Where this section applies and the Commission is satisfied that:
(a) no‑one is executor of the will;
(b) letters of administration with the will annexed have not been applied for or granted; and
(c) distribution of the whole or part of the distributable amount in accordance with the statutory order referred to in section 123D would not be inconsistent with the terms of the will;
the Commission may, subject to subsection (6), approve payment of the whole or part of that amount in accordance with the statutory order.
(5) Where this section applies and the Commission is satisfied that:
(a) no‑one is executor of the will; and
(b) the waiting period has elapsed without an application for letters of administration with the will annexed having been made;
the Commission may, subject to subsection (6), approve payment of the whole or part of that amount in accordance with the statutory order referred to in section 123D.
(6) If probate of the will has not been obtained and letters of administration with the will annexed have not been granted, the Commission shall not approve a payment or payments under subsection (2), (4) or (5) in respect of the deceased if the amount of the payment, or the sum of the amounts of the payments made under those subsections, would exceed $20,000 or such higher amount as is prescribed for the purposes of this subsection.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
123C Intestacy
Where the Commission is satisfied that:
(a) the deceased did not leave a valid will; or
(b) the deceased left a valid will but, even if the applicable sections did not apply to the amount, the will would not dispose of the deceased’s right to the distributable amount (either expressly or as part of the residue of the deceased’s estate);
the Commission may approve payment of the whole or part of that amount in accordance with the statutory order referred to in section 123D.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
123D Statutory order of distribution
(1) Distribution of an amount in respect of the deceased in accordance with the statutory order shall, subject to subsections (2) and (3), be made to:
(a) the known widow or widower of the deceased or the known widows or widowers of the deceased in equal shares;
(b) if there is no known widow or widower of the deceased—the known child of the deceased or the known children of the deceased in equal shares;
(c) if there is no known widow or widower of the deceased and no known child of the deceased—the known parent of the deceased or the known parents of the deceased in equal shares; or
(d) if there is no known widow or widower of the deceased, no known child of the deceased and no known parent of the deceased—the known sibling of the deceased or the known siblings of the deceased in equal shares.
(2) Where:
(a) a child (in this subsection called the beneficiary) of the deceased predeceases the deceased or dies before the approval of a payment under the applicable sections; and
(b) there is a known child of the beneficiary or there are known children of the beneficiary;
the amount that would have been paid to the beneficiary had the beneficiary been alive at the time of approval shall be distributed to the child or to those children in equal shares.
(3) Where:
(a) a sibling of the deceased predeceases the deceased or dies before the approval of a payment under the applicable sections; and
(b) there is a known child of the sibling or there are known children of the sibling;
the amount that would have been paid to the sibling had the sibling been alive at the time of approval shall be distributed to that child or to those children in equal shares.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
123E Non‑distributable amounts
Where the Commission determines in writing that it is not possible to pay the whole or part of the distributable amount in accordance with sections 123B and 123C, that amount or that part of that amount ceases to be payable to the deceased.
Note: Sections 123 to 123E do not apply if Subdivision C of Division 12A of Part IIIB applies.
124 Termination of pension
(1) Where a veteran or a dependant of a veteran has requested the Commission, in writing, to cancel a pension payable under Part II or IV, or an allowance under Part VI, the Commission may cancel the pension or allowance.
(2) Where a veteran or a dependant of a veteran has, for a continuous period of not less than 6 months, failed to draw instalments of a pension granted to the veteran or dependant under Part II or IV, or of an allowance under Part VI, the Commission may suspend or cancel the pension or allowance.
(3) Where the Commission suspends a pension or allowance under subsection (2), it may, at any time, terminate the suspension from the date as from which the pension or allowance was suspended or such later date as the Commission deems proper.
(4) Where:
(a) a person in receipt of a pension under Part II or IV notifies the occurrence of an event or change of circumstances in accordance with a notice under subsection 127(1); and
(b) by reason of the occurrence of that event or change of circumstances, the person ceases to be eligible to receive that pension;
that pension ceases to be payable to the person as from the day after the last day on which the person could, in accordance with that notice, have notified the occurrence of that event or change of circumstances.
(5) Where:
(a) a person who is in receipt of a pension under Part II or IV is required to notify the occurrence of an event or a change in circumstances in accordance with a notice under subsection 127(1);
(b) the person does not notify the occurrence of that event or that change in circumstances within the period specified in the notice; and
(c) by reason of the occurrence of that event or that change in circumstances:
(i) the person ceases to be eligible to receive that pension; or
(ii) that pension is payable to the person at a lower rate;
that pension ceases to be payable to the person, or becomes payable to the person at the lower rate, as the case may be, as from the day after the day on which that event or that change in circumstances occurred.
(6) In this section:
(b) a reference to a veteran shall be read as including a reference to a person who is a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
125 Pensions etc. absolutely inalienable
Subject to this Act and Parts 3B and 3C of the Social Security (Administration) Act 1999, a pension, allowance or other pecuniary benefit under this Act is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
126 Death of claimant etc.
(1) On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant.
(2) On the death of a person (the pensioner), the legal personal representative of the pensioner, or a person approved by the Commission, may take such action in respect of a variation of, or the suspension or cancellation of, the pensioner’s pension or veteran payment effected before the death of the pensioner, or effected after the death of the pensioner as from a date before the death of the pensioner, as the pensioner could have taken if he or she had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the pensioner.
(3) If there is a legal personal representative of a deceased claimant or deceased pensioner, the Commission shall not approve a person for the purpose of subsection (1) or (2) unless it is satisfied that:
(a) the person has notified the legal personal representative of the deceased claimant, or deceased pensioner, that the legal personal representative has, or may have, a right under subsection (1) or (2), as the case may be; and
(b) the legal personal representative has refused, or failed within a reasonable time after having been so notified, to take any action in respect of the claim, pension or veteran payment, as the case may be.
(4) In this section, claim means a claim in accordance with section 14, 35B, 36D, 37D, 38D, 39D or 45I, an application in accordance with section 15, and an application for review under Division 16 of Part IIIB, section 135 or 175, and claimant has a corresponding meaning.
126A Death of a person who has not made a formal claim etc.
(1) If a deceased person has made a claim for a pension under Part II or IV in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a), an authorised representative of the deceased person may make a claim for the pension in accordance with such a form.
(2) If a deceased person has made a claim for a pension under Part III or IIIA in writing, but otherwise than in accordance with the form approved for the purpose under paragraph 35D(b), 36F(b), 37F(b), 38F(b), 39F(b) or 45K(b) (as the case requires), an authorised representative of the deceased person may make a claim for the pension in accordance with that form.
(3) If a deceased person has made an application of a kind referred to in subsection 15(1) or (2) in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 15(3)(a), an authorised representative of the deceased person may make an application of that kind in accordance with such a form.
(4) A person who, pursuant to subsection (1), (2) or (3), makes a claim for a pension under Part II, III, IIIA or IV, or an application of a kind referred to in subsection 15(1) or (2):
(a) take such action in relation to the claim or application as the deceased person could have taken if he or she had made the claim or application and had not died; and
(b) the purposes of taking such action, shall be treated as if he or she were the deceased person.
(5) The Commission may authorise a person to take action under this section in relation to a deceased person if:
(a) there is no legal personal representative of the deceased person; or
(b) the Commission is satisfied that:
(i) person has notified the legal personal representative of the deceased person that the legal personal representative has, or may have, a right under this section to make a claim or application; and
(ii) legal personal representative has refused, or failed within a reasonable time after having been so notified, to make the claim or application.
(6) In this section:
authorised representative, in relation to a deceased person, means:
(a) the legal personal representative of the deceased person; or
(b) a person authorised by the Commission in accordance with subsection (5) to take action under this section in relation to the deceased person.
127 Power to obtain information
(1) The Secretary may serve on:
(a) a person to whom a pension, allowance or other benefit under this Act is being paid, including a person to whom the whole or a part of such a pension, allowance or benefit is being paid for the purpose of being applied for the benefit of the pensioner;
(b) a person whose claim or application for a pension, attendant allowance, recreation transport allowance or essential medical equipment payment under this Act is under consideration by the Commission, the Board or the Administrative Appeals Tribunal;
(c) a person who is being provided with treatment under Part V; or
(d) a person whose application to be provided with treatment under Part V is under consideration by the Commission;
a notice, in writing:
(e) if:
(i) an event or change of circumstances specified in the notice occurs; or
(ii) the person becomes aware that an event or change of circumstances so specified is likely to occur;
requiring the person to notify the Department, or an officer specified in the notice, of the occurrence or likely occurrence of that event or change of circumstances:
(iii) subject to subsection (2A)—in the manner specified in the notice; and
(iv) within such period after the occurrence of that event or change of circumstances, or after the person becomes so aware, as the case may be, as is specified in the notice; or
(f) requiring the person to give to the Department, or to an officer specified in the notice, a statement, in accordance with a form approved by the Commission:
(i) subject to subsection (2A)—in the manner specified in the notice; and
(ii) within the period specified in the notice;
relating to any matter specified in the notice that might affect the payment to that person of the pension, allowance or other pecuniary benefit under this Act, or the provision of treatment under Part V.
(2) An event or change of circumstances shall not be specified in a notice referred to in paragraph (1)(e) unless the occurrence of that event or change of circumstances might affect the payment of a pension, allowance or other pecuniary benefit under this Act or the provision of treatment under Part V.
(2A) A document lodged as a consequence of a notice under subsection (1) that either:
(a) requires a person to inform the Department in writing of the occurrence or likely occurrence of an event or change of circumstances specified in the notice; or
(b) requires the person to give the Department a statement relating to a matter referred to in paragraph (1)(f) that is specified in the notice;
is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been lodged on a day determined under that section.
(3) The period for compliance specified in a notice in accordance with subsection (1) shall not be less than 14 days.
(3A) A notice under subsection (1) may specify an event or change of circumstances by referring to an event or change of circumstance set out in a document referred to in the notice (being a document a copy of which is served on the person with the notice) and, if the notice does so, the event or change of circumstances shall be deemed, for the purposes of this section, to be specified in the notice.
(3B) Where a notice under subsection (1) specifies an event or change of circumstances by referring to an event or change of circumstances set out in a document, it may specify the period within which notification of the occurrence, or likely occurrence, of the event or change of circumstances is to be furnished to the Department by reference to the period set out in that document in respect of that event or change of circumstances and, if the notice does so, the period shall be deemed, for the purposes of this section, to be specified in the notice.
(4) A person who has been given a notice under subsection (1) must not fail to comply with the notice.
Penalty: Imprisonment for 6 months or 10 penalty units, or both.
(5) An offence under subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) Subsection (4) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal Code.
128 Secretary may obtain information etc.
(1) The Secretary may, for the purposes of this Act, by notice in writing given to a person (including a person employed in or in connection with a Department of the Government of the Commonwealth, of a State or of a Territory or by any authority of the Commonwealth or of a State or Territory), require the person:
(a) to:
(i) provide the Department, or an officer specified in the notice, with such information as the Secretary requires; or
(ii) produce to the Department, or to an officer so specified, any documents in the custody or under the control of the person;
within the period (not being less than 14 days after the notice is given) and in the manner specified in the notice; or
(b) to appear before an officer specified in the notice at such reasonable time (not being a time earlier than 14 days after the notice is given) and place as are specified in the notice to answer questions.
(2) Without limiting the generality of subsection (1), the Secretary may:
(a) by notice in writing given to a person who is indebted to the Commonwealth under or as a result of this Act, require the person:
(i) to provide the Department, or an officer specified in the notice, within the period specified in the notice (not being less than 14 days after the notice is given), with such information concerning the person’s financial situation as is required by the notice or to produce to the Department, or to an officer so specified, within that period, such documents concerning that situation as are so specified; and
(ii) if the person’s address changes, to notify the Department or an officer so specified, within 14 days of the change, of the new address; or
(b) by notice in writing given to a person who the Secretary believes may have information concerning the whereabouts of a person who is indebted to the Commonwealth under or as a result of this Act or the financial situation of such a person, require the person to provide the Department, or an officer specified in the notice, within the period specified in the notice (not being less than 14 days after the notice is given), with such information concerning those matters as is required by the notice or to produce to the Department, or to an officer so specified, within that period, such documents concerning those matters as are specified in the notice.
(2AA) A document lodged as a consequence:
(a) of a notice issued under subsection (1) requiring a person to provide the Department, in writing, with such information as the Secretary specifies in the notice; or
(b) of a notice issued under paragraph (2)(a) requiring a person to provide the Department with such written information concerning the person’s financial situation as is required by that notice; or
(c) of a notice under paragraph (2)(b) requiring a person to provide the Department, in writing, with such information concerning the whereabouts or financial situation of a person indebted to the Commonwealth as is specified in the notice;
is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been lodged on a day determined under that section.
(2A) The Secretary may require the information or answers to questions under this section to be verified or given, as the case may be, on oath or affirmation, and either orally or in writing, and for that purpose the Secretary or an officer to whom information or answers are verified or given may administer an oath or affirmation.
(3) The oath or affirmation to be taken by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.
(4) A person must not fail to comply with a notice under subsection (1).
Penalty: Imprisonment for 6 months or 10 penalty units.
(4A) An offence under subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4B) Subsection (4) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4B). See subsection 13.3(3) of the Criminal Code.
(5) A person shall not, in purported compliance with a notice under subsection (1), intentionally furnish information or give evidence that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months or 20 penalty units, or both.
(6) This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(7) This section does not require a person to furnish information, produce a document or give evidence to the extent that, in doing so, the person would contravene a law of the Commonwealth (not being a law of a Territory).
128A Provision of tax file numbers
(1) In this section:
income payment means:
(a) a pension under Part II, III, IIIA or IV; or
(b) a veteran payment; or
(c) a loss of earnings allowance under section 108; or
(d) an allowance under this Act payable to a person in receipt of a pension referred to in paragraph (a).
TFN declaration has the same meaning as in Part VA of the Income Tax Assessment Act 1936.
(2) An income payment, or an allowance under a scheme within the meaning of Part VII, that a person (the eligible person) is eligible to receive is not to be paid to the person if the person fails to comply with the request in subsection (3) or (3A) (whichever applies).
(2A) If a person (the eligible person) is eligible for a seniors health card under section 118V, the Commission must not determine that the person is entitled to the card if the person fails to comply with a request in subsection (3) or (3A) (whichever applies).
(2B) If a person (the eligible person) is the holder of a seniors health card, the Commission is to determine that the person ceases to be entitled to the card if the person fails to comply with a request in subsection (3) or (3A) (whichever applies).
Note 1: For holder of a seniors health card see section 5PB.
Note 2: For the date of effect of a determination under this subsection see section 118ZR.
(3) If an eligible person is in Australia, the Secretary may request but not compel the person:
(a) if the person has a tax file number—to give the Secretary a written statement of the person’s tax file number; or
(b) if the person does not have a tax file number:
(i) to apply to the Commissioner of Taxation for a tax file number; and
(ii) to give the Secretary a written statement of the person’s tax file number after the Commissioner of Taxation has issued it.
(3A) If an eligible person has a partner or non‑illness separated spouse and the partner or spouse is in Australia, the Secretary may request but not compel the person:
(a) if the partner or spouse has a tax file number—to give the Secretary a written statement of the partner’s or spouse’s tax file number; or
(b) if the partner or spouse does not have a tax file number—to give the Secretary a written statement of the partner’s or spouse’s tax file number after the Commissioner of Taxation has issued it.
(3B) If:
(a) a person’s income payment ceases to be paid because the person fails to comply with subsection (3) or (3A) by a particular day; and
(b) subsection (3) or (3A) is satisfied in relation to the person’s tax file number within the 3 month period that starts on that day;
then the income payment that would have been paid to the person during that period if the person had complied with the request in subsection (3) or (3A) is to be paid to the person.
(3C) If subsection (3) or (3A) is satisfied in relation to the person’s tax file number after the 3 month period has ended the person’s income payment is to be paid from the day on which subsection (3) or (3A) is satisfied.
(4) The request in subsection (3) or (3A) (whichever applies) in relation to a person’s tax file number is satisfied if:
(a) the Secretary is given:
(i) where the person is the eligible person and the pension, veteran payment or allowance is assessable income for the purposes of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997—a TFN declaration by the person; or
(ii) in any other case—a declaration by the person in a form approved by the Secretary; and
(b) the declaration states either:
(i) that the person has a tax file number but does not know what it is and has asked the Commissioner of Taxation to inform him or her of the number; or
(ii) that the person has applied for a tax file number; and
(c) where subparagraph (b)(i) applies—the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if so—the tax file number; and
(d) where subparagraph (b)(ii) applies—the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person—the tax file number; or
(ii) if the application is refused—that the application has been refused; or
(iii) if the application is withdrawn—that the application has been withdrawn; and
(e) the Commissioner of Taxation has not told the Secretary that the person has no tax file number or that an application by the person for a tax file number has been refused; and
(f) if subparagraph (b)(ii) applies—the Commissioner of Taxation has not told the Secretary that:
(i) the application for a tax file number has been withdrawn; or
(ii) the person has not applied for a tax file number.
(5) The Secretary may waive the requirement for a statement of the tax file number of the person’s partner or non‑illness separated spouse if satisfied that the person:
(a) does not know that number; and
(b) can obtain none of the following from the partner or non‑illness separated spouse:
(i) that number;
(ii) a statement of that number;
(iii) a declaration by the partner or non‑illness separated spouse under paragraph (4)(a).
129 Self‑incrimination
A person is not excused from furnishing information, producing a document or giving evidence in pursuance of a notice under section 128 on the ground that the information or evidence, or the production of the document, may tend to incriminate the person, but any information furnished, evidence given or document produced in pursuance of a notice under section 128 is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection 128(4) or (5).
129A Manner of giving notice or other document
(1) If:
(a) a provision of this Act requires or permits a notice or other document to be given to a person by:
(i) the Secretary, the Department, an officer of the Department or the Commission; or
(ii) the Board; or
(iii) the Repatriation Medical Authority; or
(iv) the Review Council; and
(b) the provision does not specify how the notice or other document is to be given;
then the notice or other document must be given:
(c) in accordance with section 28A of the Acts Interpretation Act 1901; or
(d) in a manner approved in writing by:
(i) in relation to subparagraph (a)(i)—the Commission; or
(ii) in relation to subparagraph (a)(ii)—the Principal Member of the Board; or
(iii) in relation to subparagraph (a)(iii)—the Chairperson of the Repatriation Medical Authority; or
(iv) in relation to subparagraph (a)(iv)—the Convener of the Review Council.
(2) This section does not limit the Electronic Transactions Act 1999.
130 Furnishing of information
(1) Nothing in a law of a State or of a Territory shall operate so as to prevent a person from furnishing any information, producing any documents, or giving any evidence to an officer for the purposes of this Act.
(2) The Secretary or another officer of the Department may provide any information obtained in the performance of his or her duties under this Act (whether before or after the commencement of this subsection) to the Secretary of another Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority.
(2A) If:
(a) an eligible person is entitled to treatment under Part V of this Act; and
(b) the treatment is provided to the eligible person through an arrangement, including a contractual arrangement, with a body that is not a corporate Commonwealth entity or a non‑corporate Commonwealth entity;
the Secretary or another officer of the Department may provide any information that relates to the provision of that treatment:
(c) to a receiving Commonwealth body; and
(d) for a purpose relating to the performance of a function, or the exercise of a power, by that body.
(3) To avoid doubt, if information is disclosed in accordance with subsection (2) or (2A), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.
131 Interpretation
In sections 127 to 130 (inclusive), unless the contrary intention appears:
corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
eligible person means a person eligible under section 85, 86, 88A or 88B to be provided with treatment.
non‑corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
officer means a person performing duties, or exercising powers or functions, under, or in relation to, this Act.
person includes an unincorporated body.
receiving Commonwealth body means any of the following:
(a) the Aged Care Quality and Safety Commission;
(b) the Commission;
(c) the Military Rehabilitation and Compensation Commission;
(d) the National Disability Insurance Scheme Launch Transition Agency;
(e) the NDIS Quality and Safeguards Commission;
(f) the Department administered by the Minister administering the Aged Care Act 1997;
(g) the Department administered by the Minister administering the Disability Services Act 1986;
(h) if:
(i) another Department of State, or another authority, of the Commonwealth has regulatory, compliance or enforcement functions in relation to the provision of care, support, treatment or other related services or assistance (including care, support, treatment or other related services or assistance provided through an arrangement, including a contractual arrangement); and
(ii) the Department or authority is prescribed in the regulations;
that Department or authority.
132 Payment of travelling expenses in certain cases
(1) Subject to such conditions as are prescribed, where:
(a) a claimant; or
(aa) a person whose eligibility for a veteran payment is being considered; or
(b) a person likely to be affected by a review under section 31;
travels:
(c) within Australia, for the purpose of attending, at the request of the Commission or a delegate of the Commission, before the Commission or such a delegate for a discussion in relation to the claim, consideration or review; or
(d) within or outside Australia, for the purpose of attending, at the request of the Secretary or the Commission, for a medical examination or medical investigation related to the claim, consideration or review;
he or she is entitled to receive such travelling expenses in connection with that travel as are prescribed.
(2) Subject to such conditions as are prescribed, an attendant who travels in Australia for the purpose of accompanying a claimant, a person whose eligibility for a veteran payment is being considered or a person likely to be affected by a review under section 31 to a discussion, or for a medical examination or a medical investigation referred to in subsection (1) of this section, is entitled to be paid such travelling expenses in connection with that travel as are prescribed.
(3) Subject to such conditions as are prescribed, a person summoned under section 32 or 57F to give evidence or produce documents, or both, is entitled to receive such travelling expenses in connection with his or her travel to give that evidence or produce those documents, or both, as are prescribed.
(4) Subject to such conditions as are prescribed, an attendant who travels in Australia for the purpose of accompanying a person referred to in subsection (3) when that person gives evidence or produces documents, or both, in pursuance of a summons under section 32 or 57F is entitled to be paid such travelling expenses in connection with that travel as are prescribed.
(5) Subject to such conditions as are prescribed, an applicant for a review under section 135 or 135A is entitled, if the applicant travels in Australia for the purpose of attending a hearing of the review by the Board, to receive such travelling expenses in connection with that travel as are prescribed.
(6) Subject to such conditions as are prescribed, an attendant who travels in Australia for the purpose of accompanying an applicant referred to in subsection (5) to a hearing of a review is entitled to be paid such travelling expenses in connection with that travel as are prescribed.
(7) Subject to such conditions as are prescribed, where:
(a) the party (not being the Commission) to proceedings for a review of a reviewable decision who made application for the review under section 175; or
(b) if the Commission made application for the review—the other party to the proceedings for the review whose interests are affected by the reviewable decision;
travels within Australia for the purpose of attending before the Administrative Appeals Tribunal in connection with the review, the party is entitled to receive such travelling expenses in connection with that travel as are prescribed.
(8) Subject to such conditions as are prescribed, an attendant who travels within Australia for the purpose of accompanying a party referred to in subsection (7) on an attendance before the Administrative Appeals Tribunal referred to in that subsection is entitled to be paid such travelling expenses in connection with that travel as are prescribed.
(9) Where a claim for a pension:
(a) is made on behalf of the claimant:
(i) by a person who is a dependant of the claimant; or
(ii) by a person approved under paragraph 16(b), (c) or (d) to make the claim on behalf of the claimant; or
(b) is prosecuted by a person who is the legal personal representative of the claimant, or by a person approved under section 126, following the death of the claimant;
and that person travels within Australia with the approval of the Commission for the purpose of:
(c) an investigation, by the Department or the Commission, of the claim; or
(d) attending at a hearing of a review of a decision, in respect of the claim, of the Commission by the Board;
the person is, subject to such conditions as are prescribed, entitled to be paid such travelling expenses in connection with that travel as are prescribed.
(10) Travelling expenses to which a person is entitled to under this section are payable by the Commonwealth.
(11) Where a person who has travelled in Australia is entitled to be paid travelling expenses under this section in connection with that travel, application for payment of travelling expenses in respect of that travel:
(a) may be made:
(i) by that person; or
(ii) with the approval of that person or, if that person is, by reason of physical or mental ailment or of that person’s death, unable to approve a person to make the application on his or her behalf, with the approval of the Commission, by another person on behalf of that person;
(b) shall be made in writing and in accordance with a form approved by the Commission;
(c) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application;
(d) is to be lodged in accordance with subsection (11A); and
(e) must be made within:
(i) 12 months after the completion of that travel; or
(ii) if the Commission thinks that there are exceptional circumstances that justify extending that period—such further period as the Commission allows.
(11A) An application:
(a) unless it is an application to which paragraph (b) applies—must be lodged at an office of the Department in Australia in accordance with section 5T; and
(b) if it is an application in respect of travel referred to in subsection (5) or (6)—must either:
(i) be communicated to the Board in accordance with the directions of the Principal Member given under subsection 148(5); or
(ii) be lodged at an office of the Department in Australia in accordance with section 5T.
(11B) If an application is communicated to the Board in accordance with the directions of the Principal Member given under subsection 148(5), it is taken to have been made on a day determined in accordance with those directions.
(11C) If an application is lodged with an office of the Department in Australia in accordance with section 5T, it is taken to have been made on a day determined under that section.
(12) In this section claim means a claim in accordance with section 14, 35B, 36D, 37D, 38D or 45I, an application in accordance with section 15 and an application for a review under Division 16 of Part IIIB, section 115 or 135 and claimant has a corresponding meaning.
132A Advance of travelling expenses
(1) Where the Commission is satisfied:
(a) that a person may reasonably be expected to become entitled to be paid travelling expenses under subsection 132(5) or (6) or under subsection 132(9) by virtue of paragraph (d) of that subsection; and
(b) that it is in all the circumstances appropriate for the person to be paid an advance on account of the travelling expenses that the person is expected to become entitled to be paid;
the Commission may authorise a payment to the person of an advance on account of the travelling expenses that the person is expected to become entitled to be paid.
(2) If the amount of the advance paid to a person on account of any travelling expenses in respect of any travel of the person exceeds the amount of travelling expenses that become payable to the person in respect of that travel, the person is liable to repay an amount equal to the excess to the Commonwealth.
Part IX—Veterans’ Review Board
Division 1—Preliminary
133 Interpretation
(1) In this Part, unless the contrary intention appears:
alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:
(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) case appraisal; and
(e) conciliation; and
(f) procedures or services prescribed in an instrument under subsection (2);
but does not include:
(g) arbitration; or
(h) court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.
applicant means a person who makes an application.
application means an application under this Part to the Board for a review of a decision of the Commission.
Conference Registrar means a Conference Registrar of the Board.
Deputy Registrar means a Deputy Registrar of the Board.
member means the Principal Member, a Senior Member or another member of the Board.
National Registrar means the National Registrar of the Board.
pension means pension under Part II or IV.
Principal Member means the Principal Member of the Board.
Registrar means a Registrar of the Board.
relevant documentary medical evidence, in relation to an application made in respect of a veteran or a deceased veteran, means certificates, reports or other documents from:
(a) a medical practitioner; or
(b) a hospital, or similar institution, in which the veteran or deceased veteran received medical treatment;
about a medical condition of the veteran or deceased veteran and reasonably used in support of the application.
review means a review of a decision.
Senior Member means a Senior Member of the Board.
Services member means a member who, on the occasion of his or her appointment, or on any occasion of his or her re‑appointment, as a member, was a person selected from lists submitted in accordance with a request made under subsection 158(3).
veteran means:
(a) a veteran as defined by subsection 5(1); or
(b) a member of the Forces or a member of a Peacekeeping Force, as defined by subsection 68(1).
(2) The Minister may, by legislative instrument, prescribe procedures or services for the purposes of paragraph (f) of the definition of alternative dispute resolution processes in subsection (1).
133A Board’s objective
In carrying out its functions, the Board must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Board.
Division 2—Continuance of Veterans’ Review Board
134 Continuance of Veterans’ Review Board
(1) The Veterans’ Review Board, being the Board established by section 107VB of the Repatriation Act 1920, is continued in existence.
(2) The Board consists of a Principal Member and such number of Senior Members, and such number of other members, as are appointed in accordance with this Act.
Division 3—Review by the Board of decisions
135 Review of decisions in respect of pensions and attendant allowances
(1) Where a person:
(a) who has made a claim for a pension in accordance with section 14;
(b) who has made application for a pension, or for an increased pension, in accordance with section 15; or
(c) who has made an application for attendant allowance under section 98;
is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.
(2) Where the Commission, upon a review under section 31 of a decision in relation to a pension or attendant allowance, has made a further decision:
(a) revoking that decision; or
(b) revoking that decision and substituting a new decision; or
(c) varying that decision;
the veteran, or the dependant of a deceased veteran, as the case may be, affected by that further decision may make application to the Board for a review:
(d) of the further decision of the Commission revoking that previous decision; or
(e) of the new decision of the Commission that was substituted for that previous decision; or
(f) of that previous decision as varied by the further decision of the Commission.
(3) Where the Commission makes a determination:
(a) under subsection 31(6) cancelling or suspending, or decreasing the rate of, a pension or attendant allowance;
(b) under subsection 31(8) increasing the rate of a pension or attendant allowance; or
(c) under subsection 31(9) fixing the date of re‑commencement of a pension or attendant allowance that has been suspended;
the veteran, or the dependant of a veteran, as the case may be, affected by that determination may make application to the Board for a review of that decision of the Commission to cancel or suspend that pension or attendant allowance, to decrease or increase the rate of that pension or attendant allowance or fixing the date of re‑commencement of that pension or attendant allowance that has been suspended, as the case may be.
(4) Subject to subsections (5) and (5A), an application under subsection (1) or (2) to the Board to review a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.
(5) An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:
(a) assessing a rate of pension or increased rate of pension;
(b) refusing to grant a pension on the ground that the extent of the incapacity of the veteran is insufficient to justify the grant of a pension;
(c) refusing to increase the rate of a pension;
(d) reducing the rate of a pension; or
(e) cancelling or suspending a pension, or fixing the date of re‑commencement of a pension that has been suspended;
may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2), but not otherwise.
(5A) An application by a person under subsection (1), (2) or (3) to the Board to review a decision of the Commission, whether the decision was made before or is made after the commencement of this subsection, refusing to grant an application for attendant allowance under section 98 may be made within a period of 3 months after service on the person of notice of the decision or within a period of 3 months after the commencement of this subsection, whichever last expires, but not otherwise.
(6) If:
(a) the Commission, upon a review under section 31 of a decision (the original decision) of a kind referred to in subsection (1), (2) or (3), has made a further decision:
(i) revoking that decision; or
(ii) revoking that decision and substituting a new decision; or
(iii) varying that decision; and
(b) application had not, before the further decision was made, been made to the Board for a review of the original decision;
application is not to be made for a review of the original decision but may be made for a review:
(c) of the further decision of the Commission revoking the original decision; or
(d) of the new decision of the Commission that was substituted for the original decision; or
(e) of the original decision as varied by the further decision of the Commission.
(7) If:
(a) the Commission, upon a review under section 31 of a decision (the original decision) of a kind referred to in subsection (1), (2) or (3), has made a further decision:
(i) revoking that decision; or
(ii) revoking that decision and substituting a new decision; or
(iii) varying that decision; and
(b) an application had been made to the Board for a review of the original decision but the hearing of the application:
(i) had not commenced before the further decision was made; or
(ii) had commenced but was not completed before the further decision was made;
the application is to be treated as if it were an application made for a review:
(c) of the further decision of the Commission revoking the original decision; or
(d) of the new decision of the Commission that was substituted for the original decision; or
(e) of the original decision as varied by the further decision of the Commission.
135A Review of decisions relating to acute support packages
(1) If:
(a) the Commission makes a decision in relation to a person under an instrument made under section 115S (about acute support packages); and
(b) the person is dissatisfied with the decision;
the person may make an application to the Board for a review of the decision of the Commission.
(2) An application for review must be made within 3 months after the decision is made.
136 Application for review
(1) An application to the Board for a review:
(a) shall be in writing; and
(b) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section;
and may set out a statement of the reasons for the application.
(2) An application under subsection (1) relating to a pension granted to, or claimed for, a veteran, or a dependant of a deceased veteran, may be made:
(a) by the veteran or dependant, as the case may be;
(b) with the approval of the veteran or dependant, as the case may be, by another person on behalf of the veteran or dependant;
(c) in the case of a veteran or dependant, as the case may be, who is unable, by reason of physical or mental incapacity, to approve a person to make an application on his or her behalf—on behalf of the veteran or dependant, by a person approved by the Commission; or
(d) in the case of a dependant who is under the age of 18 years, on behalf of the dependant:
(i) by a parent or guardian of the dependant;
(ii) by another person approved by a parent or guardian of the dependant; or
(iii) if there is not a parent or guardian of the dependant alive or willing and able to make, or approve a person to make, such an application on behalf of the dependant—by another person, being a person approved by the Commission.
(3) Subsection (2) does not limit the application of section 126 in relation to applications under subsection (1) of this section.
(4) An application under subsection (1) relating to a decision under an instrument made under section 115S (about acute support packages) may be made by the person to whom the decision relates.
137 Secretary to prepare report
(1) Within 6 weeks after an application for review made under subsection 135(1), (2) or (3) or 135A(1) is received at an office of the Department in Australia, the Secretary shall:
(a) cause to be prepared a report referring to the evidence under the control of the Department that is relevant to the review; and
(b) subject to subsection (2), cause a copy of that report to be served on the applicant.
(2) Where the report prepared by the Secretary in pursuance of subsection (1) contains or refers to any information, opinion or other matter:
(a) that, in the opinion of the Secretary, is of a confidential nature; or
(b) that, in the opinion of the Secretary, it might be prejudicial to the physical or mental health or well‑being of the applicant to communicate to the applicant;
the document served on the applicant in pursuance of paragraph (1)(b) shall not contain or refer to that information, opinion or other matter.
(3) Where a copy of a report is served on an applicant in accordance with subsection (1), the applicant may, within 28 days after service of the report or within such further period as the applicant may request in writing before the expiration of that period, furnish to the Secretary in writing any comments the applicant wishes to make concerning the report.
(4) The Secretary shall forward to the Principal Member of the Board all the relevant documents, including any comments furnished to the Secretary by the applicant concerning the report served on the applicant and, if a further investigation has been made in consequence of those comments of the applicant, a supplementary report referring to any evidence obtained in that further investigation:
(a) if the applicant duly furnishes comments in accordance with subsection (3) and no further investigation is made in consequence of those comments—as soon as practicable after receipt of those comments;
(b) if a further investigation is made in consequence of comments furnished by the applicant—as soon as practicable after the completion of that further investigation; or
(c) in any other case—as soon as practicable after the expiration of the period or extended period referred to in subsection (3).
137A Ongoing requirement for lodging material documents with Board
If:
(a) an application for a review is made under section 135 or 135A; and
(b) before the Board determines the review:
(i) a party to the review obtains possession of a document; and
(ii) the document is relevant to the review; and
(iii) a copy of the document has not already been lodged with the Board;
the party must, subject to any directions given under subsection 142(2), lodge a copy of the document with the Board as soon as practicable after obtaining possession.
138 Board not bound by technicalities etc.
(1) The Board, in conducting a review, in hearing a review or in making a decision on a review of a decision:
(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) the 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 veteran, or of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2) The Commission may make available to the Board:
(a) statements of principles applied by the Commission in deciding claims for pension and applications for pension and attendant allowance and increased pension and in conducting reviews under section 31; and
(b) such other material as the Commission considers may be of assistance to the Board in the exercise of its powers or the performance of its functions under this Act.
(3) Nothing in this section authorizes the Commission to direct the Board with respect to its consideration of a particular review by the Board.
138A Board may remit matters to Commission for further consideration
(1) At any stage of a review of a decision of the Commission, the Board may remit the decision to the Commission for the Commission to reconsider the decision.
Role of Commission
(2) If a decision is remitted to the Commission, the Commission must reconsider the decision and must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the Commission affirms the decision, the review resumes.
(4) If the Commission varies the decision:
(a) the application for review is taken to be an application for review of the decision as varied; and
(b) the person who made the application may:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(5) If the Commission sets aside the decision and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
139 Decision of Board
(1) On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review.
(2) It is the duty of the Board, in reviewing a decision of the Commission, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review.
(3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) making a decision in substitution for the decision so set aside and, in relation to the substituted decision, remitting one or more matters to the Commission for consideration in accordance with any directions or recommendations of the Board; or
(iii) remitting one or more matters to the Commission for reconsideration in accordance with any directions or recommendations of the Board.
140 Board to give notice of decision and reasons to parties
Notice of decision
(1) The Board must give a copy of its decision under section 139 to each party to the review.
Reasons
(2) The Board must give reasons either orally or in writing for its decision under section 139.
(3) If the Board does not give reasons in writing for its decision:
(a) a party to the review may, within 28 days after the day on which a copy of the decision is given to the party, request the Board for a written statement of the Board’s reasons for its decision; and
(b) the Board must comply with any request within 28 days after receiving the request.
(4) If the Board gives reasons in writing for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
(5) If the Board gives reasons in writing for its decision and the reasons contain or refer to any information, opinion or other matter:
(a) that in the Board’s opinion is of a confidential nature; or
(b) that in the Board’s opinion might be prejudicial to the physical or mental health or wellbeing of the applicant for the review to communicate to the applicant;
any written statement of the Board’s reasons for the decision given to the applicant (or a person authorised by the applicant) must not contain or refer to that information, opinion or other matter.
Notice of review right
(6) The Board must give the applicant for the review (or a person authorised by the applicant) notice of the right under subsection 175(1) (about review by the Administrative Appeals Tribunal).
Filing of decision
(7) The Board must file its decision under section 139, and any written statement of its reasons for the decision, with the records of the case.
140A Correction of errors in decisions or statements of reasons
(1) If, after the making of a decision by the Board, the Board is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Board may direct the National Registrar, a Registrar or a Deputy Registrar to alter the text of the decision or statement in accordance with the directions of the Board.
(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Board or the statement of reasons for the decision, as the case may be.
(3) Examples of obvious errors in the text of a decision or statement of reasons are where:
(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or
(b) there is an inconsistency between the decision and the statement of reasons.
(4) The powers of the Board under this section may be exercised by the Principal Member or by the member who presided in respect of the review to which the decision relates.
Division 4—Organization of the Board
141 Constitution of Board for exercise of powers
(1) Subject to this section, the Board shall, for the purposes of a review, be constituted by:
(a) the Principal Member or a Senior Member;
(b) a Services member; and
(c) one other member.
(1A) The Board may, for the purposes of a particular review, be constituted by:
(a) the Principal Member; and
(b) a Senior Member; and
(c) a Services Member.
(2) The Board may, for the purposes of a particular review, or of a review included in a particular class of reviews, be constituted by:
(a) the Principal Member or a Senior Member; or
(b) one member, not being the Principal Member or a Senior Member;
only.
141A Management of administrative affairs of Board
(1) The Principal Member is responsible for managing the administrative affairs of the Board.
(2) In the management of the administrative affairs of the Board, the Principal Member is assisted by the National Registrar.
(3) The National Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the Principal Member.
(4) In particular, the National Registrar may act on behalf of the Principal Member in relation to the administrative affairs of the Board.
(5) The Principal Member may give the National Registrar written directions regarding the exercise of the National Registrar’s powers under this Part.
142 Arrangement of business of Board
(1) Subject to this Act, the Principal Member is responsible for ensuring the expeditious and efficient discharge of the business of the Board.
(2) Without limiting subsection (1), the Principal Member may give written directions as to:
(a) the operations of the Board generally; and
(b) the operations of the Board at a particular place; and
(c) the procedure of the Board generally; and
(d) the procedure of the Board at a particular place; and
(e) the conduct of reviews by the Board; and
(f) the arrangement of the business of the Board; and
(g) the places in Australia at which the Board may sit; and
(h) the provision of documents under section 137A, including documents that are or are not required to be lodged under that section.
143 Members to constitute Board
(1) The Principal Member may give directions, from time to time in writing, as to the persons who are to constitute the Board:
(a) for the purpose of a particular review or particular reviews; or
(b) for the purposes of reviews listed for hearing at a specified place during a specified period, or during specified periods, being reviews so listed for hearing by, or in accordance with the directions of, the Principal Member.
(2) Where the Board, constituted in accordance with a direction given under subsection (1), completes its hearing of a review listed for hearing at the place and during a period specified in that direction but does not make its decision on the review, those members who constitute the Board in accordance with that direction, by force of this subsection, continue to constitute the Board, unless the Principal Member otherwise directs, for the purpose of making a decision in writing on that review.
144 Member ceasing to be member etc.
(1) Where one of the members constituting the Board by virtue of a direction under section 143 ceases to be a member or ceases, for any reason, to be available for the purposes of a review at the place where the review is to be, or is being, heard or continued, the 2 remaining members shall be deemed to constitute the Board by virtue of the direction given under section 143 until the Principal Member re‑allocates the review, under section 143, for further hearing.
(2) Where the member referred to in subsection (1) is the Principal Member or a Senior Member, the Principal Member shall direct which of the 2 remaining members shall preside at any hearing of the review.
(3) Where:
(a) the hearing of a review has been commenced but has not been completed before the Board; and
(b) the review has not been re‑allocated as mentioned in subsection (1);
the review may be listed for further hearing at a particular place and time in accordance with directions given by the Principal Member with respect to the listing of reviews for hearing or further hearing and, if it is so listed:
(c) the Board constituted by the members directed to constitute the Board for the hearing of reviews listed for hearing at that place during the period in which that time occurs may continue the hearing of the review and decide the review; and
(d) the review shall be deemed to have been re‑allocated for further hearing and decision accordingly.
(4) The Board to which a review is deemed to have been re‑allocated under subsection (3) may, but need not, include a member who was one of the members who constituted the Board for the purpose of hearing the review before the re‑allocation took place.
(5) Where a review re‑allocated as mentioned in subsection (1), or deemed to have been re‑allocated under subsection (3), had been commenced, but had not been completed, before the re‑allocation took place, the Board as constituted for the purpose of that review by virtue of that re‑allocation may, in the review before it, have regard to any record of the review before the Board as previously constituted.
Division 4A—Alternative dispute resolution processes
145A Referral of review for alternative dispute resolution process
(1) If an application is made to the Board for review of a decision, the Principal Member may in writing:
(a) direct the holding of a conference of the parties to the review or their representatives in relation to the review, any part of the review or any matter arising out of the review; or
(b) direct that the review, any part of the review or any matter arising out of the review, be referred for a particular alternative dispute resolution process (other than conferencing).
(2) The Principal Member may in writing direct the holding of conferences of the parties to a review or their representatives in the case of applications made to the Board for review of decisions of a kind specified in the direction.
(3) The Principal Member may in writing direct that reviews be referred for a particular alternative dispute resolution process (other than conferencing) in the case of applications made to the Board for review of decisions of a kind specified in the direction.
(4) A direction may be given under paragraph (1)(a) or (b):
(a) whether or not a direction has previously been given under paragraph (1)(a) or (b) in relation to the review; and
(b) whether or not a direction under subsection (2) or (3) has applied.
(5) If a direction under this section is applicable to:
(a) a review; or
(b) a part of a review; or
(c) a matter arising out of a review;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.
145B Directions by Principal Member
(1) The Principal Member may give written directions about alternative dispute resolution processes.
(2) Directions under subsection (1) may relate to:
(a) the procedure to be followed in the conduct of an alternative dispute resolution process; and
(b) the person who is to conduct an alternative dispute resolution process; and
(c) the procedure to be followed when an alternative dispute resolution process ends.
(3) Subsection (2) does not limit subsection (1).
(4) A person is not entitled to conduct an alternative dispute resolution process unless the person is:
(a) a member; or
(b) the National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar; or
(c) a person engaged under section 145G.
(5) The National Registrar, a Registrar or a Deputy Registrar, in conducting an alternative dispute resolution process, does so in the capacity of a Conference Registrar.
145C Agreement about the terms of a decision etc.
(1) If:
(a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties to a review or their representatives as to the terms of a decision of the Board:
(i) in the review; or
(ii) in relation to a part of the review; or
(iii) in relation to a matter arising out of the review;
that would be acceptable to the parties; and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Board; and
(c) 7 days pass after lodgement, and none of the parties has notified the Board in writing that the party wishes to withdraw from the agreement; and
(d) the Board is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Board;
the Board may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is an agreement as to the terms of a decision of the Board in the review, the Board may, without holding a hearing of the review, make a decision in accordance with those terms.
(3) If the agreement relates to:
(a) a part of the review; or
(b) a matter arising out of the review;
the Board may, in its decision on the review, give effect to the terms of the agreement without dealing at the hearing of the review with the part of the review, or the matter arising out of the review, to which the agreement relates.
Variation or revocation of decision
(4) The Board may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if:
(a) the parties, or their representatives, reach agreement on the variation or revocation; and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Board; and
(c) the variation or revocation appears appropriate to the Board; and
(d) in the case of a variation—the Board is satisfied that it would have been within the powers of the Board to have made the decision as varied.
145D Evidence not admissible
(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:
(a) in any court; or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c) in any proceedings before a person authorised by the consent of the parties to hear evidence.
Exceptions
(2) Subsection (1) does not apply so as to prevent, at the hearing of a review before the Board, the admission of particular evidence if the parties to the review agree to the evidence being admissible at the hearing.
(3) Subsection (1) does not apply so as to prevent, at the hearing of a review before the Board, the admission of:
(a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or
(b) a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;
unless a party to the review notifies the Board before the hearing begins that the party objects to the report being admissible at the hearing.
145E Eligibility of person conducting alternative dispute resolution process to sit as a member of the Board
If:
(a) an alternative dispute resolution process under this Division in relation to a review is conducted by a member; and
(b) a party to the review notifies the Board before the hearing that the party objects to that member participating in the hearing;
that member is not entitled to be a member of the Board as constituted for the purposes of the review.
145F Participation by telephone etc.
The person conducting an alternative dispute resolution process under this Division may allow a person to participate by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
145G Engagement of persons to conduct alternative dispute resolution processes
(1) The National Registrar may, on behalf of the Commonwealth, engage persons to conduct one or more kinds of alternative dispute resolution processes under this Division.
(2) The National Registrar must not engage a person under subsection (1) unless the National Registrar is satisfied, having regard to the person’s qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.
Division 5—Proceedings before the Board
146 Principal Member or Senior Member to preside at hearing
(1) Where the Principal Member is included in the members constituting the Board for the purpose of a review, he or she shall preside at any hearing of the review.
(2) Where the Principal Member is not included in the members constituting the Board for the purpose of a review, the Senior Member who is included in those members shall preside at any hearing of the review.
147 Parties to review before Board
(1) The parties to a review by the Board of a decision of the Commission are:
(a) the applicant for the review; and
(b) the Commission.
(2) A party to a review may:
(a) appear in person, or be represented at the party’s own expense by a person other than a legal practitioner, at any hearing of the review; and
(b) make such submissions, in writing, to the Board as the party, or the party’s representative, considers relevant to the review.
(3) In this section, a reference to a legal practitioner shall be read as including a reference to any person who:
(a) holds a degree of Bachelor of Laws, Master of Laws or Doctor of Laws or Bachelor of Legal Studies; or
(b) is otherwise qualified for admission as a barrister, solicitor, or barrister and solicitor, of the High Court or of the Supreme Court of a State or Territory.
148 Procedure of Board
(1) The Principal Member shall, upon receipt of the relevant documents relating to a review of a decision of the Commission, cause to be served on each party to the review a notice informing the party that the Board is to review the decision of the Commission and requesting the party to inform the Principal Member, in writing, within a reasonable time specified in the notice, whether the party wishes to appear on the hearing of the review and, if the party wishes so to appear, whether the party intends to appear on the hearing personally or by another person under section 147.
(2) Where either party to a review of a decision of the Commission informs the Principal Member that the party wishes to appear on the hearing of the review of the decision by the Board, the Principal Member shall:
(a) cause a date, time and place to be fixed for the hearing of the review; and
(b) cause notice of the date, time and place so fixed to be served on each party to the review.
(3) The Principal Member may defer fixing a date, time and place for the hearing of a review under subsection (2) until the parties to the review have informed the Principal Member that they are ready to proceed at a hearing.
(4) Where a party to a review of a decision of the Commission does not inform the Principal Member, within the time specified in the notice served on the party under subsection (1), that the party wishes to appear on the hearing of the review, the review may be heard and determined in the absence of that party.
(4A) A member may hold a directions hearing in relation to a review.
(4B) Before the hearing of a review has commenced, a member, the National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar may give directions, not inconsistent with subsections (1), (2), (3) and (4) or directions under subsection 142(2), in relation to the procedure to be followed in connection with the review. Without limiting this subsection, a direction may:
(a) require any person who is a party to the review to provide further information in relation to the review; or
(b) require the Commission to provide a statement of the grounds on which the application will be resisted at the hearing of the review; or
(c) require any person who is a party to the review to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing of the review.
(5) The Principal Member:
(a) may give general directions, not inconsistent with subsections (1), (2), (3) and (4) or directions under subsection 142(2), as to the procedure of the Board with respect to reviews before it, including reviews the hearings of which have not been commenced; and
(b) may give directions, not inconsistent with subsections (1), (2), (3) and (4) or directions under subsection 142(2), as to the procedure of the Board with respect to a particular review before the Board, either before or after the hearing of the review has commenced.
(5A) The power of the Principal Member under subsection (5) includes the power to give directions:
(a) as to the manner of communication of documents, including electronic documents, that are required or permitted to be communicated to the Board; and
(b) as to the time at which such documents are to be taken to have been so communicated.
(5B) Without limiting the documents to which subsection (5A) applies, those documents include:
(a) documents, comments and supplementary reports forwarded to the Principal Member under subsection 137(4); and
(b) notices given to the Principal Member by a party to a review of a decision for the purposes of section 148; and
(c) documents produced to the Board under section 151 for the purposes of the hearing of a review Board; and
(d) further documents and reports of investigations or examinations forwarded to the Board as a consequence of a request made under subsection 152(1); and
(e) documents withdrawing or discontinuing applications for review communicated to the Board under subsection 155(2).
(6) The presiding member in respect of a particular review may, in respect of a matter not dealt with by directions under subsection (5), give directions, not inconsistent with subsections (1), (2), (3) and (4) or directions under subsection 142(2), as to the procedure to be followed on a hearing of the review, either before or after the hearing of the review has commenced.
(6A) The Principal Member may, in relation to a review, request the Secretary:
(a) to give to the Principal Member further documents in the Secretary’s custody; or
(b) to obtain, and give to the Principal Member, further documents; or
(c) to arrange for the making of any investigation or medical examination and to give to the Principal Member a report of the investigation or examination.
(7) In giving a direction or making a request under this section, the Principal Member or a presiding member must have regard to the objective in section 133A.
(8) A member holding a directions hearing or the Board in the hearing of a review may allow a person to participate by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
(9) A party to a review of a decision of the Commission, and any person representing such a party, must use their best endeavours to assist the Board to fulfil the objective in section 133A.
149 Questions to be decided by majority of Board
(1) A question before the Board on a review shall be decided according to the opinion of a majority of the members constituting the Board.
(2) Where the Board is constituted for the purposes of a review by 2 members only and the 2 members cannot agree on a question arising in the review, the Board shall adjourn the review and refer the matter to the Principal Member for the giving of any necessary directions, or the taking of any other action, under section 143 or 144.
150 Hearing to be in private except in special circumstances
(1) Subject to this section, the hearing of a review shall be in private.
(2) The presiding member may give directions (whether in writing or otherwise) as to the persons who may be present at any hearing of a review.
(3) If requested to do so by the applicant, the presiding member may permit a hearing, or a part of a hearing, of a review to take place in public.
151 Powers of Board
(1) The Board may:
(a) take evidence on oath or affirmation for the purposes of a review; or
(b) adjourn a hearing of a review from time to time.
(2) The presiding member in relation to a review may:
(a) summon a person to appear at any hearing of the review to give evidence and to produce such documents (if any) as are referred to in the summons;
(b) require a person appearing at a hearing of the review for the purpose of giving evidence either to take an oath or to make an affirmation; and
(c) administer an oath or affirmation to a person so appearing.
(3) The applicant for a review by the Board of a decision of the Commission is a competent and compellable witness upon the hearing of the review of that decision by the Board.
(4) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
(5) The power of the Board under paragraph (1)(a) to take evidence on oath or affirmation for the purposes of a review may be exercised on behalf of the Board by the presiding member in relation to the review or by another person (whether a member or not) authorized by the presiding member, and that power may be so exercised within or outside Australia, but the Board may direct that the power is to be so exercised subject to limitations specified by the Board.
(6) Where a person other than the presiding member in relation to a review is authorized, in accordance with subsection (5), to take evidence for the purposes of the review:
(a) the first‑mentioned person has, for the purposes of taking that evidence, all the powers of the Board under subsection (1) and all the powers of the presiding member under subsection (2); and
(b) for the purposes of the exercise of those powers by the first‑mentioned person, this Part has effect (except where the context otherwise requires) as if a reference to the Board, or to the presiding member, in relation to the review included a reference to the first‑mentioned person.
152 Request to Secretary for documents etc.
(1) The Board may, at any time, request the Secretary:
(a) to forward to the Board further documents in the custody of the Secretary relating to a review;
(b) to obtain, and forward to the Board, further documents relating to a review; or
(c) to arrange for the making of any investigation, or any medical examination, that the Board thinks necessary with respect to a review, and to forward to the Board a report of that investigation or examination.
(2) Where a request is made under subsection (1), the Board shall adjourn any hearing of the review to which the request relates and may, in the case of a review of a decision with respect to a pension assessment, vary that assessment pending the completion of that review, having regard to the records and evidence on which the Commission reached that decision.
153 Information may be made available to parties
(1) Subject to subsections (2) and (3), where, after the relevant documents relating to a review have been forwarded to the Principal Member of the Board in accordance with subsection 137(4) and before the commencement of the hearing of the review, a party to the review furnishes any information to the Board for the purposes of the review, the Board shall make that information available to the other party to the review.
(2) Where the Board is of the opinion:
(a) that any information under the control of the Board is of a confidential nature; or
(b) that it might be prejudicial to the physical or mental health or well‑being of the applicant to communicate any such information to the applicant;
the Board may refrain from making it available to the applicant, but may make it available to a person representing the applicant.
(3) Subsection (1) does not apply to information furnished, as set out in that subsection, by a party to a review other than the Commission unless the Board is of the opinion that it contains, or foreshadows the presentation of, evidence or a submission that has not been considered by the Commission in connection with the review.
154 Period of operation of certain decisions of Board
(1) A decision of the Board on a review of a decision of the Commission of a kind referred to in paragraph 135(5)(a), (b), (c) or (d) shall, unless reviewed by the Administrative Appeals Tribunal and, subject to subsection (2) of this section, be binding upon the applicant and the Commission for a period of 6 months commencing on the day on which the Board makes that decision.
(2) If, during the period referred to in subsection (1), the applicant is of the opinion that his or her incapacity has increased, subsection (1) does not prevent:
(a) the applicant from making application under subsection 15(1) or (2) for an increased pension or for a pension; or
(b) the grant of an increased pension, or a pension, from a date within that period, by the Commission upon its consideration of such an application or by the Board upon review of the decision of the Commission on such an application.
155 Dismissal of applications
Dismissal if parties consent
(1) If each party to the review by the Board of a decision consents, the Principal Member may dismiss the application for review without proceeding to review the decision or, if the Board has started to review the decision, without completing the review.
Dismissal if applicant discontinues or withdraws application
(2) A person who has made an application to the Board for a review of a decision may, in writing, notify the Board that the application is withdrawn or discontinued.
(3) If notification is so given, the Principal Member is taken to have dismissed the application without proceeding to review the decision.
Dismissal if applicant fails to appear
(4) If the applicant for the review of a decision fails to appear in person, or to appear by a representative, at a directions hearing, or an alternative dispute resolution process under Division 4A, held in relation to the application or at the hearing of the review:
(a) the Principal Member may dismiss the application without proceeding to review the decision; and
(b) if he or she does so, he or she must notify each party to the review of the dismissal.
(5) For the purposes of subsection (4):
(a) a person is taken to appear in person or by a representative at an alternative dispute resolution process if the person or representative participates in it by a means allowed under section 145F; and
(b) a person is taken to appear in person or by a representative at a directions hearing, or the hearing of the review, if the person or representative participates in it by a means allowed under subsection 148(8).
(6) The Principal Member must, before exercising a power under subsection (4), be satisfied that appropriate notice was given to the applicant for the review of the time and place of the directions hearing, the alternative dispute resolution process or the hearing of the review.
Dismissal if decision not reviewable
(7) If:
(a) the applicant for the review of a decision is notified in writing by the National Registrar that the decision does not appear to be reviewable by the Board; and
(b) before the end of the period prescribed in a legislative instrument made by the Minister for the purposes of this paragraph, the person is unable to show that the decision is so reviewable;
the Principal Member may dismiss the application without proceeding to review the decision.
Dismissal if applicant fails to proceed or fails to comply with Board’s direction
(8) If the applicant for the review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction given to the applicant under this Part in relation to the application;
then:
(c) the Principal Member may dismiss the application without proceeding to review the decision; and
(d) if he or she does so, he or she must notify each party to the review of the dismissal.
Review taken to be concluded
(9) If an application is dismissed under this section, the review to which the application relates, unless the application is reinstated under subsection (10) or (11), is taken to be concluded.
Reinstatement of application
(10) If the Principal Member, under subsection (4), dismisses an application:
(a) the applicant may, within 28 days after receiving notification of the dismissal, apply to the Principal Member for reinstatement of the application; and
(b) if the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as appear to him or her to be appropriate in the circumstances.
(11) If it appears to the Principal Member that an application has been dismissed under this section in error, he or she may, on the application of a party to the review or on his or her own initiative, reinstate the application and give such directions as appear to him or her to be appropriate in the circumstances.
155A Review by Administrative Appeals Tribunal
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Principal Member under subsection 155(4), (7) or (8) to dismiss an application.
(2) Where a decision of a kind referred to in subsection (1) is made and a written notice of the decision is given to a person whose interests are affected by the decision, the notice must include a statement to the effect that, if the person is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision and, except where subsection 28(4) of that Act applies, also include a statement to the effect that the person may request a statement under section 28 of that Act.
(3) A failure to comply with subsection (2) does not affect the validity of the decision.
Division 6—Date of operation of decisions of Board
156 Date of operation of decision by Board
(1) Except where:
(a) the Board affirms the decision under review; or
(b) the Board sets aside the decision under review and makes a decision in substitution for the decision set aside that has the effect only of revoking a decision of the Commission to cancel or suspend a pension;
the Board shall specify in its decision on a review under this Part the date from which its decision is to operate, being a date fixed in accordance with section 157.
(2) Where the Board sets aside the decision under review and makes, in substitution for the decision set aside, a decision that has the effect only of revoking a decision of the Commission to cancel or suspend a pension, the decision to cancel or suspend the pension shall be deemed never to have had any force or effect.
157 Dates that may be specified
(1) In this section:
Board’s decision, in relation to a review by the Board of a Commission’s decision, means the decision of the Board, upon its review of the Commission’s decision, setting aside the Commission’s decision and substituting another decision for it or varying the Commission’s decision, but does not include a decision of the Board affirming the Commission’s decision.
Commission’s decision, in relation to a review by the Board, means a decision of the Commission that has been reviewed by the Board.
substituted decision means a decision made by the Board in substitution for a decision of the Commission that has been set aside by the Board upon its review of that decision of the Commission.
varied decision means a decision of the Commission as varied by a decision of the Board upon its review of that decision of the Commission.
(2) Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
(a) if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board’s decision is to operate:
(i) if the person made application for the review within 3 months after service on the person of a copy of the Commission’s decision—a date not earlier than the earliest date as from which the Commission could, if it had not refused to grant a pension or attendant allowance, as the case may be, to the person, have approved payment of a pension or of attendant allowance to the person; or
(ii) in any other case—a date not more than 6 months before the date on which the person’s application for review of the Commission’s decision was received at an office of the Department in Australia;
(b) if the substituted decision, or the varied decision, as the case may be, is a decision of a kind specified in subsection (3)—the Board shall remit the matter to the Commission to fix the date as from which the Board’s decision is to operate, being:
(i) if the Board’s decision was made for a reason set out in subsection 31(7)—the date on which the Board’s decision was made or an earlier or later date; or
(ii) in any other case—the date of the first available pension pay‑day occurring after the date on which a copy of the Board’s decision is given to the Commission under section 140;
(c) if the substituted decision, or the varied decision, as the case may be, has the effect of altering the description or nature of the war‑caused injury or war‑caused disease from which a veteran is suffering, or the description or nature of the defence‑caused injury or defence‑caused disease from which a member of the Forces or a member of a Peacekeeping Force is suffering—the Board may fix, as the date as from which that alteration is to operate, such date, being the date on which its decision is made or an earlier or later date, as it determines is fair and reasonable in all the circumstances; or
(d) in any other case—the Board may fix, as the date as from which the Board’s decision is to operate, a date not earlier than the earliest date that the substituted decision, or varied decision, could have operated if it had been made by the Commission in place of the Commission’s decision.
(3) The kinds of decisions specified in this subsection are:
(a) a substituted decision or a varied decision that has the effect of reducing the rate at which a pension is to be paid (not being a pension that is suspended);
(b) a substituted decision that has the effect of suspending a pension (not being a pension that has been cancelled or is suspended); and
(c) a substituted decision that has the effect of cancelling a pension (not being a pension that is suspended).
(4) Where a Board’s decision that sets aside a Commission’s decision and substitutes another decision for it, or that varies a Commission’s decision, is to operate as from a particular date, the substituted decision or the varied decision, as the case may be, shall operate as from the same date.
(4A) If the Board, upon its review of a decision of the Commission, sets aside that decision and subparagraph 139(3)(c)(iii) applies, the decision to set aside the Commission’s decision takes effect on the day the Board made its decision or an earlier or later date, as the Board determines is fair and reasonable in all the circumstances.
(5) In this section, a reference to the cancellation of a pension shall be read as including a reference to the cancellation of a pension for the reason that the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, or the degree of incapacity of the member of the Forces or of the member of a Peacekeeping Force, from defence‑caused injury or defence‑caused disease, or both, is less than 10 per centum (including nought per centum).
Division 7—Membership of the Board
158 Appointment of members of Board
(1) The members of the Board shall be appointed by the Governor‑General.
(2) The Board must have at all times among its members persons selected from lists submitted to the Minister as requested under subsection (3).
(3) The Minister may, from time to time, request organizations representing veterans throughout Australia to submit to the Minister lists of names of persons from which the organization concerned recommends that a selection be made of persons to serve as Services members of the Board.
(4) The Principal Member shall be appointed as a full‑time member.
(5) A member other than the Principal Member may be appointed either as a full‑time member or as a part‑time member.
159 Terms of appointment
(1) Subject to this Division, a member holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re‑appointment.
(3) A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Part, as are determined by the Governor‑General by instrument in writing.
160 Remuneration and allowances of members
(1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration is in operation, the member shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
161 Acting members
(1) The Minister may appoint a person to act as a member:
(a) during any period, or during all periods, when a member, being a full‑time member, is absent from duty or from Australia or is, for any reason, unable to perform the functions of his or her office; or
(b) during any period, or during all periods, when a member, being a part‑time member, is, for any reason, unavailable to perform the duties of his or her office; or
(c) during any period, or during all periods, when there is a vacancy in an office of a member.
(2) The Minister may:
(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as a member in pursuance of an appointment under subsection (1); and
(b) at any time terminate such an appointment.
(3) Where a person is acting as a member in accordance with paragraph (1)(a) or (b) and the office of that member becomes vacant while the person is so acting, 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.
(4) Where a person has been appointed under subsection (1) to act in the place of a member (in this subsection referred to as the absent member) who is absent or unavailable, the Minister may, by reason of a pending review or other special circumstances, direct, before the absent member ceases to be absent or unavailable, that the person so appointed shall continue to act in the appointment after the absent member ceases to be absent or unavailable, until the person so appointed resigns the appointment or the Minister terminates the appointment, but a person shall not continue to act by virtue of this subsection for more than 12 months after the absent member ceases to be absent or unavailable.
(5) A person acting in the place of the Principal Member, a Senior Member or another member has all the powers, and shall perform all the functions and duties, conferred or imposed by this Part on the Principal Member, Senior Member or other member, as the case may be.
(6) Where the Board as constituted for the purpose of a review includes a person acting, or purporting to be appointed to act, as a member under this section, or a person so acting, or purporting to be appointed so to act, has done any act, the validity of any decision of, or any direction given or other act done by, the Board as so constituted or of the act done by the person so acting, or purporting to be appointed so to act, shall not be called in question in any proceeding on the ground that the occasion for the person to act, or for the appointment of the person to act, had not arisen or that the occasion for his or her appointment to act had passed or the appointment had ceased to have effect.
(7) The appointment of a person to act as a member ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.
(8) Section 162 applies to and in relation to a person appointed under subsection (1) to act in place of a member on a full‑time basis as if the person were a member, and section 165 applies to any person appointed under subsection (1) to act in place of a member as if the person were a member.
162 Leave of absence
(1) A full‑time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
163 Resignation
A member may resign office by writing signed by the member and delivered to the Governor‑General.
164 Removal from office
(1) The Governor‑General may remove a member from office on the ground of proved misbehaviour or physical or mental incapacity.
(2) The Minister may suspend a member from office on the ground of misbehaviour or physical or mental incapacity.
(3) Where the Minister suspends a member from office, the Governor‑General may, on the recommendation of the Minister:
(a) remove the member from office;
(b) direct that the suspension of the member continue for such further period as the Governor‑General specifies; or
(c) direct that the suspension of the member terminate.
(4) The suspension of a member from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.
(5) If:
(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration for their benefit;
(b) a member, being a member who has been appointed as a full‑time member:
(i) engages, except with the approval of the Minister, in paid employment outside the duties of the member’s office; or
(ii) is absent from duty, except on leave of absence, for 14 consecutive days or 28 days in any 12 months; or
(c) a member fails, without reasonable excuse, to comply with the member’s obligations under section 165;
the Governor‑General shall remove the member from office.
(6) The Governor‑General may, with the consent of a member who is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
by notice in writing, retire the member on the ground of physical or mental incapacity.
(6A) The notice must specify the day on which the member is to be retired.
(6B) The day specified in the notice must not be a day earlier than the day on which the Governor‑General signed the notice.
(7) A member shall not be suspended, removed or retired from office except as provided by this section.
(8) In spite of anything contained in this section, a member who:
(a) is an eligible employee for the purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum retiring age (within the meaning of that Act);
is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.
(9) In spite of anything contained in this section, a member who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.
(10) In spite of anything contained in this section, a member who:
(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.
165 Disclosure of interests
(1) Where a member who is, or is to be, a member of the Board as constituted by virtue of a direction under section 143, or of a re‑allocation as mentioned in subsection 144(1) or deemed to have been made under subsection 144(3), for the purposes of a review has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that review:
(a) the member shall disclose the interest to the applicant and the Commission; and
(b) except with the consent of the applicant and the Commission, the member shall not take part in the review, or exercise any powers in relation to the review, by the Board of the relevant decision of the Commission.
(2) Where the Principal Member becomes aware that a member who is, or is to be, a member of the Board as constituted by virtue of a direction under section 143 or of a re‑allocation as mentioned in subsection 144(1) or deemed to have been made under subsection 144(3), for the purposes of a review has in relation to that review such an interest as is mentioned in subsection (1) of this section:
(a) if the Principal Member considers that the member should not take part, or should not continue to take part, in the review—the Principal Member shall give a direction to the member accordingly; or
(b) in any other case—the Principal Member shall cause the interest of the member to be disclosed to the applicant and to the Commission.
Division 8—Miscellaneous
166 Delegation
(1) The Principal Member may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Principal Member, delegate to a Senior Member or to an acting Senior Member all or any of the Principal Member’s powers under this Part, other than this power of delegation.
(1A) The Principal Member may, by writing signed by him or her, delegate to the National Registrar all or any of the Principal Member’s powers under section 142, 143, 144, 148 or 155.
(1B) The Principal Member may, by writing signed by him or her, delegate to a Registrar, a Deputy Registrar or a Conference Registrar all or any of the Principal Member’s powers under subsection 148(6A) or section 155.
(2) A power delegated under this section, when exercised by the delegate, shall, for the purposes of this Part, be deemed to have been exercised by the Principal Member.
(3) A delegation under this section does not prevent the exercise of a power by the Principal Member.
167 Immunity
Members
(1) A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.
Registrars
(1A) The National Registrar, a Registrar, a Deputy Registrar or a Conference Registrar has, in the performance of his or her duties as such a person, the same protection and immunity as a Justice of the High Court.
Alternative dispute resolution practitioners
(1B) An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Part, the same protection and immunity as a Justice of the High Court.
Party representatives
(2) A person representing a party at a hearing of a review before the Board has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
Witnesses
(3) Subject to this Part, a person summoned to attend, or appearing, before the Board as a witness has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the High Court.
Definition
(4) In this section:
alternative dispute resolution practitioner means a person who conducts an alternative dispute resolution process under Division 4A.
168 Failure of witness to attend
(1) A person who has been served, as prescribed, with a summons to appear as a witness before the Board and tendered reasonable expenses shall not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: Imprisonment for 6 months or 10 penalty units, or both.
(2) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.
169 Refusal to be sworn or to answer questions etc.
(1) A person appearing as a witness before the Board shall not:
(a) when required in pursuance of section 151 either to take an oath or make an affirmation—fail to comply with the requirement;
(b) fail to answer a question that the person is required to answer by the presiding member; or
(c) fail to produce a document that the person is required to produce by a summons under this Part served on the person as prescribed.
Penalty: Imprisonment for 6 months or 10 penalty units, or both.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(1B) Subsection (1) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code.
(2) A person appearing as a witness before the Board shall not intentionally give evidence that is false or misleading in a material particular.
Penalty for a contravention of this subsection: Imprisonment for 12 months or 20 penalty units, or both.
170 Contempt of Board
Insulting a person
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct insults another person in, or in relation to, the exercise of the other person’s powers or functions under this Part.
Penalty: Imprisonment for 6 months.
Interrupting proceedings of the Board
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct interrupts the proceedings of the Board.
Penalty: Imprisonment for 6 months.
Creating a disturbance
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct creates a disturbance in or near a place where the Board is sitting.
Penalty: Imprisonment for 6 months.
Taking part in creating or continuing a disturbance
(4) A person commits an offence if:
(a) the person takes part in creating or continuing a disturbance; and
(b) the disturbance is in or near a place where the Board is sitting.
Penalty: Imprisonment for 6 months.
Contempt of Board
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct would, if the Board were a court of record, constitute a contempt of that court.
Penalty: Imprisonment for 6 months.
170A Medical expenses
(1) The Commonwealth may, subject to this section, pay to an applicant for a review an amount to cover the medical expenses incurred by him or her in respect of relevant documentary medical evidence submitted to the Board for the purposes of the review.
(2) Subsection (1) does not apply to any relevant documentary medical evidence obtained before the day on which a copy or notice of the decision referred to in section 135 that is subject to review was served on the applicant.
(3) The applicant is not to be paid:
(a) if the applicant has submitted to the Board for the purposes of the review relevant documentary medical evidence relating to only one medical condition—more than the prescribed amount for medical expenses; or
(b) if the applicant has submitted to the Board for the purposes of the review relevant documentary medical evidence relating to more than one medical condition—more than the prescribed amount for the medical expenses incurred in respect of the evidence relating to any one of those conditions.
(4) An amount is not payable in respect of medical expenses unless:
(a) the person who has incurred the expenses; or
(b) any person approved by that person or by the Commission;
applies in writing to the Commission for payment under subsection (5).
(5) The application for payment must:
(a) be in accordance with a form approved by the Commission; and
(b) be made:
(i) if the relevant documentary medical evidence was submitted to the Board before 1 January 1995—before 1 April 1995; or
(ii) in any other case—within 3 months after the relevant documentary medical evidence was submitted to the Board; and
(c) be lodged at an office of the Department in Australia in accordance with section 5T.
(6) An application for payment lodged in accordance with section 5T is taken to have been made on a day determined under that section.
170B Travelling expenses for obtaining medical evidence
(1) If an applicant has had to travel to obtain any relevant documentary medical evidence submitted to the Board, the applicant is, subject to this section, entitled to be paid in relation to that travel the travelling expenses that are prescribed.
(2) If:
(a) the applicant is accompanied by an attendant when travelling to obtain the evidence; and
(b) the Commission is of the view that it is reasonable for the applicant to be so accompanied by an attendant;
the attendant is, subject to this section, entitled to be paid in relation to that travel the travelling expenses that are prescribed.
(3) Travelling expenses are not payable in respect of travel outside Australia.
(4) Travelling expenses are not payable unless:
(a) the person who has incurred the expenses; or
(b) any person approved by that person or by the Commission;
applies in writing to the Commission for payment under subsection (5).
(5) The application for payment must:
(a) be in accordance with a form approved by the Commission; and
(b) be made within:
(i) 12 months after the completion of the travel; or
(ii) if the Commission thinks that there are exceptional circumstances that justify extending that period—such further period as the Commission allows; and
(c) be lodged at an office of the Department in Australia in accordance with section 5T.
(5A) An application for payment lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(6) The Commonwealth is to pay the travelling expenses to which a person is entitled under this section.
170C Advance of travelling expenses
(1) If the Commission is satisfied that:
(a) it is reasonable to expect that a person may become entitled to travelling expenses under section 170B; and
(b) it is appropriate, in all the circumstances, that the person should be paid an advance on account of those expenses;
the Commission may authorise the payment of that advance to the person.
(2) If:
(a) a person has received an advance on account of any travelling expenses that the person is likely to incur; and
(b) the person:
(i) does not incur those travelling expenses; or
(ii) incurs travelling expenses that are less than the amount of the advance;
the person is liable to repay to the Commonwealth:
(c) the amount of the advance; or
(d) the difference between the amount of the advance and the amount of the travelling expenses;
as the case requires.
171 Fees for witnesses
(1) A person, other than the applicant, summoned to appear as a witness at a hearing before the Board is entitled to be paid, in respect of the person’s attendance, fees, and allowances for expenses, fixed by or in accordance with the regulations in respect of his or her attendance.
(2) Subject to subsection (3), the fees and allowances shall be paid:
(a) in a case where the witness was summoned at the request of the applicant—by that applicant; and
(b) in any other case—by the Commonwealth.
(3) The Board may, in its discretion, order that the fees and allowances of a witness referred to in paragraph (2)(a) shall be paid, in whole or in part, by the Commonwealth.
172 Staff to assist Board
(1) Any staff required to assist the Board shall be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary.
(2) Without limiting subsection (1), the staff required to assist the Board may include one or more of the following:
(a) a National Registrar;
(b) Registrars;
(c) Deputy Registrars;
(d) Conference Registrars.
173 Oath or affirmation of office
(1) A person who is appointed or re‑appointed as a member, or to act as a member, shall not discharge the duties of the office unless the person has taken an oath, or made an affirmation, in accordance with the form of oath or affirmation in Schedule 4.
(2) The oath or affirmation shall be made before a justice of the peace or a commissioner for taking affidavits.
Part X—Review of decisions by Administrative Appeals Tribunal
174 Interpretation
(1) In this Part, unless the contrary intention appears, reviewable decision means a decision in respect of which application may be made to the Administrative Appeals Tribunal under section 175.
(2) In this Part:
veteran includes:
(a) a Commonwealth veteran; and
(b) an allied veteran; and
(c) an Australian mariner; and
(d) an allied mariner; and
(e) a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
175 Applications for review
(1) If:
(a) a decision of the Commission has been reviewed by the Board upon an application made under section 135 or 135A; and
(b) either:
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
(1AA) For the purposes of subsection (1), the decision made by the Board is taken to be:
(a) if the Board affirms a decision—that decision as affirmed; or
(b) if the Board varies a decision—that decision as varied; or
(c) if the Board sets aside a decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies—the decision made by the Board in substitution for the decision so set aside.
(1A) If the Commission under section 13AG makes a decision that a verification determination should not be made in respect of a person, the person may apply to the Administrative Appeals Tribunal for a review of the decision.
(2) Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
(2A) If the Commission, under section 64C, affirms a decision of the Commission referred to in that section or sets it aside and substitutes another decision, a person may apply to the Administrative Appeals Tribunal for review of the decision so affirmed or substituted.
(2B) If the Commission under section 79U:
(a) affirms a decision of the Commission referred to in subsection 79T(1); or
(b) sets it aside and substitutes another decision for it;
a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
(2C) If the Commission, under section 93ZB, affirms a decision of the Commission referred to in section 93Z or sets it aside and substitutes another decision, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
(2D) If the Commission, under section 118ZU, affirms a decision of the Commission referred to in section 118ZS or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
(2E) A person’s right to apply to the Administrative Appeals Tribunal under any of subsections (1A) to (2D) is subject to section 29 of the Administrative Appeals Tribunal Act 1975.
Note: Section 29 of the Administrative Appeals Tribunal Act 1975 deals with the manner of applying for review.
(3) Where the Commission varies a decision under subsection 31(2) after an application had been made to the Administrative Appeals Tribunal for a review of that decision but before the determination of that application, then, unless the applicant for the review withdraws the application, the application shall be treated as if it were an application for a review of the decision as so varied.
(4) Where the Commission, under section 115, affirms a decision of the Commission in respect of an application for an allowance, payment or benefit referred to in subsection 115(1), or sets aside such a decision and substitutes another decision for it, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(a) of the decision so affirmed; or
(b) of the decision made by the Commission under section 115 in substitution for the decision so set aside.
(5) If the Commission, under subsection 116D(2):
(a) affirms a decision of the Commission under subsection 116C(1) or 116CC(1); or
(b) sets aside such a decision and substitutes another decision for it;
then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
(c) of the decision so affirmed; or
(d) of the decision made by the Commission in substitution for the decision so set aside.
176 Application of Administrative Appeals Tribunal Act
(1) The Administrative Appeals Tribunal Act 1975 applies in relation to reviewable decisions as if paragraph 25(3)(a) of that Act had been omitted.
(2) For the purposes of the application of section 27 of the Administrative Appeals Tribunal Act 1975 to and in relation to a reviewable decision:
(a) if that decision is a decision of the Commission as varied by the Board—the Commission shall be taken to be a person whose interests are affected by that reviewable decision; and
(b) if the Board has set aside a decision of the Commission under section 19 or 31 of this Act and made another decision in substitution for the decision so set aside—the Commission shall be taken to be a person whose interests are affected by the decision of the Board to set aside the decision of the Commission and by the decision of the Board made in substitution for the decision so set aside.
(3) Section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to or in relation to a person whose interests are affected by a reviewable decision:
(a) in the case of a decision of a kind referred to in paragraph 175(1AA)(a) or (c) or in subsection 175(2), (2A), (2D) or (4)—if the person has been served with a copy of that decision and with the statement related to that decision in accordance with section 34, 57E, 64F, 118ZX or 140 of this Act, whichever was applicable; or
(b) in the case of a decision of a kind referred to in paragraph 175(1AA)(b)—if the person has been served with copies of the decision made by the Commission and of the decision made by the Board varying that decision made by the Commission, and with the respective statements related to those decisions, in accordance with section 34 or 140 of this Act, whichever was applicable.
(4) Section 29 of the Administrative Appeals Tribunal Act 1975 applies to and in relation to an application to the Administrative Appeals Tribunal for a review of a reviewable decision:
(a) as if “ending 3 months” were substituted for “ending on the twenty‑eighth day” in subsection (2) of that section; and
(b) as if at the end of subsection (7) there were added “until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit”.
(5) Section 30 of the Administrative Appeals Tribunal Act 1975 applies to a proceeding before the Administrative Appeals Tribunal for a review of a reviewable decision as if paragraphs (1)(a) and (b) of that section were omitted.
(6) Subject to section 30 of the Administrative Appeals Tribunal Act 1975 in its application in accordance with subsection (5) of this section, the parties to a proceeding before the Administrative Appeals Tribunal for a review of a reviewable decision are:
(a) if the person who has duly applied for a review of the decision is a person other than the Commission:
(i) the person who has so applied; and
(ii) the Commission; or
(b) in any other case:
(i) the Commission; and
(ii) the veteran, or dependant of a deceased veteran, affected by that decision.
(7) Notwithstanding subsection 43(1) of the Administrative Appeals Tribunal Act 1975, where the Administrative Appeals Tribunal sets aside a decision under subsection 31(6) to cancel or suspend, or reduce the rate of, a pension or attendant allowance, or a decision under subsection 31(8) to increase the rate of a pension or attendant allowance, being:
(a) a decision of the Commission that has been affirmed by the Board; or
(b) a decision of the Board that was made in substitution for a decision of the Commission;
the Administrative Appeals Tribunal need not make another decision in substitution for the decision so set aside.
(8) Notwithstanding subsection 43(1) of the Administrative Appeals Tribunal Act 1975, where the Administrative Appeals Tribunal sets aside a decision:
(a) to cancel or suspend a pension under section 56E; or
(b) to reduce the rate of a pension under section 56D; or
(c) to increase the rate of a pension under section 56C;
and the decision was one that was:
(d) affirmed by the Commission under section 57B; or
(e) made by the Commission in substitution for a decision set aside under section 57B;
the Administrative Appeals Tribunal need not make another decision in substitution for the decision set aside by it.
(9) Despite subsection 43(1) of the Administrative Appeals Tribunal Act 1975, if the Administrative Appeals Tribunal:
(a) sets aside a decision that a person ceases to be entitled to a seniors health card; and
(b) the decision was one that was:
(i) affirmed by the Commission under section 118ZU; or
(ii) made by the Commission in substitution for a decision set aside under that section;
the Tribunal need not make another decision in substitution for the decision set aside by it.
177 Effective dates of certain determinations relating to payment of pension or seniors health card
(1) This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Tribunal Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision.
(2) Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension or income support supplement) or attendant allowance, or increases the rate at which a pension (not being a service pension or income support supplement) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board—from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or
(b) in any other case:
(i) if the review relates to a claim in accordance with section 14—from a date not more than 6 months before the date on which the application under subsection 175(1) was made; or
(ii) if the review relates to an application in accordance with section 15, or to an application for attendant allowance—from the date on which the application under subsection 175(1) was made.
(3) Where the Administrative Appeals Tribunal, on a review of a decision of a kind described in subsection 176(7), (8) or (9), varies or sets aside that decision, the Administrative Appeals Tribunal may fix, as the date as from which its decision (including any decision made by it in substitution for the decision set aside) is to operate, a date, being:
(a) if application for the review was made within 3 months after service on the applicant of a copy of the decision of the Board or the Commission, as the case may be—a date not earlier than the date as from which the decision under review was to operate; or
(b) in any other case—a date not earlier than the date on which the application was made to the Administrative Appeals Tribunal.
(4) Where the Administrative Appeals Tribunal fixes, as the date from which its decision to set aside a decision of the Commission, or of the Board, to cancel a pension is to have operated, a date (in this subsection referred to as the later date) after the date (in this subsection referred to as the earlier date) on which that pension was to be cancelled, that decision to cancel that pension shall, by force of this subsection, have effect, and be deemed to have had effect, as if it had not cancelled that pension but had suspended it from that earlier date until that later date.
(5) Where the Administrative Appeals Tribunal, upon application made under subsection 175(2) for a review of a decision of the Commission under section 57B, grants a pension or increases the rate at which a pension is to be paid, the Tribunal may approve payment of the pension, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made within 3 months after the service on the applicant of a document setting out the terms of that decision of the Commission made under section 57B—from a date not earlier than the earliest date as from which the Commission could, if it had, on its review under section 57B, granted a pension or increased the rate of the pension, have approved payment of the pension, or payment of the pension at the increased rate, as the case may be; or
(b) in any other case—from the date on which the application under subsection 175(2) was made.
(5A) Subject to subsections (5B) and (5C), if the Administrative Appeals Tribunal, upon application made under subsection 175(2D) for a review of a decision of the Commission under section 118ZU, determines that a person is entitled to a seniors health card, the determination takes effect from a date specified by the Tribunal.
(5B) If the application to the Administrative Appeals Tribunal is made within 3 months after the service on the applicant of a document setting out the terms of the decision of the Commission made under section 118ZU, the date specified by the Tribunal must not be earlier than the date from which, had the Commission determined that the person is entitled to a seniors health card, such a determination could have taken effect.
(5C) If subsection (5B) does not apply to a person, the date specified by the Administrative Appeals Tribunal must not be earlier than the date on which the application under subsection 175(2D) was made.
(6) Where the Administrative Appeals Tribunal, upon application under subsection 175(4) for a review of a decision made by the Commission with respect to an application for an allowance under section 97, 102, 103 or 104, grants the allowance referred to in that section, or increases the rate at which the allowance so referred to is to be paid, the Tribunal may approve payment of the allowance, or of the allowance at the increased rate, as the case may be:
(a) if the application was made within 3 months after service on the applicant of a document setting out the terms of that decision—from a date not earlier than the earliest date as from which the Commission could, if it had not made that decision, have approved payment of the allowance, or payment of the allowance at the increased rate, as the case may be; or
(b) in any other case—from the date on which the application under subsection 175(4) was made.
178 Period of operation of certain decisions of Administrative Appeals Tribunal
(1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or in effect:
(a) assesses a rate of pension or increased rate of pension;
(b) refuses to grant a pension, on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of such a pension;
(c) refuses to increase the rate of a pension; or
(d) reduces the rate of a pension;
that decision of the Administrative Appeals Tribunal shall, subject to subsection (2), be binding on the parties to the proceedings before that Tribunal for a period of 6 months commencing on the day on which that Tribunal makes the decision.
(2) If, during the period referred to in subsection (1), the person to whom the pension is payable, or who was refused a pension, is of the opinion that his or her incapacity has increased, subsection (1) does not prevent:
(a) the person from making application for an increased pension or for a pension; or
(b) the grant of increased pension or of a pension, from a date within that period, by the Commission upon its consideration of such an application or by the Board on a review of the decision of the Commission on such an application.
(3) In this section, pension does not include service pension or income support supplement.
Part XI—The Repatriation Commission
Division 1—Establishment, functions and powers
179 Continuance of Commission
(1) The body corporate that was, immediately before the commencement of this Act, in existence, by virtue of section 7 of the Repatriation Act 1920, under the name Repatriation Commission continues in existence, by force of this subsection, under and subject to the provisions of this Act.
(2) The Commission:
(a) is a body corporate with perpetual succession;
(b) shall have a seal; and
(c) may sue and be sued.
(3) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the seal of the Commission appearing on a document and shall presume that the document was duly sealed.
(4) Debts incurred by the Commission in the performance of its functions shall, for all purposes, be deemed debts incurred by the Commonwealth.
179A Application of the Public Governance, Performance and Accountability Act 2013 to the Commission
Despite paragraph 10(1)(d) of the Public Governance, Performance and Accountability Act 2013 and the definition of Department of State in section 8 of that Act, the Commission is not a Commonwealth entity for the purposes of that Act and is taken to be part of the Department for those purposes.
Note: This means that the commissioners are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.
180 Functions of Commission
(1) The functions of the Commission are:
(a) to grant pensions, allowances and other benefits to veterans, dependants of veterans and certain other persons under and in accordance with the provisions of this Act;
(b) to establish, operate and maintain hospitals and other institutions for the provision of treatment for veterans, dependants of veterans and other persons eligible to be provided with treatment under Part V;
(c) to arrange for the provision of treatment and other services for veterans, dependants of veterans and other persons in accordance with this Act;
(d) to provide the Minister with information concerning, and to advise the Minister on, matters relating to the operation of this Act, including, but without limiting the generality of the foregoing, matters relating to pensions, allowances and other benefits for veterans, and dependants of veterans, incapacitated from injury or disease suffered as a result of service in a war or in war‑like operations and for dependants of veterans whose deaths are attributable to any such service; and
(e) such other functions as are conferred on the Commission by this or any other Act.
(2) The Commission shall, subject to the control of the Minister, have the general administration of this Act.
180A Determination by Commission
(1) If:
(a) the Repatriation Medical Authority has determined, or has declared that it does not propose to make or amend, a Statement of Principles in respect of a particular kind of injury, disease or death (see section 196B); and
(b) the Commission is of the opinion that, because the Statement of Principles is in force, or because of the decision by the Authority not to make or amend the Statement of Principles:
(i) claims for pensions in respect of incapacity from injury or disease of that kind made by veterans, members of the Forces, or members of a Peacekeeping Force, of a particular class; or
(ii) claims for pensions made by dependants of those veterans or members in respect of the death of such a veteran or member;
cannot succeed; and
(c) the Commission is also of the opinion that, in all the circumstances of the case, those veterans, members or their dependants should receive a pension;
the Commission may, in its discretion, make a determination in respect of that kind of injury, disease or death under subsection (2) or (3), or determinations under both subsections (as the case requires).
Note: For member of the Forces and member of a Peacekeeping Force see subsection 5Q(1A).
(2) A determination under this subsection in respect of a particular kind of injury, disease or death must be by legislative instrument and must:
(a) state that it has effect only in relation to the class of veterans, members of the Forces, or members of a Peacekeeping Force referred to in subparagraph (1)(b)(i); and
(b) state that it applies only in respect of claims relating to:
(i) operational service rendered by a veteran; or
(ii) peacekeeping service rendered by a member of a Peacekeeping Force; or
(iii) hazardous service rendered by a member of the Forces; or
(iv) British nuclear test defence service rendered by a member of the Forces; and
(c) set out:
(i) the factors that must as a minimum exist; and
(ii) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
Note 2: For factor related to service see subsection (7).
(3) A determination under this subsection in respect of a particular kind of injury, disease or death must be by legislative instrument and must:
(a) state that it has effect only in relation to the class of veterans or members of the Forces referred to in subparagraph (1)(b)(i); and
(b) state that it applies only in respect of claims relating to:
(i) eligible war service (other than operational service) rendered by a veteran; or
(ii) defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces; and
(c) set out:
(i) the factors that must exist; and
(ii) which of those factors must be related to service rendered by a person;
before it can be said, on the balance of probabilities, that an injury, disease or death of that kind is connected with the circumstances of that service.
Note 1: For defence service, hazardous service, British nuclear test defence service and member of the Forces see subsection 5Q(1A).
Note 2: For factor related to service see subsection (7).
(5) While there is in force under subsection (2) a determination in respect of a particular kind of injury, disease or death, any Statement of Principles in force under subsection 196B(2) in respect of that kind of injury, disease or death does not apply in respect of any veteran, member of the Forces, member of any Peacekeeping Force or dependant in relation to whom the determination has effect.
(6) While there is in force under subsection (3) a determination in respect of a particular kind of injury, disease or death, any Statement of Principles in force under subsection 196B(3) in respect of that kind of injury, disease or death does not apply in respect of any veteran or member of the Forces or dependant in relation to whom the determination has effect.
(7) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
181 Powers of Commission
(1) The Commission has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions, duties and powers.
(2) The generality of subsection (1) shall not be taken to be limited by any other provision of this Act conferring a power on the Commission.
(3) The Commission has power, for or in connection with the performance of its functions:
(a) to enter into contracts;
(b) to acquire, hold and dispose of real or personal property;
(c) to erect buildings and structures and carry out works; and
(d) to engage persons to perform services for the Commission.
(4) The Commission may engage a person under paragraph (3)(d) even if the contract under which the person is engaged provides benefits to the person that are normally provided only to persons who are engaged as employees.
(5) Where a person is engaged under paragraph (3)(d) and the contract under which the person is engaged provides benefits to the person that are normally provided only to persons who are engaged as employees, the contract shall, for the purposes of this Act and any other law of the Commonwealth be taken to be a contract for the performance of services and not a contract of employment.
Division 2—Constitution and meetings of Commission
182 Membership of the Commission
(1) The Commission shall consist of not less than 4 and not more than 5 commissioners.
(2) The commissioners shall be appointed by the Governor‑General.
(3) The Minister may, from time to time, request organizations representing veterans to submit to the Minister lists of names of persons from which the organization concerned recommends that a selection be made of persons to serve as commissioners.
(4) In making recommendations to the Governor‑General about the appointment of commissioners, the Minister must ensure the following:
(a) at least one of the commissioners is a person whose name was on a list submitted in accordance with a request made under subsection (3);
(b) at least one of the commissioners is a person who the Minister is satisfied will represent families of veterans.
(5) Subject to section 184, a commissioner holds office on a full‑time basis.
(7) A commissioner holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re‑appointment.
(8) A commissioner holds office on such terms and conditions (if any), in respect of matters not provided for by this Act, as are determined by the Governor‑General by instrument in writing.
(9) The appointment of a commissioner is not invalidated, and shall not be called in question, by reason of a defect or irregularity in, or in connection with, the appointment.
(10) In this section, appointment includes re‑appointment.
183 President and Deputy President
(1) The Governor‑General shall appoint one of the commissioners to be the President and another commissioner to be the Deputy President.
(2) The commissioner appointed to be the President or the Deputy President holds office as President or Deputy President until the expiration of the term of office that is current or commences at the time of his or her appointment, but ceases to be the President or Deputy President if the commissioner ceases to be a commissioner or resigns the office of President or Deputy President in accordance with subsection (3).
(3) The commissioner appointed to be the President or the Deputy President may resign the office of President or Deputy President by writing signed by the commissioner and delivered to the Governor‑General.
(4) A commissioner is eligible to be re‑appointed as the President or Deputy President.
184 Appointment of Secretary as a Commissioner and President
The person holding office under the Public Service Act 1999 as Secretary of the Department may be appointed as a commissioner and as President while retaining the office of Secretary of the Department and, in that event:
(a) the person shall perform his or her duties as commissioner and President concurrently with the performance of his or her duties as Secretary; and
(b) the person shall cease to hold the offices of commissioner and President if the person ceases to hold office as Secretary; and
(c) the person shall not be paid remuneration or allowances in the capacity of commissioner and President, but, for the purpose of the payment of allowances to the person, his or her duties as Secretary shall be deemed to include his or her duties as commissioner and President; and
(d) subject to this section, the provisions of this Act, other than the provisions of section 185, apply to and in relation to the person as commissioner and President.
185 Remuneration and allowances
(1) A commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration is in operation, the commissioner shall be paid such remuneration as is prescribed.
(2) A commissioner shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
186 Leave of absence
(1) A commissioner or an acting commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a commissioner or an acting commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
187 Resignation
A commissioner may resign office by writing signed by the commissioner and delivered to the Governor‑General.
188 Termination of appointment
(1) The Governor‑General may remove a commissioner from office on an address praying for his or her removal on the ground of proved misbehaviour or physical or mental incapacity being presented to the Governor‑General by each House of the Parliament in the same session of the Parliament.
(2) The Minister may suspend a commissioner from office on the ground of misbehaviour or physical or mental incapacity.
(3) Where the Minister suspends a commissioner from office, the Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, an address under subsection (1) has not been presented to the Governor‑General by each House of the Parliament, the suspension terminates.
(5) The suspension of a commissioner from office under this section does not affect any entitlement of the commissioner to be paid remuneration and allowances.
(6) If:
(a) a commissioner becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) a commissioner engages, except with the approval of the Minister, in paid employment outside the duties of his or her office;
(c) a commissioner is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or 28 days in any 12 months; or
(d) a commissioner fails, without reasonable excuse, to comply with his or her obligations under:
(i) section 189; or
(ii) section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section;
the Governor‑General shall remove that commissioner from office.
(7) The Governor‑General may, with the consent of a commissioner who is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
by notice in writing, retire the commissioner on the ground of physical or mental incapacity.
(7A) The notice must specify the day on which the commissioner is to be retired.
(7B) The day specified in the notice must not be a day earlier than the day on which the Governor‑General signed the notice.
(8) A commissioner shall not be suspended, removed or retired from office except as provided by this section.
(9) In spite of anything contained in this section, a commissioner who:
(a) is an eligible employee for the purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum retiring age (within the meaning of that Act);
is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.
(10) In spite of anything contained in this section, a commissioner who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.
(11) In spite of anything contained in this section, a commissioner who:
(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.
189 Commissioner to disclose any interest in claims for pensions etc.
(1) For the purposes of this section:
(a) a claim or application for a pension that the Commission is considering or is to consider;
(b) a pension that the Commission is reviewing or is to review; and
(c) a decision in relation to:
(i) a pension; or
(ii) a claim or application for a pension;
that the Commission is reviewing or is to review;
are each a matter to which this section applies.
(2) Where a commissioner has, or acquires, any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to a matter to which this section applies, the commissioner:
(a) shall disclose the interest to the claimant, applicant or person receiving the pension, as the case requires, and to the Minister; and
(b) except with the consent of the claimant, applicant or person receiving the pension, as the case requires, and of the Minister, shall not take part in the consideration or review of the matter by the Commission.
(3) Where the Minister becomes aware that:
(a) the Commission is considering or reviewing, or is to consider or review, a matter to which this section applies; and
(b) a commissioner has, in relation to the matter, an interest of a kind described in subsection (2);
the Minister shall:
(c) if the Minister considers that the commissioner should not take part in, or continue to take part in, the consideration or review of the matter by the Commission—give a direction to the commissioner accordingly; or
(d) in any other case—cause the interest of the commissioner to be disclosed to the claimant, applicant or person receiving the pension, as the case requires.
(4) In this section a reference to the Commission reviewing a decision shall be read as including a reference to the Commission considering whether to review the decision.
(5) In this section:
commissioner includes an acting commissioner.
pension means a pension under Part II or IV, a service pension, income support supplement, or an allowance or other benefit under this Act.
191 Acting commissioners
(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 holder of that office:
(i) is absent from duty or from Australia;
(ii) is suspended under section 188; or
(iii) is, for any other reason, unable to perform the functions of that office.
(2) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
(3) A person appointed to act during a vacancy in an office of commissioner shall not continue so to act for more than 12 months.
(4) The Minister may:
(a) determine the 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.
(5) Where a person is acting in the office of a commissioner in accordance with paragraph (1)(b) and that office becomes vacant while that person is so acting, that person may, subject to subsections (2) and (6), 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 in the office of a commissioner ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.
(7) While a person is acting in an office of a commissioner, the person has, and may exercise, all the powers, and shall perform all the functions, of the commissioner in whose office the person is acting.
(8) The validity of anything done by a person purporting to act under subsection (1) shall not be called in question on the ground that the occasion for the person’s appointment had not arisen, that there is a defect or irregularity in or in connection with the person’s appointment, that the person’s appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.
192 Acting President or Deputy President
(1) In this section, an office to which this section applies is:
(a) the office of President of the Commission; or
(b) the offi
