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Repatriation Act (No. 3) 1973

Authoritative Version
Act No. 104 of 1973 as made
An Act To amend the Law relating to Repatriation.
Registered 15 Sep 2010
Date of Assent 26 Sep 1973
Date of repeal 22 May 1986
Repealed by Veterans' Entitlements Act 1986

Repatriation Act (No. 3) 1973

No. 104 of 1973

 

 

AN ACT

To amend the Law relating to Repatriation.

[Assented to 26 September 1973]

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

Short title and citation.

1.(1)      This Act may be cited as the Repatriation Act (No. 3) 1973.

(2)     The Repatriation Act 1920–1972, as amended by the Repatriation Act 1973 and the Repatriation Act (No. 2) 1973, is in this Act referred to as the Principal Act.

(3)     Section 1 of the Repatriation Act (No. 2) 1973 is amended by omitting sub-section (4).

(4)     The Principal Act, as amended by this Act, may be cited as the Repatriation Act 1920–1973.

Commencement.

2.   This Act shall come into operation on the day on which it receives the Royal Assent.


 

Parts.

3.   Section 4 of the Principal Act is repealed.

Rates of pension.

4.   Section 35 of the Principal Act is amended by omitting the figure “9” and substituting the figure “10”.

Rate of pension to certain dependants who are children.

5.   Section 35aa of the Principal Act is amended—

(a) by omitting from sub-section (2) the word and figure “or 9” and substituting the figures and word “, 9 or 10”; and

(b) by omitting from sub-section (3) the word and figure “or 9” and substituting the figures and word “, 9 or 10”.

Pension for pulmonary tuberculosis.

6.   Section 37 of the Principal Act is amended by omitting from subsection (1) the words “Column 4 of the scale in the First Schedule in relation to the rank or rating of the member.” and substituting the words “Column 3 of the table in Schedule 1.”.

Pension payable for limited period in certain cases.

7.   Section 39 of the Principal Act is amended by omitting from subsection (4) the words “Column 2 of the scale in the First Schedule in relation to the rank or rating of the member of the Forces concerned.” and substituting the words “Column 1 of the table in Schedule 1.”.

Maximum pension payable to widowed mother.

8.   Section 41 of the Principal Act is amended by omitting from subsection (1) the word “highest”.

9.   After section 47 of the Principal Act the following sections are inserted:—

Form of determination.

“47a. (1)   The regulations may provide that this section is to apply in relation to the authority or authorities specified in any of the following paragraphs:—

(a) the Repatriation Boards;

(b) the Repatriation Commission;

(c) the War Pensions Entitlement Appeal Tribunals;

(d) the Assessment Appeal Tribunals.

“(2)   Where an authority in relation to which this section applies makes in proceedings before it a determination that relates, in whole or in part, to a prescribed matter, the authority shall cause to be prepared a written record of the determination, containing a statement of the reasons for the determination, so far as it relates to the prescribed matter, including any findings of fact in relation to the prescribed matter.

“(3)   An authority that makes a determination referred to in subsection (2)—

(a) shall file the determination with the records of the case; and

(b) shall furnish a copy of the determination to the claimant or to a person authorized by the claimant.


 

“(4) In this section—

‘claimant’ includes an applicant and an appellant (including a person who is to be treated as an appellant by virtue of sub-section (4b) of section 72) and a person affected by an assessment, decision or determination under review by the Commission under section 31;

‘determination’ includes a decision and an assessment;

‘prescribed matter’ means a matter referred to in sub-section (1) of section 27 that is declared by the regulations to be a prescribed matter for the purposes of this section;

‘proceedings’ means proceedings in relation to a claim, application or appeal referred to in section 47 or in relation to a review under section 31.

No action for making statements in proceedings, &c.

“47b.     No action or proceeding, civil or criminal (other than proceedings for perjury) lies against any person in respect of—

(a) the making of any statement, the expressing of any opinion or the making of any determination, decision or assessment in proceedings in relation to a claim, application or appeal referred to in section 47 or in relation to a review under section 31; or

(b) the furnishing under sub-section (3) of section 47a of a document.”.

Double pension.

10.    Section 50 of the Principal Act is amended by omitting from paragraph (a) of the definition of “member of the Forces” in sub-section (2) the word and figure “or 9” and substituting the figures and word “, 9 or 10”.

Pension absolutely inalienable.

11.    Section 52 of the Principal Act is amended by adding at the end thereof the following sub-sections:—

“(2)   Notwithstanding sub-section (1), the Commission may, at the request of a service pensioner or in accordance with the Income Tax Assessment Act 1936–1973, make deductions from the instalments of service pension payable to the pensioner, and pay the amounts so deducted to the Commissioner of Taxation, for the purpose of enabling the collection of tax that is, or may become, payable by the pensioner.

“(3)   In sub-section (2), ‘service pension’ includes a pension payable in prescribed cases in accordance with Table A in Schedule 3 to the extent that that pension exceeds the amount that would be assessed if the requirement in that Table to have regard to the maximum rate of age pension under sub-section (1a) of section 28 of the Social Services Act 1947–1973 were disregarded, and ‘service pensioner’ has a corresponding meaning.”.

Interpretation.

12.    Section 83 of the Principal Act is amended—

(a) by omitting paragraph (d) of the definition of “income” in subsection (1) and substituting the following paragraph:—

“(d) a payment under Division 4b of Part III, or under Part V, VI, VIa, VII, VIIa or VIII, of the Social Services Act 1947–1973;”; and


 

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

“(ka) a benefit under section 98aaa;”.

Pension in respect of a member permanently unemployable, &c.

13.    Section 85 of the Principal Act is amended—

(a) by omitting from paragraph (a) in the second column of the table in sub-section (1) the words “Two hundred and thirty-four dollars” and substituting the words “Two hundred and sixty dollars”;

(b) by omitting paragraph (b) in the second column of the table in sub-section (1);

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

(1a) After the commencement of this sub-section, a service pension shall not be granted under sub-section (1) to a child of a member of the Forces.”;

(d) by omitting from sub-section (3) the words “or a child”; and

(e) by omitting sub-section (4).

Variation of rate of service pension according to means.

14.    Section 87 of the Principal Act is amended—

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

“(1a) Sub-section (1) does not apply in relation to a claimant or pensioner—

(a) who is permanently blind; or

(b) who has attained the age of seventy-five years.”; and

(b) by inserting after sub-section (3) the following sub-sections:—

“(3a) Subject to sub-section (3b), in the computation of the income of a person for the purpose of ascertaining his means as assessed for the purpose of the application to him of sub-section (2) of section 28 of the Social Services Act 1947–1973, the amount of any of the following payments shall be reduced by one-quarter:—

(a) a payment of an instalment of a pension (other than a service pension within the meaning of sub-section (2) of section 52 of this Act);

(b) a payment of an instalment of a pension under—

(i) the Repatriation (Far East Strategic Reserve) Act 1956–1973;

(ii) the Repatriation (Special Overseas Service) Act 1962–1973; or

(iii) the Seamen’s War Pensions and Allowances Act 1940–1973;


 

(c) a payment referred to in—

(i) paragraph (c) of the proviso to sub-section (1) of section 24 or of section 101, sub-section (6) of section 107c or sub-section (3) of section 107q of this Act;

(ii) sub-section(8) of section 6 of the Repatriation (Far East Strategic Reserve) Act 1956–1973;

(iii) sub-section (9) of section 6 of the Repatriation (Special Overseas Service) Act 1962–1973; or

(iv) section 53a of the Seamen’s War Pensions and Allowances Act 1940–1973;

(d) a payment under—

(i) regulation 176d of the Repatriation Regulations as amended and in force for the time being;

(ii) regulation 54 of the Repatriation (Far East Strategic Reserve) Regulations or of the Repatriation (Special Overseas Service) Regulations as amended and. in force for the time being;

(iii) regulation 37 of the Seamen’s War Pensions and Allowances Regulations as amended and in force for the time being.

“(3b) Where the amount of a payment referred to in paragraph (c) of sub-section (3a) exceeds the amount to which the person to whom it is paid would be entitled under Division 1 if eligible solely under that Division, the amount by which the first-mentioned amount is to be reduced under sub-section (3a) shall be one-quarter of the second-mentioned amount.”.

Pension to widow and children of service pensioner.

15.    Section 94 of the Principal Act is amended by adding at the end thereof the following sub-section:—

“(3)     A person who is in receipt of a double orphan’s pension under Part VIa of the Social Services Act 1947–1973 is not entitled to a pension under this section.”.

16.    After section 98a the following section is inserted:—

Transitional benefit for the aged blind.

“98aaa. (1)    This section applies to a person if—

(a) the person is in receipt of a service pension;

(b) the person is permanently blind;

(c) the person, being a woman, has attained the age of sixty years or, being a man, has attained the age of sixty-five years; and

(d) the person is not in receipt of a transitional benefit for the aged blind under section 30ad of the Social Services Act 1947–1973.

“(2)     There is payable to a person to whom this section applies, in addition to his service pension, a transitional benefit that, until the Parliament otherwise provides, shall be payable at the rate of One hundred and fifty-six dollars per annum.

“(3)     A benefit under this section is payable from a date determined by the Commission, which may be a date before the date of the determination.


 

“(4)     Where a person in receipt of a benefit under this section ceases to be a person to whom this section applies, the Commission may cancel the benefit as on and from such date as the Commission determines.”.

17.    After Division 9 of Part III the following Division is inserted in that Part:—

Division 10—Extension of Application of Provisions of Divisions 1 to 4 to certain Members of the Forces who are serving or have served in the Defence Force.

Extension of application of Act to certain members of the Forces.

“107h. (1)   Subject to this Division, the provisions of Divisions 1 to 4 (inclusive) of this Part (other than sections 24, 37, 41, 42 and 44) and of the Schedules extend to and in relation to—

(a) members of the Forces within the meaning of this Division; and

(b) the dependants of those members.

“(2)     In the application, by virtue of sub-section (1), of the provisions specified in that sub-section to, or in relation to, a member—

(a) a reference to a member of the Forces or to a member or to a returned soldier shall be read as a reference to a member of the Forces within the meaning of this Division;

(b) a reference to dependants shall be read as a reference to—

(i) the wife or widow of a member of the Forces;

(ii) the husband or widower of a member of the Forces who was married to the member before or during her defence service; and

(iii) a child of a member of the Forces; and

(c) a reference to war service shall be read as a reference to defence service.

Definitions.

“107j.  In this Division—

‘Compensation Act’ means the Compensation (Australian Government Employees) Act 1971–1973;

‘defence service’ means continuous full-time service as a member of the Defence Force on or after 7 December 1972;

‘dependant’ means a dependant specified in paragraph (b) of subsection (2) of section 107h;

‘effective full-time service’, in relation to a member of the Defence Force, means any period of continuous full-time service of the member other than—

(a) a period exceeding twenty-one consecutive days during which the member was—

(i) on leave of absence without pay;

(ii) absent without leave;


 

(iii) awaiting or undergoing trial on a charge in respect of an offence of which he was later convicted; or

(iv) undergoing detention or imprisonment; or

(b) in the case of an officer of the Defence Force who, on his appointment, was a student enrolled in a degree or diploma course at a university or other tertiary educational institution and was required by the appropriate authority of the Defence Force to continue this studies after his appointment—the period of his service during which, by reason of the requirement to engage in his studies or in activities connected with his studies, he was not regarded by the appropriate authority of the Defence Force as rendering effective full-time service;

‘member of the Forces’ means a person who is a regular serviceman in accordance with section 107k or a national serviceman in accordance with section 107l.

Regular serviceman.

“107k. (1)    Subject to this section, a person is a regular serviceman for the purposes of this Division if—

(a) he has served on continuous full-time service as a member of the Defence Force, not being service that ended before 7 December 1972 and, during that service, has, whether before or after that date, completed three years’ effective full-time service as such a member;

(b) he was engaged to serve as a member of the Defence Force for a period on continuous full-time service of not less than three years but that service ended, on or after 7 December 1972 by reason of his death or his discharge on the ground of invalidity or physical or mental incapacity to perform duties; or

(c) he was an officer appointed for continuous full-time service in the Defence Force (other than an officer whose appointment was for a period of continuous full-time service of less than three years), but that service ended, on or after 7 December 1972 by reason of his death or the termination of his appointment on the ground of invalidity or physical or mental incapacity to perform duties.

“(2) For the purposes of paragraph (a) of sub-section (1)—

(a) the service of a person as an officer of the Naval Forces undergoing the course of training at the Royal Australian Naval College, and his service after completion of that course, shall be disregarded unless the officer is subsequently promoted to the rank of sub-lieutenant or a higher rank;

(b) the service of a person as a member of the Corps of Staff Cadets of the Military Forces shall be disregarded unless the person is subsequently appointed as an officer of those Forces; and


 

(c) the service of a person as an Air Cadet of the Air Force shall be disregarded unless the person is subsequently appointed as an officer of that Force.

“(3)     Paragraphs (b) and (c) of sub-section (1) do not apply in relation to a discharge or termination of appointment—

(a) that occurred before the person concerned had completed twelve months’ effective full-time service; and

(b) the ground for which was invalidity, or physical or mental incapacity to perform duties, caused, or substantially contributed to, by a physical or mental condition that—

(i) existed at the time the person concerned commenced full-time continuous service as a member of the Defence Force; and

(ii) was not aggravated, or was not materially aggravated, by that service.

“(4)     Paragraph (c) of sub-section (1) does not apply in relation to a period of service referred to in paragraph (b) of the definition of ‘effective full-time service’ in section 107J that was brought to an end by the death, or the termination of the appointment, of the officer concerned.

“(5)     A member of the Defence Force not on continuous full-time service who has, whether before or after the commencement of this section, commenced continuous full-time service in pursuance of a voluntary undertaking given by him and accepted by the appropriate authority of the Defence Force shall—

(a) if he was an officer on the day on which he so commenced—be deemed, for the purposes of paragraph (c) of sub-section (1), to have been appointed as an officer of the Defence Force on that day for service for the period for which he was bound to serve on continuous full-time service; or

(b) if he was a member other than an officer on the day on which he so commenced—be deemed, for the purposes of paragraph (b) of sub-section (1), to have been engaged to serve as a member of the Defence Force on that day for service for the period for which he was bound to serve on continuous full-time service.

National serviceman.

“107l.  Subject to this section, a person is a national serviceman for the purposes of this Division if—

(a) he was, immediately before 7 December 1972, a national serviceman, or a national service officer, for the purposes of the National Service Act 1951–1971 serving in the Regular Army Supplement; and

(b) on or after that date—

(i) he completed the period of service in that Force for which he was to be deemed to have been engaged to serve or for which he was appointed, as the case may be; or


 

(ii) that service ended by reason of his death or his discharge, or the termination of his appointment, on the ground of invalidity or physical or mental incapacity to perform duties.

Liability of Australia to pay pensions to certain members of the Forces, &c.

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

“(2)   For the purposes of sub-section (l) but without affecting the generality of that sub-section, the incapacity or death of a member shall be deemed to have arisen out of his defence service if the incapacity or death was the result of—

(a) an accident that happened to the member while he was travelling to or from his place of employment on defence service; or

(b) an accident, a disease or an infection that would not have occurred or been contracted, as the case may be, but for—

(i) the member being on defence service; or

(ii) changes in the environment of the member consequent upon the member being on defence service.

“(3) Where—

(a) the origin or cause of the incapacity or death of a member who has served at least six months effective full-time service as a member of the Defence Force existed before he commenced his defence service; and

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

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

“(4)     Australia is not liable under this section if the incapacity or death of the member—

(a) was due to the serious default or wilful act of the member;

(b) arose from intentionally self-inflicted injuries; or

(c) arose from, or from an occurrence that happened during the commission of, a serious breach of discipline by the member.

“(5)     Where a pension is granted, the Commission or a Board may, subject to this Act, approve of the payment of the pension—

(a) on and from a date not more than three months before the date of lodgement of the claim for pension; or


 

(b) where the claim for pension is lodged within three months after the commencement of this section and the origin or cause of the death or incapacity of the member existed before the commencement of this section—on and from a date—

(i) not earlier than 7 December 1972; and

(ii) not earlier than the earliest date at which the origin or cause of the death or incapacity of the member existed.

Conditions of payment of pension to certain dependants of members of the Forces.

“107n. (1)    A pension shall not be granted or continued to the husband of a member of the Forces unless—

(a) the member is being paid a pension at a rate not less than fifty per centum of the rate for total incapacity; and

(b) the husband—

(i) is wholly or substantially dependent upon the member or would, but for the incapacity of the member, be so dependent;

(ii) is, by reason of physical or mental incapacity, unable to earn a livelihood;

(iii) is without adequate means of support; and

(iv) is not separated from the member.

“(2)   A pension shall not be granted or continued to the widower of a member of the Forces unless—

(a) the member was, immediately before her death, being paid a pension at a rate not less than fifty per centum of the rate for total incapacity; and

(b) the widower—

(i) would, but for the death of the member, be wholly or substantially dependent on the member;

(ii) is, by reason of physical or mental incapacity, unable to earn a live hood; and

(iii) is without adequate means of support.

“(3)   A pension shall not be granted or continued to a child of a female member of the Forces unless the member is dead and the child is without adequate means of support or, if the member is not dead, unless—

(a) the father or step-father of the child—

(i) is, by reason of physical or mental incapacity, unable to earn a livelihood and is without adequate means of support; or

(ii) is dead or is separated or divorced from, or has deserted, the member; and

(b) the child is wholly or substantially dependent upon the member and is without adequate means of support.


 

Pensions payable to certain dependent females.

“107p. (1)    Where—

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

(b) a person was, at the time of the death, or the discharge from the Defence Force on medical grounds, of the member, recognized as the wife of the member although not legally married to him; and

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

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

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

Dual entitlement.

“107q. (1)    A person is not entitled to receive at the same time and in respect of the same death or incapacity—

(a) a pension under this Division; and

(b) a pension under Division 1, 6, 7, 8 or 9 of this Act or under the Repatriation (Far East Strategic Reserve) Act 1956–1973, the Repatriation (Special Overseas Service) Act 1962–1973 or the Seamen’s War Pensions and Allowances Act 1940–1973.

“(2)   The right conferred by this Division on a member of the Forces to payment by way of pension in respect of an incapacity, or on a person other than a member to payment by way of pension in respect of an incapacity or the death of a member, is in substitution for the right (if any) of that member or of that other person to a payment in respect of the incapacity, or of the incapacity or death of the member, as the case may be, to which, but for this sub-section, he would have been entitled under the Naval Defence Act 1910–1971, the Defence Act 1903–1970 or the Air Force Act 1923–1965, and any such right of the member or other person under any of those Acts is, by force of this sub-section, determined.

“(3)   If a person or persons who is or are entitled under this Division to pension in respect of the incapacity or death of a member is or are also entitled under—

(a) the law of a country, other than Australia, that is or has been a part of the dominions of the Crown; or

(b) the law of a State,

to receive any payment or payments in respect of the incapacity or death of the member resulting from service in the naval, military or air forces of Australia or a country referred to in paragraph (a), the rate or amount of every such payment shall be taken into account in assessing the rate or rates of pension payable under this Division so that the total payments


 

to that person or those persons, as the case may be, shall not exceed the total payments to which that person, or those persons respectively or collectively, would be entitled if eligible solely under this Division.

Persons in receipt of payments by way of compensation or damages.

“107r. (1)    In this section—

‘compensation’ means—

(a) compensation under the Compensation Act (other than section 37 or 44); or

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

(i) an amount that represents expenses incurred in medical or hospital treatment; or

(ii) an amount recovered by Australia under section 99 or 100 of the Compensation Act;

‘dependant’ includes a woman referred to in section 107p.

“(2)   For the purposes of this section—

(a) where a lump sum payment by way of compensation is made to a person who is in receipt of, or is subsequently granted, a pension under this Division, that person shall, by reason of that payment by way of compensation, be deemed, on and after—

(i) the date of commencement of the period in respect of which his pension is, or becomes, payable; or

(ii) the date on which the lump sum payment is made,

whichever was the earlier date, to have been, or to be in receipt of payment by way of compensation of such amount per fortnight for his life as is determined by, or in accordance with the instructions of, the Commonwealth Actuary, to be the equivalent of a lump sum equal to that lump sum. and paid to him on that earlier date; and

(b) an amount of compensation that has been paid on behalf of, or for the benefit of, a person shall be deemed to have been paid to that person.

“(3)       Where—

(a) an amount of damages payable to a member or a dependant of a member is paid to Australia in pursuance of a notice under section 107t; or

(b) the liability of Australia to pay damages to a member or a dependant of a member is, by virtue of section 107tv, to be deemed to have been discharged by a particular amount,

the date referred to in sub-paragraph (1) of paragraph (a) of sub-section (2) shall be calculated as if such of the instalments of pension paid to the member or dependant, commencing with the first such instalment, as are equal, in the aggregate, to the amount referred to in paragraph (a) or (b), as the case may be, were not payable and had not been paid.


 

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

“(5)   Where, in respect of a period, the amount, or the aggregate of the amounts, per fortnight paid by way of compensation in respect of an injury or the death of a member of the Forces (in this sub-section referred to as ‘the compensation amount’) is less than the amount, or the aggregate of the amounts, per fortnight of pension under this Division, that would, but for this section, be payable in respect of an incapacity of the member resulting from that injury or in respect of the death of the member (in this sub-section referred to as ‘the pension amount’), the amount, or the aggregate of the amounts, per fortnight of pension under this Division payable in respect of that period in respect of that incapacity or death is, by force of this sub-section, an amount equal to the pension amount reduced by the compensation amount.

“(6)   In giving effect to a reduction required by sub-section (5) as between two pensions one of which is a preferred pension with respect to the other, the amount per fortnight of the pension that is not the preferred pension shall be reduced to nil before the rate of the preferred pension is affected.

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

(a) a pension payable to a member or, in respect of a deceased member, to the widow or widower or a woman referred to in section 107p is a preferred pension with respect to any other pension;

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

(c) a pension payable to a child of a member is a preferred pension with respect to a pension payable to a younger child of the member.

“(8)   In giving effect to a reduction required by sub-section (5) as between or among two or more pensions neither or none of which is a preferred pension, within the meaning of sub-section (6), with respect to the other or others, the amount of the reduction shall be allocated between or among those pensions in the same proportion as the amounts per fortnight at which those pensions would, but for this section, be payable bear to one another.


 

Power to request proceedings to be taken against third party or to take such proceedings itself.

“107s. (1)    Where—

(a) pension is, or has been, payable in respect of the incapacity or death of a member;

(b) the incapacity arose, or the death occurred, in circumstances that appear to create a legal liability in a person other than Australia to pay damages in respect of an injury from which the incapacity of the member resulted or in respect of the death of the member; and

(c) proceedings against that person for the purpose of recovering such damages have not been instituted by the member or by or for the benefit of a dependant of the member, or have been so instituted but have been discontinued or have not been properly prosecuted,

a person authorized by the Commission may request the member or dependant to institute proceedings or fresh proceedings against that person for that purpose or properly to prosecute the proceedings, as the case may be.

“(2)   Where a member or dependant is requested in accordance with sub-section (1) to institute proceedings against a person, then—

(a) if the member or dependant refuses, or fails within a reasonable time after the making of the request, to institute the proceedings or, having instituted the proceedings, discontinues the proceedings—Australia may institute proceedings or fresh proceedings, as the case may be, against the person in the name of the member or dependant for the recovery of damages in respect of the incapacity or death; or

(b) if the member or dependant, having instituted the proceedings, fails properly to prosecute the proceedings—Australia may take over the conduct of the proceedings.

“(3)   Where a member or dependant who is requested in accordance with sub-section (1) properly to prosecute proceedings instituted against a person refuses, or fails within a reasonable time after the making of the request, to do so, Australia may take over the conduct of the proceedings.

“(4)   Australia is liable to pay all costs of or incidental to proceedings referred to in sub-section (1), (2) or (3), being costs payable by the plaintiff in these proceedings, but not including costs unreasonably incurred by the plaintiff.

“(5)   Where, in accordance with this section, Australia institutes proceedings in the name of a member or dependant or takes over the conduct of proceedings that have been instituted in the name of a member or dependant—

(a) Australia may—

(i) settle the proceedings either with or without obtaining judgment in the proceedings; and


 

(ii) if a judgment is obtained in the proceedings in favour of the plaintiff—take such steps as are necessary to enforce that judgment; and

(b) the member or dependant shall sign any document relevant to the proceedings, including the settlement of the proceedings, that a person acting on behalf of Australia requires him to sign and, if he fails to sign any such document, the court or tribunal in which the proceedings are being taken may direct that that document be signed on his behalf by a person acting on behalf of Australia.

“(6)   In this section, ‘dependant’ includes a woman referred to in section 107p.

Payment of damages by persons to Australia.

“107t. (1)    Where a person other than Australia appears to be liable to pay damages to a member or a dependant of a member in respect of an injury that has resulted in the incapacity of the member or in respect of the death of the member, being an incapacity or death in respect of which pension is or has been payable under this Division to the member or dependant, a person authorized by the Commission may, by notice in writing to the person, require the person, in the event of the person agreeing to pay damages to the member or dependant in respect of that injury or death or in the event of damages against the person being awarded to the member or dependant in proceedings instituted in respect of that injury or death, to pay to Australia so much of the amount of the damages as does not exceed an amount specified in the notice, being the amount of pension that has been paid under this Division in respect of that incapacity or death to the member or dependant, as the case may be, and the person shall comply with the notice.

“(2)   Subject to sub-section (3), where—

(a) a person other than Australia has agreed to pay damages to a member or a dependant of a member in respect of an injury that has resulted in the incapacity of the member or in respect of the death of the member, being an incapacity or death in. respect of which pension is or has been payable under this Division to the member or dependant; or

(b) damages against a person other than Australia have been awarded to a member or a dependant of a member in proceedings instituted in respect of an injury that has resulted in the incapacity of the member or in respect of the death of the member, being an incapacity or death in respect of which pension is or has been payable under this Division to the member or dependant.

a person authorized by the Commission may, by notice in writing, require the person to pay to Australia so much of the amount of the damages as does not exceed an amount specified in the notice, being the amount of pension that has been paid under this Division in respect of that incapacity or death to the member or dependant, as the case may be, and the person shall comply with the notice.


 

“(3)   Where, before a notice under sub-section (2) was received, by a person, a person bad paid to or in respect of the member or dependant, the whole or any part of the damages to which the notice related—

(a) if the whole of the damages had been paid—the notice has no force or effect; or

(b) if a part only of the damages had been paid—the reference in that sub-section to the amount of the damages shall be read as a reference to so much of that amount as had not been paid.

“(4)   If a person fails to pay an amount to Australia in pursuance of a notice under this section, Australia may recover that amount from the person as a debt due to Australia by action in a court of competent jurisdiction.

“(5)   The payment of an amount to Australia by a person in pursuance of a notice under this section or the recovery of an amount from a person under sub-section (4) is, to the extent of the amount paid or recovered, a discharge of the liability of that person to the member or dependant.

“(6)   In this section—

‘damages’ does not include any amount that has been paid in pursuance of a notice under section 102 of the Compensation Act; ‘dependant’ includes a woman referred to in section 107p.

Deduction of overpayments of pension.

“107u. (1)   Where—

(a) an amount of pension under this Division in respect of the incapacity or death of a member has been paid to a person; and

(b) that amount is not payable to that person by virtue of section 107r.

that amount is recoverable from that person by deduction from any amount of pension payable to that person under this Division in respect of that incapacity or death.

“(2)   Nothing in this section prevents the recovery of an amount referred to in sub-section (1) otherwise than in accordance with that subsection, but an amount shall not be recovered twice.

Liability to pay damages to be discharged by payments of pension.

“107v. (1)   Where—

(a) damages against Australia have been awarded to a member or a dependant of a member in proceedings instituted in respect of an injury that resulted in the incapacity of the member or in respect of the death of the member; and

(b) pension under this Division is or has been payable to the member or dependant, as the case may be, in respect of that incapacity or death,

the liability of Australia to pay those damages or such part of them as does not represent expenses incurred in medical or hospital treatment shall be deemed to have been discharged to the extent of the amount of that pension that has been paid to the member or the dependant, as the case may be.


 

“(2)   In this section, ‘dependant’ includes a woman referred to in section 107p.”.

Post mortem examination.

18.    Section 120a of the Principal Act is amended by adding at the end thereof the following sub-section:—

“(5)   In this section, ‘member of the Forces’ includes a member of the Forces within the meaning of Division 10 of Part III.”.

19. (1)   After section 120ac of the Principal Act the following section is inserted:—

Establishment of hospitals, &c.

“120d.   The Commission may establish, control and administer hospitals and other institutions for the care and welfare of persons eligible to receive medical treatment under—

(a) this Act;

(b) the Interim Forces Benefits Act 1947–1973;

(c) the Repatriation (Far East Strategic Reserve) Act 1956–1973; or

(d) the Repatriation (Special Overseas Service) Act 1962–1973.”.

(2)     A hospital or other institution that was, immediately before the commencement of this section, controlled and administered by the Commission shall be deemed to have been established under the section inserted in the Principal Act by sub-section (1) and that section applies in relation to that hospital or other institution accordingly.

Modification of certain other laws.

20.    Section 123a of the Principal Act is amended—

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

“(a) any amendment of the Repatriation Act 1920–1968, being—

(i) an amendment alleviating the operation of the means test in relation to thatperson made after the date of commencement of the Repatriation Act 1968; or

(ii) an amendment of a rate of pension, allowance or benefit under Division 5 of Part III made after the date of commencement of the Repatriation Act (No. 3) 1973,

had not been made; and

“(b) an amendment of the Social Services Act 1947–1968, being—

(i) an amendment alleviating the operation of the means test in relation to that person made after the commencement of the Social Services Act 1968; or

(ii) an amendment of a rate of pension, allowance or benefit made after the date of commencement of the Social Services Act (No. 4) 1973.

had not been made.”;


 

(b) by omitting from sub-section (2) the words “or a pension under the Native Members of the Forces Benefits Act 1957–1968 that corresponds with a service pension.”; and

(c) by omitting from paragraph (c) of sub-section (4) the sub-regulation set out in that paragraph and substituting the following sub-regulation:—

“‘(5a)     The reference in paragraph (b) of the last preceding sub-regulation to an age or invalid pension or a wife’s pension or a widow’s pension does not include a reference to such a pension that would not be payable if any amendment of the Social Services Act 1947–1968, being—

(a) an amendment alleviating the operation of the means test in relation to the person in receipt of the pension made after the date of commencement of the Social Services Act 1968; or

(b) an amendment of a rate of pension, allowance or benefit made after the date of commencement of the Social Services Act (No. 4) 1973,

had not been made.’.”.

21.    After section. 123a of the Principal Act the following section is inserted:—

Interpretation.

“123b.      A reference in any law to a Schedule to this Act that is identified in that law by an ordinal number shall be read as a reference to the Schedule to this Act that is identified in this Act by the corresponding cardinal number.”.

Regulations.

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

(a) by omitting from sub-section (1) the words “for providing for the establishment, control and administration of hospitals and other institutions for the care and welfare of members of the Forces and dependants of members,”;

(b) by omitting paragraph (g) of sub-section (1);

(c) by inserting after sub-section (1) the following sub-sections:—

“(1aa)      The power to make regulations conferred by subsection (1) extends to—

(a) the making of regulations with respect to members of the Forces within the meaning of Division 10 of Part III, and to the dependants, within the meaning of that Division, of those members, as if those members were members of the Forces within the meaning of this Part; and

(b) the granting of assistance and benefits to a woman referred to in section 107p.


 

“(1ab)      The regulations may provide for—

(a) the provision, whether in hospitals or other institutions referred to in section 120d or independently of those hospitals or other institutions, of medical treatment for—

(i) members of the Forces and the dependants of those members and persons referred to in section 120;

(ii) persons referred to in sub-section (1aa); and

(iii) persons who—

(a) have served in a theatre of war within the meaning of Part III, have served on Malayan service within the meaning, of the Repatriation (Far East Strategic Reserve) Act 1956–1973 or have served on special service within the meaning of the Repatriation (Special Overseas Service) Act 1962–1973; and

(b) are suffering from, malignant neoplasia; and

(b) the provision, in hospitals or other institutions referred to in section 120d, of medical treatment for persons other than—

(i) persons referred to in paragraph (a); or

(ii) persons entitled to receive medical treatment under—

(a) the Interim Forces Benefits Act 1947–1973;

(b) the Repatriation (Far East Strategic Reserve) Act 1956–1973;

(c) the Repatriation (Special Overseas Service) Act 1962–1973; or

(d) the Seamen’s War Pensions and Allowances Act 1940–1973.

“(1ac)      Medical treatment may be provided for the persons to whom paragraph (b) of sub-section (1ab) applies only if the provision of such treatment does not adversely affect the provision of medical treatment for persons referred to in a subparagraph of that paragraph.”; and

(d) by omitting paragraph (c) of sub-section (1c) and substituting the following paragraph:—

“(c) would be so liable but for paragraph (c) of the proviso to sub-section (1) of section 24, section 43, paragraph (c) of the proviso to sub-section (1) of section 101, sub-section (6) of section 107c, section 107q or section 107r.”.

(2)     Regulations providing for medical treatment that purported to have been made before the commencement of this Act shall be deemed to have been as validly made as they would have been if the amendments made by this Act had been in force when the regulations purported to have been made.


 

First Schedule.

23.    The First Schedule to the Principal Act is amended—

(a) by omitting the word “Scale” and substituting the word “Table”;

(b) by omitting the scale and substituting the following table:—

Column 1

Column 2

Column 3

Pension payable to Widowed Mother on Death of Member

Pension payable to Widow on Death of Member

Pension payable to Member on Total Incapacity

$

$

$

Per fortnight

Per fortnight

Per fortnight

17

46

38               ;

(c) by omitting paragraphs 1, 2, 4 and 5;

(d) by omitting from paragraph 3 the words “Column 4 of the scale” and substituting the words “Column 3 of the table”;

(e) by omitting from paragraph 6 the words “in relation to him in Column 4 of the scale in this Schedule shall be deemed to be Seventy-three dollars ten cents.” and substituting the words “in Column 3 of the table in this Schedule shall, in its application in relation to him, be deemed to be Seventy-seven dollars sixty cents.”.

Second Schedule.

24.    The Second Schedule to the Principal Act is amended—

(a) by omitting the words—

“Rate for Special PensionsOne hundred and two Dollars Twenty Cents per Fortnight.”

and substituting the words—

“Rate for Special Pensions—One hundred and eleven Dollars Twenty Cents per Fortnight.”;

(b) by omitting the words “Twenty-one dollars” and substituting the words “Twenty-six dollars”; and

(c) by omitting the words “Thirty-five dollars” and substituting the words “Forty-four dollars”.

Third Schedule.

25.    The Third Schedule to the Principal Act is amended—

(a) by omitting from Table A the words “Column 3 of the scale in, or in paragraph 4 of, the First Schedule,” and substituting the words “Column 2 of the table in Schedule 1,”;

(b) by omitting from Table A the words “Column 2 of the scale in the First Schedule” (wherever occurring) and substituting the words “Column 1 of the table in Schedule 1”;

(c) by omitting from Table A the symbol and figures “$29.40” (wherever occurring) and substituting the symbol and figures “$37.00”;


 

(d) by omitting from Table A the symbol and figures “$14.70” and substituting the symbol and figures “$18.50”;

(e) by omitting from Table B the words “Column 4 of the scale in the First Schedule” and substituting the words “Column 3 of the table in Schedule 1”; and

(f) by omitting from Table B the words “Column 2 of the scale in the First Schedule” and substituting the words “Column 1 of the table in Schedule 1”.

Fifth Schedule.

26.    The Fifth Schedule to the Principal Act is amended by omitting the table in paragraph 1 and substituting the following table:—

Column 1

Column 2

Column 3

Description of Disability

Amount

Allowance

 

$

$

 

Per fortnight

Per fortnight

Two arms amputated.......................................................................

73.20

44

Two legs and one arm amputated....................................................

73.20

26

Two legs amputated above the knee................................................

73.20

26

Two legs amputated and loss of eye................................................

73.20

..

One arm and one leg amputated and one eye destroyed..................

73.20

..

One leg and one arm amputated......................................................

73.20

..

One leg amputated above, and one leg amputated below, the knee.

29.40

..

Two legs amputated below the knee................................................

19.80

..

One arm amputated and one eye destroyed.....................................

17.10

..

One leg amputated and one eye destroyed.......................................

17.10

..

One leg amputated above the knee..................................................

8.50

..

One leg amputated below the knee..................................................

4.50

..

One arm amputated above the elbow...............................................

8.50

..

One arm amputated below the elbow...............................................

4.50

..

Loss of vision in one eye.................................................................

6.60

..

Sixth Schedule.

27.    The Sixth Schedule to the Principal Act is amended—

(a) by omitting the words “column 4 of” (wherever occurring) and substituting the words “column 3 of the table in”; and

(b) by omitting the words “Twelve dollars” (wherever occurring) and substituting the words “Six dollars”.

Formal amendments.

28.    The Principal Act is amended as set out in the Schedule.

Regulations may be retrospective to 7 December 1972.

29.    Regulations providing for benefits and assistance to persons referred to in sub-section 124(1aa) of the Principal Act as amended by this Act may be made as if the amendments made by this Act had come into operation on 7 December 1972 and regulations so made may provide that benefits or assistance purporting to have been granted to those persons before the commencement of this Act that would have been validly granted if those regulations had come into force on that date shall be deemed to have been validly granted.


 

Application of certain amendments.

30.    In so far as an. amendment made by this Act affects instalments of pensions or allowances, the amendment applies in relation to an instalment of a pension or of an allowance failing due on the day on which this Act receives the Royal Assent, if that day is a pension pay-day, or, if it is not, on the first pension pay-day after that day, and. to all subsequent instalments.

Claims lodged on or before 31 December 1973.

31. (1)      Where—

(a) on or before 31 December 1973 a person lodges a claim for a service pension; and

(b) a service pension is granted to that person by virtue of the application in relation to that person of paragraph 28(2aa)(b) of the Social Services Act 1947–1973,

the service pension is to be paid from—

(c) in the case of a person in relation to whom that paragraph applies on the prescribed date—the prescribed date; or

(d) in any other case—the day on which that paragraph commences to apply in relation to that person.

(2)     In this section, “prescribed date” means the pension pay-day referred to in section 30.

Appropriation.

32. (1)      The Consolidated Revenue Fund is appropriated to the extent necessary for the purposes of such expenditure in pursuance of the Principal Act as amended by this Act as results from this Act, being expenditure on or before 30 June 1974.

(2)     Sub-section (1) does not prevent the issue and application of moneys, for the purposes referred to in that sub-section, in pursuance of an appropriation made by an Act other than this Act (whether passed before or after the commencement of this Act).

 


 

SCHEDULE                                                Section 28

FORMAL AMENDMENTS

Provision

Amendment

Section 46(1)......................

(a) Omit “the Second Schedule to this Act”, substitute “Schedule 2”.

(b) Omit “the Fifth Schedule to this Act”, substitute “Schedule 5”.

Section 83(1)......................

(definition of “income”)

Omit from paragraph (k) “the Second Schedule or the Fifth Schedule”, substitute “Schedule 2 or 5”.

Section 86(3)......................

Omit “the Second Schedule or the Fifth Schedule” (wherever occurring), substitute “Schedule 2 or 5”.

Section 90(1c)....................

Omit “the Seventh Schedule”, substitute “Schedule 7”.

Section 124(1)....................

Omit from paragraph (aa) “the Third Schedule to this Act;”, substitute “Schedule 3:”.

The Schedules....................

Omit “THE SCHEDULES.”.

The First Schedule..............

(a) Omit “THE FIRST SCHEDULE.”, substitute “SCHEDULE 1”.

(b) Omit from paragraph (3) “the Fifth Schedule”, substitute “Schedule 5”.

(c) Omit from paragraph (3) “the Second Schedule”, substitute “Schedule 2”.

The Second Schedule.........

Omit “THE SECOND SCHEDULE.”, substitute “SCHEDULE 2”.

The Third Schedule............

(a) Omit “THE THIRD SCHEDULE.”, substitute “SCHEDULE 3”.

(b) Omit from Table B “the Second Schedule”, substitute “Schedule 2”.

(c) Omit from Table C “the Fourth and Fifth Schedules”, substitute “Schedules 4 and 5”.

The Fourth Schedule..........

(a) Omit “THE FOURTH SCHEDULE.”, substitute “SCHEDULE 4”.

(b) Omit “the Third Schedule”, substitute “Schedule 3”.

The Fifth Schedule.............

(a) Omit “THE FIFTH SCHEDULE.”, substitute “SCHEDULE 5”.

(b) Omit from paragraph 1 “the Fourth Schedule”, substitute “Schedule 4”.

(c) Omit from paragraph 5 “the Second Schedule”, substitute “Schedule 2”.

(d) Omit from paragraph 6 “the First Schedule”, substitute “Schedule 1”.

(e) Omit from paragraph 6 “the Second Schedule”, substitute “Schedule 2”.

The Sixth Schedule............

(a) Omit “THE SIXTH SCHEDULE.”, substitute “SCHEDULE 6”.

(b) Omit “the First Schedule” (wherever occurring), substitute “Schedule 1”.

(c) Omit “the Second Schedule” (wherever occurring), substitute “Schedule 2”.

(d) Omit “the Fifth Schedule” (wherever occurring), substitute “Schedule 5”.

Seventh Schedule...............

Omit “SEVENTH SCHEDULE”, substitute “SCHEDULE 7”.