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Veterans' Entitlements Act 1986

Authoritative Version
  • - C2004A03268
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Act No. 27 of 1986 as made
An Act to provide for the payment of pensions and other benefits to, and to provide medical and other treatment for, veterans and certain other persons, and for other purposes
Administered by: Veterans' Affairs
Date of Assent 19 May 1986

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Veterans’ Entitlements Act 1986

No. 27 of 1986

TABLE OF PROVISIONS

PART I—PRELIMINARY

Section

1.             Short title

2.             Commencement

3.             Repeal

4.             Extension of Act to external territories

5.             Interpretation

6.             Operational Service

7.             Eligible War Service

8.             War-caused death

9.             War-caused injuries or diseases

10.           Child of a veteran or other person

11.           Dependants

PART II—PENSIONS, OTHER THAN SERVICE PENSIONS, FOR VETERANS AND THEIR DEPENDANTS

Division 1—Interpretation

12.           Interpretation

Division 2—Eligibility for pension

13.           Eligibility for pension


 

TABLE OF PROVISIONS continued

Division 3Claims for pensions and applications for increases in pensions

Section

14.           Claim for pension

15.           Application for increase in pension

16.           Who may make claim or application

17.           Investigation by the Secretary

18.           Duties of Commission in relation to pensions

19.           Determination of claims and applications

20.           Date of operation of grant of claim for pension

21.           Date of operation of grant of application under section 15

Division 4Rales of pensions payable to veterans

22.           General rate of pension

23.           Intermediate rate of pension

24.           Special rate of pension

25.           Temporary payment at special rate

26.           Reduction in rate of pension in certain cases

27.           Increased rates of pension in certain cases

28.           Capacity to undertake remunerative work

29.           Guide to the assessment of rates of veterans’ pensions

Division 5Rates of pensions payable to dependants of deceased veterans

30.           Rates at which pensions payable to dependants

Division 6Reviews of pensions by Commission

31.           Review by Commission

Division 7Procedural

32.           Commission may take evidence

33.           Withdrawal of claim or application

34.           Reasons for decisions to be given

PART III—SERVICE PENSIONS

Division 1Interpretation

35.           Interpretation

36.           Meaning of qualifying service

37.           Method of calculation of income

Division 2Eligibility for service pension

38.           Eligibility for service pension—age

39.           Eligibility for service pension—invalidity

40.           Eligibility for wife’s service pension

41.           Eligibility for carer’s service pension

42.           Restrictions on dual pensions

Division 3Claims for service pensions

43.           Claim for service pension, &c.

44.           Investigation of claim

45.           Duties of Commission in relation to service pensions

46.           Determination of claim for service pension

TABLE OF PROVISIONS continued

Division 4—Rates of service pensions

Section

47.           Rate of veteran’s service pension

48.           Rate of wife’s service pension

49.           Rate of carer’s service pension

50.           Calculation of value of property

51.           Pension loans scheme

52.           Disposal of property or income

53.           Financial hardship

54.           Pension reduction amounts

Division 5Rent assistance and remote area allowance

55.           Rent assistance

56.           Rate of rent assistance

57.           Remote area allowance

Division 6Review of service pensions and decisions with respect to service pensions

58.           Cancellation, suspension or variation of service pension

59.           Review of decision, &c.

60.           Powers of Commission on reviews under section 59

Division 7Miscellaneous

61.           Withdrawal of claim for service pension, &c.

62.           Reasons for decision to be given

63.           Right to be paid service pension outside Australia

64.           Persons resident in Papua New Guinea

65.           Special temporary allowance

66.           Payment of wife’s service pension after death of veteran

67.           Suspension and forfeiture of service pension when pensioner imprisoned

PART IV—PENSIONS FOR MEMBERS OF DEFENCE FORCE OR PEACEKEEPING FORCE AND THEIR DEPENDANTS

Division 1Interpretation

68.           Interpretation

69.           Application of Part to members of the Forces

Division 2Eligibility for pension

70.           Eligibility for pension under this Part

71.           Application of certain provisions of Part II

72.           Dual entitlement to pension

Division 3Rates of pension

73.           Application of Divisions 4 and 5 of Part II

Division 4Pension and other compensation

74.           Payments by way of compensation or damages

75.           Proceedings against third party

76.           Payment of damages to Commonwealth

77.           Discharge of liability of Commonwealth to pay damages

78.           Other payments of compensation

79.           Overpayments of pension


TABLE OF PROVISIONS - continued

PART V—MEDICAL AND OTHER TREATMENT

Section

80.           Interpretation

81.           Application of Part V

82.           Prescribed persons

83.           Prescribed rate of income and property value

84.           Provision of treatment

85.           Veterans eligible to be provided with treatment

86.           Dependants eligible to be provided with treatment

87.           Additional treatment for veterans

88.           Treatment for other persons

89.           Treatment at hospitals and other institutions

90.           Guide to the provision of treatment

91.           Pharmaceutical benefits

92.           Counselling services

93.           Recovery of cost of treatment

PART VI—ALLOWANCES AND OTHER BENEFITS

Division 1—Preliminary

94.           Interpretation

95.           Prescribed persons

96.           Application

Division 2Eligibility for allowances and other benefits

97.           Clothing allowance

98.           Attendant allowance

99.           Funeral benefits—veterans

100.        Funeral benefits—dependants of deceased veterans

101.        Funeral benefits—service pensioners

102.        Decoration allowance

103.        Victoria Cross allowance

104.        Recreation transport allowance

105.        Vehicle assistance scheme

106.        Special assistance

107.        Temporary incapacity allowance

108.        Loss of earnings allowance

109.        Advances on account of loss of earnings allowance

110.        Travelling expenses

Division 3—Procedural

111.        Application

112.        Time for applying for certain benefits

113.        Time for applying for funeral benefit

114.        Commencement of payment of certain allowances

115.        Review of decision, &c.

PART VII—VETERANS’ CHILDREN EDUCATION SCHEME

116.        Interpretation

117.        Preparation of the Scheme

118.        Provision of education and training

PART VIII—GENERAL PROVISIONS APPLICABLE TO PENSIONS, &c.

119.        Commission not bound by technicalities

120.        Standard of proof

121.        Instalments of pension

122.        Payments of pensions

123.        Payment of pension, &c., on death of person

124.        Termination of pension

125.        Pensions, &c., absolutely inalienable


TABLE OF PROVISIONS continued

Section

126.        Death of claimant

127.        Power to obtain information

128.        Secretary may obtain information

129.        Self-incrimination

130.        Furnishing of information

131.        Interpretation

132.        Payment of travelling expenses in certain cases

PART IX—VETERANS’ REVIEW BOARD

Division 1Preliminary

133.        Interpretation

Division 2Continuance of Veterans’ Review Board

134.        Continuance of Veterans’ Review Board

Division 3Review by the Board of decisions

135.        Review of decisions in respect of pensions

136.        Application for review

137.        Secretary to prepare report

138.        Board not bound by technicalities, &c.

139.        Decision of Board

140.        Statements of decisions of the Board, &c.

Division 4Organization of the Board

141.        Constitution of Board for exercise of powers

142.        Principal Member responsible for arrangement of business

143.        Members to constitute Board

144.        Member ceasing to be member, &c.

145.        Places of sitting

Division 5—Proceedings before the Board

146.        Principal Member or Senior Member to preside at hearing

147.        Parties to review before Board

148.        Procedure of Board

149.        Questions to be decided by majority of Board

150.        Hearing to be in private except in special circumstances

151.        Powers of Board

152.        Request to Secretary for documents, &c.

153.        Information may be made available to parties

154.        Period of operation of certain decisions of Board

155.        Withdrawal of application

Division 6Date of operation of decisions of Board

156.        Board to specify date of operation

157.        Dates that may be specified

Division 7—Membership of the Board

158.        Appointment of members of Board

159.        Terms of appointment

160.        Remuneration and allowances of members

161.        Acting members

162.        Leave of absence

163.        Resignation

164.        Removal from office

165.        Disclosure of interests

TABLE OF PROVISIONS continued

Division 8Miscellaneous

Section

166.        Delegation

167.        Protection of members and witnesses

168.        Failure of witness to attend

169.        Refusal to be sworn or to answer questions, &c.

170.        Contempt of Board

171.        Fees for witnesses

172.        Staff to assist Board

173.        Oath or affirmation of office

PART X—REVIEW OF DECISIONS BY ADMINISTRATIVE APPEALS TRIBUNAL

174.        Interpretation

175.        Applications for review

176.        Application of Administrative Appeals Tribunal Act

177.        Effective dates of payment of pension or increased pension

178.        Period of operation of certain decisions of Administrative Appeals Tribunal

PART XI—THE REPATRIATION COMMISSION

Division 1—Establishment, functions and powers

179.        Continuance of Commission

180.        Functions of Commission

181.        Powers of Commission

Division 2Constitution and meetings of Commission

182.        Membership of the Commission

183.        President and Deputy President

184.        Appointment of Secretary as a Commissioner and President

185.        Remuneration and allowances

186.        Leave of absence

187.        Resignation

188.        Termination of appointment

189.        Commissioner to disclose any interest in claims for pensions, &c.

190.        Commissioner to disclose other interests

191.        Acting commissioners

192.        Acting President or Deputy President

193.        Appointment to act as President and also Secretary

194.        Appointments

195.        Meetings

Division 3Staff

196.        Staff

PART XII—MISCELLANEOUS

197.        Pensions, &c., not for certain members of the Defence Force

198.        Variation of rates of certain pensions

199.        Appropriation

200.        Commission may accept contributions

201.        Commission may administer trusts

202.        Trustees for pensioners

203.        Arrangements with Governments of other countries

204.        Profits from canteens

205.        Recovery of overpayments

206.        Waiver, &c., of debts

207.        Service pensioner in a public institution

208.        Offences

209.        Multiple offences

210.        Time for prosecuting offences

TABLE OF PROVISIONS continued

Section

211.        Order for repayment of pension, &c.

212.        Delegation by Minister

213.        Delegation by Commission

214.        Delegation by Secretary

215.        Annual report

216.        Regulations

SCHEDULE 1

REPEALED ACTS

SCHEDULE 2

OPERATIONAL AREAS

SCHEDULE 3

PEACEKEEPING FORCES

SCHEDULE 4

OATH OR AFFIRMATION


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Veterans’ Entitlements Act 1986

No. 27 of 1986

 

An Act to provide for the payment of pensions and other benefits to, and to provide medical and other treatment for, veterans and certain other persons, and for other purposes

[Assented to 19 May 1986]

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

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Veterans’ Entitlements Act 1986.

Commencement

2. This Act shall come into operation on a date to be fixed by Proclamation.

Repeal

3. (1) The Acts specified in Parts I, II, III, IV and V of Schedule 1 are repealed.

(2) The Acts specified in column 1 of Part VI of Schedule 1 are amended as set out in columns 2 and 3 of that Schedule.


 

Extension of Act to external Territories

4. This Act extends to the external Territories.

Interpretation

5. (1) In this Act, unless the contrary intention appears—

“acting commissioner” means a person who is acting as a commissioner in pursuance of an appointment under section 191;

“Acting Deputy President” means a commissioner or acting commissioner who is acting as Deputy President in pursuance of an appointment under section 192;

“Acting President” means a commissioner or acting commissioner who is acting as President in pursuance of an appointment under section 192 or 193;

“allied country” means any country (not being Australia or a Commonwealth country)—

(a) that was, at the relevant time, at war with the enemy; or

(b) the forces of which were, at the relevant time, engaged in an operational area against forces against which the forces of the Commonwealth were engaged in that area,

and includes—

(c) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and

(d) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of such a country;

“approved Guide to the Assessment of Rates of Veterans’ Pensions” means—

(a) the document, prepared by the Commission in accordance with section 29 under the title “Guide to the Assessment of Rates of Veterans’ Pensions”, that has been approved by the Minister and is for the time being in force; or

(b) if an instrument varying that document has been approved by the Minister, that document as so varied;

“approved Treatment Principles” means—

(a) the document, prepared by the Commission in accordance with section 90 under the title “Treatment Principles”, that has been approved by the Minister and is for the time being in force; or

(b) if an instrument varying that document has been approved by the Minister, that document as so varied;

“Board” means the Veterans’ Review Board continued in existence by section 134 of this Act;

“child” means—

(a) a person who has not attained the age of 16 years; or


 

(b) a person who—

(i) has attained the age of 16 years but has not attained the age of 25 years;

(ii) is undertaking full-time education at a school, college or university; and

(iii) is not in receipt of a pension under Part III or IV, a benefit under Part IVaaa or VII or a rehabilitation allowance under Part VIII of the Social Security Act 1947 or an allowance under section 9 of the Tuberculosis Act 1948;

“Commission” means the Repatriation Commission continued in existence by section 179 of this Act;

“commissioner” means a person holding an office of commissioner in pursuance of an appointment under section 182;

“Commonwealth country” means a country (other than Australia) that is, or was at the relevant time, a part of the Dominions of the Crown, and includes—

(a) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and

(b) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of a part of such a country;

“continuous full-time service” means—

(a) in relation to a member of the Defence Force—

(i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service;

(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or

(iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; or

(b) in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country—service in those forces of a kind similar to a kind of service referred to in sub-paragraph (a) (i), (ii) or (iii);

“decision” includes a determination and an assessment;

“Deputy President” means the Deputy President of the Commission;

“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, and the recurrence of such an ailment, disorder, defect or morbid condition, but does not include the aggravation of such an ailment, disorder, defect or morbid condition;

“enemy” means—

(a) in relation to World War 1 or World War 2—the naval, military or air forces, or any part of the naval, military or air forces, of a State at war with the Crown during that war; and

(b) in relation to service in, or a period of hostilities in respect of, an operational area—the naval, military or air forces against which the Naval, Military or Air Forces of the Commonwealth were engaged in that operational area,

and includes persons assisting any of those forces;

“injury” means any physical or mental injury, and includes the recurrence of any physical or mental injury, but does not include a disease or the aggravation of a physical or mental injury;

“member of the Defence Force” includes a person appointed for continuous full-time service with a unit of the Defence Force;

“member of the Interim Forces” means a person who, on or after 1 July 1947 and before 1 July 1949—

(a) enlisted or re-engaged in, or was appointed or re-appointed to, the Defence Force for continuous full-time service for a term not exceeding 2 years; or

(b) was appointed for continuous full-time service with a unit of the Defence Force for a term not exceeding 2 years;

“operational area” means an area described in column 1 of Schedule 2;

“organization representing veterans” means—

(a) an organization—

(i) the members of which include veterans throughout the Commonwealth; and

(ii) the objects of which include the object of representing veterans throughout the Commonwealth; or

(b) an organization—

(i) the members of which include persons throughout the Commonwealth who are in receipt of, or are eligible to receive, pensions under Part II as dependants of veterans; and

(ii) the objects of which include the object of representing persons referred to in sub-paragraph (i) throughout the Commonwealth;

“port” includes airport;

“President” means the President of the Commission;

“remunerative work” includes any remunerative activity;

“Secretary” means the Secretary to the Department;

“special mission” means a mission that, in the opinion of the Commission, was of special assistance to the Commonwealth in the prosecution of a war to which this Act applies;

“unit of the Defence Force” means a body, contingent or detachment of the Defence Force;

“veteran” means—

(a) a person (including a deceased person) who is, by virtue of section 7, to be taken to have rendered eligible war service; or

(b) a person (including a deceased person) in respect of whom a pension is, or pensions are, payable in pursuance of sub-section 13 (6);

“war to which this Act applies” means World War 1 or World War 2;

“World War 1” means the war that commenced on 4 August 1914, and includes any other war in which the Crown became engaged after that date and before 11 November 1918;

“World War 2” means the war that commenced on 3 September 1939, and includes any other war in which the Crown became engaged after that date and before 3 September 1945.

(2) Where a person who has attained the age of 16 years would, if the person lodged a claim for, and were qualified to receive, an unemployment benefit under Part VII of the Social Security Act 1947, be prevented, by reason of section 120a of that Act, from being paid that benefit for a period immediately following his or her ceasing to undertake full-time education at a school, college or university, the person shall be taken, for the purpose of paragraph (b) of the definition of “child” in sub-section (1), to continue, during that period, to undertake full-time education at a school, college or university.

(3) For the purposes of this Act—

(a) World War 1 shall be deemed to have ended on 1 September 1921, being the date fixed by Proclamation under section 2 of the Termination of the Present War (Definition) Act 1919;

(b) World War 2 shall be deemed to have ended on 28 April 1952, being the date on which the Treaty of Peace with Japan came into force; and

(c) an operational area described in column 1 of Schedule 2 shall be deemed to have been an operational area during the period specified in column 2 of that Schedule opposite to the description of the area in column 1.

(4) In this Act, unless the contrary intention appears, a reference to a member of a unit of the Defence Force shall be read as a reference to a member of the Defence Force or other person who is a member of the unit, attached to the unit or appointed for continuous full-time service with the unit.

(5) For the purposes of this Act, a person (not being a person who was an indigenous inhabitant of the Territory of Papua or the Territory of New Guinea) who was residing in Papua New Guinea immediately before it


 

became an independent sovereign State, shall, until the person ceased or ceases so to reside, be deemed to be a resident of Australia.

(6) In this Act, unless the contrary intention appears, a reference to an eligible civilian who was killed, or was detained by the enemy, during World War 2, shall be read as a reference to a person who, at the time the person was killed, or commenced to be so detained, as the case may be, was—

(a) a British subject; and

(b) a resident, but not an indigenous inhabitant, of the Territory of Papua or the Territory of New Guinea,

other than such a person who was, at that time—

(c) rendering service as a member of the Defence Force; or

(d) employed by the Commonwealth on a special mission outside Australia.

(7) Where a man and a woman have been living together as husband and wife on a bona fide domestic basis although not legally married to each other, they shall be treated for the purposes of this Act, as so living together during any temporary absence of one of those persons or during an absence of one of those persons resulting from illness or infirmity, if the Commission is of the opinion that they would, but for the absence, have been so living together during the period of that absence.

(8) For the purposes of this Act, a member of the Army Medical Corps Nursing Service who rendered service, either within or outside Australia during World War 1, as such a member in accordance with an acceptance or appointment by the Director-General of Medical Services for service outside Australia shall be deemed, while the member rendered that service, to have been serving as a member of the Defence Force.

(9) In this Act, unless the contrary intention appears—

(a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or

(b) a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68 (1), from a defence-caused injury or a defence-caused disease,

shall be read as a reference to the effects of that injury or disease and not as a reference to that injury or disease itself.

(10) For the purposes of this Act, where a person has lost an eye or the Commission is of the opinion that the eyesight of a person in an eye is so defective that the person has no useful sight in that eye, the person shall be deemed to have been blinded in that eye.

(11) For the purposes of this Act—

(a) where a claim, application or other document is forwarded to, or delivered at, a place (whether within or outside Australia) approved by the Commission for the purposes of this sub-section, it shall be


 

deemed to have been forwarded to, or delivered at, as the case may be, an office of the Department in Australia and to have been received at an office of the Department in Australia on the day on which it is received at that place;

(b) where a claim, application or other document is delivered to a person approved by the Commission for the purposes of this subsection, it shall be deemed to have been delivered at an office of the Department in Australia and to have been received at an office of the Department in Australia on the day on which it is delivered to that person; and

(c) a claim or application shall be deemed to have been made on the day on which it is received, or is, by virtue of paragraph (a) or (b), to be deemed to have been received, at an office of the Department in Australia.

(12) In this Act, a reference to a person, or a unit of the Defence Force, that was allotted for duty in an operational area shall be read as a reference to a person, or unit of the Defence Force—

(a) that was so allotted for duty in accordance with administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which that unit formed a part, as the case may be; or

(b) that is, by an instrument in writing signed by the Minister for Defence, deemed to have been allotted for duty in an area described in item 4 or 8 in Schedule 2 during the period specified in that item.

Operational Service

6. (1) For the purposes of this Act—

(a) a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;

(b) a person who has rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) during the period from and including 19 February 1942 to and including 12 November 1943 shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;

(c) a person who, while living on a Torres Strait Island, enlisted in the Defence Force and rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months on that Island during World War 2 shall be taken to have been rendering operational service while the person was rendering


 

any such service so rendered by the person during the period from and including 14 March 1942 to and including 18 June 1943;

(d) a person who has rendered, as a member of the Defence Force, service of a kind described in paragraph (a), (b) or (c) during World War 1 or World War 2 shall be taken to have been rendering operational service during any period of continuous full-time service rendered by the person during that war, within Australia, immediately before, or immediately after, the person rendered that service of a kind so described;

(e) a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia—

(i) as a member of a unit of the Defence Force that was allotted for duty; or

(ii) while the person was allotted for duty,

in an operational area, shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;

(f) subject to sub-section (2), a person who has rendered continuous full-time service as a member of the naval, military or air forces of a Commonwealth country or an allied country during a war to which this Act applies—

(i) outside that country; or

(ii) within that country in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat with the enemy,

shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;

(g) subject to sub-section (2), a person who has rendered continuous full-time service as a member of the naval, military or air forces of a Commonwealth country or an allied country in an operational area shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;

(h) a person who was, during a war to which this Act applies, employed by the Commonwealth on a special mission outside Australia shall be taken to have been rendering operational service while the person was so employed by the Commonwealth;

(j) a person, being a person who was an eligible civilian within the meaning of sub-section 5 (6), who was killed, during the invasion of the Territory of Papua or the Territory of New Guinea during World War 2, as a result of action by the enemy shall be taken to have been rendering operational service when the occurrence, as a result of which the person was killed, happened;

(k) a person, being a person who was an eligible civilian within the meaning of sub-section 5 (6), who was, during World War 2, detained


 

by the enemy shall be taken to have been rendering operational service while the person was so detained;

(m) a person who, while rendering continuous full-time service as a member of the Defence Force within Australia during World War 2, was injured, or contracted a disease, as a result of enemy action shall be taken to have been rendering operational service when the occurrence as a result of which the person was injured, or contracted the disease, happened; and

(n) a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service.

(2) Paragraph (1) (f) or (g) does not apply to any service rendered by a person as a member of the naval, military or air forces of a Commonwealth country or an allied country unless the person has satisfied the Commission, whether before or after the commencement of this Act, that the person was domiciled in Australia or an external Territory immediately before the person’s appointment or enlistment in those forces.

(3) A person who rendered continuous full-time service in the Defence Force during World War 2 otherwise than as a member of the Interim Forces—

(a) if the person was appointed or enlisted for war service in any part of the Defence Force that was raised during World War 2 for war service or solely for service in time of that war or during that time and a definite time thereafter—on or after 1 July 1951;

(b) if the person was appointed or enlisted in the Citizen Forces and was called up for continuous full-time service for the duration of, or directly in connection with, World War 2—on or after 1 July 1951; or

(c) if the person was not appointed or enlisted as set out in paragraph (a) or (b)—on or after 3 January 1949,

shall not be taken, by virtue of paragraph (1) (a) or (d), to have been rendering operational service while the person was so rendering continuous full-time service on or after that date.

(4) In this Act, a reference to the operational service of a person in an operational area shall be read as a reference to the operational service that the person is to be taken to have rendered by virtue of paragraph (1) (e) or (g), as the case requires.

(5) For the purposes of this Act, the operational service of a person in an operational area, being the operational service of the person described in paragraph (1) (e)—

(a) shall be taken to have commenced—


 

(i) if the person was in Australia on the day as from which the person was allotted for duty in that area—on the day on which the person departed from the last port of call in Australia for that service; or

(ii) if the person was outside Australia on the day as from which the person was so allotted for duty—on the day as from which the person was so allotted for duty; and

(b) shall be taken to have ended at the expiration of—

(i) if the person was allotted for duty from an operational area to another area outside Australia (not being an operational area)—on the day on which the person arrived at that other area or on the day as from which the person was allotted to that other area at a time when the person was in that other area; or

(ii) in any other case—on the day on which the person arrived at the first port of call in Australia on returning from operational service.

(6) Where a person has, in the course of rendering operational service in an operational area while a member of the Defence Force—

(a) returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces;

(b) returned to Australia on emergency or other leave granted on compassionate grounds;

(c) returned to Australia on duty; or

(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force,

so much of the period of service of the person in Australia after his or her return and while the person—

(e) continued to be a member of a unit of the Defence Force allotted for duty in an operational area; or

(f) continued to be allotted for duty in an operational area,

as does not exceed 14 days shall, for the purpose of paragraph (1) (e), be deemed to be a period when the person was rendering continuous full-time service outside Australia.

Eligible War Service

7. (1) Subject to sub-section (2), for the purposes of this Act—

(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;

(b) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 1 shall be taken to have been rendering eligible war


 

service while the person was so rendering continuous full-time service;

(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and

(d) a person who rendered continuous full-time service (not being operational service) as a member of the Interim Forces during World War 2 on or after 1 July 1947 shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service.

(2) A person who rendered continuous full-time service in the Defence Force during World War 2—

(a) if the person was appointed or enlisted for war service in any part of the Defence Force that was raised during World War 2 for war service or solely for service in time of that war or during that time and a definite time thereafter—on or after 1 July 1951;

(b) if the person was appointed or enlisted in the Citizen Forces and was called up for continuous full-time service for the duration of, or directly in connection with, World War 2—on or after 1 July 1951; or

(c) if the person was not appointed or enlisted as set out in paragraph (a) or (b)—on or after 3 January 1949,

shall not be taken, by virtue of paragraph (1) (c), to have been rendering eligible war service while the person was so rendering continuous full-time service.

War-caused death

8. (1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if—

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or


 

(e) the injury or disease from which the veteran died—

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease,

but not otherwise.

(2) Paragraph (1) (a), (b), (c) or (d) does not apply to the death of a veteran if the death—

(a) resulted from the veteran’s serious default or wilful act; or

(b) arose from—

(i) a serious breach of discipline committed by the veteran; or

(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.

(3) Sub-section (1) does not apply to the death of a veteran if the death of the veteran resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.

(4) Paragraph (1) (c) does not apply—

(a) to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of duty in a case where the veteran had delayed commencing the journey for a substantial time after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;

(b) to an accident that occurred, while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless—

(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duties; or

(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not


 

substantially increased, by reason that the journey, or that part of the journey, was made by that route; or

(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in sub-paragraph (b) (ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.

(5) Paragraph (1) (e) does not apply to the death of a veteran from an injury or disease, being injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran, unless the veteran has rendered operational service or the period of the eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.

War-caused injuries or diseases

9. (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if—

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by sub-section (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran—

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service


 

rendered after the veteran suffered the injury or contracted the disease, but not otherwise.

(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service—

(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or

(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

(3) Paragraph (1) (a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease—

(a) resulted from the veteran’s serious default or wilful act; or

(b) arose from—

(i) a serious breach of discipline committed by the veteran; or

(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.

(4) Sub-sections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.

(5) Paragraph (1) (c) does not apply—

(a) to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;

(b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless—

(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duty; or


 

(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or

(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in sub-paragraph (b) (ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.

(6) Paragraph (1) (e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran)—

(a) if the aggravation of the injury or disease—

(i) resulted from the veteran’s serious default or wilful act;

(ii) arose from a serious breach of discipline committed by the veteran; or

(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.

Child of a veteran or other person

10. (1) In this Act, unless the contrary intention appears, a reference to a child of a veteran, or of a deceased veteran, shall, if the veteran is, or the deceased veteran was, a man, be read as a reference to—

(a) a child of whom the veteran is the father or a child adopted by the veteran or the veteran and his wife; or

(b) any other child who is, or was immediately before the death of the veteran, wholly or substantially dependent on the veteran.

(2) In this Act, unless the contrary intention appears, a reference to a child of a veteran shall, if the veteran is a woman, be read as a reference to—

(a) in the case of a veteran who is alive—

(i) a child of whom the veteran is the mother or a child adopted by the veteran or by the veteran and her husband; or

(ii) any other child who is wholly or substantially dependent on the veteran; or

(b) in the case of a deceased veteran—

(i) a child referred to in sub-paragraph (a) (i); or


 

(ii) any other child who was, immediately before the death of the veteran, wholly or substantially dependent on the veteran,

being a child who is not being maintained by a parent, adoptive parent or step-parent of the child.

(3) For the purposes of sub-sections (1) and (2), where a veteran is, under a law of the Commonwealth or of a State or Territory, liable to maintain a child, the child shall be deemed to be wholly or substantially dependent on that veteran.

(4) In this section, 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 sub-section 68 (1).

(5) In this Act, unless the contrary intention appears, a reference to a child of a person (not being a person who is a veteran or a member referred to in sub-section (4)) shall be read as a reference to a person who would, in accordance with sub-section (1) or (2), be a child of that person if that person were a veteran.

Dependants

11. (1) For the purposes of this Act, unless the contrary intention appears—

(a) in respect of a male veteran (including a veteran who has died)—

(i) the wife or widow of the veteran;

(ii) a woman with whom the veteran is living, or was living immediately before his death, as her husband on a bona fide domestic basis although not legally married to her (whether or not his wife or widow is also alive); or

(iii) a child of the veteran,

is a dependant of the veteran; and

(b) in respect of a female veteran (including a veteran who has died), a child of the veteran is a dependant of the veteran.

(2) Without limiting the generality of sub-section (1) in its application to a veteran (including a veteran who has died) who is, or was—

(a) a descendant of an indigenous inhabitant of the Torres Strait Islands; or

(b) a male aboriginal native of Australia,

who served during World War 2 in the Defence Force at a rate of pay less than the minimum rate of pay that was prescribed as payable to a male member of the Australian Military Forces and whose services have been terminated by discharge or death, a person whom the Commission, by instrument in writing, determines to be, for the purposes of this section, a person who is dependent on the veteran is a dependant of the veteran.

(3) In sub-section (1), 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 sub-section 68 (1).


 

(4) In this Act, unless the contrary intention appears, a reference to a dependant of a person (not being a person who is a veteran or member referred to in sub-section (3)) shall be read as a reference to a person who would, in accordance with sub-section (1), be a dependant of that person if that person were a veteran.

PART II—PENSIONS, OTHER THAN SERVICE PENSIONS, FOR VETERANS AND THEIR DEPENDANTS

Division 1Interpretation

Interpretation

12. In this Part, unless the contrary intention appears, “pension” means pension under this Part.

Division 2Eligibility for pension

Eligibility for pension

13. (1) Where—

(a) the death of a veteran was war-caused; or

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease,

the Commonwealth is, subject to this Act, liable to pay—

(c) in the case of the death of the veteran—pensions to the dependants of the veteran; or

(d) in the case of the incapacity of the veteran—pension to the veteran,

in accordance with this Act.

(2) Where—

(a) a veteran has died;

(b) the death of the veteran was not war-caused; and

(c) the veteran was, immediately before the veteran’s death—

(i) a veteran to whom section 24 applied; or

(ii) a veteran to whom section 22, 23 or 25 applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27,

the Commonwealth is, subject to this Act, liable to pay pensions to the dependants of the veteran in accordance with this Act.

(3) Where a pension in respect of the incapacity of a veteran from war-caused injury or war-caused disease, or both, is granted, after the death of the veteran, as from a date before the death of the veteran, sub-section (2) applies as if the veteran had been in receipt of that pension immediately before the veteran died.


 

(4) Where—

(a) a veteran who has rendered operational service has died;

(b) the death of the veteran was not war-caused;

(c) the veteran is survived by a child of the veteran; and

(d) the Commission is satisfied that the child is not being maintained by a parent, adoptive parent or step-parent of the child,

the Commonwealth is, subject to sub-section (7) of this section and to the other provisions of this Act, liable to pay pension to that child.

(5) The Commonwealth is not liable to pay a pension under sub-section (1) to a veteran who is a veteran by reason only that he or she has rendered operational service of a kind described in paragraph 6 (1) (f) or (g) unless the veteran is residing in, and is physically present in, Australia or an external Territory at the time when he or she makes a claim for the grant of the pension in accordance with section 14 or, if the veteran has made 2 or more such claims, at the time when he or she made the first of those claims.

(6) Where the death of a person who is, or was, a member of the Defence Force, or the incapacity of such a person from injury or disease—

(a) resulted from an occurrence that happened, or a disease that was contracted, on or after 31 July 1962—

(i) as a result of action of hostile forces; or

(ii) while the person was engaged in warlike operations against hostile forces,

being an occurrence that happened, or a disease that was contracted, outside Australia while the person was rendering continuous full-time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area; or

(b) has arisen out of or is attributable to—

(i) action by hostile forces; or

(ii) the engagement of the person in warlike operations against hostile forces,

on or after 31 July 1962 outside Australia while the person was rendering continuous full-time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area,

the Commonwealth is, subject to sub-section (7) of this section and to the

other provisions of this Act, liable to pay—

(c) in the case of the death of the person—pensions to the dependants of the person; or

(d) in the case of the incapacity of the person—pension to the person,

in accordance with this Act, and this Act, other than sub-sections (1) to (5), inclusive, of this section, applies to and in relation to the person as if the person were a veteran and the death of the person were war-caused, the


 

injury suffered by the person were a war-caused injury or the disease contracted by the person were a war-caused disease, as the case may be.

(7) The Commonwealth is not liable to pay a pension—

(a) to a dependant of a veteran, being a child of the veteran, under sub-section (1) or (2);

(b) to a child of a veteran under sub-section (4); or

(c) to a dependant of a person, being a child of the person, under subsection (6),

if the dependant has attained the age of 16 years and payments, by way of a living allowance, are being made in respect of the child—

(d) under the scheme known as the Tertiary Education Assistance Scheme;

(e) under the scheme known as the Secondary Education Assistance Scheme;

(f) under the scheme known as the Aboriginal Study Grants Scheme;

(g) under the scheme known as the Post-Graduate Awards Scheme; or

(h) under the scheme known as the Veterans’ Children Education Scheme.

(8) Where a dependant of a deceased veteran (not being a child of the veteran) re-marries or marries after the death of the veteran and after the commencement of this Act—

(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision to grant a pension was made after the commencement of this Act by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, before that marriage or re-marriage occurred; and

(b) a decision granting a pension to the dependant under this section made after the commencement of this Act by the Commission, the Board or the Administrative Appeals Tribunal after that re-marriage or marriage occurred (including a decision granting such a pension as from a date before that re-marriage or marriage occurred) is void and of no effect.

(9) Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow of a deceased veteran, the Commonwealth is not liable to pay another pension to the person under this Part as the widow of another deceased veteran or under Part IV as the widow of a member of the Forces, or a member of a Peacekeeping Force, as defined by sub-section 68 (1).

(10) Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a veteran, would, but for this sub-section, become eligible to receive a pension under this Part or Part IV as the child of another deceased person, being a veteran, or a member of the Forces, or a member of a Peacekeeping Force, as defined by sub-section 68 (1), the Commonwealth is liable to pay a pension


 

to the person under this Part or Part IV as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this sub-section referred to as the “relevant deceased person”) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then—

(a) if the relevant deceased person is a veteran—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or

(b) in any other case—the Commonwealth is not liable to pay a pension to the person under this Part.

(11) In this section (other than in sub-sections (8), (9) and (10)), a reference to a veteran shall be read as a reference to a veteran described in paragraph (a) of the definition of “veteran” in sub-section 5 (1).

Division 3Claims for pensions and applications for increases in pensions

Claim for pension

14. (1) Subject to sub-section (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with sub-section (3).

(2) Where a determination under this Act is in force determining that any incapacity from which a veteran is suffering resulted from war-caused injury or war-caused disease, or both, but a pension was not granted to the veteran on the ground that the extent of the incapacity was insufficient to justify the grant of a pension, sub-section (1) does not apply to a claim for a pension in respect of that incapacity.

(3) A claim for a pension—

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

(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).

(4) Sub-section (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.

(5) Where—

(a) the Commission has made a decision refusing to grant a pension under this Part to—

(i) a veteran who made a claim in respect of incapacity from a particular injury or disease; or


 

(ii) a dependant of a deceased veteran who made a claim in respect of the death of the veteran; and

(b) either the time within which application may be made to the Board for a review of that decision has not expired or such an application has been made to, but has not yet been determined by, the Board,

the veteran is not entitled to make a further claim for the grant of a pension under this Part in respect of incapacity from the same injury or disease, or the dependant of the veteran is not entitled to make a further claim for the grant of a pension under this Part in respect of the death of the veteran, as the case may be.

(6) Where—

(a) the Board has affirmed a decision of the Commission refusing to grant a pension under this Part to—

(i) a veteran who has made a claim in respect of incapacity from a particular injury or disease; or

(ii) a dependant of a deceased veteran who has made a claim in respect of the death of the veteran; and

(b) either the time within which application may be made to the Administrative Appeals Tribunal for a review of that decision of the Board has not expired or such an application has been made to, but has not yet been determined by, that Tribunal,

the veteran is not entitled to make a further claim for the grant of a pension under this Part in respect of incapacity from the same injury or disease or the dependant of the veteran is not entitled to make a further claim for the grant of a pension under this Part in respect of the death of the veteran, as the case may be.

Application for increase in pension

15. (1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with sub-section (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.

(2) Where there is in force in respect of the incapacity of a veteran a determination of a kind referred to in sub-section 14 (2) but a pension has not been granted to the veteran on the ground that the extent of the incapacity is insufficient to justify the grant of a pension under this Part, the veteran may make application, in accordance with sub-section (3) of this section, for a pension on the ground that the incapacity of the veteran has increased since the grant of a pension in respect of the incapacity was refused or last refused.

(3) An application under sub-section (1) or (2)—

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


 

(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).

(4) Sub-section (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.

Who may make claim or application

16. A claim under sub-section 14 (1) for a pension for a veteran or for a dependant of a deceased veteran, an application under sub-section 15 (1) for an increase in the rate of pension payable to a veteran or an application under sub-section 15 (2) for a pension for a 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 the claim or application on his or her behalf—by another person, being a person approved by the Commission, on behalf of the veteran or dependant; or

(d) in the case of a dependant who is under the age of 18 years—

(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 a claim or application on behalf of the dependant—by another person, being a person approved by the Commission,

on behalf of the dependant.

Investigation by the Secretary

17. (1) Where a claim is made for a pension under sub-section 14 (1), or an application is made for an increased pension under sub-section 15 (1) or for a pension under sub-section 15 (2), the Secretary shall cause an investigation to be made into the matters to which the claim or application relates.

(2) The Secretary shall, upon completion of the investigation in respect of a claim or application, cause the claim or application to be submitted to the Commission for its consideration and determination.

(3) A claim or application submitted to the Commission under sub-section (2) shall be accompanied by—


 

(a) any evidence furnished by the claimant or applicant in connection with the claim or application; and

(b) the documents relevant to the claim or application that are under the control of the Department, including any evidence or documents relevant to the claim or application obtained in the course of the investigation of the claim or application under sub-section (1).

Duties of Commission in relation to pensions

18. It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.

Determination of claims and applications

19. (1) In this section, “claim” means a claim made in accordance with section 14 or an application made in accordance with section 15.

(2) Where a claim is submitted to the Commission in accordance with sub-section 17 (2), the Commission shall consider the claim and, after consideration of all matters that, in the opinion of the Commission, are relevant, including, but without limiting the generality of the foregoing, the evidence and documents that were submitted with the claim in accordance with sub-section 17 (3), any evidence subsequently submitted to the Commission in relation to the claim, and any evidence, documents or other material furnished to the Commission under section 32, shall, subject to sub-sections (3), (4), (5) and (7) of this section, determine the claim.

(3) Where—

(a) a claimant, being a veteran, has refused or failed to undergo a medical examination for the purpose of the investigation of the claim or the consideration of the claim by the Commission; or

(b) a claimant has refused or failed—

(i) to consent to the release to the Secretary, or to the Commission, of information concerning a veteran for the purpose of the investigation or consideration of the claim; or

(ii) to comply with a request under paragraph 32 (1) (c) to furnish material to the Commission,

the Commission may, if it is of the opinion that that medical examination, information or material is likely to affect the decision it will make in respect of the claim, defer further consideration of the claim until the veteran has undergone the medical examination, or the claimant has consented to the release of the information or furnished the material, as the case may be, and, if it does so, the Commission shall serve on the claimant a notice, in writing, informing the claimant that the claim has been so deferred.

(4) If, at the expiration of 6 months after a claimant has been informed under sub-section (3) that a claim has been deferred by reason of the refusal or failure of a veteran to undergo a medical examination, the veteran has


 

not undergone the medical examination, the claim shall, by force of this sub-section, be deemed to have been refused.

(5) If, at the expiration of 6 months after a claimant has been informed under sub-section (3) that a claim has been deferred by reason that the claimant has refused or failed to consent to the release of information or to furnish material—

(a) the claimant has not consented to the release of the information; or

(b) the claimant has not furnished the material or satisfied the Commission that the material is not in the claimant’s possession or under the claimant’s control,

as the case may be, the claim shall, by force of this sub-section, be deemed to have been refused.

(6) Where the Commission determines under sub-section (2) that the claimant is entitled to be granted a pension in respect of the death of a veteran that was war-caused, or a pension or increased pension in respect of the incapacity of a veteran from war-caused injury or war-caused disease, or both, the Commission shall assess the rate, or increased rate, at which the pension is to be payable to the claimant and approve the date as from which the pension, or the pension at the increased rate, is to be so payable to the claimant.

(7) Where—

(a) the Commission, upon considering a claim for a pension in respect of the incapacity of a veteran from injury or disease determines, or is satisfied, that the veteran suffered the injury or contracted the disease as claimed and that the injury is a war-caused injury or the disease is a war-caused disease, as the case may be; and

(b) the Commission is also satisfied a determination under this Act is in force determining that the veteran has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that—

(i) that injury is a war-caused injury, or is, in accordance with sub-section 70 (3), a defence-caused injury for the purposes of sub-section 70 (1); or

(ii) that disease is a war-caused disease, or is, in accordance with sub-section 70 (3), a defence-caused disease for the purposes of sub-section 70 (1),

as the case may be, whether or not a pension under Part II or Part IV, as the case requires, has been granted in respect of that injury or disease,

the Commission shall not, in a case where the claimant is in receipt of a pension under Part II or Part IV in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in


 

paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such defence-caused injury as war-caused injury and any such defence-caused disease as war-caused disease—

(c) if the claimant is not in receipt of a pension under Pan II or Part IV—determine whether the claimant is entitled to be granted a pension under Part II and, if it determines that the claimant is entitled to be granted such a pension, assess the rate of the pension to be granted to the claimant; or

(d) if the claimant is in receipt of a pension under Part II or Part IV—re-assess the rate of that pension.

(8) Where the Commission is required by this section to assess the rate, or increased rate, of a pension in respect of the incapacity of a veteran from war-caused injury or war-caused disease, or both, it shall, subject to sections 26 and 27, assess the rate or increased rate in accordance with section 22, 23, 24 or 25, whichever applies to the veteran.

(9) Where the Commission is required by this section to assess the rate, or increased rate, of a pension of a dependant of a deceased veteran in respect of the death of the veteran that was war-caused, it shall assess the rate or increased rate in accordance with section 30.

(10) Where the Commission grants the whole or a part of a claim for a pension, or an application for an increased pension, or for a pension, made under this Part, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, by determination in writing, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which he or she had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used in support of the claim or application or, if a part only of the claim or application was granted, in support of that part of the claim or application.

Date of operation of grant of claim for pension

20. (1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

(2) Where—

(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14 (3) (a);


 

(b) the person subsequently makes a claim for the pension 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 claim in accordance with a form so approved; or

(ii) within 3 months after the person had been so notified; and

(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved,

the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.

Date of operation of grant of application under section 15

21. (1) The Commission may, subject to this Act, approve payment of pension at the increased rate, or payment of pension, from and including the date on which the application, in accordance with a form approved for the purposes of paragraph 15 (3) (a) was received at an office of the Department in Australia.

(2) Where—

(a) a person makes an application in writing of a kind referred to in sub-section 15 (1) or (2), but otherwise than in accordance with a form approved for the purposes of paragraph 15 (3) (a);

(b) the person subsequently makes an application of a kind so referred to 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; and

(c) an increased pension, or a pension, is granted to the person upon consideration of that application in accordance with a form so approved,

the Commission may, subject to this Act, approve payment of the increased pension, or of the pension, from and including the date on which the application referred to in paragraph (a) was received at an office of the Department in Australia.

Division 4Rates of pensions payable to veterans

General rate of pension

22. (1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the


 

veteran from war-caused injury or war-caused disease, or both, is such rate, not exceeding the maximum rate per fortnight specified in sub-section (7), as is assessed by the Commission as provided in sub-section (3).

(3) The rate assessed by the Commission under sub-section (2) in respect of the incapacity of a veteran from war-caused injury or war-caused disease, or both, shall be a rate per fortnight that constitutes the same percentage of the maximum rate per fortnight specified in sub-section (7) as the percentage determined by the Commission in accordance with sub-section (4) to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.

(4) The Commission shall, subject to sub-sections (5) and (6), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.

(5) Subject to sub-section (6), the degree of incapacity shall be determined as 10 per centum or a multiple of 10 per centum, but not exceeding 100 per centum.

(6) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10 per centum (including nought per centum) and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.

(7) For the purposes of this section, the maximum rate per fortnight is $137.60 per fortnight.

Intermediate rate of pension

23. (1) This section applies to a veteran if—

(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;

(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.


 

(2) Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind—

(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3) For the purpose of paragraph (1) (c) —

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity—

(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

(4) The rate at which pension is payable to a veteran to whom this section applies is $251.20 per fortnight.

Special rate of pension

24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if—

(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;


 

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.

(2) For the purpose of paragraph (1) (c) —

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if—

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.

(4) The rate at which pension is payable to a veteran to whom this section applies is $364.90 per fortnight.

Temporary payment at special rate

25. (1) Where the Commission is satisfied that—

(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and

(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies,

the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.


 

(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate specified in sub-section 24 (4).

(3) The Commission may, under this section—

(a) determine a period that commenced before the date on which the determination is made; and

(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under sub-section (1) in respect of the veteran.

Reduction in rate of pension in certain cases

26. (1) Where—

(a) a veteran is entitled to receive, or is in receipt of, a pension in respect of incapacity from war-caused injury or war-caused disease, or both; and

(b) the veteran is also entitled to receive, or is also in receipt of, periodical payments, or a lump-sum payment—

(i) under the law of a foreign country; or

(ii) under the law of a State,

in respect of incapacity resulting from his or her employment in connection with war-like operations in which the Crown was engaged, being incapacity only from injury or disease or both referred to in paragraph (a),

the rate of the pension referred to in paragraph (a) shall be assessed at the rate per year at which it would, but for this sub-section, be assessed, reduced by the rate per year of the periodical payments referred to in paragraph (b) or an amount per year determined by the Commission to be the periodical payment equivalent of that lump-sum payment, as the case may be.

(2) Where—

(a) a veteran is entitled to receive, or is in receipt of, a pension in respect of incapacity from war-caused injury or war-caused disease, or both; and

(b) the veteran is also entitled to receive, or is also in receipt of, periodical payments, or a lump-sum payment—

(i) under the law of a foreign country; or

(ii) under the law of a State,

in respect of incapacity resulting from his or her employment in connection with war-like operations in which the Crown was engaged, not being incapacity only from the injury or disease, or both, referred to in paragraph (a),

the rate of those periodical payments, or the amount of that lump-sum payment, as the case may be, shall be taken into account in assessing the rate of the pension referred to in paragraph (a) so that the total of the payments by way of that pension and of the payments or payment referred


 

to in paragraph (b) do not exceed the total of the payments that the veteran would be entitled to receive by way of pension under this Part in respect of the incapacity referred to in paragraphs (a) and (b), assuming, for the purposes only of this sub-section, that the incapacity referred to in paragraph (b) was wholly incapacity from war-caused injury for the purposes of this Part.

(3) Where—

(a) the rate per year by which the rate of a veteran’s pension is required by sub-section (1) to be reduced exceeds the rate that, but for that sub-section, would be the rate per year of that pension; or

(b) the rate of the periodical payments or amount of the lump sum payment that is required by sub-section (2) to be taken into account in assessing the rate of a veteran’s pension is such as to require the assessment of the rate of that pension at a rate that does not exceed nought per centum,

the veteran is not entitled to be paid pension.

Increased rates of pension in certain cases

27. (1) This section applies to a veteran (other than a veteran to whom section 24 applies) who is being paid, or is eligible to be paid, a pension under this Part 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:

Column 1

Column 2

Kind of incapacity

Rate per fortnight

 

$

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

227.30

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

227.30

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

227.30

4. Two legs amputated and blinded in one eye...................................................

227.30

5. One arm and one leg amputated and blinded in one eye.............................

227.30

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

227.30

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

76.60

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

51.70

9. One arm amputated and blinded in one eye...................................................

44.50

10. One leg amputated and blinded in one eye...................................................

44.50

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

22.10

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

11.70

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

22.10

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

11.70

15. Blinded in one eye.............................................................................................

17.20

(2) Subject to sub-section (3), the rate at which pension is payable under section 22, 23 or 25 to a veteran to whom this section applies is a rate equal to the sum of—

(a) the rate applicable to that pension under section 22, 23 or 25, as the case requires; and


 

(b) the rate specified in column 2 of the table in sub-section (1) of this section opposite to the description of the kind of incapacity described in column 1 from when the veteran is suffering.

(3) Where the rate calculated in accordance with sub-section (2) in respect of the pension payable to a veteran exceeds the rate specified in sub-section 24 (4), the rate so calculated shall be reduced by the amount of excess.

(4) For the purpose of the application of a table in sub-section (1) to and in relation to a veteran—

(a) amputation of an arm of a veteran below the elbow shall, if the elbow action is lost as a result of the amputation, be treated as if an arm of the veteran had been amputated above the elbow;

(b) amputation of a leg of a veteran below the knee shall, if the knee action is lost as a result of the amputation, be treated as if a leg of the veteran had been amputated above the knee;

(c) amputation of a foot of a veteran shall be treated as amputation of a leg of the veteran below the knee;

(d) amputation of a hand of a veteran shall be treated as amputation of an arm of the veteran below the elbow; and

(e) a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated.

Capacity to undertake remunerative work

28. In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Guide to the assessment of rates of veterans’ pensions

29. (1) The Commission may, from time to time, prepare a written document, to be known as the “Guide to the Assessment of Rates of Veterans’ Pensions” setting out—

(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and


 

(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.

(2) The Commission may, from time to time, by instrument in writing, vary or revoke the approved “Guide to the Assessment of Rates of Veterans’ Pensions” prepared by it.

(3) A document prepared by the Commission in accordance with subsection (1), and an instrument under sub-section (2), have no force or effect unless and until approved by the Minister.

(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or reassessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.

(5) The percentage of incapacity of a veteran from war-caused injury or war-caused disease, or both, ascertained in accordance with the methods referred to in paragraph (1) (b) may be nought per centum.

(6) In preparing criteria by reference to which the extent of incapacity of a veteran from war-caused injury or war-caused disease, or both, shall be assessed, or in varying those criteria, the Commission shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury or disease and the extent (if any) to which incapacity resulting from the injury or disease may reasonably be capable of being reduced or removed.

(7) When a document prepared by the Commission in accordance with sub-section (1), or an instrument under sub-section (2), has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.

(8) The Commission shall make copies of the “Guide to the Assessment of Rates of Veterans’ Pensions” that has been approved by the Minister, and of any variation of that Guide that have been so approved, available upon application and payment of the prescribed fee (if any).

(9) Sections 48 (other than paragraphs (1) (a) and (b) and sub-section (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide to the Assessment of Rates of Veterans’


 

Pensions or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.

(10) For the purpose of the application the provisions of the Acts Interpretation Act 1901 in accordance with sub-section (9) of this section, a document referred to in that sub-section shall be deemed to have been made on the date on which it is approved by the Minister under this section.

Division 5—Rates of pensions payable to dependants of deceased veteran

Rates at which pensions payable to dependants

30. (1) Subject to sub-section (3), the rate at which pension is payable under this Part to a dependant of a deceased veteran, being a person who is the widow of the veteran, is a rate per fortnight equal to the sum of—

(a) $195.80 per fortnight; and

(b) $24.00 per fortnight.

(2) Subject to sub-section (3), the rate at which pension is payable under this Part to a dependant of a deceased veteran, being a person who is a child of the veteran, is—

(a) if the spouse of the deceased veteran is also dead—$82.00 per fortnight;

(b) if the spouse of the deceased veteran is alive, but the child is not being maintained by a parent, adoptive parent or step-parent— $82.00 per fortnight; or

(c) in any other case—$41.00 per fortnight.

(3) Where, under the law—

(a) of a foreign country; or

(b) of a State,

a dependant of a deceased veteran is entitled to receive, or is in receipt of, periodical payments, or a lump-sum payment, in respect of the death of the veteran resulting from employment in connection with warlike operations in which the Crown has been engaged, the rate of those payments, or the amount of that payment, shall be taken into account in assessing the rate of pension payable under this Part so that the total payments to the dependant shall not exceed the total payments that the dependant would be entitled to receive under this Part if the dependant were not entitled to receive, or were not in receipt of, those periodical payments or that lump-sum payment.

(4) In this section, “widow” and “spouse” have the same respective meanings as they have in Part III.


 

Division 6Reviews of pensions by Commission

Review by Commission

31. (1) Where—

(a) the time has not expired for making application to the Board under section 135 for a review of a decision of the Commission with respect to—

(i) a claim for a pension in accordance with section 14; or

(ii) an application for an increased pension, or for a pension, in accordance with section 15; or

(b) an application has been duly made to the Board under section 135 for a review of such a decision of the Commission but has not been determined by the Board,

the Commission may, in its discretion, review that decision and, if it varies that decision, it may approve as the date as from which the variation shall operate a date not earlier than the earliest date as from which the decision as so varied could have operated if it had been made by the Board, in substitution for the original decision, upon a review of the original decision.

(2) Where application has been duly made, otherwise than by the Commission, to the Administrative Appeals Tribunal under section 175 for a review of—

(a) a decision of the Commission that has been affirmed by the Board; or

(b) a decision made by the Board in substitution for a decision of the Commission,

but the review has not been determined, the Commission may, in its discretion, review that decision and, with the consent of the applicant, vary that decision and, if it varies that decision, it may approve as the date as from which the variation shall operate a date not earlier than the earliest date as from which the decision as so varied could have operated if the variation had been made by the Administrative Appeals Tribunal upon a review of the decision.

(3) The Commission may, for the purpose only of correcting a manifest error, vary the date approved by the Board as the date as from which a decision of the Board made in substitution for a decision of the Commission is to operate.

(4) Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision and, if it varies the decision, it may approve as the date as from which the variation shall operate a date, which may be a date before or after the commencement of the review, considered by the Commission to be appropriate in all the circumstances.


 

(5) For the purposes only of approving a date under sub-section (1) as the date as from which a variation of a decision to which paragraph (1) (a) applies shall operate, the Commission shall assume that an application had been made to the Board to review the decision on the date on which the Commission commenced its review of the decision.

(6) Where the Commission is satisfied that—

(a) having regard to any matter that affects the payment of a pension, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension, or a decision to vary the rate of the pension, was made; or

(b) by reason of a refusal or failure of any person to comply with a provision of this Act,

a pension should be cancelled or suspended, or the rate of a pension is higher than it should be, the Commission may, by determination in writing, cancel or suspend, or decrease the rate of, the pension with effect, subject to sub-section (7), from the date of the determination or such later date as is specified in the determination.

(7) Where a determination is made under sub-section (6)—

(a) by reason of the refusal or failure of a person to comply with a provision of this Act, other than—

(i) sub-section 127 (4) in relation to a notice under paragraph 127 (1) (f); or

(ii) sub-section 128 (4); or

(b) by reason that an amount has been paid by way of pension that, but for the false statement or misrepresentation of any person, would not have been paid,

a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.

(8) Where the Commission is satisfied that, having regard to any matter that affects the payment of a pension, the rate of the pension is less than it should be, the Commission may, by determination in writing, increase the rate of the pension with effect from the date of the determination, or such earlier date (not being a date more than 3 months before the date of the determination), or such later date, as is specified in the determination.

(9) Where the Commission determines that a pension be suspended—

(a) the Commission may, in the same determination, fix the date of recommencement of the pension; or

(b) if the Commission does not so fix the date of re-commencement, the Commission shall, in a subsequent determination, fix the date of re-commencement of the pension unless it makes a further determination cancelling the pension.


 

(10) If the Commission refuses or fails to review, under this section, a decision in relation to a pension, the refusal or failure is not subject to review by the Board or by the Administrative Appeals Tribunal.

(11) A decision by the Commission upon its review under this section of a decision in relation to a pension is not subject to review by the Board or the Administrative Appeals Tribunal unless the Commission cancels or suspends the pension, or varies the decision, reviewed by the Commission.

(12) This section applies to and in relation to a decision made before or after the commencement of this section but does not apply to or in relation to a decision of the Board referred to in sub-section 154 (1), or a decision of the Administrative Appeals Tribunal referred to in sub-section 178 (1), that is binding on the Commission by reason that the period specified in that sub-section has not expired.

Division 7Procedural

Commission may take evidence

32. (1) Subject to sub-section (2), the Commission may, for the purposes of its consideration of a claim submitted to it in accordance with sub-section 17 (2) or of its review under section 31 of a decision in relation to a pension—

(a) summon a person to appear before the Commission to give evidence and produce such documents (if any) as are referred to in the summons;

(b) take evidence on oath or affirmation;

(c) request—

(i) in the case of consideration of a claim—the claimant or the Secretary; or

(ii) in the case of a review under section 31—a person likely to be affected by the review or the Secretary,

to furnish to the Commission material believed to be under his or her control and relevant to the determination of the claim, or the review of the decision; and

(d) request—

(i) in the case of consideration of a claim—the claimant; or

(ii) in the case of a review under section 31—the person likely to be affected by the review,

to attend before the Commission for a discussion of the claim, or of the review, as the case may be, or to discuss the claim, or the review, as the case may be, with the Commission by telephone.

(2) Sub-section (1) does not authorize the Commission to summon—

(a) for the purpose of its consideration of a claim—the claimant; or

(b) for the purpose of a review under section 31—a person likely to be affected by the review,


 

to appear before the Commission to give evidence or to produce documents.

(3) Where a claimant requests the Commission for an opportunity—

(a) to attend before the Commission and discuss the claim with the Commission; or

(b) to discuss the claim with the Commission by telephone,

the Commission shall, if it is of the opinion that the request is in all the circumstances reasonable, comply with the request.

(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 the person will give will be true.

(5) The powers and duties of the Commission under this section may be exercised or performed on behalf of the Commission—

(a) in relation to a claim—by a person to whom the Commission has delegated its powers under section 19; or

(b) in relation to a review under section 31—by a person to whom the Commission has delegated its powers under that section,

and, for the purpose of the exercise of those powers or the performance of those duties, sub-sections (1), (2) and (3) and (6) to (10), inclusive, of this section have effect as if a reference to the Commission included a reference to that person.

(6) A person who has been summoned to appear as a witness before the Commission shall not, without reasonable excuse, and after tender of reasonable expenses, fail to appear in answer to the summons.

Penalty: $1,000 or imprisonment for 6 months, or both.

(7) A person who appears before the Commission as a witness in answer to a summons shall not, without reasonable excuse, refuse to be sworn or make an affirmation.

Penalty: $1,000 or imprisonment for 6 months, or both.

(8) Subject to sub-section (9), a person who appears before the Commission as a witness, otherwise than in answer to a summons, may be requested by the Commission to give evidence on oath, and, if the person declines to be sworn or make an affirmation, the person’s evidence shall not be received.

(9) Sub-section (8) does not apply to a person who attends before the Commission for a discussion of a claim or review at the request of the Commission under sub-section (1) or at his or her own request under sub-section (3) or has a discussion with the Commission by telephone under sub-section (3).

(10) A person who has been sworn, or made an affirmation, as a witness before the Commission shall not, without reasonable excuse, refuse to produce documents or to answer a question that the person is required to answer by the Commission.


 

Penalty: $1,000 or imprisonment for 6 months, or both.

(11) A person who has been sworn, or made an affirmation, as a witness before the Commission shall not, without reasonable excuse, give evidence that is false or misleading in a material particular.

Penalty: $2,000 or imprisonment for 12 months, or both.

(12) In this section—

“claim” includes application;

“claimant” includes applicant.

Withdrawal of claim or application

33. (1) A claimant or applicant may, at any time before the claim or application is determined by the Commission, by notice in writing forwarded to the Secretary at an office of the Department in Australia, withdraw the claim or application.

(2) The withdrawal of a claim or application does not prevent the claimant from subsequently making another claim under section 14, or the applicant from subsequently making another application under section 15.

Reasons for decisions to be given

34. (1) Where the Commission makes a decision—

(a) with respect to a claim for a pension in accordance with section 14, or an application for a pension or increased pension in accordance with section 15;

(b) by way of assessing the rate of a pension, or determining the date of commencement or cessation of a pension;

(c) to vary a decision upon a review carried out under section 31;

(d) to cancel or suspend a pension under sub-section 31 (6); or

(e) to decrease the rate of a pension under sub-section 31 (6) or to increase the rate of a pension under sub-section 31 (8),

the Commission shall make a written record of its decision together with a statement in writing setting out its findings on material questions of fact, referring to the evidence or other material on which those findings are based and giving its reasons for the decision.

(2) As soon as practicable after the Commission makes a decision referred to in sub-section (1), the Commission shall, subject to sub-section (3), cause to be served—

(a) in the case of a decision in respect of a claim or application—on the claimant or applicant; or

(b) in the case of a decision of a kind referred to in paragraph (1) (b), (c), (d) or (e)—on the person affected by the decision,

a copy of its decision and of the statement relating to the decision made by it in accordance with sub-section (1), together with particulars of the right of the person on whom it is served to have the decision reviewed by the Board.


 

(3) Where the statement prepared by the Commission in pursuance of sub-section (1) upon the making of a decision referred to in that sub-section contains or refers to any information, opinion or other matter—

(a) that, in the opinion of the Commission, is of a confidential nature; or

(b) that, in the opinion of the Commission, it might be prejudicial to the physical or mental health or well-being of the person on whom a copy of the statement is required to be served to communicate to that person,

the document served on the person in pursuance of sub-section (2) shall not contain or refer to that information, opinion or matter.

PART III—SERVICE PENSIONS

Division 1Interpretation

Interpretation

35. (1) In this Part, unless the contrary intention appears—

“allied mariner” means a person who—

(a) was, during the period of hostilities specified in paragraph (b) of the definition of “period of hostilities” in this subsection—

(i) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in seagoing service on a ship that was engaged in trading;

(ii) a master, officer, seaman or apprentice employed in a lighthouse tender or pilot ship;

(iii) employed as a pilot; or

(iv) a master, officer, seaman or apprentice employed in sea-going service on a ship (being a hospital ship, troop transport, supply ship, tug, cable ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel) that was operated by, or on behalf of, a foreign country; and

(b) was at any time during the course of that employment during the period of hostilities specified in paragraph (b) of the definition of “period of hostilities” in this sub-section, on a ship that was—

(i) operating from a port in Australia or from a port in a Commonwealth country or an allied country;

(ii) engaged in trading with Australia or with a Commonwealth country or an allied country;

(iii) engaged in providing assistance or support to the Defence Force, or to the forces, or any part of the


 

forces, of a Commonwealth country or an allied country; or

(iv) engaged in providing assistance or support to Australia or to a Commonwealth country or an allied country,

but does not include—

(c) an Australian mariner;

(d) a person who has, at any time, been employed by a foreign country that was, at that time, at war with Australia; or

(e) a person who has, at any time, been employed—

(i) on a ship that operated to, or was operating from, a port in a country that was, at that time, at war with Australia;

(ii) on a ship that was engaged in trading with a country that was, at that time, at war with Australia; or

(iii) on a ship that was engaged in providing assistance or support to the enemy or to a country that was, at that time, at war with Australia;

“allied veteran” means a person who has been appointed or enlisted as a member of the defence force established by an allied country and has rendered continuous full-time service as such a member during a period of hostilities, other than such a person who has served at any time—

(a) in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or

(b) in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia;

“Australia” includes the external Territories;

“Australian mariner” means a person who was, during the period of hostilities specified in paragraph (b) of the definition of “period of hostilities” in this sub-section—

(a) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship registered in Australia that was engaged in trading between a port in a State or Territory and any other port;

(b) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship registered outside Australia who was, or whose dependants were, resident in Australia for at least 12 months immediately before he or she entered into the agreement or indenture;

(c) a master, officer, seaman or apprentice employed on a lighthouse tender, or pilot ship of the Commonwealth or of a State;


 

(d) a pilot employed or licensed by Australia or a State or by an authority constituted by or under a law of the Commonwealth or of a State;

(e) a master, officer, seaman or apprentice employed in sea-going service on a ship owned in Australia and operating from an Australian port, being a hospital ship, troop transport, supply ship, tug, cable ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel;

(f) a member or employee of the Commonwealth Salvage Board engaged in sea-going service under the direction of that Board; or

(g) a master, officer, seaman or apprentice employed in sea-going service on a ship registered in New Zealand who the Commission is satisfied was engaged in Australia and is not entitled to compensation under a law of a Commonwealth country providing for the payment of pensions and other payments to seamen who suffered death or disablement as a result of World War 2;

“benevolent home” means a home that is a benevolent home for the purposes of the Social Security Act 1947;

“carer’s service pension” means a carer’s service pension granted to a person under section 41;

“Commonwealth veteran” means a person who rendered continuous full-time service as a member of the naval, military or air forces, of the nursing or auxiliary services or of the women’s branch of the naval, military or air forces of a Commonwealth country during a period of hostilities;

“fishing vessel” means a ship employed in connection with the occupation of sea fishing for profit;

“government-in-exile”, in relation to an allied country, includes a person, or group of persons, claiming to represent, or administer, the country or a part of the country or the people of the country;

“Government rent” means—

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

(i) The Housing Commission of New South Wales;

(ii) the Director, within the meaning of the Housing Act 1983 of Victoria;

(iii) The Queensland Housing Commission;

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

(v) the South Australian Housing Trust;

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


 

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

(viii) the Northern Territory Housing Commission;

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

(c) rent payable to the Commonwealth in respect of any accommodation in the Australian Capital Territory or in the Jervis Bay Territory, other than rent of a kind specified by the Minister for Social Security, by notice published in the Gazette, for the purposes of paragraph (c) of the definition of “Government rent” in sub-section 6 (1) of the Social Security Act 1947;

income”, in relation to any person, means any personal earnings, moneys, valuable consideration or profits earned, derived or received by that person for his or her own use or benefit by any means from any source whatsoever, within or outside Australia, and includes a periodical payment or benefit by way of gift or allowance, but does not include—

(a) a payment under this Part, a payment under the Social Security Act 1947, the value of any treatment, training or goods provided under that Act, or a payment under section 9 of the Tuberculosis Act 1948;

(b) the value of emergency relief or like assistance;

(c) the value of any assistance provided by an eligible organization within the meaning of the Homeless Persons Assistance Act 1974, being assistance by way of the provision of accommodation or meals or of a ticket, voucher or token that may be exchanged for accommodation or meals;

(d) a payment under the Handicapped Persons Assistance Act 1974;

(e) a payment of domiciliary nursing care benefit under Part Vb of the National Health Act 1953;

(f) a payment under a law of the Commonwealth, being a law having an object of assisting persons to purchase or build their own homes;

(g) a payment made to a person for, or in respect of, a child of the person;

(h) insurance or compensation payments made by reason of the loss of, or damage to, buildings, plant or personal effects;

(j) moneys from the investment of payments of the kind referred to in paragraph (h), being an investment for a period not exceeding 12 months or such longer period as the Commission, for any special reason in a particular case, allows after the receipt of those payments;


 

(k) in the case of a person who pays, or is liable to pay, rent— a payment by way of rent subsidy made by the Commonwealth, by a State or Territory or by an authority of the Commonwealth or of a State or Territory, to or on behalf of the person who pays, or is liable to pay, rent;

(m) a payment received by a trainee in full-time training under a program included in the programs known as the Labour Force Programs, to the extent that the payment includes one or more of the following amounts:

(i) an amount calculated by reference to a rate of unemployment benefit under Part VII of the Social Security Act 1947;

(ii) an amount known as the training component;

(iii) an amount by way of a living away from home allowance;

(n) a payment received by a person under the scheme known as the New Enterprise Incentive Scheme;

(o) a benefit under a law of the Commonwealth relating to the provision of pharmaceutical, sickness or hospital benefits, or of medical or dental services;

(p) a payment made by an organization registered under a law referred to in paragraph (o) for or in respect of expenses incurred by a person for hospital, medical or dental treatment;

(q) in the case of a member of—

(i) the Australian Naval Reserve;

(ii) the Naval Emergency Reserve Forces;

(iii) the Australian Army Reserve;

(iv) the Australian Air Force Reserve;

(v) the Air Force Emergency Force; and

(vi) the Regular Army Emergency Reserve,

the pay and allowances paid to the person as such a member (other than pay and allowances in respect of continuous full-time service) and, in the case of a member of a Force referred to in sub-paragraph (ii), (v) or (vi), any gratuity paid to the member by reason of a calling out for continuous service of that Force or of a part of that Force;

(r) a payment to a veteran by way of—

(i) attendant allowance under section 98;

(ii) recreation transport allowance under section 104;

(iii) an allowance for the running and maintenance of a motor vehicle under the Vehicle Assistance Scheme referred to in section 105;

(iv) decoration allowance under section 102;

(v) Victoria Cross allowance under section 103; or


 

(vi) clothing allowance under section 97;

(s) a payment to a mariner under the Seamen’s War Pensions and Allowances Act 1940 of a kind similar to a kind of payment referred to in paragraph (r);

(t) a periodical payment or benefit by way of gift or allowance from the father, mother, son, daughter, brother or sister of the person; or

(u) that part of the value of board or lodging, or board and lodging, received by the person that exceeds $65 per year;

“married veteran” means a veteran who is a married person within the meaning of sub-section (6) of this section;

“period of hostilities” means—

(a) World War 1 from its commencement to and including 11 November 1918;

(b) World War 2 from its commencement to and including 29 October 1945;

(c) the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included);

(d) the period of hostilities in respect of Malaya from 29 June 1950 to 30 August 1957 (both included); or

(e) the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included);

“prescribed person” means a person who is a prescribed person for the purposes of Part V;

“prescribed student child” in relation to a person, means a child of the person, being a child in respect of whom a determination under sub-section (15) is in force;

“property” includes property situated outside Australia;

“remote area allowance” means an allowance granted to a service pensioner under section 57;

“rent”, in relation to a person eligible to receive a service pension, a spouse’s service pension or a carer’s service pension, means rent, not being Government rent, in respect of premises, or a part of premises, occupied by the person as the person’s home, and includes amounts payable by the person for—

(a) lodging or board and lodging;

(b) the use of a site for—

(i) a caravan or other vehicle; or

(ii) a structure,

occupied by the person as the person’s home; or

(c) the right to moor a vessel that is occupied by the person as the person’s home;


 

“rent assistance” means an allowance by way of rent assistance granted to a service pensioner under section 55;

“service pension” means a service pension granted to a veteran under section 38 or 39;

“service pensioner” means a person in receipt of a service pension, a wife’s service pension or a carer’s service pension;

“unmarried person” means a person who is not a married person for the purpose of this Part;

“veteran” means—

(a) a veteran as defined by section 5;

(b) a Commonwealth veteran;

(c) an allied veteran;

(d) an Australian mariner; or

(e) an allied mariner;

“wife’s service pension” means a wife’s service pension granted to the wife of a veteran under section 40.

(2) In this Part—

(a) a reference to the defence force established by a Commonwealth country shall be read as a reference to the naval, military or air forces of the country, the nursing and auxiliary services of the naval, military or air forces of the country or the women’s branch of the naval, military or air forces of the country; and

(b) a reference to the defence force established by an allied country shall be read as a reference to—

(i) the regular naval, military or air forces;

(ii) the nursing or auxiliary services of the regular naval, military or air forces; and

(iii) the women’s branch of the regular naval, military or air forces,

raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services—

(iv) were formally appointed to, or enlisted in, those forces or services;

(v) were required to wear uniforms or insignia distinguishing them as members of those forces or services;

(vi) were required to carry arms openly; and

(vii) were subject to the rules and conventions of warfare.

(3) In relation to any period during which there was, with respect to an allied country, a government-in-exile, a reference in this Part to the defence force established by an allied country shall be read as including a reference to—

(a) the regular naval, military or air forces;


 

(b) the nursing or auxiliary services of the regular naval, military or air forces; and

(c) the women’s branch of the regular naval, military or air forces,

raised by that government-in-exile and operated by it with regular military-like lines of command, that is to say, raised and operated in such a manner that sub-paragraphs (2) (b) (iv), (v), (vi) and (vii) were satisfied in respect of the members of those forces and services.

(4) Where a person, being the claimant for a service pension satisfies the Commission—

(a) that the person had been appointed or enlisted as a member of the forces or services of an allied country or of the government-in-exile of an allied country, being forces or services of a kind referred to in sub-paragraph (2) (b) (i), (ii) or (iii) or paragraph (3) (a), (b) or (c), as the case may be;

(b) that those forces or services were raised and operated in such a manner that sub-paragraphs (2) (b) (iv) and (vii) were satisfied in respect of those forces or services; and

(c) that the person was not required, as such a member, to wear a uniform or insignia distinguishing the person as a member of those forces or services, to carry arms at all or to carry arms openly, and that, having regard to the conditions existing, at the time the person served in those forces or services, in the parts of that country in which the person so served, it would have been unreasonable for the person to have been required to wear such a uniform or insignia, to carry arms or to carry arms openly, as the case may be,

the Commission shall determine that the person shall, for the purposes of the definition of “allied veteran” in sub-section (1), be treated as a person who has been appointed or enlisted as a member of the defence force established by that allied country or that government-in-exile, as the case may be.

(5) For the purposes of this Part, a person resident in Papua New Guinea after it became an independent sovereign state, being the spouse of a service pensioner who is, by virtue of sub-section 5 (5), to be deemed to be a resident of Australia, shall be deemed to be a resident of Australia.

(6) In this Part—

(a) a reference to the wife of a person shall be read as a reference—

(i) to a woman who is legally married to the person; or

(ii) if the person is a man—to a woman who is living with the person as his wife on a bona fide domestic basis although not legally married to the person, whether or not the person is legally married to another person who is still alive;

(b) a reference to the widow of a deceased person shall be read as a reference to a woman who was the wife of the person immediately before the person’s death;


 

(c) a reference to the husband of a person shall be read as a reference—

(i) to a man who is legally married to the person; or

(ii) if the person is a woman—to a man who is living with the person as her husband on a bona fide domestic basis although not legally married to the person, whether or not the person is legally married to another person who is still alive;

(d) a reference to the widower of a deceased person shall be read as a reference to a man who was the husband of the person immediately before the person’s death;

(e) a reference to the spouse of a person (including a deceased person) shall be read as a reference—

(i) if the person is or was a man—to the wife or widow, as the case requires, of the person; or

(ii) if the person is or was a woman—to the husband or widower, as the case requires, of the person; and

(f) a reference to a married person shall be read as a reference—

(i) to a person who is legally married to another person and is not living separately and apart from that other person on a permanent basis; or

(ii) to a person who is living, in the case of a man, with a woman as her husband, or, in the case of a woman, with a man as his wife, on a bona fide domestic basis although not legally married to that woman or man (whether or not the person is legally married to another person who is still alive),

other than such a person in respect of whom a determination under sub-section (7) is in force.

(7) The Commission may, by instrument in writing, determine that, for any special reason, a person who, but for the determination, would be a married person for the purposes of this Part shall not be treated as such a person.

(8) Notwithstanding any other provision of this Act, a child shall not be treated, for the purposes of this Part, as a child of a person who is claiming or receiving a service pension, unless—

(a) the child is living in Australia, whether or not the child is temporarily absent from Australia;

(b) the child is living outside Australia, the person is living in Australia, the day that is the relevant day in relation to the person in respect of the child has not occurred and the Commission is satisfied that it is likely that the person will bring the child to live in Australia on or before that day; or

(c) if the person is in receipt of a service pension—the child is living with the person outside Australia.


 

(9) Subject to sub-section (10), the relevant day, for the purposes of sub-section (8), in relation to a person in respect of a child, is the day that falls on the fourth anniversary of the earliest day that was a day on which—

(a) the person was living in Australia;

(b) the child was living outside Australia; and

(c) the child was a child of the person.

(10) Where, for any special reason in any particular case, the Commission is of the opinion that, for the purposes of sub-section (8), the relevant day in relation to a person in respect of a child should be a later day than the day that would, but for this sub-section, be that relevant day, the Commission may determine that, for the purposes of that sub-section, that later day is the relevant day in relation to that person in respect of that child.

(11) If a law of a State or of the Northern Territory alters the name of an authority specified in paragraph (a) of the definition of “Government rent” in sub-section (1), the reference in that definition to that authority shall be read as a reference to that authority under its new name.

(12) For the purposes of this Part, unless the contrary intention appears—

(a) the value of the property of, or of the property of a particular kind of, a married person shall be taken to be one-half of the sum of the value of the property of, or of property of that kind of, the person and the spouse of the person; and

(b) the annual rate of the income of a married person shall be taken to be one-half of the sum of the annual rates of income of the person and the spouse of the person.

(13) A reference in this Part to the value of particular property of a person, or to the value of a charge or encumbrance on property of a person, shall, if the property is owned by the person jointly or in common with another person or other persons, be read as a reference to the value of the person’s interest in the property, or to the value of that charge or encumbrance in so far as it relates to the person’s interest in that property, as the case may be.

(14) Where a person who is eligible, under a particular section, to receive a service pension, a wife’s service pension or a carer’s service pension is granted that pension, then, for the purposes of this Act, that pension shall be deemed to have been granted under that section.

(15) Where the Commission is satisfied that payments under the scheme known as the Tertiary Education Assistance Scheme or the scheme known as the Secondary Allowance Scheme are being or will be made to or in respect of a student child, other than a child by reference to whom the rate of those payments is increased, the Commission shall, by determination in writing, declare that child to be a prescribed student child for the purposes of this Part as from a date specified in the determination, which may be a date before the date on which the determination is made but shall not be a date before 1 January 1986.


 

Meaning of qualifying service

36. For the purposes of this Part, a person has rendered qualifying service—

(a) if the person has, as a member of the Defence Force—

(i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of “period of hostilities” in sub-section 35 (1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship;

(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the Army General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp or the Bomb and Mine Clearance 1945-49 Clasp;

(iii) rendered service outside Australia—

(a) as a member of a unit of the Defence Force that was allotted for duty; or

(b) while the person was allotted for duty,

in an area described in item 1, 2, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description; or

(iv) rendered service outside Australia—

(a) as a member of a unit of the Defence Force that was allotted for duty; or

(b) while the person was allotted for duty,

in an area described in item 3 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description, being service in respect of which the person has been awarded, or has become eligible to be awarded, a British General Service Medal with the Malaya Clasp;

(b) if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged—

(i) service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or

(ii) service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal;


 

(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy;

(d) if the person was, during a period of hostilities specified in paragraph (a) or (b) of the definition of “period of hostilities” in sub-section 35 (1), employed by the Commonwealth on a special mission outside Australia, and, in the course of carrying out that mission, incurred danger from hostile forces of the enemy;

(e) if the person is an eligible civilian within the meaning of sub-section 5 (6) who was, during a period of hostilities specified in paragraph (b) of the definition of “period of hostilities” in sub-section 35 (1), detained by the enemy;

(f) if the person is a person in respect of whom a pension is payable in pursuance of sub-section 13 (6);

(g) if the person is an Australian mariner as defined by sub-section 35 (1) who, in the course of—

(i) any service rendered by the person in employment of a kind specified in paragraph (a), (b), (c), (e) or (g) of that definition;

(ii) any service rendered by the person as a pilot referred to in paragraph (d) of that definition; or

(iii) any service rendered by the veteran as a member or employee of the Commonwealth Salvage Board,

was on a ship or in an area at a time when the person incurred danger from hostile forces of the enemy on the ship or in the area, as the case may be; or

(h) if the person is an allied mariner who, in the course of any service rendered by the person in employment of a kind to which paragraphs (a) and (b) of the definition of “allied mariner” in sub-section 35 (1) applies—

(i) was detained by the enemy; or

(ii) was in an area service in which would, if the person had been a member of the Defence Force, have entitled the person to the award of a campaign medal and incurred, while he or she was in that area, danger from hostile forces of the enemy.

Method of calculation of income

37. (1) In calculating, for the purposes of this Part, the income of a veteran, where a child is a dependant of the veteran, the income of the veteran shall be reduced by—


 

(a) if the veteran is an unmarried person or a married person whose spouse is not in receipt of a service pension, a wife’s service pension, a carer’s service pension, or a pension under Part III, a benefit under Part IVaaa, an allowance under Part VIIa or a rehabilitation allowance under Part VIII of the Social Security Act 1947—$312 per year less the annual amount of any payment, not being a payment under Part III of this Act, under the Social Security Act 1947 or under the Tuberculosis Act 1948, received by the veteran, or, if the veteran is a married person, the spouse of the veteran, for or in respect of the child; or

(b) if the veteran is a married person whose spouse is in receipt of a pension, benefit or allowance referred to in paragraph (a)—$156 per year less one-half of the annual amount of any payment, not being a payment under Part III of this Act, under the Social Security Act 1947 or under the Tuberculosis Act 1948, received by the veteran, or the spouse of the veteran, for or in respect of the child.

(2) Sub-section (1) shall not be taken into account in the calculation of income for the purpose of sub-section 47 (10) or (11) or 48 (5) or (6).

(3) In calculating, for the purposes of this Part, the income of the spouse of a veteran, if, by virtue of paragraph (1) (b), the income of the veteran is required to be reduced by an amount, the income of the spouse of the veteran shall be reduced by an amount equal to that amount.

(4) In calculating the income of a person for the purpose of the application of sub-section 47 (4), (5), (10) or (11) or 48 (4), (5) or (6), the following payments shall be disregarded:

(a) a payment of an instalment of pension under Part II or IV;

(b) a payment of an instalment of a pension under the Seamen’s War Pensions and Allowances Act 1940;

(c) a payment, other than a payment referred to in paragraph (a) or (b), that is a payment in respect of incapacity or death resulting from employment in connection with a war or war-like operations in which the Crown has been engaged;

(d) a payment by way of an allowance, not being loss of earnings allowance, under Part VI of this Act; and

(e) a payment, by way of an allowance, under regulation 37 of the Seamen’s War Pensions and Allowances Regulations.

Division 2—Eligibility for service pension

Eligibility for service pension—age

38. (1) Subject to this Act, a veteran who has rendered qualifying service and has attained the age of—

(a) in the case of a male veteran—60 years; or

(b) in the case of a female veteran—55 years,


 

is eligible to receive a service pension under this Part.

(2) Subject to sub-section (3), a person who is a veteran by reason only that the person is a Commonwealth veteran, an allied veteran or an allied mariner is not eligible to receive a service pension under this Part unless the person has, at any time, been continuously resident in Australia for a period of not less than 10 years.

(3) Where—

(a) a veteran has had more than 1 period of residence in Australia;

(b) the longer or longest of those periods is less than 10 years but is not less than 5 years; and

(c) the aggregate of those periods exceeds 10 years,

in the application of sub-section (2) to the veteran, the period specified in that sub-section shall be deemed to be reduced by a period equal to the period by which that aggregate exceeds 10 years.

(4) A veteran who has ceased to reside in Australia after the veteran lodged a claim for a service pension is not eligible to receive a service pension under this Part unless, if the claim were granted, the earliest date as from which the pension could be authorized to be paid were a date not later than the date on which the veteran ceased to reside in Australia.

Eligibility for service pension—invalidity

39. (1) Subject to this Act, a veteran who—

(a) has rendered qualifying service; and

(b) is, in the opinion of the Commission, permanently incapacitated for work,

is eligible to receive a service pension under this Part.

(2) Subject to sub-sections (3) and (4), a person who is a veteran by reason only that the person is a Commonwealth veteran, an allied veteran or an allied mariner is not eligible to receive a service pension under this Part unless the person has, at any time, been continuously resident in Australia for a period of not less than 10 years.

(3) Where—

(a) a veteran has had more than 1 period of residence in Australia;

(b) the longer or longest of those periods is less than 10 years but is not less than 5 years; and

(c) the aggregate of those periods exceeds 10 years,

in the application of sub-section (2) to the veteran, the period specified in that sub-section shall be deemed to be reduced by a period equal to the period by which that aggregate exceeds 10 years.

(4) Where—

(a) a veteran became permanently incapacitated for work while in Australia or during a temporary absence from Australia;


 

(b) the veteran’s permanent incapacity for work was not brought about with a view to obtaining a service pension or a pension under the Social Security Act 1947; and

(c) the veteran does not have an enforceable claim against any person, under any law or contract, for adequate compensation in respect of the permanent incapacity,

sub-section (2) does not apply to or in relation to the veteran.

(5) A veteran who has ceased to reside in Australia after the veteran lodged a claim for a service pension is not eligible to receive a service pension under this Part unless, if the claim were to be granted, the earliest date as from which the pension could be authorized to be paid were a date not later than the date on which the veteran ceased to reside in Australia.

(6) For the purposes of this section, a person shall be deemed to be permanently incapacitated for work—

(a) if the degree of permanent incapacity for work is not less than 85%; or

(b) if the person is permanently blinded in both eyes.

Eligibility for wife’s service pension

40. (1) Subject to this Part—

(a) the wife of, a veteran is eligible to receive a wife’s service pension under this Part if the veteran is in receipt of a service pension; or

(b) the widow of a deceased veteran is eligible to receive a wife’s service pension under this Part—

(i) if the veteran was, immediately before his death, in receipt of a service pension; or

(ii) if the veteran had made a claim for a service pension before the veteran died and the Commission determines that a service pension would have been granted to the veteran if the veteran had not died.

(2) Where a veteran who makes a claim for a service pension at a time when the veteran is in receipt of an age pension or invalid pension under the Social Security Act 1947 dies before the claim is determined, the Commission shall, in determining, for the purposes of sub-paragraph (1) (b) (ii), whether or not a service pension would have been granted to the veteran if the veteran had not died, disregard the fact that the veteran was in receipt of that age pension or invalid pension.

(3) The wife of a veteran, or widow of a deceased veteran, who has ceased to reside in Australia after the wife, or widow, lodged a claim for a wife’s service pension is not eligible to receive a wife’s service pension unless, if the claim were granted, the earliest date as from which the pension could be authorized to be paid were a date not later than the date on which the wife, or widow, ceased to reside in Australia.


 

Eligibility for carer’s service pension

41. (1) Subject to this Part, where a relative of a severely handicapped veteran who is in receipt of a service pension under this Part, personally provides constant care and attention for the veteran in a home of the relative and the veteran, the relative is eligible to receive a carer’s service pension under this Part.

(2) Where a relative of a severely handicapped veteran who is providing constant care and attention for the veteran temporarily ceases to provide that care and attention—

(a) for a period of not more than 4 weeks in any period of 12 months; or

(b) for such other period as the Commission, for any special reason in any particular case, approves in writing,

the relative shall not be taken to cease to be eligible to receive a carer’s service pension by reason only of that cessation.

(3) In this section—

“relative”, in relation to a veteran, means—

(a) the spouse of the veteran;

(b) a grandparent, parent, step-parent, parent-in-law, brother, sister, half-brother, half-sister, step-brother, step-sister, child, adopted child, step-child, son-in-law, daughter-in-law or grandchild of the veteran;

(c) a person who has been a guardian of the veteran or a person to whom the veteran is guardian; or

(d) any other person who the Commission determines in writing should, in the special circumstances of the case, be treated as a relative of the veteran for the purposes of this section;

“severely handicapped veteran” means a veteran who—

(a) has a physical or mental disability;

(b) by reason of that disability, needs constant care and attention; and

(c) is likely to need constant care and attention permanently or for an extended period.

Restrictions on dual pensions

42. (1) Notwithstanding anything contained in this Part—

(a) a person is not entitled to receive more than one service pension at the same time;

(b) a person is not entitled to receive, at the same time, a service pension and—

(i) a pension under Part III or IV;

(ii) a benefit under Part IVaaa or VII;

(iii) an allowance under Part VIIa; or


 

(iv) a rehabilitation allowance under Part VIII,

of the Social Security Act 1947;

(c) a person is not entitled to receive, at the same time, a service pension and an allowance under section 9 of the Tuberculosis Act 1948; and

(d) a widow of a deceased veteran who is in receipt of a prescribed pension in respect of the death of the veteran is not entitled to receive, at the same time, a wife’s service pension as the widow of that deceased veteran or as the wife of another veteran.

(2) In sub-section (1)—

“prescribed pension” means—

(a) a pension payable under Part II or IV;

(b) a pension payable under the Seamen’s War Pensions and Allowances Act 1940, other than an attendant’s allowance under section 21 of that Act;

(c) pension, or compensation of a periodical nature, payable under section 13 of the Defence (Transitional Provisions) Act 1946, other than an attendant’s allowance payable under that section,

and includes a pension that is payable under the law of a foreign country and is, in the opinion of the Commission, similar in character to a pension of a kind referred to in paragraph (a), (b) or (c).

“service pension” includes wife’s service pension and carer’s service pension.

(3) Sub-section (4) applies to a person in respect of a period that is a pension period in relation to the person if—

(a) the person is entitled to receive, during that pension period—

(i) a payment of a service pension; and

(ii) a payment under the scheme known as the New Enterprise Incentive Scheme; and

(b) in a case where the person is a married person—the spouse of the person is not entitled to receive, during that pension period—

(i) if the person is a man—a wife’s service pension, or a carer’s service pension by reason of being the wife of the man; or

(ii) if the person is a woman—a carer’s service pension by reason of being the husband of the woman.

(4) Where this sub-section applies to a person in respect of a period that is a pension period in relation to the person, then—

(a) in a case where the amount that, but for this sub-section, would be the amount of the payment (in this sub-section referred to as the “pension payment”) referred to in sub-paragraph (3) (a) (i) that the person is entitled to receive during that period is higher than the amount of the payment (in this sub-section referred to as the


 

“scheme payment”) referred to in sub-paragraph (3) (a) (ii) that the person is entitled to receive during that period—the amount of the pension payment shall be reduced by deducting the amount of the scheme payment; or

(b) in any other case—the pension payment shall be reduced to nil.

(5) Sub-sections (6) and (7) apply to a married person (in this sub-section and in sub-sections (6) and (7) referred to as the “relevant person”) and to the spouse of the relevant person, in relation to a period that is a pension period in relation to the relevant person if—

(a) the relevant person is entitled to receive, during that pension period—

(i) a payment of a service pension, of a wife’s service pension or of a carer’s service pension in respect of his or her spouse; and

(ii) a payment under the scheme known as the New Enterprise Incentive Scheme; and

(b) the spouse of the relevant person is entitled to receive, during that pension period, a payment of such a pension.

(6) Where this sub-section applies to a relevant person in respect of a period that is a pension period in relation to that person, then—

(a) in a case where the amount that, but for this sub-section, would be the amount of the payment (in this sub-section referred to as the “pension payment”) referred to in sub-paragraph (5) (a) (i) that the relevant person is entitled to receive during that period is higher than the amount that is one-half the amount of the payment (in this sub-section referred to as the “scheme payment”) referred to in sub-paragraph (5) (a) (ii) that the relevant person is entitled to receive during that period—the amount of the pension payment shall be reduced by deducting the amount that is one-half of the amount of the scheme payment; or

(b) in any other case—the pension payment shall be reduced to nil.

(7) Where this sub-section applies to the spouse of a relevant person in respect of a period that is a pension period in relation to a relevant person, then—

(a) in a case where the amount that, but for this sub-section, would be the amount of the payment (in this sub-section referred to as the “pension payment”) referred to in paragraph (5) (b) that the spouse is entitled to receive during that period is higher than the amount that is one-half of the amount of the payment (in this sub-section referred to as the “scheme payment”) referred to in sub-paragraph (5) (a) (ii) that the relevant person is entitled to receive during that period—the amount of the pension payment shall be reduced by deducting the amount that is one-half of the amount of the scheme payment; or

(b) in any other case— the pension payment shall be reduced to nil.


 

(8) In sub-sections (3), (4), (5), (6) and (7), “pension period”, in relation to a person, means a period of 2 weeks commencing on the day immediately following a day on which the person receives a payment of a service pension, a wife’s service pension or a carer’s service pension, as the case requires.

Division 3Claims for service pensions

Claim for service pension, &c.

43. (1) A claim for a service pension, for a wife’s service pension or for a carer’s service pension—

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

(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim;

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).

(2) A claim for a service pension for a veteran, a wife’s service pension for the wife or widow of a veteran or a carer’s service pension for the relative of a veteran may be made—

(a) by the prescribed person referred to in sub-section (3);

(b) with the approval of that prescribed person, by another person on behalf of that prescribed person; or

(c) in a case where that prescribed person is unable, by reason of physical or mental incapacity, to approve another person to make the claim on his or her behalf—by another person, being a person approved by the Commission, on behalf of that prescribed person.

(3) For the purpose of sub-section (2)—

(a) if the claim is for a service pension for a veteran, the veteran is the prescribed person;

(b) if the claim is for a wife’s service pension for the wife or widow of a veteran, the wife or widow is the prescribed person; or

(c) if the claim is for a carer’s service pension for a relative of a veteran, the relative is the prescribed person.

(4) Subject to sub-section 63 (4), a veteran is not eligible to lodge a claim for a service pension unless the veteran is residing in, and is physically present in, Australia.

(5) Subject to sub-section 63 (4)—

(a) the wife or widow of a veteran is not eligible to lodge a claim for a wife’s service pension unless she is residing in, and is physically present in, Australia; and


 

(b) the relative of a veteran is not eligible to lodge a claim for a carer’s service pension unless the relative is residing in, and is physically present in, Australia.

(6) A veteran may, instead of making a claim for a service pension, make a claim for a decision that the veteran has rendered qualifying service and, if a veteran does so—

(a) the claim shall be made, dealt with and determined under this Act in like manner as a claim for a service pension is required to be made, dealt with and determined;

(b) a decision that the veteran has not rendered qualifying service is subject to review as if it were such a decision given in the course of determining a claim for a service pension; and

(c) a decision of the Commission, the Board or the Administrative Appeals Tribunal that the veteran has rendered qualifying service is, for all purposes of this Act, evidence that the veteran had rendered qualifying service.

Investigation of claim

44. (1) Where a claim for service pension is made in accordance with section 43, the Secretary shall cause an investigation to be made into the matters to which the claim relates.

(2) The Secretary shall, upon completion of the investigation in respect of a claim, cause the claim to be submitted to the Commission for its consideration and determination.

(3) A claim submitted to the Commission under sub-section (2) shall be accompanied by—

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

(b) any documents relevant to the claim under the control of the Department, including any evidence or documents relevant to the claim obtained in the course of the investigation of the claim under sub-section (1).

(4) In this section, “service pension” includes wife’s service pension and carer’s service pension.

Duties of Commission in relation to service pensions

45. It is the duty of the Commission in considering a claim for a service pension, a wife’s service pension or a carer’s service pension submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim.

Determination of claim for service pension

46. (1) Where a claim for a service pension is submitted to the Commission in accordance with sub-section 44 (2), the Commission shall consider the claim and, after consideration of all matters that, in the opinion of the Commission, are relevant, including, but without limiting the generality


 

of the foregoing, the evidence and documents submitted with the claim in accordance with sub-section 44 (3) and any further evidence subsequently submitted to the Commission in relation to the claim, shall determine the claim.

(2) Where a service pension is granted to a person under this Part, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than the date on which the claim for service pension, in accordance with the form approved for the purposes of paragraph 43 (1) (a) was received at an office of the Department in Australia.

(3) Where—

(a) a person makes a claim for a service pension in writing, but otherwise than in accordance with the form approved for the purposes of paragraph 43 (1) (a);

(b) the person subsequently makes a claim for a service pension in accordance with the 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 claim in accordance with the form so approved; or

(ii) within 3 months after the person had been so notified; and

(c) a service pension is granted to the person under this Part upon consideration of that claim in accordance with the form so approved,

the Commission may, subject to this Act, approve payment of the service pension from and including a date not earlier than the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.

(4) In this section, “service pension” includes wife’s service pension and carer’s service pension.

Division 4Rates of service pensions

Rate of veteran’s service pension

47. (1) The rate of a service pension granted to a veteran is—

(a) in the case of an unmarried veteran or a married veteran whose spouse is not in receipt of—

(i) a pension under this Part;

(ii) a pension under Part III, a benefit under Part VII, an allowance under Part VIIA or a rehabilitation allowance under Part VIII of the Social Security Act 1947; or

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

$5,090.80 per year; or

(b) in any other case—$4,245.80 per year,

increased or reduced to the extent (if any) provided by sub-sections (3), (4), (5), (6), (7), (8), (9), (10) and (11).


 

(2) Where the Commission is satisfied that—

(a) the living expenses of a married veteran and the spouse of the veteran are, or are likely to be, greater than they would otherwise be by reason that those persons are unable, as a result of the illness or infirmity of either or both of them, to live together in a matrimonial home; and

(b) the inability is likely to continue indefinitely,

the Commission may direct that sub-section (1) is to apply to the veteran as if the veteran were an unmarried veteran.

(3) Where a child is a dependant of a veteran, or children are dependants of a veteran, the rate of service pension applicable to the veteran under sub-section (1) shall, subject to sub-section (4), be increased—

(a) in the case of an unmarried veteran or a married veteran in relation to whom a direction under sub-section (2) is in force—by an amount per year equal to the sum of $520 per year and—

(i) $832 per year in respect of each child who is a dependant of the veteran and is not a prescribed student child of the veteran; and

(ii) $728 per year in respect of each child who is a dependant of the veteran and is a prescribed student child of the veteran; or

(b) in any other case by—

(i) $832 per year in respect of each child who is a dependant of the veteran and is not a prescribed student child of the veteran; and

(ii) $728 per year in respect of each child who is a dependant of the veteran and is a prescribed student child of the veteran.

(4) Where the rate of service pension applicable to a married veteran whose spouse is in receipt of a wife’s service pension or a carer’s service pension, a pension under Part III of the Social Security Act 1947, a benefit under Part IVaaa, an allowance under Part VIIA or an allowance under Part VIII of that Act (being, in the case of an allowance under Part VIII of that Act, an allowance the annual rate of which is determined by reference to Part III of that Act) is, subject to this sub-section, to be increased by sub-section (3)—

(a) the amount per year of the increase is reduced by—

(i) the amount (if any) per year by which the rate of income of the veteran exceeds $1,300 per year; or

(ii) an amount per year equal to 52 times the pension reduction amount (if any) applicable to the veteran divided by 250,

whichever is the greater or, if the amounts per year of the reductions calculated under sub-paragraphs (i) and (ii) are the same, by the amount calculated under sub-paragraph (i);


 

(b) if the amount per year of the increase is reduced by an amount calculated under sub-paragraph (a) (i)—

(i) the annual rate of the income of the veteran and the annual rate of the income of the veteran’s spouse shall each be deemed, for the purposes of sub-section (5) of this section and sub-section 48 (4), to be reduced by the amount per year of that reduction; and

(ii) no amount per annum is applicable in relation to the veteran under paragraph (5) (b) of this section or in relation to the spouse of the veteran under paragraph 48 (4) (b); and

(c) if the amount per year of the increase is so reduced by an amount calculated under sub-paragraph (a) (ii)—

(i) the value of the property of the veteran and the veteran’s spouse shall each be deemed, for the purposes of sub-section (5) of this section and sub-section 48 (4), to be reduced by an amount equal to 250 times the amount of that reduction divided by 52; and

(ii) no amount per year is applicable in relation to the veteran under paragraph (5) (a) of this section or in relation to the spouse of the veteran under paragraph 48 (4) (a).

(5) The annual rate that would, but for this sub-section, be the annual rate of service pension applicable to a veteran (not being a veteran who is permanently blinded in both eyes) by virtue of the preceding provisions of this section shall be reduced by—

(a) one-half of the amount (if any) per year by which the annual rate of income of the veteran exceeds—

(i) in the case of an unmarried veteran—$1,560 per year; or

(ii) in the case of a married veteran—$1,300 per year; or

(b) an amount per annum equal to 26 times the pension reduction amount (if any) applicable to the veteran divided by 250,

whichever is the greater or, if the amounts per year of the reductions calculated under paragraphs (a) and (b) are the same, by the amount calculated under paragraph (a).

(6) In the case of a veteran who is permanently blinded in both eyes—

(a) the rate of service pension shall not be increased by virtue of sub-section (3) unless the veteran would be eligible to receive a service pension under section 39 if—

(i) the veteran were not permanently blinded in both eyes; and

(ii) the veteran were permanently incapacitated for work; and

(b) if the veteran would be so eligible to receive a service pension under section 39, the amount of any increase under sub-section (3) of this section shall not exceed the maximum amount that could be included in that pension by virtue of that sub-section.


 

(7) Subject to sub-section (8), where a child is a dependant of a veteran who is permanently blinded in both eyes—

(a) if, by reason of the operation of sub-section (6), the rate of the service pension applicable to the veteran is not increased by virtue of sub-section (3), the service pension applicable to the veteran shall be increased by $832 per year; or

(b) if, by reason of the operation of sub-section (6), the amount per year of the increase in the rate of service pension applicable to the veteran that is effected by sub-section (3) is less than $832—the rate of that service pension shall be increased by the amount per year by which the amount per year of that increase is less than $832 per year.

(8) Sub-section (7) applies to a veteran who—

(a) has at least one child who is a dependant of the veteran; and

(b) does not have a child who is a dependant of the veteran and is not a prescribed student child,

as if references in that sub-section to $832 were references to $728.

(9) A married veteran whose spouse is not in receipt of a pension, benefit or allowance referred to in paragraph (1) (a) shall not be paid a service pension at a rate exceeding twice the rate at which service pension would be payable to the veteran if the spouse of the veteran were in receipt of a pension referred to in that paragraph.

(10) Where a veteran—

(a) has attained the age of 70 years;

(b) is in receipt of, or is qualified to receive, a service pension; and

(c) is—

(i) an unmarried veteran or a married veteran whose spouse is not in receipt of a pension, benefit or allowance referred to in paragraph (1) (a); or

(ii) a veteran in relation to whom a direction under sub-section (2) is in force,

the annual rate at which service pension is granted to the veteran shall not be less than—

(d) if the veteran is not a married veteran and has an annual rate of income exceeding $10,400 per year—$2,675.40 per year reduced by one-half of the amount per year by which the annual rate of income of the veteran exceeds $10,400 per year;

(e) if the veteran is a married veteran and has an annual rate of income exceeding $8,658 per year—$2,675.40 per year reduced by one-half of the amount per year by which the annual rate of income of the veteran exceeds $8,658 per year; or

(f) in any other case—$2,675.40 per year.

(11) Where a veteran—


 

(a) has attained the age of 70 years;

(b) is in receipt of, or is qualified to receive, a service pension; and

(c) is not a veteran referred to in paragraph (10) (c),

the annual rate at which that pension is granted to the veteran shall not be less than—

(d) if the veteran has an annual rate of income exceeding $8,658 per year—$2,230.80 per year reduced by one-half of the amount per year by which the annual rate of income of the veteran exceeds $8,658 per year; or

(e) in any other case—$2,230.80 per year.

(12) Sub-section (10) or (11)—

(a) does not apply in relation to a veteran if the annual rate of pension that would be applicable to the veteran under that sub-section is greater than the annual rate of pension applicable to the veteran apart from that sub-section (being a rate that was reduced by virtue of paragraph (5) (b)) and, where sub-section (10) or (11) does not, by virtue of this paragraph, apply in relation to the veteran, paragraph (5) (a) does not apply in relation to the veteran; and

(b) does not apply in relation to a veteran if—

(i) the veteran would, if he or she had not attained the age of 70 years, be eligible to receive remote area allowance under section 57; and

(ii) the sum of the amount of the fortnightly instalment of service pension that would be payable to the veteran if sub-section (5) were applicable to the veteran and the amount per fortnight of remote area allowance that would be payable to the veteran if the veteran were eligible to receive that allowance is greater than the amount of a fortnightly instalment of service pension payable to the veteran in accordance with sub-section (10) or (11).

(13) On and after 1 May 1986, paragraph (3) (a) shall be read as if “$520” were omitted and “$624” were substituted.

Rate of wife’s service pension

48. (1) Subject to this Part, the rate of a wife’s service pension is the annual rate specified in paragraph 47 (1) (b) increased or reduced to the extent (if any) provided by sub-sections (3), (4), (5) and (6) of this section.

(2) Where a direction under sub-section 47 (2) is in force in respect of a married veteran, the Commission may determine a rate of wife’s service pension, in respect of the wife of the veteran, not exceeding the annual rate specified in paragraph 47 (1) (a).

(3) Where—

(a) the annual rate of wife’s service pension in respect of the wife of a veteran is determined in accordance with sub-section (2), being a


 

determination made by reason of the illness or infirmity of the veteran; and

(b) the rate of service pension applicable to the veteran would, but for this sub-section, be increased by virtue of sub-section 47 (3),

sub-sections 47 (3), (4), (6) and (7) do not apply for the purpose of calculating the maximum rate of service pension applicable to the veteran, but the annual rate of wife’s service pension in respect of the wife shall be increased by the amount per year by which the rate of pension applicable to the veteran would, but for this sub-section, be so increased and sub-section 47 (4) applies to the increase as if it were an increase in the rate of the veteran’s service pension.

(4) The annual rate that would, but for this sub-section be the annual rate of wife’s service pension applicable to the wife of a veteran, or the widow of a deceased veteran, by virtue of the preceding provisions of this section shall be reduced by—

(a) one-half of the amount (if any) per year by which the annual rate of income of the wife or widow exceeds $1,300 per year; or

(b) an amount per year equal to 26 times the pension reduction amount (if any) applicable to the wife or widow divided by 250,

whichever is the greater, or, if the amount per year of the reduction calculated under paragraphs (a) and (b) are the same, by the amount calculated under paragraph (a).

(5) Where—

(a) the wife of a veteran, or the widow of a deceased veteran, has attained the age of 70 years;

(b) the wife or widow is in receipt of, or is qualified to receive, a wife’s service pension; and

(c) in the case of the wife of a veteran, a direction under sub-section 47 (2) is not in force in respect of the veteran,

the annual rate at which wife’s service pension is paid to the wife or widow shall not be less than—

(d) if the wife or widow has an annual rate of income exceeding $8,658 per year—$2,230.80 per year reduced by one-half of the amount per year by which the annual rate of her income exceeds $8,658 per year; or

(e) in any other case—$2,230.80 per year.

(6) Where—

(a) the wife of a veteran has attained the age of 70 years;

(b) the wife is in receipt of, or is eligible to receive, a wife’s service pension; and

(c) a direction under sub-section 47 (2) is in force in respect of the veteran,

the annual rate at which a wife’s service pension is payable to the wife shall not be less than—


 

(d) if the wife has an annual rate of income exceeding $8,658 per year—$2,675.40 per year reduced by one-half of the amount per year by which her annual rate of income exceeds $8,658 per year; or

(e) in any other case—$2,675.40 per year.

(7) Sub-section (5) or (6)—

(a) does not apply to the wife of a veteran or the widow of a deceased veteran if the annual rate of wife’s service pension that would be applicable to the wife or widow under that sub-section is greater than the annual rate of wife’s service pension applicable to the wife or widow apart from that sub-section (being a rate that was reduced by virtue of paragraph (4) (b)) and, where sub-section (5) or (6) does not, by virtue of this paragraph, apply in relation to the wife or widow, paragraph (4) (a) does not apply in relation to the wife or widow; and

(b) does not apply in relation to a wife of a veteran or a widow of a deceased veteran if—

(i) the wife or widow would, if she had not attained the age of 70 years, be eligible to receive remote area allowance under section 57; and

(ii) the sum of the amount of the fortnightly instalment of wife’s service pension that would be payable to the wife or widow if sub-section (4) were applicable to the wife or widow and the amount per fortnight of remote area allowance that would be payable to the wife or widow if she were eligible to receive that allowance is greater than the amount of a fortnightly instalment of wife’s service pension payable to the wife or widow in accordance with sub-section (5) or (6).

Rate of carer’s service pension

49. The rate of a carer’s service pension payable to a person is a rate equal to the rate of service pension that would be payable to the person under this Part if the person were a veteran who—

(a) was qualified to receive a service pension; and

(b) was under the age of 70 years and was not permanently blind.

Calculation of value of property

50. (1) In calculating the value of the property of a person for the purposes of this Part—

(a) there shall be disregarded—

(i) if the person is an unmarried person—the value of any right or interest of the person in relation to the principal home of the person (not being a right or interest of the kind referred to in sub-paragraph (iv));


 

(ii) if the person is a married person—the value of any right or interest of the person in relation to one residence that is the principal home of the person, of the person’s spouse or of both of them (not being a right or interest of the kind referred to in sub-paragraph (iv));

(iii) the value of any life interest of the person (not being a life interest in relation to the principal home of the person, of the person’s spouse or of both of them) or annuity (including a superannuation pension) of the person, not being, unless the Commission otherwise determines in writing, an annuity that is able to be disposed of or an annuity under which a substantial part of the income is, or may be, deferred;

(iv) if the residence that is the principal home of the person is a private residence and the person has acquired for valuable consideration, or has retained, a right to accommodation for life in, or a life interest in, that residence—the value of that right or interest;

(v) the value of any contingent or reversionary interest of the person (not being an interest created by the person or by the person’s spouse);

(vi) the value of any property (not being a contingent or reversionary interest) to which the person is entitled from the estate of a deceased person but which has not been, and is not able to be, received;

(vii) the value of any medal or other decoration awarded (whether to the person or another person) for valour that is owned by the person otherwise than for the purposes of investment or a hobby;

(viii) the value of one cemetery plot acquired by the person and of funeral expenses paid in advance by the person;

(ix) if the person or the person’s spouse, or a child who is dependent on the person or the person’s spouse, is a disabled person—the value of any personal property of the person that is designed for use by a disabled person and any part of the value of the personal property of the person that is attributable to modifications made to that property to enable it to be used by a disabled person;

(x) if the person is provided with a motor vehicle under the scheme administered by the Commonwealth known as the Vehicle Assistance Scheme—the value of that motor vehicle; and

(xi) if the person has sold a residence that was the principal home of the person on terms and has purchased, also on terms, another residence that is the principal home of the person— so much of the balance due to the person in respect of the


 

sale as will be applied by the person in respect of the purchase of the other residence; and

(b) where a charge or encumbrance, not being a charge or encumbrance that is a collateral security, exists on particular property of a person, not being property the value of which is to be disregarded under paragraph (a), the value of that property shall be reduced by the value of that charge or encumbrance.

(2) Where a charge or encumbrance exists on any property of a person the value of which is to be disregarded under paragraph (1) (a) and the same charge or encumbrance exists on other property of the person, the amount to be deducted under paragraph (1) (b) in respect of that other property of the person is the amount that bears to the value of the charge or encumbrance the same proportion as the value of that other property bears to the value of all the property of the person on which the charge or encumbrance exists.

(3) A reference in this section to the principal home of a person shall be read as including a reference to—

(a) in the case of a dwelling-house—the private land adjacent to the dwelling-house to the extent that that private land, together with the area of the ground floor of the dwelling-house, does not exceed 2 hectares; or

(b) in the case of a flat or home unit—a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.

(4) Where the area of private land adjacent to a dwelling-house exceeds substantially the average area of private land adjacent to other dwelling-houses in the same locality, so much only of the first-mentioned area as the Commission determines in writing not to be in excess of the average area shall be taken into account for the purposes of paragraph (3) (a).

(5) A reference in sub-section (3) or (4) to private land, in relation to a dwelling-house, shall be read as a reference to land used primarily for private or domestic purposes in association with that dwelling-house.

(6) For the purposes of this section, where the value of any property of a person or, in the case of a married person, of the person and the person’s spouse, that consists of the contents of a principal home and of other personal effects that are used primarily within the principal home, being property that is used primarily for private or domestic purposes, does not exceed $10,000, the value of that property shall be taken to be $10,000 unless the person satisfies the Commission that the value of that property is less than $10,000.

(7) A reference in sub-paragraph (1) (a) (i), (ii) or (iv) to a right or interest of a person in relation to a principal home shall be read as not including a reference to a right or interest that, in the opinion of the


 

Commission, does not give reasonable security of tenure in relation to that home.

(8) A residence of a person shall be taken to continue to be the principal home of a person during—

(a) any period, not exceeding 12 months, during which the person is temporarily absent from that residence; and

(b) any period, not exceeding 2 years, during which the person is—

(i) residing in a benevolent home or in premises at which accommodation is provided exclusively or principally for mentally ill persons;

(ii) residing in premises approved as an approved nursing home pursuant to section 40aa of the National Health Act 1953; or

(iii) a nursing-home type patient, within the meaning of the Health Insurance Act 1973, of a hospital.

Pension loans scheme

51. (1) In this section—

“exempt property” means property to which paragraph 50 (1) (a) applies;

“relevant interest rate” means such rate as is fixed from time to time by the Minister for Social Security by notice published in the Gazette for the purposes of sub-section 6ab (1) of the Social Security Act 1947;

“relevant property”, in relation to a person, means property of the person (other than exempt property)—

(a) that cannot readily be sold or realized; or

(b) that—

(i) the person does not wish to sell or realize; and

(ii) is not property of a kind that the person could reasonably be expected to sell or realize.

(2) Where—

(a) a person is in receipt of, or is eligible to receive, a service pension, a wife’s service pension or a carer’s service pension;

(b) the annual rate of that pension is determined under or by reference to paragraph 47 (5) (b) or 48 (4) (b);

(c) the person is—

(i) a veteran who has, being a man, attained the age of 60 years or, being a woman, attained the age of 55 years; or

(ii) the spouse of a veteran referred to in sub-paragraph (i);

(d) the property of the person or, if the person is a married person, of the person and the person’s spouse consists of or includes relevant property; and


 

(e) the value of the relevant property of the person or, if the person is a married person, of the person and the person’s spouse is not less than 70 per centum of the value of the property (other than exempt property) of the person or of the person and the person’s spouse, as the case may be,

the person may, by notice in writing, in a form approved by the Commission, forwarded to, or delivered at, any office of the Department in Australia, request that, for the purposes of determining the annual rate of the service pension, wife’s service pension or carer’s service pension, as the case may be, payable to the person, the value of the property of the person or of the person and the person’s spouse, as the case may be, be disregarded.

(3) A request made by a person under sub-section (2) shall be signed by the person and, if the person is a married person, by the person’s spouse.

(4) Subject to this section, where—

(a) a request is made by a person in accordance with sub-section (2);

(b) the value of the relevant property of the person or, if the person is a married person, of the person and the person’s spouse is not less than 70 per centum of the value of the property (other than exempt property) of the person or of the person and the person’s spouse, as the case may be; and

(c) the Commission is satisfied that the amount of any debt that becomes payable by the person to the Commonwealth under this section is readily recoverable,

the value of the property of the person or of the person and the person’s spouse, as the case may be, shall, on and after the day on which the request is lodged, be disregarded for the purposes of this Act other than in calculating the value of the person’s property for the purposes of section 83.

(5) Subject to sub-section (6), where sub-section (4) applies in relation to a person—

(a) the amount (if any), together with interest on that amount at the relevant interest rate, by which the sum of the amount of service pension, wife’s service pension or carer’s service pension, as the case may be, paid to the person from time to time and any amount payable by the person under sub-section (9) exceeds the amount (if any) of service pension, wife’s service pension or carer’s service pension, as the case may be, that would have been paid to the person if sub-section (4) did not apply in relation to the person, reduced by any amounts repaid to the Commonwealth, is a debt payable by the person to the Commonwealth; and

(b) the property, within Australia, of the person and, if the person is a married person and the person’s spouse has signed a request under sub-section (2), of the person’s spouse is subject to a charge in favour of the Commonwealth for the purposes of securing the repayment of the debt, but such a charge is not applicable in relation


 

to a bona fide purchaser for value who purchases any of that property without notice of the charge.

(6) An amount is not a debt payable by a person to the Commonwealth under paragraph (5) (a) unless the value of the property (including exempt property) of the person, or, if the person is a married person, of the person and the person’s spouse, exceeds $100,000, and the amount of the debt shall not exceed the amount by which the value of that property exceeds $100,000.

(7) Where, by reason of the operation of paragraph (5) (b), a charge is created on any property situated in a State or Territory, the Commission may lodge with the appropriate officer of the State or Territory a notice of the charge in a form approved by the Commission, and the person with whom that notice is lodged may register the charge as if the notice were a bill of sale or an instrument of charge or encumbrance duly executed under the laws in force in that State or Territory.

(8) Where sub-section (4) applies in relation to a person, the person and, if the person is a married person, the person’s spouse shall, if required to do so by the Commission, execute any instrument relating to the registration of a charge on the property of the person or the person’s spouse.

(9) Costs incurred by the Commonwealth that are associated with the registration of a charge on property of a person or of the person’s spouse or with the registration of the discharge of such a charge are payable by the person.

(10) Subject to sub-sections (11), (12) and (13), where, by reason of the operation of paragraph (5) (b), a charge exists on property of a person or on property of a person and the person’s spouse, the Commonwealth is not, unless the Commission otherwise determines in writing, entitled to enforce the charge or otherwise recover the debt secured by the charge until after the death of the person.

(11) Subject to sub-sections (12) and (13), where—

(a) by reason of the operation of paragraph (5) (b), a charge exists on the property of a married person and of the person’s spouse; and

(b) the person dies and the spouse—

(i) has the use of that property or part of that property; and

(ii) has, being a man, attained the age of 60 years or, being a woman, attained the age of 55 years,

the Commonwealth is not entitled to enforce the charge against that property or that part of that property, as the case may be, until after the death of the spouse.

(12) Where—

(a) by reason of the operation of paragraph (5) (b), a charge is created on property of a person; and

(b) any of the property on which the charge exists ceases to be property of the person,


 

then—

(c) in a case where the property referred to in paragraph (b) was sold or otherwise disposed of by the person—the Commonwealth may recover from the person out of the proceeds (if any) of the sale or disposal the whole or any part of the debt secured by the charge; and

(d) in a case where the person who is the new owner of the property referred to in paragraph (b) is not a bona fide purchaser for value without notice of the charge—the Commonwealth may enforce the charge against that property.

(13) Where—

(a) by reason of the operation of paragraph (5) (b), a charge is created on the property of a person or on the property of a person and the person’s spouse;

(b) any of the relevant property of the person or the person’s spouse ceases to be property of the person or the person’s spouse, as the case may be, or the person or the person’s spouse acquires property that is not relevant property or exempt property or the person, being an unmarried person, becomes a married person; and

(c) as a result of an event referred to in paragraph (b), the value of the relevant property of the person or of the person and the person’s spouse is less than 70 per centum of the value of the property (other than exempt property) of the person or of the person and the person’s spouse, as the case may be,

sub-sections (4), (10) and (11) cease to apply in relation to the person unless the Commission determines in writing that those sub-sections continue to apply in relation to the person.

(14) Where, in accordance with this section, a charge may be enforced against property of a person, the charge may be enforced against that property, or any part of that property, in such a manner as the Commission determines in writing.

Disposal of property or income

52. (1) Subject to sub-sections (3), (6) and (7), where, on or after 1 June 1984, a married person has, during a pension year of the person or of the person’s spouse, disposed of property of the person, 50 per centum of the amount (if any) by which the sum of the amount of that disposition of property and the amount of any other disposition of property by the person or by the persons’s spouse that took place during that pension year exceeds $4,000 shall, for the purposes of this Act, be included in the value of the property of the person and of the property of the person’s spouse.

(2) Subject to sub-section (3), where, on or after 1 June 1984, an unmarried person has, during a pension year of the person, disposed of property of the person, the amount (if any) by which the sum of the amount of that disposition of property and the amount of any other


 

disposition of property by the person that took place during that pension year exceeds $2,000 shall, for the purposes of this Act, be included in the value of the property of the person.

(3) Where an amount (in this sub-section referred to as the “relevant amount”) is included in the value of the property of a person under sub-section (1) or (2) by reason of a disposition of property that took place during a pension year of the person, the amount to be included in that value under that sub-section in subsequent pension years of the person shall, on each anniversary of the day on which that disposition took place, be reduced by an amount equal to 10 per centum of the relevant amount.

(4) Subject to sub-sections (6) and (7), where, on or after 1 June 1984, a married person has disposed of income of the person, one-half of the amount of that disposition shall, for the purposes of this Act, be included in the income of the person and in the income of the person’s spouse.

(5) Where, on or after 1 June 1984, an unmarried person has disposed of income of the person, the amount of that disposition shall, for the purposes of this Act, be included in the income of the person.

(6) Where—

(a) an amount is included under sub-section (1) in the value of the property, or under sub-section (4) in the income, of a married person and of the person’s spouse by reason of a disposition of property or of income by the person; and

(b) the person and the person’s spouse cease to be married persons in relation to each other,

any amount that was included in the value of the property, or in the income, of the person’s former spouse by reason of that disposition shall be included in the value of the property, or in the income, of the person.

(7) Where—

(a) an amount is included under sub-section (1) in the value of the property, or under sub-section (4) in the income, of a married person and of the person’s spouse by reason of a disposition of property or of income by the person; and

(b) the person or the person’s spouse dies,

then—

(c) in the case of the death of the person—no amount shall be included in the value of the property, or in the income, of the person’s spouse by reason of that disposition; or

(d) in the case of the death of the person’s spouse—any amount that would, if the person’s spouse had not died, be included in the value of the property, or in the income, of the person’s spouse by reason of that disposition shall be included in the value of the property, or in the income, of the person.

(8) Where—


 

(a) a person has, on or after 1 June 1984, disposed of property of the person;

(b) the course of conduct that constituted that disposition of property also constituted a disposition of income and the income disposed of is attributable, in whole or in part, to that property; and

(c) under sub-section (1) or (2), whichever is applicable to the person—

(i) no amount is included in the value of the property of the person by reason of that disposition of property; or

(ii) the amount that is included in the value of the property of the person by reason of that disposition of property is, in a case to which sub-section (1) applies, less than one-half of the amount of that disposition of property or, in a case to which sub-section (2) applies, less than the amount of that disposition,

then, for the purposes of sub-sections (4) and (5)—

(d) in a case to which sub-paragraph (c) (i) of this sub-section applies— no amount shall be included in the income of a person by reason of that disposition of income; or

(e) in a case to which sub-paragraph (c) (ii) of this sub-section applies— an amount to be included in the income of a person by reason of that disposition of income shall by calculated disregarding so much of the amount of that disposition of income as the Commission determines in writing to be attributable to that part of the amount of that disposition of property that is not included in the value of the property of a person under sub-section (1) or (2).

(9) This section does not apply to a disposition of property, or of income, that took place—

(a) more than 5 years before the time when—

(i) the person who disposed of that property or income; or

(ii) if that person was, at the time when that disposition took place, a married person—the person’s spouse,

became eligible to receive a service pension, a wife’s service pension or a carer’s service pension; or

(b) less than 5 years before the time referred to in paragraph (a) and before the time when the Commission is satisfied that the person who disposed of that property or income could reasonably have expected that the person or the person’s spouse would become eligible to receive such a pension.

(10) For the purposes of this section, a person shall be taken to have disposed of property of the person if the person engages in a course of conduct (not being a course of conduct under which the person ceases employment or to engage in a business or profession or reduces the extent to which the person is employed or the extent to which the person engages


 

in a business or profession) that diminishes, directly or indirectly, the value of the property of the person where—

(a) the person receives no consideration, or inadequate consideration, in money or money’s worth; or

(b) the Commission is satisfied that the purpose, or the dominant purpose, of the person in engaging in that course of conduct was—

(i) to obtain a service pension, a wife’s service pension or a carer’s service pension, to enable the person’s spouse to obtain a service pension, a wife’s service pension or a carer’s service pension or to obtain, or enable the person’s spouse to obtain, a pension under Part III or IV, a benefit under Part IVaaa, an allowance under Part VIIa or a rehabilitation allowance under Part VIII of the Social Security Act 1947;

(ii) to obtain, or enable the person’s spouse to obtain, such a pension, benefit or allowance at a higher rate than that for which the person or the person’s spouse would otherwise have been eligible; or

(iii) to ensure that the person or the person’s spouse would become a person other than a prescribed person for the purposes of section 82 or of section 83ca of the Social Security Act 1947,

and the amount of that disposition of property shall be taken to be an amount equal to the amount of the diminution in the value of the property of the person reduced by the consideration (if any) received by the person in respect of that disposition.

(11) For the purposes of this section, a person shall be taken to have disposed of income of the person if the person engages in a course of conduct (not being a course of conduct under which the person ceases employment or to engage in a business or profession or reduces the extent to which the person is employed or the extent to which the person engages in a business or profession) that diminishes, directly or indirectly, the rate of income of the person where—

(a) the person receives no consideration, or inadequate consideration, in money or money’s worth; or

(b) the Commission is satisfied that the purpose, or the dominant purpose, of the person in engaging in that course of conduct was—

(i) to obtain a service pension, a wife’s service pension or a carer’s service pension, to enable the person’s spouse to obtain a service pension, a wife’s service pension or a carer’s service pension or to obtain, or enable the person’s spouse to obtain, a pension under Part III or IV, a benefit under Part IVaaa, an allowance under Part VIIa, or a rehabilitation allowance under Part VIII of the Social Security Act 1947;

(ii) to obtain, or enable the person’s spouse to obtain, such a pension, benefit or allowance at a higher rate than that for


 

which the person or the person’s spouse would otherwise have been eligible; or

(iii) to ensure that the person or the person’s spouse would become a person other than a prescribed person for the purposes of section 82 or of section 83ca of the Social Security Act 1947,

and the amount of that disposition of income shall be taken to be the amount that, in the opinion of the Commission, is the annual rate of that diminution reduced by such percentage of the consideration (if any) received by the person in respect of that disposition as the Commission determines in writing to be fair and reasonable in all the circumstances of the case.

(12) For the purposes of sub-sections (10) and (11), the value of a right or interest of the kind referred to in sub-paragraph 50 (1) (a) (iv) of a person shall be deemed not to be consideration received by the person.

(13) A reference in this section to a pension year, in relation to a person who is receiving a service pension, a spouse’s service pension, a carer’s service pension or a pension under Part III or IV, a benefit under Part IVaaa, an allowance under Part VIIa or a rehabilitation allowance under Part VIII of the Social Security Act 1947 shall be read as a reference to—

(a) in a case where the person is a married person and the person and the person’s spouse were, immediately before they became married persons in relation to each other, receiving such a pension, benefit or allowance—the period of 12 months commencing on the day on which they so became married persons;

(b) in a case (not being a case referred to in paragraph (a)) where the person is a married person and the person’s spouse is receiving such a pension, benefit or allowance—the period of 12 months commencing on the day as from which such a pension, benefit or allowance first became payable to the person or to the person’s spouse, whichever was the later; or

(c) in any other case—the period of 12 months commencing on the day on which that pension, benefit or allowance first became payable to the person,

and to each succeeding and each preceding period of 12 months.

Financial hardship

53. (1) Where—

(a) the annual rate of a service pension, a wife’s service pension or a carer’s service pension payable to a person is calculated under or by reference to paragraph 47 (5) (b) or 48 (4) (b);

(b) section 52 does not apply in relation to the person or the Commission determines in writing that the application of section 52 in relation to the person should, for the purposes of this section, be disregarded;


 

(c) any of the property of the person or, if the person is a married person, of the person and the person’s spouse, is property that the person, or the person or the person’s spouse, as the case may be—

(i) cannot sell or realize or could not reasonably be expected to sell or realize; and

(ii) cannot use as security for borrowing or could not reasonably be expected to use as security for borrowing; and

(d) the Commission is satisfied that the person would suffer severe financial hardship if this section did not apply in relation to the person,

the Commission shall determine in writing that this section applies in relation to the person.

(2) Subject to sub-sections (3) and (4), where this section applies in relation to a person, the annual rate of the service pension, wife’s service pension or carer’s service pension payable to the person shall, notwithstanding sections 47 and 48, be determined in the following manner:

(a) the value of any of the property of the person and, if the person is a married person, of the person’s spouse, that is property referred to in paragraph (1) (c) shall be disregarded;

(b) there shall be deducted from the maximum annual rate of service pension, wife’s service pension or carer’s service pension that would be payable to the person apart from the operation of sub-section 47 (4) or (5) or 48 (4), as the case requires (in this section referred to as the “maximum rate”), an amount per annum equal to the sum of—

(i) the annual rate of income of the person (other than income from property of the person or of the person’s spouse that is not property referred to in paragraph (1) (c) or property to which paragraph 50 (1) (a) applies); and

(ii) an amount per year equal to $26 for each $250 of the value of the property of the person (other than property referred to in paragraph (1) (c) or property to which paragraph 50 (1) (a) applies).

(3) Where the Commission is of the opinion that the annual rate of service pension, wife’s service pension or carer’s service pension applicable to a person under sub-section (2) should, having regard to the annual rate of income that could reasonably be expected to be derived from, or produced with the use of, property of the person or the person’s spouse that is property referred to in paragraph (1) (c), be reduced, the Commission may direct that the annual rate of service pension, wife’s service pension or carer’s service pension payable to the person be reduced by such amount per year as the Commission determines in writing.

(4) Where the sum of the annual rate of service pension, wife’s service pension or carer’s service pension that would, apart from this sub-section, be payable to a person under this section and the annual rate of income of


 

the person exceeds the maximum rate applicable to the person, the annual rate of the service pension, wife’s service pension or carer’s service pension so payable shall be reduced by the amount per year of that excess.

Pension reduction amounts

54. A pension reduction amount is applicable to a person who is eligible to receive a service pension, a wife’s service pension or a carer’s service pension where the value of the property of the person exceeds by not less than $250—

(a) in the case of an unmarried person to whom sub-paragraph 50 (1) (a) (i) applies—$70,000;

(b) in the case of any other unmarried person—$120,000;

(c) in the case of a married person to whom sub-paragraph 50 (1) (a) (ii) applies—$50,000; or

(d) in the case of any other married person—$75,000,

and the amount of that pension reduction amount is an amount equal to that excess (disregarding any part of that excess that is not a multiple of $250).

Division 5—Rent assistance and remote area allowance

Rent assistance

55. (1) This section applies to a service pensioner who pays, or is liable to pay, rent at an annual rate exceeding $520, other than a service pensioner—

(a) in respect of whom paragraph 47 (5) (b) or 48 (4) (b) is applicable in determining the rate of service pension payable to the pensioner; or

(b) in relation to whom paragraph 47 (4) (c) applies.

(2) In applying this section to and in relation to a service pensioner, being a married person—

(a) any income of the spouse of the pensioner shall be deemed to be income of the service pensioner;

(b) if the service pensioner and the spouse of the service pensioner are living together in their matrimonial home—any rent that the spouse pays, or is liable to pay, in respect of the matrimonial home shall be deemed to be paid, or payable, by the service pensioner; and

(c) if a direction under sub-section 47 (2) is in force in respect of the spouse of the service pensioner—any rent that the spouse of the service pensioner pays, or is liable to pay, in respect of the premises occupied by the service pensioner as his or her home shall be deemed to be paid, or payable, by the service pensioner.

(3) Subject to this section and to section 56, there is payable to a service pensioner to whom this section applies, in addition to service pension, wife’s


 

service pension or carer’s service pension, as the case may be, an allowance by way of rent assistance.

(4) Rent assistance is not payable to a service pensioner to whom this section applies in respect of any period during which the service pensioner is outside Australia.

(5) Rent assistance is not payable to a service pensioner to whom this section applies, being a service pensioner who is living with his or her spouse in their matrimonial home, during any period during which the spouse is in receipt of an incentive allowance under section 26 or 133ja of the Social Security Act 1947.

(6) Rent assistance is payable to a service pensioner to whom this section applies from a date determined by the Commission, which may be a date before the date of the determination.

(7) Where a service pensioner to whom this section applies (being a service pensioner in receipt of rent assistance) ceases to be a service pensioner, the Commission shall cancel the rent assistance as on and from such date as the Commission determines.

(8) The date determined by the Commission under sub-section (7) may, in the case of a service pensioner who has failed to comply with a requirement under section 127, be a date earlier than the date of the determination but not earlier than the first day after the expiration of the time within which the requirement could have been complied with, and, if any amount of rent assistance is received by the service pensioner in respect of a period after the date so determined—

(a) the service pensioner is liable to refund that amount; and

(b) the Commission may sue for and recover that amount in a court of competent jurisdiction as a debt due to the Commonwealth.

Rate of rent assistance

56. (1) Subject to sub-sections (2) and (3), the rate at which rent assistance is payable to a service pensioner to whom section 55 applies is an amount per year equal to—

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

(b) $780,

whichever is the lesser amount.

(2) The annual rate at which rent assistance is payable to a service pensioner under sub-section (1) shall be reduced by an amount equal to one-half of the annual rate of income of the service pensioner.

(3) Where—

(a) rent assistance is payable to a service pensioner who is a married person living with his or her spouse in their matrimonial home; and

(b) there is payable to the spouse of the service pensioner—


 

(i) rent assistance;

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

(iii) an allowance by way of rent assistance under section 112a of the Social Security Act 1947;

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

(v) a rehabilitation allowance under Part VIII of the Social Security Act 1947, being an allowance the amount of which is calculated by reference to an allowance under section 30a or 112a of that Act,

the rate at which rent assistance is payable to the service pensioner is one-half of the rate at which it would be so payable but for this sub-section.

(4) For the purposes of this section, the rent paid, or payable, by a pensioner shall be calculated in the same manner as it is required by paragraphs 55 (2) (b) and (c) to be calculated for the purposes of section 55.

Remote area allowance

57. (1) In this section, “remote area” means an area described in paragraph 1 or 2 of Part I of Schedule 2 to the Income Tax Assessment Act 1936.

(2) Where a person, other than a person who is in receipt of a service pension the rate of which has been assessed in accordance with sub-section 47 (10) or (11), or of a wife’s service pension the rate of which has been assessed in accordance with sub-section 48 (5) or (6)—

(a) is in receipt of a service pension, a wife’s service pension or a carer’s service pension under this Part; and

(b) is physically present in, and has his or her usual place of residence in, a remote area,

the person is eligible to receive an allowance, called remote area allowance, in accordance with this section.

(3) For the purposes of this section, where a person whose usual place of residence is situated in a remote area is absent from the area for a period, the person shall be taken to be physically present in that remote area during that period, or during the first 8 weeks of that period, whichever is the shorter.

(4) Sub-section (3) does not apply to a person in respect of any period during which the person is outside Australia.

(5) Subject to sub-sections (6) and (7), the rate at which remote area allowance is payable to a person is—

(a) if the person—

(i) is an unmarried person; or


 

(ii) is a married person whose spouse is not eligible to be granted remote area allowance under this section, an allowance under Part IIa of the Social Security Act 1947 or an allowance under the Tuberculosis Act 1948, being an allowance the rate of which is determined having regard to residence in the remote area,

$14 per fortnight; or

(b) in any other case—$12 per fortnight.

(6) Where a direction under sub-section 47 (2) is in force in relation to a veteran, the veteran and the spouse of the veteran shall each be taken to be an unmarried person for the purpose of the application of sub-section (5) in relation to the person.

(7) The rate of remote area allowance applicable to a veteran shall be increased by $7 per fortnight in respect of each child of the veteran (within the meaning of sub-section 10 (1) or (2), whichever is applicable) in respect of whom the rate of the veteran’s service pension is increased by virtue of sub-section 47 (3).

(8) Where, but for this sub-section, an increase under sub-section (7) would be payable to 2 veterans in respect of the same child, that increase is payable to a veteran in respect of that child only if the Commission directs that the increase be paid to that veteran.

(9) An increase under sub-section (7) is not payable to a veteran in respect of a child unless the child is physically present in Australia.

Division 6Review of service pensions and decisions with respect to service pensions

Cancellation, suspension or variation of service pension

58. (1) Subject to sub-section (4), where the Commission is satisfied that—

(a) having regard to any matter that affects the payment of a service pension; or

(b) by reason of the refusal or failure of any person to comply with a provision of this Act,

a service pension should be cancelled or suspended, or the rate of a service pension is higher than it should be, the Commission may, by determination in writing, cancel or suspend, or decrease the rate of, the service pension with effect, subject to sub-section (2), from the date of the determination or such later date as is specified in the determination.

(2) Where a determination is made under sub-section (1)—

(a) by reason of the refusal or failure of a person to comply with a provision of this Act, other than—


 

(i) sub-section 127 (4) in relation to a notice under paragraph 127 (1) (f); or

(ii) sub-section 128 (4); or

(b) by reason that an amount has been paid by way of pension or allowance that, but for the false statement or misrepresentation of any person, would not have been paid,

a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.

(3) Where the Commission is satisfied that, having regard to any matter that affects the payment of a service pension, the rate of the service pension is less than it should be, the Commission may, by determination in writing, increase the rate of the service pension with effect from the date of the determination or such earlier or later date as is specified in the determination.

(4) Sub-section (1) does not apply in relation to—

(a) any matter that affects the payment of a service pension; or

(b) the refusal or failure of any person to comply with a provision of this Act,

if section 124 applies in relation to that matter, refusal or failure.

(5) In this section, “service pension” includes wife’s service pension, carer’s service pension, rent assistance and remote area allowance.

Review of decision, &c.

59. (1) Subject to sub-section (2)—

(a) a claimant who is dissatisfied with a decision of the Commission in respect of a claim for a service pension; or

(b) a service pensioner who is dissatisfied with a decision of the Commission cancelling or suspending a service pension, terminating the suspension of a service pension, reducing or increasing the rate of a service pension or refusing an application for an increase in the rate of a service pension,

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).

(2) A request under sub-section (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 sub-section (1), the Commission may affirm or set aside the decision and, if it sets aside the


 

decision, it shall, subject to sub-section (5), make such other decision as it considers to be in accordance with this Act.

(4) Where the Commission is satisfied that a person whose service pension has been suspended is eligible to receive a service pension, the Commission may, by determination in writing, terminate the suspension as from a date specified in the determination, which may be a date earlier than the date of the determination.

(5) Where the Commission, on a review under sub-section (1), sets aside a decision under sub-section 58 (1) to cancel or suspend, or reduce the rate of, a pension, or a decision under sub-section 58 (3) to increase the rate of a pension, the Commission need not substitute another decision for the decision so set aside.

(6) Where the Commission makes a decision, in substitution for the decision set aside, granting a claim for service pension or increasing the rate at which service pension is to be payable, it may approve payment of service pension, or payment of service pension at the increased rate, as from a date not earlier than the date as from which the Commission could have approved payment of service pension, or service pension at the increased rate, if it had made the substituted decision in place of the original decision.

(7) Where the Commission, upon reviewing a decision under sub-section (1)—

(a) grants a claim for a service pension; or

(b) sets aside a decision to cancel or suspend a service pension,

the Commission may pay to the person who requested the review, an amount, calculated in accordance with the scale approved by the Commission for the purposes of sub-section 19 (10), in respect of the expenses (if any) incurred by that person in providing for the production of certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which he or she had received medical treatment, being certificates, reports or documents reasonably used for the purposes of the review.

(8) In this section, “service pension” includes wife’s service pension, carer’s service pension, rent assistance and remote area allowance.

Powers of Commission on reviews under section 59

60. (1) The Commission, or a person to whom the Commission has delegated its powers under section 59, 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) Where the Commission is itself conducting a review, the presiding member of the Commission 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;

(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) Where a person to whom the Commission has delegated its powers under section 59 is conducting a review, the person 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;

(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.

(4) The applicant for a review by the Commission under section 59 is a competent and compellable witness upon the hearing of the review.

(5) 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.

(6) The power conferred by paragraph (1) (a) on the Commission to take evidence on oath or affirmation for the purposes of a review may be exercised on behalf of the Commission 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 Commission may direct that the power is to be so exercised subject to limitations specified by the Commission.

(7) Where a person other than the presiding member in relation to a review is authorized, in accordance with sub-section (6), to take evidence for the purposes of the review, the first-mentioned person has, for the purposes of taking that evidence, all the powers of the Commission under sub-section (1) and all the powers of the presiding member under sub-section (2).

(8) The power conferred by paragraph (1) (a) on a person to whom the Commission has delegated its powers under section 59 to take evidence on oath or affirmation for the purposes of a review may be exercised by that person or by another person authorized by that person and that power may be so exercised within or outside Australia, but the Commission may direct that the power is to be so exercised subject to limitations specified by the Commission.


 

(9) Where a person is authorized, in accordance with sub-section (8), to take evidence for the purposes of a review, the person has, for the purposes of taking the evidence, all the powers conferred, by sub-sections (1) and (2), on the person to whom the Commission has delegated its powers under section 59.

Division 7Miscellaneous

Withdrawal of claim for service pension, &c.

61. (1) A claimant for service pension may, at any time before the claim is determined by the Commission, by notice in writing forwarded to the Secretary at an office of the Department in Australia, withdraw the claim.

(2) The withdrawal of a claim for service pension does not prevent the claimant from subsequently making another claim for a service pension.

(3) A claimant or service pensioner who has made a request under section 59 may, at any time before the request is determined, by notice in writing forwarded to the Secretary at an office of the Department in Australia, withdraw the request.

(4) Subject to sub-section 59 (2), the withdrawal of a request under that section does not prevent the claimant or service pensioner, as the case may be, from subsequently making another request in respect of the same decision.

(5) In this section, “service pension” includes wife’s service pension and carer’s service pension.

Reasons for decision to be given

62. (1) Where the Commission makes a decision upon a review of a decision under section 59, the Commission shall make a written record of its decision together with a statement, in writing, setting out its findings on material questions of fact, referring to the evidence or other material on which those findings are based and giving its reasons for the decision.

(2) As soon as practicable after the Commission makes a decision referred to in sub-section (1), the Commission shall, subject to sub-section (3), cause to be served on the claimant or other person to whom the decision relates, a copy of its decision and of the statement relating to its decision made by it in accordance with sub-section (1), together with particulars of any right of the person on whom it is served to have the decision reviewed by the Administrative Appeals Tribunal.

(3) Where the statement prepared by the Commission in pursuance of sub-section (1) upon the making of a decision referred to in that sub-section contains or refers to any information, opinion or other matter—


 

(a) that, in the opinion of the Commission, is of a confidential nature; or

(b) that, in the opinion of the Commission, it might be prejudicial to the physical or mental health or well-being of the person on whom a copy of the statement is required to be served to communicate to the person,

the document served on the person in pursuance of sub-section (2) shall not contain or refer to that information, opinion or other matter.

Right to be paid service pension outside Australia

63. (1) Except as provided by this section, the right of a person to commence, or to continue, to be paid a service pension granted to the person is not affected by the fact that the person leaves Australia.

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

(a) a person who formerly resided in Australia has returned to Australia and, before the expiration of the period of 12 months that commenced on the date of the person’s return, has made a claim for a service pension;

(b) the person leaves Australia (whether before or after the claim is determined) before the expiration of that period; and

(c) a service pension is granted to the person as a result of that claim,

the service pension so granted is not payable in respect of any period during which the person is outside Australia.

(3) Where the Commission considers that the reasons of a person (being a person in relation to whom sub-section (2) would, but for this sub-section, apply) for leaving, or wishing to leave, Australia before the expiration of the period referred to in paragraph (2) (a) arose from circumstances that could not reasonably have been forseen at the time of the person’s return to Australia, the Commission may, by instrument in writing, determine that sub-section (2) does not apply in relation to that service pension.

(4) Where—

(a) a person who is physically outside Australia is in receipt of—

(i) a service pension;

(ii) a pension under Part III or IV of the Social Security Act 1947; or

(iii) a benefit under Part IVAAA of that Act; and

(b) the person would, if that pension or benefit were cancelled, be eligible, if the person were residing in Australia, for the grant of a service pension under this Part,

then, on the cancellation of the pension or benefit that the person is receiving, the person may be granted and paid a service pension (excluding any rent assistance for which the person is eligible) as if the person were


 

residing in, and were physically present in, Australia notwithstanding the provisions of section 43 or sub-section 38 (4), 39 (5) or 40 (3).

(5) A service pension payable to a person who is physically outside Australia may be paid in such manner and in such instalments as the Commission determines.

(6) In this section, “service pension” includes wife’s service pension and carer’s service pension.

Persons resident in Papua New Guinea

64. (1) This section applies in relation to a service pensioner who is residing in Papua New Guinea and is, by virtue of sub-section 5 (5) or 35 (5), to be deemed to be resident in Australia.

(2) Where a service pensioner in relation to whom this section applies leaves the country where the pensioner is residing, except to go to Australia, without first having forwarded to, or delivered at, an office of the Department in Australia notice of his or her intention so to leave the country, the Commission may cancel the service pension, wife’s service pension or carer’s service pension, as the case may be, granted to that service pensioner.

Special temporary allowance

65. (1) In this section—

“pension” means—

(a) a service pension, a wife’s service pension, a carer’s service pension, rent assistance or a remote area allowance;

(b) a pension under Part III or a benefit under Part IVaaa of the Social Security Act 1947;

(c) an allowance under Part VIIa or a rehabilitation allowance under Part VIII of that Act; or

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

and includes rent assistance under section 30a, an allowance under section 133ja and a remote area allowance under Part IIa of the Social Security Act 1947;

“pensioner” means a person in receipt of—

(a) a service pension, a wife’s service pension or a carer’s service pension;

(b) a pension under Part III of the Social Security Act 1947; or

(c) if the person is a person referred to in paragraph (b) of the definition of “married person” in sub-section 83aaa (1) of that Act—a benefit under Part IVaaa of that Act,

and includes a person who would, but for paragraph 42 (1) (c) of this Act or of section 133n, sub-section 135b (3) or 135tj (1a) of


 

the Social Security Act 1947, be eligible to receive a pension or benefit referred to in paragraph (a), (b) or (c);

“service pensioner” means a person in receipt of a service pension, a wife’s service pension or a carer’s service pension.

(2) Where—

(a) the spouse of a service pensioner dies; and

(b) the spouse was, immediately before his or her death, a pensioner,

this section applies to the service pensioner during the period of 12 weeks commencing on the day after the date of death of the spouse.

(3) Subject to this section, during any period during which this section applies to a service pensioner—

(a) the amount (if any) per fortnight of service pension, wife’s service pension or carer’s service pension that would have been payable to the service pensioner if his or her spouse had not died continues to be payable to the service pensioner; and

(b) a special temporary allowance of an amount equal to the amount (if any) per fortnight of pension that would have been payable to the spouse of the service pensioner if the spouse had not died is payable to the service pensioner.

(4) For the purposes of sub-section (3), the amount of pension that would have been payable to a person shall be calculated as if the person and his or her spouse were living together.

(5) During any period during which this section applies to a person, the person is not entitled to receive a widow’s pension under Part IV, or a supporting parent’s benefit under Part IVaaa, of the Social Security Act 1947 if the person was not eligible to receive that benefit before the death of the person’s spouse.

(6) Where the amount per fortnight payable to a person under sub-section (3) is less than the amount per fortnight of pension that would, if this sub-section did not apply to the person, be payable to the person, the amount per fortnight payable to the person under sub-section (3) is that higher amount per fortnight.

Payment of wife’s service pension after death of veteran

66. (1) Subject to this section, a wife’s service pension granted to the wife of a veteran (whether before or after the death of the veteran) is payable to the widow of the veteran after the death of the veteran.

(2) Where the widow of a deceased veteran re-marries, or marries, after the death of the veteran, any wife’s service pension payable to the widow shall be cancelled.


 

(3) The rate at which wife’s service pension is payable to the widow of a veteran after the death of the veteran shall not exceed the rate specified in paragraph 47 (1) (b).

Suspension and forfeiture of service pension when pensioner imprisoned

67. (1) Where a service pensioner is imprisoned in connection with his or her conviction for an offence, the Commission may—

(a) if the spouse of the pensioner or a child of the pensioner is alive—direct that the whole, or a specified part, of each instalment of the pension that becomes payable during the period, or a specified part of the period, of his or her imprisonment be paid to—

(i) the spouse of the pensioner; or

(ii) the child of the pensioner,

as the case may be, or to some other person approved by the Commission for the benefit of that spouse or child, and that any part of such an instalment not so payable be forfeited or suspended; or

(b) in any other case—direct that each instalment of the service pension that, but for the direction, would be payable to the service pensioner during the period, or a specified part of the period, of the imprisonment be forfeited or suspended.

(2) A payment made to the spouse or child of a service pensioner, in pursuance of a direction under paragraph (1) (a), shall, for all purposes, be deemed to be a payment made to the service pensioner.

(3) In this section, unless the contrary intention appears, “service pension” includes wife’s service pension, rent assistance and remote area allowance.

PART IV—PENSIONS FOR MEMBERS OF DEFENCE FORCE OR PEACEKEEPING FORCE AND THEIR DEPENDANTS

Division 1—Interpretation

Interpretation

68. (1) In this Part, unless the contrary intention appears—

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

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


 

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

“defence service” means—

(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and

(b) in the case of a person who—

(i) was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;

(ii) continued so to render continuous full-time service until and including the day immediately before the terminating date; and

(iii) was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date,

includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before—

(iv) the expiration of that term or, if that term is deemed to have been extended by sub-section (4), (5) or (6), the expiration of the extension of that term; or

(v) the lawful termination of the person’s service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve,

whichever occurs first,

but does not include any period of peacekeeping service;

“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 21 consecutive days during which the member was—

(i) on leave of absence without pay;

(ii) absent without leave;

(iii) awaiting or undergoing trial in respect of an offence of which the member was later convicted; or

(iv) undergoing detention or imprisonment; or

(b) in the case of an officer of the Defence Force who, on 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 his or her studies after appointment—the period of the officer’s service during which, by reason of the

requirement to engage in those studies or in activities connected with those studies, the officer was not regarded by the appropriate authority of the Defence Force as rendering effective full-time service;

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

“member of the Forces” means a person to whom this Part applies by virtue of section 69;

“Peacekeeping Force” means—

(a) a Peacekeeping Force described in column 1 of Schedule 3; or

(b) a force raised or organized for the purpose of—

(i) peacekeeping in an area outside Australia; or

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

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

“peacekeeping service”, in relation to a person, means service, whether before or after the commencement of this Act, with a Peacekeeping Force outside Australia, and includes—

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

(b) any period (not exceeding 28 days) of authorized travel by the person outside Australia after the person has ceased to serve with the Peacekeeping Force;

“terminating date” means the date fixed by Proclamation for the purpose of this definition, being a date not earlier than the date of commencement of an Act establishing a Military Compensation Scheme.

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

(a) a person who has travelled from a place in Australia to a place outside Australia shall be deemed to have commenced to travel outside Australia when the person departed from the last port of call in Australia; and

(b) a person who has travelled to Australia from a place outside Australia shall be deemed to have been travelling outside Australia until the person arrived at the first port of call in Australia.


 

(3) A Peacekeeping Force shall be taken to have become a Peacekeeping Force for the purposes of this Part—

(a) in the case of a Peacekeeping Force described in column 1 of Schedule 3—on the date specified in column 2 of that Schedule opposite to the description of that Force in column 1; or

(b) in the case of a Peacekeeping Force designated by notice published in the Gazette—on the date specified in the notice as the date on which it is to become, or is to be deemed to have become, a Peacekeeping Force for the purposes of this Part.

(4) For the purposes of the definition of “defence service” in sub-section (1), where—

(a) immediately before the terminating date, a person was bound to render continuous full-time service as a member of the Defence Force for a term (in this sub-section referred to as the “relevant term”) expiring on or after the terminating date; and

(b) on or before the expiration of the relevant term, or of an extension of the relevant term by virtue of a previous application of this sub-section, the person becomes bound to serve as a member of the Defence Force for a further term commencing immediately after the expiration of the relevant term, or of the extension of the relevant term, as the case may be,

the relevant term shall be deemed to be extended, or further extended, as the case may be, until the expiration of that further term.

(5) Where a person who, immediately before the terminating date, was bound to render continuous full-time service as a member of the Defence Force for a term expiring on or after the terminating date is, before the expiration of that term or of an extension of that term by virtue of sub-section (4), discharged from the Defence Force for the purpose of being appointed an officer—

(a) that discharge shall not be taken to be the lawful termination of the person’s services as a member of the Defence Force for the purposes of the definition of “defence service” in sub-section (1); and

(b) the relevant term, within the meaning of sub-section (4), in respect of the person shall be deemed to be extended until the expiration of the period of continuous full-time service that the person is bound to render by reason of his or her appointment as an officer.

(6) Where—

(a) immediately before the terminating date, a person was bound to render continuous full-time service as a member of the Defence Force for a term (in this sub-section referred to as the “relevant term”) expiring on or after the terminating date; and

(b) on or before the expiration of the relevant term, or of an extension of the relevant term by virtue of a previous application of sub-


 

section (4) or (5), the person is discharged from the Army for the purpose of being appointed an officer of the Army, being an appointment that is not expressed to be for a specified period of service in a specified part of the Army or for such a period of service followed by a specified period of service in another part of the Army,

that discharge shall not be taken to be the lawful termination of the person’s services as a member of the Defence Force for the purpose of the definition of “defence service” in sub-section (1) and the relevant term in respect of the person shall be deemed to be extended or further extended, as the case requires, until the lawful termination of that person’s service in pursuance of that appointment.

(7) Sub-sections (4), (5) and (6) do not apply to a person who was bound to render continuous full-time service as a member of the Defence Force immediately before the terminating date unless the person—

(a) was so rendering continuous full-time service immediately before the commencment of this Act; and

(b) continued so to render continuous full-time service until and including the day immediately before the terminating date.

Application of Part to members of the Forces

69. (1) Subject to this section, where a person—

(a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or

(b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date,

this Part applies to the person—

(c) if the person—

(i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and

(ii) has, whether before or after that date, completed 3 years’ effective full-time service as such a member;

(d) if—

(i) the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and

(ii) the person’s service as such a member was terminated before the person had completed 3 years’ effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person’s death or the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties;

(e) if—


 

(i) the person has served as an officer of the Defence Force otherwise than under an appointment to serve for a period of continuous full-time service of less than 3 years; and

(ii) the person’s service as such an officer was terminated before the person had completed 3 years’ effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person’s death or the termination of the person’s appointment on the ground of invalidity or physical or mental incapacity to perform duties; or

(f) if the person—

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

(ii) on or after that date—

(a) completed the period of service in the Regular Army Supplement for which the person was to be deemed to have been engaged to serve or for which the person was appointed, as the case may be; or

(b) the person’s service in the Regular Army Supplement was terminated by reason of the person’s death, or of the person’s discharge or the termination of the person’s appointment, on the ground of invalidity or physical or mental incapacity to perform duties.

(2) Where—

(a) a person has served in the Defence Force as set out in sub-section (1); and

(b) after, but not immediately after, the termination of the period of service referred to in that sub-section, the person commenced or commences to render a further period of service in the Defence Force,

the person is not a person to whom this Part applies in respect of that further period of service unless, under sub-section (1), this Part would apply to the person by reason only of his or her having rendered that further period of service.

(3) Where a person renders continuous full-time service as a member of the Defence Force at some time after the commencement of this Act and before the terminating date but has not so rendered continuous full-time service continuously from and including the day immediately before the date of commencement of this Act to that time, sub-section (1) does not apply in respect of the person unless—

(a) the person completes 3 years’ effective full-time service as such a member before the terminating date; or


 

(b) the person’s service as a member or officer of the Defence Force is terminated as provided by paragraph (1) (d) or (e), whichever is applicable, before the terminating date.

(4) For the purposes of paragraph (1) (c)—

(a) the service of a person as an officer of the Navy on the General List while the person was undertaking pre-employment training shall be disregarded unless the person has subsequently been promoted to the rank of sub-lieutenant or a higher rank;

(b) the service of a person—

(i) as an enlisted member of the Corps of Staff Cadets of the Army; or

(ii) as an officer cadet of the Army while undertaking a four-year course of training,

shall be disregarded unless the person has subsequently been appointed or promoted to the rank of second lieutenant or a higher rank; and

(c) the service of a person as an Air Cadet, or as an Officer Cadet of the Air Force, shall be disregarded unless the person has subsequently been appointed or promoted to the rank of pilot officer or a higher rank.

(5) Paragraph (1) (d) or (e) does not apply in respect of a person if the person’s service as a member of the Defence Force was terminated by reason of the person’s discharge, or the termination of the person’s appointment—

(a) before the person had completed 12 months’ effective full-time service; and

(b) on the ground of invalidity or physical or mental incapacity to perform duties, being invalidity or incapacity caused, or substantially contributed to, by a physical or mental condition that—

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

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

(6) Paragraph (1) (e) does not apply in respect of a person if the person’s service as a member of the Defence Force was terminated by reason of the person’s death, or the termination of the person’s appointment, during a period of service of the person of a kind referred to in paragraph (b) of the definition of “effective full-time service” in sub-section 68 (1).

(7) Where a member of the Defence Force who has rendered continuous full-time service in pursuance of a voluntary undertaking given by the member and accepted by the appropriate authority of the Defence Force was not serving on continuous full-time service immediately before the member commenced to render that service—


 

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

(b) in any other case—the member shall be deemed, for the purpose of paragraph (1) (d), to have been engaged to serve as a member of the Defence Force on that day for service for the period for which the member was bound to serve on continuous full-time service by virtue of that undertaking.

Division 2Eligibility for pension

Eligibility for pension under this Part

70. (1) Where—

(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or

(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease,

the Commonwealth is, subject to this Act, liable to pay—

(c) in the case of the death of the member—pension to the dependants of the member; or

(d) in the case of the incapacity of the member—pension to the member,

in accordance with this Act.

(2) Where—

(a) a member of the Forces or a member of a Peacekeeping Force has died;

(b) the death of the member was not defence-caused; and

(c) the member was, immediately before the member’s death—

(i) a member to whom section 24 applied by virtue of section 73; or

(ii) a member to whom section 22 or 23 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27,

the Commonwealth is, subject to this Act, liable to pay pensions to the dependants of the member.

(3) Where a pension in respect of the incapacity of a member of the Forces or of a member of a Peacekeeping Force from defence-caused injury or defence-caused disease, or both, is granted, after the death of the member,


 

as from a date before the death of the member, sub-section (2) applies as if the member had been in receipt of that pension immediately before the member died.

(4) For the purposes of this Act, the death of a member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if the death, injury or disease, as the case may be, resulted from an occurrence that happened while the member was rendering peacekeeping service.

(5) For the purposes of this Act, the death of a member of the Forces or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if—

(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

(b) subject to sub-section (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or

(c) the death is to be deemed by sub-section (6) to be defence-caused, the injury is to be deemed by sub-section (7) to be defence-caused injury or the disease is to be deemed by sub-section (7) to be a defence-caused disease, as the case may be; or

(d) the injury or disease from which the member died, or has become incapacitated—

(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service,

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree or was aggravated by any defence service or peacekeeping service of the member, being service after the member suffered the injury or contracted the disease.

(6) Where, in the opinion of the Commission, the death of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service,


 

as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service—

(a) the death of the member shall be deemed to have resulted from that defence service or peacekeeping service, as the case may be; and

(b) the death of the member shall be deemed to be defence-caused, for the purposes of this Act.

(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service—

(a) if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or

(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.

(8) Paragraph (5) (b) does not apply—

(a) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey from the member’s place of duty in a case where the member had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the member’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;

(b) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless—

(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the member’s duty; or

(ii) in the circumstances of the particular case, the nature of the risk of sustaining injury, or contracting disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or


 

(c) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the member’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in sub-paragraph (b) (ii) was not substantially changed and the extent of that risk was not substantially increased, by reason of the interruption.

(9) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease—

(a) in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in sub-section (4) or in paragraph (5) (a), (b) or (c)—if the death, or the injury or disease, as the case may be—

(i) resulted from the member’s serious default or wilful act; or

(ii) arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or

(b) in the case of an injury suffered, or disease contracted, by the member to which paragraph (5) (d) applies—

(i) if the aggravation of the injury or disease—

(a) resulted from the member’s serious default or wilful act; or

(b) arose from a serious breach of discipline by the member; or

(ii) unless the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer.

(10) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease, if the death of incapacity resulted from the serious default or wilful act of the member that happened after the member ceased, or last ceased, to render defence service or peacekeeping service.

(11) Where a dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a child of the member) re-marries or marries after the death of the member—

(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision to grant that pension was made by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, before that marriage or re-marriage occurred; and


 

(b) a decision granting a pension to the dependant under this section made by the Commission, the Board or the Administrative Appeals Tribunal after that re-marriage or marriage occurred (including a decision granting such a pension as from a date before that re-marriage or marriage occurred) is void and of no effect.

(12) Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow of a deceased member of the Forces or member of a Peacekeeping Force, the Commonwealth is not liable to pay another pension to the person under this Part as the widow of another deceased member of the Forces or member of a Peacekeeping Force or under Part II as the widow of a deceased veteran.

(13) Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a member of the Forces or a member of a Peacekeeping Force, would, but for this sub-section, become eligible to receive a pension under this Part or Part II as the child of another deceased person, being a member of the Forces, a member of a Peacekeeping Force or a veteran, the Commonwealth is liable to pay a pension to the person under this Part or Part II as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this sub-section referred to as the “relevant deceased person”) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then—

(a) if the relevant deceased person is a member of the Forces or a member of a Peacekeeping Force—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or

(b) in any other case—the Commonwealth is not liable to pay a pension to the person under this Part.

Application of certain provisions of Part II

71; (1) Divisions 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.

(2) For the purposes of the application of Divisions 3, 6 and 7 of Part II as provided in sub-section (1)—

(a) a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;

(b) a reference in those divisions 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 that was defence-caused;

(c) a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;


 

(d) a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and

(e) a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.

(3) In the application of Division 3 of Part II in accordance with sub-sections (1) and (2) of this section, section 19 shall be read as if the following sub-section were substituted for sub-section (7) of that section:

“(7) Where—

(a) the Commission, upon considering a claim for a pension in respect of the incapacity of a member of the Forces or a member of a Peacekeeping Force from injury or disease determines, or is satisfied, that the member suffered the injury or contracted the disease as claimed and that the injury is a defence-caused injury or the disease is a defence-caused disease, as the case may be; and

(b) the Commission is also satisfied that a determination under this Act is in force determining that the member has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that—

(i) that injury is a defence-caused injury, or is a war-caused injury for the purposes of Part II; or

(ii) that disease is a defence-caused disease, or is a war-caused disease for the purposes of Part II,

as the case may be, whether or not a pension under Part IV or Part II, as the case requires, has been granted in respect of that injury or disease,

the Commission shall not, in a case where the claimant is in receipt of a pension under Part IV or Part II in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such war-caused injury as defence-caused injury and any such war-caused disease as defence-caused disease—

(c) if the claimant is not in receipt of a pension under Part IV or Part II—determine whether the claimant is entitled to be granted a pension under Part IV and, if it determines that the claimant is entitled to be granted a pension, assess the rate of the pension to be granted to the claimant; or

(d) if the claimant is in receipt of a pension under Part IV or Part II— re-assess the rate of that pension.”.

(4) Notwithstanding anything in Divisions 3, 6 and 7 of Part II in their application in accordance with this section, where—


 

(a) a member of the Forces, or a member of a Peacekeeping Force, has, or has had, both defence service and peacekeeping service; and

(b) the Commission has determined that the death or incapacity of the member had or has reference to the member’s defence service and also to the member’s peacekeeping service,

the Commission shall not grant a pension under this Part in respect of the death or incapacity in so far as it had or has reference to the member’s defence service and a separate pension under this Part in respect of the death or incapacity of the member in so far as it had or has reference to the member’s peacekeeping service, but shall—

(c) in the case of the death of the member—assess the rate of any pension granted under this Part in respect of the death as if the member’s peacekeeping service formed part of the member’s defence service; or

(d) in the case of the incapacity of the member—assess the degree of incapacity of the member and the rate of pension (if any) to be granted in respect of the incapacity of the member as if the member’s peacekeeping service formed part of the member’s defence service.

Dual entitlement to pension

72. (1) Where a member of the Forces or a member of a Peacekeeping Force is also a veteran or an Australian Mariner within the meaning of the Seamen’s War Pensions and Allowances Act 1940, the member is not entitled to receive, at the same time—

(a) a pension under this Part; and

(b) a pension under Part II of this Act or under the Seamen’s War Pensions and Allowances Act 1940, as the case may be,

in respect of his or her incapacity from the same injury or disease.

(2) Where a member of the Forces or a member of a Peacekeeping Force is also a veteran or an Australian Mariner within the meaning of the Seamen’s War Pensions and Allowances Act 1940, a dependant of the member is not entitled to receive, at the same time—

(a) a pension under this Part; and

(b) a pension under Part II of this Act or under the Seamen’s War Pensions and Allowances Act 1940, as the case may be,

in respect of the death of the member.

Division 3Rates of pension

Application of Divisions 4 and 5 of Part II

73. (1) The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.


 

(2) For the purposes of the application of the provisions of Divisions 4 and 5 of Part II as provided in sub-section (1)—

(a) a reference in those provisions to a war-caused injury shall be read as a reference to a defence-caused injury;

(b) a reference in those provisions to a war-caused disease shall be read as a reference to a defence-caused disease;

(c) a reference in those provisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force; and

(d) a reference in those provisions to Part II shall be read as a reference to Part IV.

Division 4—Pension and other compensation

Payments by way of compensation or damages

74. (1) In this section, “compensation” includes—

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

(b) any damages recoverable at law (including any amount paid under a compromise or settlement of a claim for damages at law), whether from the Commonwealth, a State, a Territory or any other person (whether within or outside Australia), in respect of injury to, or the death of, a person,

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

(2) This section applies in relation to a member of the Forces, or a member of a Peacekeeping Force, in respect of the death of the member that was defence-caused, or the incapacity of the member from a defence-caused injury or a defence-caused disease if—

(a) a person is entitled, or 2 or more persons are each entitled, to receive payments by way of compensation in respect of the death of the member or of the incapacity of the member from that injury or disease; and

(b) subject to this section, pension under this Part is being paid or is payable to a person, or to each of 2 or more persons, in respect of the death of the member or to the member in respect of the incapacity of the member from that injury or disease.

(3) For the purposes of this section, where—

(a) a lump sum payment by way of compensation is made—

(i) to a person, being a member of the Forces or a member of a. Peacekeeping Force, in respect of the incapacity of the member from injury or disease; or

(ii) to a person, being a dependant of a member of the Forces or of a member of a Peacekeeping Force, in respect of the death of the member from injury or disease; and


 

(b) that person is in receipt of, or is subsequently granted, a pension under this Part in respect of the incapacity of that member from that injury or disease, or the death of that member from that injury or disease, as the case may be,

that person shall be deemed, by reason of that payment by way of compensation, to have been, or to be, in receipt of payments, by way of compensation, on and after—

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

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

whichever is the earlier date, for the life of the person, at such rate per fortnight 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 payment and paid to the person on that earlier date.

(4) For the purposes of this section, a payment by way of compensation made on behalf of, or for the benefit of, a person shall be deemed to have been made to that person.

(5) Where—

(a) an amount of damages payable to a member of the Forces or a member of a Peacekeeping Force, or to a dependant of such a member, is paid to the Commonwealth in pursuance of a notice under section 76; or

(b) the liability of the Commonwealth to pay damages to a member of the Forces or a member of a Peacekeeping Force or to a dependant of such a member, is, by virtue of section 77, to be deemed to have been discharged to the extent of a particular amount,

sub-section (3) of this section applies to and in relation to the member or dependant as if pension commenced to be payable, or commences to be payable, only after the member or dependant has received payments by way of instalments of pension aggregating the amount referred to in paragraph (a) or (b), whichever is applicable, of this sub-section.

(6) In the application of sub-sections (8) and (9) in respect of the death of a member of the Forces or a member of a Peacekeeping Force—

(a) if payments by way of compensation in respect of the death of the member are being made to 2 or more persons included in the relevant class of persons—a reference in those sections to the rate per fortnight at which compensation is payable in respect of the death of the member shall be read as a reference to the aggregate of the rates per fortnight at which those payments are being made; and

(b) if pensions under this Part in respect of the death of the member are being paid, or are payable, to 2 or more persons included in the relevant class of persons—a reference in those sections to the rate at which pension under this Part is payable in respect of the death of the member shall be read as a reference to the aggregate of the


 

rates per fortnight at which those pensions are being paid or are payable.

(7) For the purposes of sub-section (6), the dependants of a member of the Forces or a member of a Peacekeeping Force constitute the relevant class of persons.

(8) If, in a case where this section applies in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member from injury or disease, or both, the rate per fortnight at which compensation is payable in respect of the death or incapacity equals or exceeds the rate per fortnight at which pension under this Part is payable in respect of the death or incapacity, then, pension is not payable under this Part to any person in respect of the death of the member, or the incapacity of the member from that injury or disease, or both, as the case may be.

(9) If, in a case where this section applies in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member from injury or disease, or both, the rate per fortnight at which pension under this Part, or the aggregate of the rates per fortnight at which pensions under this Part would, but for this sub-section, be payable in respect of the death or incapacity exceeds the rate per fortnight at which compensation is payable in respect of the death or incapacity, then—

(a) if a pension under this Part is being paid, or is payable, to one person only in respect of the death or incapacity of the member— the rate per fortnight at which that pension is payable; or

(b) if pensions under this Part are being paid, or are payable, to 2 or more persons in respect of the death of the member—the aggregate of the rates per fortnight at which those pensions are payable,

is an amount per fortnight equal to the amount of that excess.

(10) In giving effect to sub-section (9) as between 2 pensions in a case where one is required by sub-section (12) to be preferred to the other, the rate per fortnight of the pension that is to be so preferred shall not be reduced until the pension that is not to be so preferred has ceased to be payable by reason that its rate per fortnight has been reduced to nil.

(11) In giving effect to sub-section (9) as between 2 or more pensions in a case where sub-section (10) does not apply, the rate per fortnight of each of those pensions shall be reduced by an amount per fortnight that bears the same proportion to the amount per fortnight of the reduction required to be made to all those pensions as the rate per fortnight of that pension before the reduction bears to the aggregate rate per fortnight of all those pensions before the reduction.

(12) For the purposes of this section—

(a) a pension payable under this Part to the spouse of a member of the Forces or a member of a Peacekeeping Force who is deceased shall


 

be preferred to such a pension payable to a child of the member; and

(b) a pension payable under this Part to a child of a member of the Forces or a member of a Peacekeeping Force shall be preferred to such a pension payable to a younger child of the member.

Proceedings against third party

75. (1) Where—

(a) pension is, or has been, payable in respect of the incapacity of a member of the Forces or a member of a Peacekeeping Force from a defence-caused injury or a defence-caused disease or in respect of the death of such a member that was defence-caused;

(b) the incapacity from injury or disease, or the death, occurred in circumstances that appear to create a legal liability in a person other than the Commonwealth to pay damages in respect of the injury or disease, or the death; and

(c) proceedings against that person for the purpose of recovering damages in respect of the injury or disease, or the death, 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,

the Commission may, by notice in writing to the member or dependant, 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 of the Forces or a member of a Peacekeeping Force or a dependant of such a member is requested, in accordance with sub-section (1), to institute proceedings against a person—

(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—the Commonwealth 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 proceedings, fails properly to prosecute the proceedings—the Commonwealth may take over the conduct of the proceedings.

(3) Where a member of the Forces or a member of a Peacekeeping Force, or a dependant of such a member, 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, the Commonwealth may take over the conduct of the proceedings.

(4) The Commonwealth is liable to pay all the costs of or incidental to proceedings referred to in sub-section (1), (2) or (3), being costs payable


 

by the plaintiff in those proceedings, but not including costs unreasonably incurred by the plaintiff.

(5) Where, in accordance with this section, the Commonwealth institutes proceedings in the name of a member of the Forces or a member of a Peacekeeping Force or of a dependant of such a member, or takes over the conduct of proceedings that have been instituted in the name of such a member or of a dependant of such a member—

(a) the Commonwealth 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 in the proceedings on behalf of the Commonwealth requires that member or dependant to sign and, if he or she fails to sign any such document, the court or tribunal in which the proceedings are being taken may direct that the document be signed on his or her behalf by a person appointed by the court or tribunal for the purpose.

Payment of damages to Commonwealth

76. (1) Where—

(a) a person other than the Commonwealth appears to be liable—

(i) to pay damages to a member of the Forces or a member of a Peacekeeping Force in respect of an injury or disease to the member; or

(ii) to pay damages to a dependant of a deceased member of the Forces or a deceased member of a Peacekeeping Force in respect of the death of the member; and

(b) pension under this Part is payable or has been paid to the member in respect of the incapacity of the member from that injury or disease or to the dependant in respect of the death of the member,

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 in respect of the injury or disease, or to pay damages to the dependant in respect of the death, or in the event of damages against the person being awarded to the member in proceedings instituted in respect of the injury or disease, or to the dependant in proceedings instituted in respect of the death, to pay to the Commonwealth so much of the amount of the damages as does not exceed the aggregate, at the time the payment is made to the Commonwealth, of the amounts of pension under this Part that have been paid to the member in respect of the incapacity of the member from that injury or disease, or to the dependant in respect of the death of the member, and the person shall comply with the notice.


 

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

(a) a person other than the Commonwealth has agreed—

(i) to pay damages to a member of the Forces or a member of a Peacekeeping Force in respect of an injury suffered by, or a disease contracted by, the member; or

(ii) to pay damages to a dependant of a deceased member of the Forces or member of a Peacekeeping Force in respect of the death of the member,

and pension under this Part is payable, or has been paid, to the member in respect of the incapacity of the member from that injury or disease or to the dependant in respect of the death of the member; or

(b) damages against a person other than the Commonwealth have been awarded—

(i) to a member of the Forces or member of a Peacekeeping Force in respect of an injury suffered by, or a disease contracted by, the member; or

(ii) to a dependant of a deceased member of the Forces or member of a Peacekeeping Force in respect of the death of the member,

and pension under this Part is payable, or has been paid, to the member in respect of the incapacity of the member from that injury or disease or to the dependant in respect of the death of the member,

the Commission may, by notice in writing to the person, require the person to pay to the Commonwealth so much of the amount of the damages as does not exceed the aggregate, at the time the payment is made to the Commonwealth, of the amounts of pension under this Part that have been paid to the member in respect of the incapacity of the member from that injury or disease or to the dependant in respect of the death of the member, and the person shall comply with the notice.

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

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

(b) if 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 has not been paid.

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


 

(5) The payment of an amount to the Commonwealth in pursuance of a notice under this section is, to the extent of the amount paid, a discharge of the liability of that person to the member or dependant.

(6) In this section, “damages” does not include an amount that has been paid in pursuance of a notice under section 102 of the Compensation (Commonwealth Government Employees) Act 1971.

Discharge of liability of Commonwealth to pay damages

77. Where—

(a) damages against the Commonwealth have been awarded—

(i) to a member of the Forces or a member of a Peacekeeping Force in proceedings instituted to recover damages in respect of an injury suffered by, or a disease contracted by, the member; or

(ii) to a dependant of a deceased member of the Forces or a member of a Peacekeeping Force in proceedings instituted to recover damages in respect of the death of the member; and

(b) pension under this Part is payable, or has been paid, to the member in respect of the incapacity of the member from that injury or disease or to the dependant in respect of the death of the member,

the liability of the Commonwealth 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 aggregate of the amounts of that pension that have been paid to the member or the dependant, as the case may be.

Other payments of compensation

78. (1) If, after any pension under this Part has been paid—

(a) to a member of the Forces or a member of a Peacekeeping Force in respect of the incapacity of the member from a defence-caused injury or a defence-caused disease; or

(b) to a dependant of a deceased member of the Forces or member of a Peacekeeping Force in respect of the death of the member that was defence-caused,

any compensation is paid under the law of a country other than Australia, or by, or under a scheme arranged by, an international organization, to or in respect of the member in relation to the injury suffered by, or the disease contracted by, the member, or to or in respect of the dependant in relation to the death of the member, the Commonwealth may recover from the member or dependant, as the case may be, by action in a court of competent jurisdiction, an amount equal to so much of the amount of compensation so paid as does not exceed the aggregate of the amounts of pension under this Part that have been so paid to the member or dependant, as the case may be.

(2) The Commission may, by notice in writing to a person (being a claimant for pension under this Part, or a person in receipt of pension under


 

this Part, in respect of the incapacity of a member of the Forces or a member of a Peacekeeping Force from a defence-caused injury or a defence-caused disease or the death of such a member), require the person to furnish to the Commission, within a reasonable period specified in the notice, a statutory declaration stating whether any compensation has been paid to or in respect of the person, or has been claimed by or in respect of the person, under a law of a country other than Australia, or under a scheme arranged by an international organization, in respect of the injury suffered, or the disease contracted, by the member, or the death of the member, as the case may be.

(3) Where a person refuses or fails to comply with a notice under sub-section (2), the right of the person to pension under this Part in respect of the injury, disease or death to which the notice relates, and the right of the person to institute or take any proceedings under this Act in relation to that pension or a claim for that pension, are suspended until the statutory declaration is furnished.

(4) Where a person’s right to pension under this Part is suspended under sub-section (3), the person is not entitled to be paid pension under this Part in respect of the period of the suspension.

(5) In this section—

“compensation” has the same meaning as it has in section 74;

“international organization” means—

(a) an organization—

(i) of which 2 or more countries, or the Governments of 2 or more countries, are members; or

(ii) that is constituted by persons representing 2 or more countries, or representing the Governments of 2 or more countries; or

(b) an organization that is—

(i) an organ of, or office within, an organization described in paragraph (a);

(ii) a commission, council or other body established by an organization so described or such an organ; or

(iii) a committee, or sub-committee of a committee, of an organization described in paragraph (a), or of such an organ, council or body.

Overpayments of pension

79. (1) Where—

(a) an amount has been paid—

(i) to a member of the Forces or a member of a Peacekeeping Force as pension under this Part in respect of the incapacity of the member from a defence-caused injury or defence-caused disease; or


 

(ii) to a dependant of a deceased member of the Forces or member of a Peacekeeping Force as pension under this Part in respect of the death of the member that was defence-caused; and

(b) by reason of section 74, that amount was not payable to the member or dependant,

an amount equal to the amount so paid is recoverable from the member or dependant by deduction from any amount of pension under this Part payable to the member or dependant in respect of the incapacity from that injury or disease or of the death of the member, as the case may be.

(2) Sub-section (1) does not prevent the recovery of an amount referred to in that sub-section otherwise than as provided in that sub-section, but an amount shall not be recovered as so provided and also otherwise than as so provided.

PART V—MEDICAL AND OTHER TREATMENT

Interpretation

80. (1) In this Part, unless the contrary intention appears, “treatment” means treatment provided, or action taken, with a view to—

(a) restoring a person to, or maintaining a person in, physical or mental health;

(b) alleviating a person’s suffering; or

(c) ensuring a person’s social well-being,

and, without limiting the generality of the foregoing, includes—

(d) the provision of accommodation, medical procedures, nursing care, social or domestic assistance or transport;

(e) the supply, renewal, maintenance and repair of artificial replacements, and surgical and other aids and appliances; and

(f) the provision of diagnostic and counselling services,

for the purposes of, or in connection with, any such treatment or action.

(2) In this Part—

(a) references to a married person and to an unmarried person have the same respective meanings as they have in Part III by virtue of sub-sections 35 (6) and 35 (1), respectively;

(b) a reference to a country area of a State shall be read as a reference to a part of that State, outside the metropolitan area of the capital city of that State, determined by the Commission, by instrument in writing, to be a country area of that State for the purposes of this Part;

(c) a reference to a veteran shall be read as a reference to a veteran as defined by sub-section 5 (1), other than a person who is a veteran as so defined by reason only that the person has rendered service of a kind described in paragraph 6 (1) (f) or (g); and


 

(d) a reference to a veteran who is in receipt of a service pension shall be read as a reference to a veteran, within the meaning of paragraph (c), who is in receipt of a service pension or a wife’s service pension.

Application of Part V

81. (1) Without prejudice to its effect apart from this sub-section, this Part has effect in relation to a person who is, or has been—

(a) a member of the Forces as defined by sub-section 68 (1); or

(b) a member of a Peacekeeping Force as defined by sub-section 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 of the application of this Part in accordance with sub-section (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 sub-section 68 (1);

(b) a reference in this Part to a pension, not being a service pension, a wife’s service pension or a carer’s service pension, shall be read as a reference to a pension under Part IV;

(c) a reference in this Part to a war-caused injury shall be read as a reference to a defence-caused injury;

(d) a reference in this Part to a war-caused disease shall be read as a reference to a defence-caused disease; and

(e) 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 member of a Peacekeeping Force, as defined by sub-section 68 (1), that was defence-caused.

Prescribed persons

82. (1) A person is a prescribed person for the purposes of this Part if the annual rate of the person’s income, calculated as provided by sub-section 35 (12) and section 37, is equal to, or exceeds, the prescribed rate of income applicable to the person by virtue of sub-section 83 (1).

(2) A person, not being a person who is a prescribed person for the purposes of this Part by virtue of sub-section (1) or a person who is permanently blinded in both eyes, is a prescribed person for the purposes of this Part if—

(a) the person is in receipt of a service pension, a wife’s service pension or a carer’s service pension the annual rate of which is determined by reference to paragraph 47 (5) (b) or 48 (4) (b), as the case requires; or

(b) the person is not in receipt of such a pension but, if the person were a veteran who was eligible to receive a service pension, the


 

annual rate of that pension would be determined by reference to paragraph 47 (5) (b),

and the value of the person’s property, calculated as provided by sub-sections 35 (12) and (13) and section 50, is equal to, or exceeds the prescribed property value applicable to the person by virtue of sub-section 83 (2).

Prescribed rate of income and property value

83. (1) For the purposes of this Part, the prescribed rate of income applicable to a person is—

(a) in the case of an unmarried person—

(i) if the person has a child or children wholly or substantially dependent on the person—$3,380 per year plus $1,040 per year in respect of that child or of each of those children, as the case may be; or

(ii) in any other case—$3,380 per year; or

(b) in the case of a married person—

(i) if the person has a child or children wholly or substantially dependent on the person—$2,756 plus $520 per year in respect of that child or of each of those children, as the case may be; or

(ii) in any other case—$2,756 per year.

(2) For the purposes of this Part, the prescribed property value applicable to a person is—

(a) in the case of an unmarried person—

(i) if, in calculating the value of the property of the person for the purposes of Part III, a value of the kind referred to in sub-paragraph 50 (1) (a) (i) has been or would be disregarded—$80,000; or

(ii) in any other case—$130,000; or

(b) in the case of a married person—

(i) if, in calculating the value of the property of the person for the purposes of Part III, a value of the kind referred to in sub-paragraph 50 (1) (a) (ii) has been or would be disregarded—$57,500; or

(ii) in any other case—$82,500.

Provision of treatment

84. (1) The Commission may arrange for the provision of treatment for veterans and other persons eligible to be provided with treatment under this Part—

(a) at a hospital or other institution operated by the Commission under paragraph 89 (1) (a);

(b) at another hospital or other institution in accordance with arrangements referred to in paragraph 89 (1) (b) or (c); or


 

(c) otherwise.

(2) Subject to sub-section (3), the Commission shall not be taken to have arranged for the provision of treatment for a person otherwise than at a hospital or institution referred to in paragraph (1) (a) unless the Commission approved the provision of the treatment before the treatment was given, or commenced to be given, as the case may be.

(3) Where the Commission is satisfied that treatment was provided, or commenced to be provided, without the prior approval of the Commission, for an injury suffered, or disease contracted by a person—

(a) at any time during the period from and including the date as from which the person has become eligible to be provided with treatment for that injury or disease to and including the date on which the determination was made by virtue of which the person has become eligible to be provided with treatment under this Part for that injury or disease; or

(b) in circumstances in which it would be proper for the Commission to approve provision of the treatment after it had been given or had commenced to be given,

the Commission may, in its absolute discretion, approve the provision of that treatment and, if it does so, the Commission shall be deemed to have arranged for the provision of that treatment.

(4) Nothing in this Part shall be taken to—

(a) impose a duty on the Commission to arrange for the provision of; or

(b) confer a right on a person to be provided, under arrangements made by the Commission, with,

treatment for a particular injury or disease, treatment of a particular kind for an injury or disease or treatment for an injury or disease outside Australia.

(5) Nothing in this Part shall be taken to confer on a person a right to be provided with treatment for an injury or disease—

(a) by the Commonwealth; or

(b) by the Commission otherwise than to the extent that, and in a manner that, it may be provided under arrangements made by, or with the approval of, the Commission.

(6) Subject to section 93, where a person, other than a person included in a prescribed class of persons, is provided with treatment under section 87 or 88, the person is liable to pay to the Commonwealth in respect of that treatment—

(a) unless paragraph (b) applies—charges in accordance with a scale of charges determined by the Commission, by instrument in writing, being charges based on charges payable for treatment as private patients in public hospitals in Australia; or


 

(b) if the person is not ordinarily resident in Australia—the cost (as determined by the Commission by instrument in writing) of and incidental to that treatment.

Veterans eligible to be provided with treatment

85. (1) Where a determination under this Act is in force determining that an injury suffered by a veteran is a war-caused injury or that a disease contracted by a veteran is a war-caused disease, the veteran is eligible to be provided with treatment under this Part for that injury or disease from and including—

(a) the date as from which a pension, or increased pension, is granted to the veteran under Part II in respect of his or her incapacity from that injury or disease; or

(b) the date as from which such a pension or increased pension would have been granted to the veteran if the extent of the incapacity of the veteran from the injury or disease had not been insufficient to justify the grant of, or increase of, a pension under Part II.

(2) A veteran is eligible to be provided with treatment under this Part for malignant neoplasia or pulmonary tuberculosis from and including the date that is 3 months before the date on which the application to be provided with that treatment is received at an office of the Department in Australia.

(3) Where a veteran—

(a) is in receipt of a pension under Part II at the rate specified in subsection 22 (7) or at a higher rate; or

(b) is in receipt of 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 table in sub-section 27 (1),

the veteran is eligible to be provided, from and including the date as from which a pension is so payable to the veteran, with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

(4) Where—

(a) a veteran rendered, while a member of the Defence Force, continuous full-time service during World War 1;

(b) a veteran was, while a member of the Defence Force, detained by the enemy during a War to which this Act applies or while serving on operational service; or

(c) the veteran is a person who was an eligible civilian within the meaning of sub-section 5 (6) and was, while he or she was such a civilian, detained by the enemy during World War 2,

the veteran is eligible to be provided, from and including the date on which the veteran’s application to be provided with treatment is received at an office of the Department in Australia, with treatment under this Part for


 

any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

(5) A veteran (not being a veteran who has been permanently blinded in both eyes or a veteran who is a prescribed person) who is in receipt of a service pension is, from and including—

(a) in a case where the annual rate of that pension is determined under, or by reference to, paragraph 47 (5) (b)—the date as from which the veteran was granted a service pension at a rate calculated, or the rate of the service pension granted to the veteran was increased, on the basis that the value of the veteran’s property (calculated as provided by sub-sections 35 (12) and (13) and section 50) was less than the prescribed property value applicable to the veteran by virtue of section 83; or

(b) in any other case—the date as from which the veteran was granted a service pension at a rate calculated, or the rate of the service pension granted to the veteran was increased, on the basis that the annual rate of income of the veteran, calculated as provided by sub-section 35 (12) and section 37, was less than the prescribed rate of income applicable to the veteran by virtue of section 83,

eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

(6) Where a veteran in receipt of a service pension under Part III is permanently blinded in both eyes, the veteran is, from and including the date as from which the veteran was granted the service pension, or the date on which the veteran became so blinded, whichever is the later date, eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

(7) Where a veteran—

(a) is in receipt of a pension under Part II at a rate not less than 50 per centum of the rate specified in sub-section 22 (7); and

(b) is also in receipt of a service pension or a wife’s service pension under Part III,

the veteran is, from and including—

(c) the date as from which that pension under Part II became so payable to the veteran; or

(d) the date as from which that service pension or wife’s service pension became payable to the veteran,

whichever is the later date, eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act.

(8) Where a service pension, or wife’s service pension, is suspended, the Commission may, by instrument in writing, determine, for the purposes of the application of the provisions of this section to and in relation to the


 

person to whom the pension was granted, that that person shall be treated as if he or she were continuing to receive that pension during the period, or a specified part of the period, of the suspension.

(9) Where—

(a) a veteran, while a member of the Defence Force, rendered continuous full-time service outside Australia in the area described in item 4 or 8 of Schedule 2 (in column 1) while that area was an operational area, whether or not the veteran rendered that service—

(i) as a member of a unit of the Defence Force that was allotted for duty; or

(ii) while allotted for duty, in that area; and

(b) the Commission is satisfied that the veteran requires urgent treatment for an injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act,

the veteran is eligible to be provided with treatment under this Part for that injury or disease—

(c) at a hospital operated and maintained by the Commission, if the Commission is satisfied that provision of that treatment will not adversely affect the capacity of the Commission to provide treatment at that hospital for veterans eligible to be provided with treatment by virtue of a preceding sub-section or dependants of veterans eligible to be provided with treatment by virtue of sub-section 86 (1), (2), (3) or (4);

(d) at a hospital in a country area of a State operated by that State, being a hospital in respect of which the Commission has entered into arrangements of a kind referred to in paragraph 89 (1) (b); or

(e) at a hospital in a Territory, being a hospital operated by the Commonwealth or the Government of that Territory in respect of which the Commission has entered into arrangements of a kind referred to in paragraph 89 (1) (b).

(10) Where a veteran has been provided with treatment at a hospital under sub-section (9) for an injury or disease, the Commission may provide further treatment for that injury or disease otherwise than at a hospital of a kind referred to in that sub-section if it is of the opinion that that further treatment is desirable.

(11) Where a veteran would, but for the operation of section 26 or 74, be in receipt of a pension under Part II—

(a) at a rate referred to in paragraph (3) (a) or (7) (a) of this section; or

(b) in respect of incapacity of a kind referred to in paragraph (3) (b) of this section,

sub-section (3) or (7), as the case requires, of this section applies to the veteran as if the veteran were in receipt of that pension.


 

(12) Where a veteran is, under a preceding sub-section of this section, eligible to be provided with treatment under this Part for an injury suffered, or disease contracted, by the veteran from and including a particular date and is also, under another preceding sub-section of this section, eligible to be provided with treatment under this Part for that injury or disease from and including an earlier date, the Commission may arrange for the veteran to be provided with treatment for that injury or disease from and including that earlier date.

Dependants eligible to be provided with treatment

86. (1) Where a determination under this Act is in force determining that the death of a veteran is war-caused, a dependant of the deceased veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the dependant, whether before or after the commencement of this Act.

(2) A dependant of a deceased veteran is eligible to be provided with treatment under sub-section (1)—

(a) if—

(i) the deceased veteran was, immediately before the veteran’s death, in receipt of a pension under Part II at the rate specified in sub-section 24 (4) or at a rate that had been increased under section 27 by reason that the veteran’s pension was in respect of incapacity of a kind described in items 1, 2, 3, 4, 5, 6, 7 or 8 of the table in sub-section 27 (1); or

(ii) a pension has been granted under Part II, after the death of the veteran, in respect of the veteran at the rate specified in sub-section 24 (4) or at a rate that had been increased under section 27 by reason that the veteran’s pension was in respect of incapacity of a kind described in items 1, 2, 3, 4, 5, 6, 7 or 8 of the table in sub-section 27 (1),

from and including the day immediately following the day on which the veteran died; or

(b) in any other case—from and including the date as from which a pension is granted to the dependant of the deceased veteran under Part II.

(3) A child of a deceased veteran who is in receipt of, is eligible to receive or would, but for sub-section 13 (7), be eligible to receive a pension under Part II by virtue of sub-section 13 (2) or (4) is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the child, whether before or after the commencement of this Act.

(4) A child of a deceased veteran is eligible to be provided with treatment under sub-section (3) from and including—

(a) subject to paragraph (b)—the day (in this sub-section referred to as the “relevant day”) immediately following the day on which the veteran died; or


 

(b) if the Commission is satisfied that the child was then being maintained by a parent, adoptive parent or step-parent, the earliest day after the relevant day as from which the Commission is satisfied that the child was not being so maintained.

(5) Where the Commission is satisfied that a dependant of a veteran referred to in paragraph 85 (9) (a) requires urgent treatment for an injury suffered, or disease contracted, by the dependant, whether before or after the commencement of this Act, the dependant is eligible to be provided with treatment under this Part for that injury—

(a) at a hospital operated and maintained by the Commission, if the Commission is satisfied that provision of the treatment will not affect the capacity of the Commission to provide treatment at that hospital for veterans eligible to be provided with treatment by virtue of sub-section 85 (1), (2), (3), (4), (5), (6), (7) or (8) or dependants of veterans eligible to be provided with treatment by virtue of a preceding sub-section of this section; or

(b) at a hospital in a country area of a State operated by that State, being a hospital in respect of which the Commission has entered into arrangements of a kind referred to in paragraph 89 (1) (b); or

(c) at a hospital in a Territory, being a hospital operated by the Commonwealth or the Government of that Territory in respect of which the Commission has entered into arrangements of a kind referred to in paragraph 89 (1) (b).

(6) Where a dependant of a veteran has been provided with treatment at a hospital under sub-section (5) for an injury or disease, the Commission may provide further treatment for the dependant for that injury or disease otherwise than at a hospital of a kind referred to in that sub-section if it is of the opinion that that further treatment is desirable.

Additional treatment for veterans

87. (1) The Commission may provide, at a hospital or institution operated by the Commission under paragraph 89 (1) (a), a veteran with treatment for any injury suffered, or disease contracted, by the veteran notwithstanding that the veteran is not eligible under section 85, to be provided with that treatment under this Part if the Commission is satisfied that the provision of the treatment will not adversely affect the capacity of the Commission to provide treatment for veterans and dependants of veterans eligible to be provided with treatment by virtue of section 85 or 86.

(2) Where a veteran has been provided with treatment at a hospital or institution under sub-section (1) for an injury or disease, the Commission may provide further treatment for the veteran for that injury or disease otherwise than at a hospital or institution operated by the Commission under paragraph 89 (1) (a) if it is of the opinion that that further treatment is desirable.


 

Treatment for other persons

88. (1) The Commission may provide, at a hospital or institution operated by the Commission under paragraph 89 (1) (a), a person with treatment for any injury suffered, or disease contracted, by the person, if the Commission is satisfied that the provision of that treatment will not adversely affect the capacity of the Commission to provide treatment for veterans and dependants of veterans eligible to be provided with treatment by virtue of section 85, 86 or 87.

(2) Sub-section (1) does not apply in relation to the provision of treatment by the Commission for an injury suffered or a disease contracted by a person if treatment of the person for that injury or disease may be provided by the Commission under another provision of this Part.

(3) Where a person has been provided with treatment at a hospital or institution under sub-section (1) for an injury or disease, the Commission may provide further treatment for the person for that injury or disease otherwise than at a hospital or institution operated by the Commission under paragraph 89 (1) (a) if it is of the opinion that that further treatment is desirable.

Treatment at hospitals and other institutions

89. (1) For the purposes of this Part, the Commission may—

(a) establish, operate and maintain hospitals or other institutions for the care and welfare of persons eligible to be provided with treatment under this Part;

(b) enter into arrangements with the appropriate authority of the Commonwealth, a State or a Territory for the provision, at a hospital or other institution operated by the Commonwealth, the State or the Government of the Territory, as the case may be, of care and welfare for persons eligible to be provided with treatment under this Part; and

(c) enter into arrangements with the body (other than an authority referred to in paragraph (b)) operating a hospital or other institution for the provision, at that hospital or institution, of care and welfare for persons eligible to be provided with treatment under this Part.

(2) In sub-section (1) 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.

(3) The provisions of a relevant law of a State or Territory apply, with such modifications (if any) as are prescribed, to and in relation to a person (whether appointed or employed under the Public Service Act 1922 or not) who is employed, or provides services, at a hospital or other institution established, operated or maintained by the Commission under paragraph (1) (a) that is situated in the State or Territory.


 

(4) In sub-section (3), “relevant law”, in relation to a State or Territory, means—

(a) a law of a State or Territory that came into operation before, or comes into operation after, the commencement of this Act; or

(b) such a law of a State or Territory, as amended and in force from time to time,

that is declared by the regulations to be a relevant law for the purposes of that sub-section.

(5) Nothing in sub-section (3) shall be taken to affect the operation of a law of a State or Territory that is not a relevant law of that State or Territory.

(6) The regulations may provide that the provisions of a law of a State or Territory, as in force at a particular time, or as in force from time to time, apply, in accordance with their tenor, to and in relation to—

(a) a hospital or other institution operated and maintained by the Commission under paragraph (1) (a) in that State or Territory; or

(b) to the Commonwealth place in that State or Territory where that hospital or institution is situated.

(7) Sub-section (6) does not apply to the provisions of a law of a State that apply to the Commonwealth place referred to in paragraph (6) (b) by virtue of the Commonwealth Places (Application of Laws) Act 1970.

(8) The regulations may provide that such of the provisions referred to in sub-section (6) as are specified in the regulations apply with such modifications, being modifications necessary or convenient to enable the applied provisions to operate in or in relation to that hospital, institution or Commonwealth place.

(9) In this section—

“Commonwealth place”, in relation to a hospital or other institution, means the land on which the hospital or institution is erected and other land surrounding that land or adjacent to that land used in connection with, or for the purposes of, the hospital or institution, being land with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, power to make laws for the peace, order and good government of the Commonwealth;

“modification” includes the omission or addition of a provision or the substitution of a provision for another provision.

Guide to the provision of treatment

90. (1) The Commission may, from time to time, prepare a written document, to be known as the “Treatment Principles”, setting out circumstances in which, and conditions subject to which, treatment of a particular kind, or included in a particular class of treatment, may be provided under this Part for, or in respect of, eligible persons—


 

(a) by the Commission at a hospital or other institution operated by the Commission;

(b) at a hospital or other institution in respect of which the Commission has entered into arrangements under paragraph 89 (1) (b) or (c); or

(c) otherwise under this Part.

(2) Without limiting the generality of sub-section (1), a document referred to in that sub-section may specify kinds or classes of treatment that will not be provided for, or in respect of, eligible persons under this Part, or will not be so provided at places, or in circumstances, specified or described in the document.

(3) The provisions of the approved Treatment Principles are binding on the Commission in the exercise by it of its powers and discretions under this Part.

(4) The Commission may, from time to time, by instrument in writing, vary or revoke the document prepared by it in accordance with sub-section (1).

(5) A document prepared by the Commission in accordance with subsection (1), and an instrument under sub-section (3), have no force or effect unless and until approved by the Minister.

(6) When a document prepared by the Commission in accordance with sub-section (1), or an instrument under sub-section (4) has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.

(7) The Commission shall make copies of the approved Treatment Principles available upon application and payment of the prescribed fee (if any).

(8) In this section “eligible person” means a person eligible under section 85, 86, 87 or 88 to be provided with treatment.

Pharmaceutical benefits

91. (1) The Commission may, from time to time, by instrument in writing, prepare a scheme for the provision of pharmaceutical benefits to persons eligible to be provided with treatment under this Part.

(2) The Commission may, from time to time, by instrument in writing, vary or revoke an instrument prepared in accordance with sub-section (1).

(3) A scheme prepared by the Commission under sub-section (1), and an instrument under sub-section (2), have no force or effect unless and until approved by the Minister.


 

(4) When an instrument prepared by the Commission in accordance with sub-section (1), or an instrument under sub-section (2), has been approved by the Minister, the Commission shall furnish copies of the instrument to the Minister and the Minister shall cause copies to be laid before