Veterans’ Entitlements Amendment Act 1991

No. 72 of 1991

TABLE OF PROVISIONS

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Subdivision C—Service pension rate calculator where there are dependent children

42.         Rate of age, invalidity, wife and carer service pension (dependent child or children)

Subdivision D—Service pension rate calculator for blinded veterans

43.            Rate of age and invalidity service pension (blinded veterans)

TABLE OF PROVISIONS—continued

Section

Subdivision E—Service pension rate calculator for widows and non-illness separated wives

44.         Rate of wife service pension for widows and non-illness separated wives

Subdivision F—Service pension rate calculator for “frozen rate” widows

45.         Rate of age, invalidity and carer service pensions (war widow)

TABLE OF PROVISIONS—continued

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Veterans’ Entitlements Amendment Act 1991

No. 72 of 1991

An Act to amend the Veterans’ Entitlements Act 1986

[Assented to 25 June 1991]

The Parliament of Australia enacts:

Short title etc.

1.  (1) This Act may be cited as the Veterans’ Entitlements Amendment Act 1991.

(2) In this Act, “Principal Act” means the Veterans’ Entitlements Act 1986¹.

Commencement

2.    This Act commences on 1 July 1991.

3.    Section S of the Principal Act is repealed and the following sections are substituted:

Index of definitions

“5. Each expression listed in the Index below is defined, for the purposes of this Act, in the provision listed in the Index opposite that expression.

Note: the Index does not contain every defined expression used in the Act. It contains every defined expression used in Part III and some defined expressions used elsewhere.

INDEX

INDEX—continued

INDEX—continued

Repatriation Commission definitions

“5a. In this Act, unless the contrary intention appears:

‘acting commissioner’ means a person who is acting as a commissioner because of an appointment under section 191;

‘Acting Deputy President’ means a commissioner or acting commissioner who is acting as Deputy President because of an appointment under section 192;

‘Acting President’ means a commissioner or acting commissioner who is acting as President because of an appointment under section 192 or 193;

‘Commission’ means the Repatriation Commission continued in existence by section 179;

‘commissioner’ means a person holding an office of commissioner because of an appointment under section 182;

‘Deputy President’ means the Deputy President of the Commission;

‘President’ means the President of the Commission.

War and operational area related definitions

“5B. (1) In this Act, unless the contrary intention appears:

‘operational area’ means an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1;

‘period of hostilities’ means:

(a)  World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or

(b)  World War 2 from its commencement on 3 September 1939 to 3 September 1945 (both included); or

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

(d)    the period of hostilities in respect of Malaya from 29 June 1950 to 31 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);

‘war to which this Act applies’ means World War 1 or World War 2;

‘World War 1’ means:

(a)  the war that commenced on 4 August 1914; and

(b)  any other war in which the Crown became engaged after 4 August 1914 and before 11 November 1918;

‘World War 2’ means:

(a)     the war that commenced on 3 September 1939; and

(b)    any other war in which the Crown became engaged after 3 September 1939 and before 3 September 1945.

Allotted for duty

“(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference to a person, or unit of the Defence Force:

(a)     that was so allotted for duty under administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which the unit formed a part; or

(b)    that is, by written instrument signed by the Minister for Defence, taken 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.

End of World War 1 and 2

“(3) For the purposes of this Act:

(a)     World War 1 is taken to have ended on 1 September 1921; and

(b)    World War 2 is taken to have ended on 28 April 1952.

Note 1: 1 September 1921 is the date fixed by Proclamation under the Termination of the Present War (Definition) Act 1919.

Note 2: 28 April 1952 is the date on which the Treaty of Peace with Japan came into force.

Eligibility related definitions

“5c. (1) In this Act, unless the contrary intention appears: ‘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;

‘allied mariner’ means a person who:

(a) was during the period of World War 2 from its commencement to and including 29 October 1945:

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

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

(iii) employed as a pilot; or

(iv) a master, officer, seaman or apprentice employed in seagoing 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 referred to in paragraph (a) on a ship that was:

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

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

(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; or

(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; or

(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:

(a)     who has been appointed or enlisted as a member of the defence force established by an allied country; and

(b)    who has rendered continuous full-time service as such a member during a period of hostilities;

but does not include a person who has served at any time:

(c)     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

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

‘Australian mariner’ means a person who was, during the period of World War 2 from its commencement to and including 29 October 1945:

(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; or

(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; or

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

(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; or

(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, cabled ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel; or

(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;

‘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;

‘Commonwealth veteran’ means a person who rendered continuous full-time service as a member of:

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

(b)    the nursing or auxiliary services; or

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

of a Commonwealth country during a period of hostilities;

‘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; or

(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 a service referred to in subparagraph (a) (i), (ii) or (iii);

Note: see also subsection SR (1).

‘defence force established by a Commonwealth country’ means:

(a)     the naval, military or air forces of the country; or

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

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

‘defence force established by an allied country’ means:

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

(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 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:

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

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

(f)     were required to carry arms openly; and

(g)     were subject to the rules and conventions of warfare;

Note: for extended meaning of this term in relation to a government-in-exile, see subsection (3).

‘eligible civilian’ means a person:

(a)     who was killed, or detained by the enemy, during World War 2; and

(b)    who was, at the time the person was killed or first detained:

(i) a British subject; and

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

(c)  who was not, at that time:

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

(ii) employed by the Commonwealth on a special mission outside Australia;

‘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

(c)     persons assisting any of those forces;

‘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;

‘member of a unit of the Defence Force’ means:

(a)     a member of the Defence Force; or

(b)    another person who is:

 (i) a member of the unit; or

 (ii) attached to the unit; or

(iii) appointed for continuous full-time service with the unit;

Note: see also subsection 5r (1).

‘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:

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

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

on or after 1 July 1947 and before 1 July 1949;

‘qualifying service’ has the meaning given in section 7a;

‘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):

(i) who is, because of section 7, taken to have rendered eligible war service; or

(ii) in respect of whom a pension is, or pensions are, payable under subsection 13 (6); and

(b) in Part III also includes a person who is:

(i) a Commonwealth veteran; or

(ii) an allied veteran; or

(iii) an Australian mariner; or

(iv) an allied mariner.

Army Medical Corps Nursing Service

“(2) For the purposes of this Act, a member of the Army Medical Corps Nursing Service who:

(a)     rendered service during World War 1, either within or outside Australia; and

(b)    rendered the service as such a member in accordance with an acceptance or appointment by the Director-General of Medical Services for service outside Australia;

is taken to have been serving as a member of the Defence Force while rendering that service.

‘Defence force’ of government-in-exile

“(3) In relation to any period during which there was a government-in-exile in relation to an allied country, ‘defence force established by an allied country’ includes:

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

(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 the members of those forces and services:

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

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

(f)     were required to carry arms openly; and

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

Injury/disease definitions

“5D. (1) In this Act, unless the contrary intention appears:

‘disease’ includes:

(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); and

(b) 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;

‘injury’ means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a)     a disease; or

(b)    the aggravation of a physical or mental injury.

War-caused injury; war-caused disease; defence-caused injury; defence-caused disease

“(2) 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;

is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.

Note: for ‘war-caused injury’ and ‘war-caused disease’ see section 9.

Blinded in an eye

“(3) For the purposes of this Act, a person is taken to have been blinded in an eye if:

(a)     the person has lost the eye; or

(b)    in the opinion of the Commission, the eyesight of the person in that eye is so defective that the person has no useful sight in that eye.

Family relationships definitions—couples

“5E. (1) In this Act, unless the contrary intention appears:

‘couple’ has the meaning given by subsections (2), (3) and (4);

‘member of a couple’ has the meaning given by subsections (2), (3) and (4);

‘non-illness separated wife’ means a woman:

(a)     who is legally married to a veteran but is living separately and apart from him on a permanent basis; and

(b)    whose separation has not resulted in a direction under subsection 5r (3); and

(c)  who is not receiving age or invalidity service pension;

‘partner’, in relation to a person who is a member of a couple, means the other member of the couple;

‘partnered’ has the meaning given by subsection (5);

‘partnered (partner getting benefit)’ has the meaning given by subsection (5);

‘partnered (partner getting neither pension nor benefit)’ has the meaning given by subsection (5);

‘partnered (partner getting pension)’ has the meaning given by subsection (5);

Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.

‘partnered (partner getting pension or benefit)’ has the meaning given by subsection (5);

‘war widow’ means a woman:

(a)  who was the partner of, or was legally married to:

(i) a veteran; or

(ii) a person who was a member of the Forces for the purposes of Part II; or

(iii) a person who was a member of the Forces for the purposes of Part IV;

immediately before the death of the veteran or person; and

(b)  who is receiving:

(i) a pension payable under Part II or IV at a rate determined under or by reference to subsection 30 (1); or

(ii) a pension payable under the Seamen’s War Pension and Allowances Act 1940 at a rate determined under or by reference to subsection 18 (2) of that Act; or

(iii) a 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); or

(iv) a pension that:

(a) is payable under the law of a foreign country; and

(b) is, in the opinion of the Commission, similar in character to a pension or payment referred to in subparagraph (i), (ii) or (iii);

‘widow’ means:

(a)     a woman who was the partner of a man immediately before he died; or

(b)    a woman who was legally married to a man, but living separately and apart from her on a permanent basis, immediately before he died.

‘widower’ means:

(a)     a man who was a partner of a woman immediately before she died; or

(b)     a man who was legally married to a woman, but living separately and apart from her on a permanent basis, immediately before she died.

Member of a couple—general

“(2) A person is a member of a couple for the purposes of this Act if:

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

(b)    all of the following conditions are met:

(i) the person is living with a person of the opposite sex (in this paragraph called the ‘partner’);

(ii) the person is not legally married to the partner;

(iii) the person and the partner are, in the Commission’s opinion (formed as mentioned in section 11a), in a marriage-like relationship;

(iv) the person and the partner are not within a prohibited relationship for the purposes of section 23b of the Marriage Act 1961.

Note 1: for ‘living with a person’ see subsection (3).

Note 2: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

•  an ancestor of the person; or

•  a descendant of the person; or

•  a brother or sister of the person (whether of the whole blood or the part-blood).

“(3) For the purposes of subparagraph (2) (b) (i), a person is to be treated as living with another person during:

(a)     any temporary absence of one of those persons;

(b)    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 living together during that period.

Member of a couple—special excluding determination

“(4) A person is not a member of a couple if a determination under subsection 5r (3) is in force in relation to the person.

Note: subsection 5r (3) allows the Commission to treat a person who is a member of a couple as not being a member of a couple in special circumstances.

Standard family situation categories

“(5) For the purposes of this Act:

(a)     a person is partnered if the person is a member of a couple; and

(b)    a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person’s partner:

(i) is not receiving a service pension; and

 (ii) is not receiving a social security pension; and

(iii) is not receiving a social security benefit; and

(c)  a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person’s partner is receiving:

(i) a service pension; or

(ii) a social security pension; or

(iii) a social security benefit; and

(d)  a person is partnered (partner getting pension) if the person is a member of a couple and the person’s partner is receiving:

(i) a service pension; or

(ii) a social security pension; and

(e)  a person is partnered (partner getting benefit) if the person is a member of a couple and the person’s partner is receiving a social security benefit.

Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance (see subsection 5q).

Family relationships definitions—children

“5f. (1) In this Act, unless the contrary intention appears:

‘adopted child’ means a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children;

‘child’ means:

(a)     a person who has not turned 16; or

(b)    a person who:

(i) has turned 16 but has not turned 25; and

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

but does not include such a person if the person is receiving:

(c)     an invalid pension; or

(d)    a wife pension; or

(e)     a carer pension; or

(f)     a sole parent pension; or

(g)     a widow B pension; or

(h)    a widowed person allowance; or

(i)      a rehabilitation allowance; or

(j)      a social security benefit;

under the Social Security Act.

Note: see also subsection (5) (receiving full-time education).

‘dependent child’ has the meaning given by subsections (2) to (5);

‘parent’ means, in relation to an adopted child, an adoptive parent of the child;

‘pension increase child’ has the meaning given by subsection (6);

‘prescribed educational scheme’ means:

(a) the AUSTUDY Scheme; or

(b)     the ABSTUDY Scheme, to the extent that it provides means-tested allowances; or

(c)     the Assistance for Isolated Children Scheme; or

(d)     the Veterans’ Children Education Scheme; or

(e)     the Post-Graduate Awards Scheme;

‘prescribed student child’ means a child in respect of whom a determination under subsection 5r (9) is in force;

‘receiving full-time education at a school, college or university’ has the meaning given by subsection (5);

‘student child’ means a person who:

(a)     has turned 16 but who has not turned 25; and

(b)    is receiving full-time education at a school, college or university;

Note: see also subsection (5) (receiving full-time education).

Dependent child

“(2) Subject to subsections (3) and (4), a child is a dependent child of another person if the child is a child of the person within the meaning of section 10.

Employed child

“(3) A child who has not turned 16 cannot be a dependent child if:

(a)     the child is not receiving full-time education; and

(b)    the child is receiving income from employment; and

(c)     the rate of that income exceeds $100 per week.

Dependent child—residence requirements

“(4) For the purposes of this Act, a child is not a dependent child of another person unless:

(a)     the child is an Australian resident; or

(b)    the child:

(i) had been an Australian resident living with the person in Australia; and

(ii) is living with the person outside Australia.

Note: for ‘Australian resident’ see section 5G.

Receiving full-time education—education leavers

“(5) If:

(a)     a person is under the age of 25 years; and

(b)    the person ceases to receive full-time education at a school, college or university; and

(c)     an unemployment benefit or a job search allowance is not payable to the person because of an education leavers waiting period;

the person is to be taken to be receiving full-time education at a school, college or university during the period for the purposes of this Act.

Pension increase child

“(6) A child is a pension increase child of a person if:

(a)     the person’s service pension rate includes a dependent child add-on for the child; or

(b)    the person’s partner’s service pension rate or social security pension rate includes a dependent child add-on for the child.

Australian residence definitions

“5g. (1) In this Act, unless the contrary intention appears, ‘Australian resident’ means a person who:

(a)     resides in Australia; and

(b)    is one of the following:

(i) an Australian citizen;

(ii) a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent entry permit;

(iii) a person who has been granted, or who is included in, a return endorsement, or a resident return visa, in force under that Act;

(iv) a person who:

(a) is, for the purposes of that Act, an exempt non-citizen; and

(b) is likely to remain permanently in Australia.

Note: ‘exempt non-citizen’ is defined in section 5 of the Migration Act 1958: it covers non-citizens who are diplomats, members of armed forces, ships’ crew members and others and. under section 7 of that Act, exempt non-citizens do not need an entry permit or entry visa to enter Australia.

Papua New Guinea residents

“(2) For the purposes of this Act, a person (other than an indigenous inhabitant of the Territory of Papua or the Territory of New Guinea) resident in Papua New Guinea immediately before it became an independent sovereign State, is taken to be an Australian resident so long as the person continues to reside in Papua New Guinea.

“(3) If:

(a)    a service pensioner is taken to be an Australian resident under subsection (2); and

(b)    the pensioner’s partner was resident in Papua New Guinea after it became an independent sovereign State;

the partner is, for the purposes of Part III, also taken to be an Australian resident.

“(4) If:

(a)     a service pensioner is taken to be an Australian resident under subsection (2); and

(b)    the pensioner’s non-illness separated wife was resident in Papua New Guinea after it became an independent sovereign State;

the wife is, for the purposes of Part III, also taken to be an Australian resident.

Income test definitions

“5h. (1) in this Act, unless the contrary intention appears:

‘dispose of income’ has the meaning given by section 48;

‘domestic payment’ has the meaning given by subsection (3);

‘earned, derived or received’ has the meaning given by subsection (2);

‘home equity conversion agreement’, in relation to a person, means an agreement under which the repayment of an amount paid to or on behalf of the person, or the person’s partner, is secured by a mortgage of the principal home of the person or the person’s partner;

Note: see also subsection (7).

‘income’, in relation to a person, means:

(a)     an income amount earned, derived or received by the person for the person’s own use or benefit; or

(b)    a periodical payment by way of gift or allowance; or

(c)     a periodical benefit by way of gift or allowance;

but does not include an amount that is excluded under subsection (4), (5) or (8);

Note 1: see also sections 46-46u (investment income).

Note 2: sections 46b to 46d provide that a person who has an accruing return investment or market-linked investment is to be taken to receive a particular rate of return on the investment as income.

Note 3: section 46e provides that any return actually received by a person from an investment to which sections 46b to 46d applies is to be treated as if it were not income of the person.

Note 4: where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 48-48e.

Note 5: amounts of maintenance income are not excluded amounts.

‘income amount’ means:

(a)      valuable consideration; or

(b)      personal earnings; or

(c)      moneys; or

(d)      profits;

(whether of a capital nature or not);

‘income from personal exertion’ means an income amount that is earned, derived or received by a person by way of payment for personal exertion by the person but does not include an income amount received as compensation for the person’s inability to earn, derive or receive income through personal exertion;

‘ordinary income’ means income that is not maintenance income.

Note: for ‘maintenance income’ see subsection 5k (I).

Earned, derived or received

“(2) A reference in this Act to an income amount earned, derived or received is a reference to:

(a)      an income amount earned, derived or received by any means; and

(b)      an income amount earned, derived or received from any source (whether within or outside Australia).

Domestic payments

“(3) A payment received by a person is a domestic payment for the purposes of this Act if:

(a)     the person receives the payment on the disposal of an asset of the person; and

(b)     the asset was used, immediately before the disposal, by the person or the person’s partner wholly or substantially for private or domestic purposes; and

(c)     the asset was used by the person or the person’s partner wholly or substantially for those purposes for:

(i) a period of 12 months before the disposal; or

(ii) if the Commission considers it appropriate—a period of less than 12 months before the disposal.

Excluded amounts—home equity conversion (not a member of a couple)

“(4) If a person is not a member of a couple, an amount paid to or on behalf of the person under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person from time to time under home equity conversion agreements does not exceed $40,000.

Excluded amounts—home equity conversion (member of a couple)

“(5) If a person is a member of a couple, an amount paid to or on behalf of the person or the person’s partner under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person and the person’s partner under home equity conversion agreements from time to time does not exceed $40,000.

Home equity conversion (amount owed)

“(6) For the purposes of this Act, the amount owed by a person under a home equity conversion agreement is the principal amount secured by the mortgage concerned and does not include:

(a) any amount representing mortgage fees; or

(b)    any amount representing interest; or

(c)     any similar liability whose repayment is also secured by the mortgage.

Home equity conversion (principal home)

“(7) For the purposes of the definition of ‘home equity conversion agreement’ in subsection (1), an asset cannot be a person’s principal home unless the person or the person’s partner has a beneficial interest (but not necessarily the sole beneficial interest) in the asset.

Excluded amounts—general

“(8) The following amounts are not income for the purposes of this Act:

(a)     a payment under this Part;

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

(c)     a payment of an instalment of a pension (other than a pension payable in respect of a child) payable because of subsection 4 (6) or (8b) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986;

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

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

Note: however, a payment referred to in paragraph (b), (c), (d) or (e) is taken into account in calculating the amount of rent assistance a person is entitled to, and may reduce that amount—see Rent Assistance Module of relevant Rate Calculator.

(f)     a payment by way of allowance (other than a loss of earnings allowance) under Part VI of this Act;

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

(h) a payment under the Social Security Act;

(i) if the person has not reached pension age—any return on a compulsorily preserved superannuation benefit of the person;

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

(k) the value of any assistance that:

(i) is provided by an eligible organisation within the meaning of the Homeless Persons Assistance Act 1974; and

(ii) is assistance that consists of providing:

(a) accommodation or meals; or

(b) a ticket, voucher or token that may be exchanged for accommodation or meals;

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

(m) a payment under Part III of the Disability Services Act 1986 or

the value of any rehabilitation program (including any follow-up program) provided under that Part;

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

(o) a payment under a Commonwealth law, one of whose objects is that of assisting people to purchase or build their own homes;

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

(q) insurance or compensation payments made because of the loss of, or damage to, buildings, plant or personal effects;

(r) money from an investment that is:

(i) an investment of payments of the kind referred to in paragraph (q); and

(ii) an investment for:

(a) a period of not more than 12 months after the person receives the payments; or

(b) if the Commission thinks it appropriate—of 12 months or more after the person receives those payments;

(s) an amount paid:

(i) by the Federal Republic of Germany under the laws of that Republic; or

(ii) by a State of the Federal Republic of Germany under the laws of that State;

by way of compensation for a victim of National Socialist persecution;

(t) an amount paid by the Republic of Austria under the laws of that Republic by way of compensation to a victim of National Socialist persecution;

(u) if the person 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 who is liable to pay rent;

(v) 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 or job search allowance under the Social Security Act;

(ii) an amount known as the training component;

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

(w) a payment received by a trainee in part-time training under a program included in the programs known as the Labour Force Programs, if the trainee is also receiving:

(i) a service pension; or

(ii) an age pension; or

(iii) an invalid pension; or

(iv) a wife pension; or

(v) a carer pension; or

(vi) a sole parent pension; or

(vii) a sheltered employment allowance; or

(viii) a rehabilitation allowance;

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

(y) a benefit under a law of the Commonwealth that relates to the provision of:

(i) pharmaceutical, sickness or hospital benefits; or

(ii) medical or dental services;

(z) a payment that:

(i) is made by an organisation that is registered under a law referred to in paragraph (y); and

(ii) is made in respect of expenses incurred by a person for:

(a) hospital treatment; or

(b) medical treatment; or

(c) dental treatment;

(za) in the case of a member of:

(i) the Australian Naval Reserve; or

(ii) the Naval Emergency Reserve Forces; or

(iii) the Australian Army Reserve; or

(iv) the Australian Air Force Reserve; or

(v) the Air Force Emergency Force; or

(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 subparagraph (ii), (v) or (vi), any gratuity paid to the person by reason of a calling out for continuous service of that Force or of a part of that Force;

(zb) a payment to a veteran by way of:

(i) attendant allowance under section 98; or

(ii) recreation allowance under section 104; or

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

(iv) decoration allowance under section 102; or

(v) Victoria Cross allowance under section 103; or

  (vi) clothing allowance under section 97; or

(vii) a bereavement payment under Part III, or section 98a; or

(viii) a funeral benefit under Part VI; or

(ix) a bereavement payment under section 24b of the Seamen’s War Pensions and Allowances Act 1940; or

(x) a funeral benefit under the Seamen’s War Pensions and Allowances Regulations;

(zc) 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 (zb);

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

(ze) the value of board or lodging received by the person;

(zf) a domestic payment;

(zg) a payment of an education supplement to a person who:

(i) is receiving an invalidity service pension; and

(ii) would, if the person were not receiving that pension, be eligible to receive payments under the AUSTUDY scheme.

Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.

Investment income definitions

“5j. (1) In this Act, unless the contrary intention appears:

‘accruing return investment’ means an arrangement by a person that consists of or includes an investment of money, being an investment:

(a)   that produces:

(i) a fixed rate or quantifiable rate of return, whether or not that rate varies from time to time; or

(ii) a rate of return that may be reasonably approximated; and

(b)  the value of which from time to time is unlikely to decrease as a result of market changes;

Note: a superannuation benefit may be taken to be an investment—see subsection (4).

‘annual rate of return’ has the meaning given by subsection (2);

‘approved deposit fund’ means a fund that is an approved deposit fund for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘assessable growth component’, in relation to an amount of superannuation benefit, means so much (if any) of the return as is attributable to the assessable period;

‘assessable period’, in relation to a person, means any period during which the person received:

(a)     a service pension or a social security pension; or

(b)    a social security benefit;

except any such period that occurs before a continuous period of at least 2 years during which the person did not receive such a pension or benefit;

Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.

‘deductible amount’, in relation to an immediate annuity or a superannuation pension, is the amount that would be the deductible amount in relation to the annuity or superannuation pension in relation to a year of income under subsection 27h (2) of the Income Tax Assessment Act if ‘undeducted purchase price’ had the same meaning in that subsection as ‘non-assessable purchase price’ has in this Act;

‘deferred annuity’ means an annuity that is a deferred annuity for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘eligible investment’ means an investment that satisfies all of the following conditions:

(a)     money or property invested is paid or transferred by the investor directly or indirectly to a body corporate or into a trust fund;

(b)    the assets that represent money or property invested (in this definition called the ‘investment assets’) are held otherwise than in the names of investors;

(c)     the investor does not, either alone or jointly with a relative or relatives of the investor, have effective control over the management of the investment assets;

(d)    the investor has a legally enforceable right to share in any distribution of the income or profits derived from the investment assets;

‘friendly society’ means:

(a)     a society registered as a friendly society under a law in force in a State or Territory; or

(b)     a society that had, before 13 December 1987, been approved for the purpose of the definition of ‘friendly society’ in subsection 115 (1) of the Social Security Act;

and, for the purpose of the definition of ‘market-linked investment’ in this subsection, includes:

(c)     a society that has been approved for the purposes of the definition of ‘friendly society’ in subsection 115 (1) of the Social Security Act on or after 13 December 1987; and

(d)     a society that is an approved friendly society for the purposes of the Social Security Act;

‘immediate annuity’ means an annuity that is presently payable;

Note: for ‘presently payable’ see subsection (3).

investment product’ means a class of market-linked investments specified in a notice under subsection 9 (2) of the Social Security Act;

‘market-linked investment’ means:

(a)  an investment in:

(i) an approved deposit fund; or

 (ii) a deferred annuity; or

(iii) a public unit trust; or

(iv) an insurance bond; or

(b)    an investment with a friendly society; or

(c)     an eligible investment other than an investment referred to in paragraph (a) or (b); or

(d)    a superannuation benefit vested in a person and held in a superannuation fund (unless a superannuation pension funded by that benefit is presently payable to the person);

other than an investment that is:

(e)  an accruing return investment; or

(f) an investment consisting of the acquisition of real property, stock or shares;

‘non-assessable purchase price’:

(a)     in relation to an immediate annuity other than a roll-over immediate annuity—has the same meaning as ‘undeducted purchase price’ has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act; or

(b)    in relation to a roll-over immediate annuity—means the rollover purchase price; or

(c)     in relation to a superannuation pension—has the same meaning as ‘undeducted purchase price’ has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘public unit trust’ means a unit trust that:

(a)     except where paragraph (b) applies—was, in relation to the unit trust’s last year of income, a public unit trust for the purposes of Division 6b of Part III of the Income Tax Assessment Act; or

(b)    where the first year of income of the unit trust has not yet finished—has, at some time since the trust was established, satisfied at least one of the paragraphs of subsection 102g (1) of the Income Tax Assessment Act;

‘purchase price’, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘relevant number’, in relation to an annuity, has the meaning that it has in section 27h of the Income Tax Assessment Act;

‘residual capital value’, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘return’, in relation to an investment (including an investment in the nature of superannuation), means any increase, whether of a capital or income nature and whether or not distributed, in the value or amount of the investment;

‘rolled-over amount’, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;

‘roll-over immediate annuity’, means an immediate annuity the purchase price of which consists wholly of a rolled-over amount or rolled-over amounts;

‘roll-over purchase price’, in relation to a roll-over immediate annuity, means:

(a)  except where paragraph (b) applies—either the sum of the following amounts:

(i) the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;

(ii) the amount that is the upper limit under section 159sg of the Income Tax Assessment Act for the year of income in which the annuity was purchased;

or the purchase price of the annuity, whichever is less; or

(b)  where:

(i) the roll-over immediate annuity, and another roll-over immediate annuity, have been purchased using the same rolled-over amount or rolled-over amounts in the name of the same person; and

(ii) the roll-over purchase price of the other roll-over immediate annuity has previously been worked out under paragraph (a) for the purposes of this Act;

the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;

‘statutory rate of return’ means 11% per year or such lower percentage per year as is specified in a notice in force under subsection 1087 (1) of the Social Security Act;

‘superannuation benefit’, in relation to a person, means a benefit arising directly or indirectly from amounts contributed (whether by the person or by any other person) to a superannuation fund in respect of the person;

‘superannuation fund’ means a superannuation fund as defined for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, other than a fund covered by subparagraph (ia)

of the definition of ‘superannuation fund’ in subsection 27a (1) of that Act;

‘superannuation pension’ has the same meaning as it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act.

“(2) Where the value or amount at a particular time of a market-linked investment included in an investment product is equal to or less than the value or amount of that market-linked investment 12 months previously, the annual rate of return at that first-mentioned time for market-linked investments included in that investment product is to be taken, for the purposes of a determination under this Act, to be 0%.

“(3) For the purposes of this Act, an annuity or superannuation pension is to be taken to be presently payable at all times after, but not before, the commencement of the first period in respect of which the annuity or superannuation pension is payable.

“(4) For the purposes of the definition of ‘accruing return investment’ in subsection (1), a superannuation benefit vested in a person that is held in a superannuation fund is to be taken to be an investment of that person, unless a superannuation pension funded by that benefit is presently payable to the person.

“(5) For the purposes of this Act, a person’s superannuation benefit is compulsorily preserved if the person’s access to the benefit is restricted under:

(a)     paragraph 23 (ja) of the Income Tax Assessment Act as in force at any time before 18 December 1987; or

(b)    section 23fb of the Income Tax Assessment Act as in force at any time before 18 December 1987; or

(c)     regulations made under section 7 or 8 of the Occupational Superannuation Standards Act 1987; or

(d)    a provision of the trust deed or contract concerned that imposes restrictions corresponding to the restrictions imposed by a provision of the regulations made under section 7 or 8 of the Occupational Superannuation Standards Act 1987.

Maintenance income definitions

“5k. (1) In this Act, unless the contrary intention appears:

‘capitalised maintenance income’, in relation to a person, means maintenance income of the person:

(a)     that is neither a periodic amount nor a benefit provided on a periodic basis; and

(b)    the amount or value of which exceeds $1,500;

Note 1: see also section 51 (apportionment of capitalised maintenance income).

Note 2: if maintenance income is caught by paragraphs (a) and (b) of the definition, the whole amount or value of the maintenance income is capitalised maintenance income, not just the part of the maintenance income that exceeds the $1,500 limit.

‘cash maintenance’, in relation to a person, means maintenance income of the person that consists of the amount of a payment received by the person or by a child of the person;

Note: a ‘payment’ of an ‘amount’ would have to be a payment of money or the equivalent of a payment of money (e.g. a cheque, money order or electronic funds transfer (EFT)).

‘child support’ means financial support under the Child Support (Assessment) Act 1989 and includes financial support:

(a)     by way of lump sum payment; or

(b)    by way of transfer or settlement of property;

‘in-kind housing maintenance’, in relation to a person, means maintenance income of the person that is not cash maintenance and is received in relation to the provision of a residence that is, or is to be, the person’s principal home;

Note: see also subsections (4) and (5) and section 51a.

‘maintained child’, in relation to another person (in this definition called the ‘adult’), means a child who is:

(a)     a dependant of the adult; and

(b)    wholly or substantially dependent on the adult;

‘maintenance’ includes child support;

‘maintenance agreement’ means a written agreement (whether made within or outside Australia) that provides for the maintenance of a person (whether or not it also makes provision in relation to other matters), and includes such an agreement that varies an earlier maintenance agreement;

‘maintenance income’, in relation to a person, means:

(a)  child maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the maintenance of a maintained child of the person and is received from:

(i) a parent of the child; or

(ii) the partner or former partner of a parent of the child; or

(b)    partner maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the person’s own maintenance and is received from the person’s partner or former partner; or

(c)     direct child maintenance—that is, the amount of a payment or the value of a benefit that is received by a maintained child of the person for the child’s own maintenance and is received from:

(i) a parent of the child; or

(ii) the partner or former partner of a parent of the child;

Note: see also subsection (3) and section 51 (capitalised maintenance income).

‘special maintenance income’, in relation to a person, means:

(a) in-kind housing maintenance of the person; or

(b)      in-kind maintenance of the person (other than in-kind housing maintenance or capitalised maintenance income) received from the person’s partner or former partner during the period of 6 months following the person’s separation from the partner or former partner; or

(c)      maintenance income of the person provided in relation to expenses arising directly from a physical, intellectual or psychiatric disability, or a learning difficulty, of a maintained child of the person where the disability or difficulty is likely to be permanent or to last for an extended period.

Note: see also subsection 51a (1) (in-kind housing maintenance—value of substitute for former family home).

“(2) For the purposes of the definition of ‘maintenance income’ in subsection (1):

(a)      a payment received under subsection 76 (1) of the Child Support (Registration and Collection) Act 1988 in relation to a registered maintenance liability (within the meaning of that Act) is taken to be received from the person who is the payer (within the meaning of that Act) in relation to the liability; and

(b)      a reference to a benefit received by a person includes a reference to a benefit received by the person because of a payment made to, or a benefit conferred on, another person (including a payment made or benefit conferred under a liability owed to the other person); and

(c)   a reference to a payment or benefit received from a person includes a reference to a payment or benefit received:

(i) directly or indirectly from the person; and

(ii) out of any assets of, under the control of, or held for the benefit of, the person; and

(iii) from the person under or as a result of a court order, a court registered or approved maintenance agreement or otherwise.

“(3) For the purposes of the definition of ‘in-kind housing maintenance’ in subsection (1), maintenance received in relation to the provision of a residence includes maintenance consisting of:

(a)     a benefit received because of the transfer or settlement of a right or interest in relation to the residence; and

(b)    where there is a secured housing loan on the residence—a benefit received because of:

(i) the payment of interest, charges or other amounts under the loan; or

(ii) the repayment of amounts borrowed under the loan; and

(c)  a benefit received because of the payment of rent (including Government rent), or a like payment, in relation to the residence.

“(4) For the purposes of paragraph (3) (b), there is a secured housing loan on a residence if:

(a)     there is a loan that is secured by a mortgage or other interest in relation to the residence; and

(b)    the sole or principal purpose of the loan is to enable the residence, or a right or interest in relation to the residence, to be acquired.

Assets test definitions

“5l. (1) In this Act, unless the contrary intention appears:

‘asset’ means property (including property outside Australia);

‘dispose’, in relation to an asset:

(a)  has its ordinary meaning in Subdivision E of Division 14 (pension loans scheme); and

(b)  has the meaning given by section 52e in the rest of the Act;

‘exempt assets’ means assets described in any of paragraphs 52 (1) (e) to (n);

‘interest that gives reasonable security of tenure’ has the meaning given by subsection (8);

‘pension year’ has the meaning given by subsection (9);

‘PLS assets’, in relation to a person, means all the person’s assets (other than exempt assets):

(a)     that cannot readily be sold or realised; or

(b)    that:

(i) the person does not wish to sell or realise; and

(ii) are not of a kind that the person could reasonably be expected to sell or realise;

Note: this definition is relevant only to the pension loans scheme (Division 14, Subdivision E).

‘principal home’ has the meaning given by subsections (5), (6) and (7);

‘property owner’ has the meaning given by subsection (4);

‘unrealisable asset’ has the meaning given by subsections (11) and (12);

‘value’ has the meaning given by subsections (2) and (3).

Note: see also sections 52 (certain assets to be disregarded in calculating the value of a person’s assets), 52c (effect of charge or encumbrance on value of property) and 52k-52x (retirement villages).

“(2) A reference in this Act to the value of a particular asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person’s interest in the asset.

“(3) A reference in this Act to the value of a charge or encumbrance on an asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of that charge or encumbrance in so far as it relates to the person’s interest in the asset.

Property owner

“(4) For the purposes of this Act:

(a)  a person who is not a member of a couple is a property owner if:

(i) the person has a right or interest in the person’s principal home; and

(ii) the person’s right or interest in the home gives the person reasonable security of tenure in the home; and

(b)  a person who is a member of a couple is a property owner if:

(i) the person, or the person’s partner, has a right or interest in one residence that is:

(a)  the person’s principal home; or

(b)   the partner’s principal home; or

(c)   the principal home of both of them; and

(ii) the person’s right or interest, or the partner’s right or interest, in the home gives the person or the person’s partner reasonable security of tenure in the home; and

(c)  a person (whether a member of a couple or not) is a property owner if:

(i) the person has sold the person’s principal home not more than 12 months previously; and

(ii) the person is likely to apply some or all of the proceeds of the sale in acquiring another residence that is to be the person’s principal home.

Note: see also sections 52k-52x (retirement villages).

Principal home

“(5) A reference in this Act to the principal home of a person includes a reference to:

(a)     if the principal home is a dwelling-house—the private land adjacent to the dwelling-house to the extent that the private land, together with the area of the ground floor of the dwelling-house, does not exceed 2 hectares; or

(b)    if the principal home is 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.

Note: for ‘private land’ see subsection (6).

“(6) A reference in subsection (5) to private land adjacent to a dwelling-house is a reference to land that is adjacent to the dwelling-house and that is used primarily for private or domestic purposes in association with that dwelling-house.

“(7) A residence of a person is to be taken to continue to be the person’s principal home during:

(a)     any period (not exceeding 12 months) during which the person is temporarily absent from the 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 persons who have a mental disability; or

(ii) residing in a nursing home; or

(iii) a nursing-home type patient, within the meaning of the Health Insurance Act 1973, of a hospital.

Note: for ‘residing in a nursing home’ see subsection 5n (1).

“(8) If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Commission is satisfied that the right or interest does not give the person reasonable security of tenure in the home.

Pension year—disposal of assets

“(9) A reference in sections 52e to 52j (disposal of assets) to a pension year, in relation to a person who is receiving a service pension or a social security pension is a reference to:

(a)     if the person is a member of a couple and the person and the person’s partner were, immediately before they became members of that couple, receiving such a pension—the period of 12 months commencing on the day on which they became members of that couple; or

(b)    in a case (not being a case referred to in paragraph (a)) where the person is a member of a couple and the person’s partner is receiving such a pension—the period of 12 months commencing on the day on which such a pension first became payable to the person or to the person’s partner, whichever was the earlier; or

(c)     in any other case—the period of 12 months commencing on the day on which such a pension first became payable;

and to each succeeding and each preceding period of 12 months.

“(10) The lending of money after 22 May 1986 is not a disposition of an asset for the purposes of section 52e.

Unrealisable asset

“(11) An asset of a person is an unrealisable asset if:

(a)     the person cannot sell or realise the asset; and

(b)    the person cannot use the asset as a security for borrowing.

“(12) For the purposes of the application of this Act to a service pension, an asset of a person is also an unrealisable asset if:

(a) the person could not reasonably be expected to sell or realise the asset; and

(b) the person could not reasonably be expected to use the asset as a security for borrowing.

Retirement villages definitions

“5m. (1) In this Act:

‘actual value’ has the meaning given by subsection (5);

‘retirement village’ has the meaning given by subsections (3) and (4).

“(2) A person is a member of an ordinary couple with different principal homes if:

(a)     the person is a member of a couple; and

(b)    the person does not share the person’s principal home with the person’s partner; and

(c)     the person is not a member of an illness separated couple.

“(3) Premises constitute a retirement village for the purposes of this Act if:

(a)     the premises are residential premises; and

(b)    accommodation in the premises is primarily intended for persons who are at least 55 years old; and

(c)     the premises consist of:

(i) one or more of the following kinds of accommodation:

(a) self-care units;

(b) serviced units;

(c) hostel units; and

(ii) communal facilities for use by occupants of the units referred to in subparagraph (i).

“(4) Residential premises are also to be taken to constitute a retirement village for the purposes of this Act if, in the Commission’s opinion, the premises have similar functions to those referred to in subsection (3).

“(5) In Subdivision C of Division 14 (retirement villages) a reference to the actual value of the assets of a member of a couple is a reference to the value of the assets that are actually assets of the person rather than the person’s partner, that is, the value than would be the value of the person’s assets apart from the couple’s assets deeming provisions.

“(6) In subsection (5):

‘couple’s assets deeming provisions’ means:

(a)     Service Pension Rate Calculator Where There Are No Dependent Children (point 41-F2); and

(b)     Service Pension Rate Calculator Where There Are Dependent Children (point 42-G2); and

(c)     Widow or Non-illness Separated Wife Service Pension Rate Calculator (point 44-F2).

Rent definitions

“5n. (1) In this Act, unless the contrary intention appears:

‘amount of rent paid or payable’ has the meaning given by subsections (6) and (7);

‘board’, when used in the expression ‘board and lodging’, means the provision of meals on a regular basis in connection with the provision of lodging;

‘disability pension’, for the purposes of Part III, means:

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

(b)    temporary incapacity allowance under Part VI; or

(c)    a pension payable because of subsection 4 (6) or (8b) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (other than a pension payable in respect of a child); or

(d)    a pension under the Seamen’s War Pensions and Allowances Act 1940; or

(e)    temporary incapacity allowance under regulation 38b of the Seamen’s War Pensions and Allowances Regulations; or

(f) a payment (other than a pension referred to in paragraph (a), (c) or (d) of this definition) 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;

‘Government rent’ means rent payable to any of the following authorities:

(a)     New South Wales Land and Housing Corporation;

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

(c)     The Queensland Housing Commission;

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

(e)     the South Australian Housing Trust;

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

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

(h) the Northern Territory Housing Commission;

(i) The Commissioner for Housing within the meaning of the Housing Assistance Act 1987 of the Australian Capital Territory;

‘ineligible property owner’ means a property owner other than:

(a)     a person who is a property owner by virtue of paragraph 5l (4) (c) (proceeds of sale of principal home disregarded for 12 months); or

(b)    a person who:

(i) is a member of a couple; and

(ii) is in approved respite care; and

(iii) has remained, or in the Commission’s opinion is likely to remain, in approved respite care for at least 14 consecutive days; or

(c)     a person who is residing in a nursing home but is not residing in a retirement village; or

(d)     a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person’s principal home; or

(e)     a person who pays amounts for the right to moor a vessel that is the person’s principal home;

Note: for ‘retirement village’ see subsections 5m (3) and (4), for ‘property owner’ see subsection 5l(4), for ‘principal home’ see subsections 5l (5), (6) and (7) and for ‘approved respite care’ see subsection 5r (8).

‘rent’ has the meaning given by subsection (2);

‘residing in a nursing home’ has the meaning given by subsection (8).

“(2) Amounts are rent in relation to the person if:

(a)  the amounts are payable by the person:

(i) as a condition of occupancy of premises, or of a part of premises, occupied by the person as the person’s principal home; or

(ii) for services provided in a retirement village that is the person’s principal home; or

(iii) if the person is residing in a nursing home that is the person’s principal home—for accommodation in the nursing home; or

(iv) for lodging in premises that are the person’s principal home; or

(v) for the use of a site for:

(a) a caravan or other vehicle; or

(b) a structure;

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

(vi) for the right to moor a vessel that is occupied by the person as the person’s principal home; and

(b)  either:

(i) the amounts are payable every 3 months or more frequently; or

(ii) the amounts are payable at regular intervals (greater than 3 months) and the Commission is satisfied that the amounts should be treated as rent for the purposes of this Act.

Note: for ‘retirement village’ see subsections 5m (3) and (4) and for ‘principal home’ see subsections 5l (5), (6) and (7).

“(3) Subparagraphs (2) (a) (ii) to (vi) (inclusive) do not limit the generality of subparagraph (2) (a) (i).

“(4) Amounts are rent in relation to a person if:

(a)    the person is a member of a couple; and

(b)    the amounts are paid by the person, or the person’s partner, for approved respite care for the person in a nursing home; and

(c)    the person has remained, or is in the Commission’s opinion likely to remain, in the approved respite care for at least 14 consecutive days.

Note: for ‘approved respite care’ see subsection 5r (8).

“(5) If a law of a State or of the Northern Territory alters the name of an authority referred to in the definition of ‘Government rent’ in subsection (1), a reference to that authority in that definition is to be read as a reference to the authority under the new name.

Board and lodging

“(6) Where:

(a)      a person pays, or is liable to pay, amounts for board and lodging; and

(b)     it is not possible to work out the part of each of those amounts that is paid or payable for lodging;

the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two-thirds of the amounts paid or payable as mentioned in paragraph (a).

Nursing homes

“(7) Where:

(a)      a person who is residing in a nursing home pays, or is liable to pay, amounts for accommodation and other services in the nursing home; and

(b)      it is not possible to work out the part of each of those amounts that is paid or payable in respect of accommodation;

the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two-thirds of the amounts paid or payable as mentioned in paragraph (a).

“(8) Unless the contrary intention appears, a reference in this Act to a person residing in a nursing home is a reference to a person who is:

(a)      residing in a benevolent home or in premises at which accommodation is provided exclusively or principally for persons who have a mental disability; or

(b)     residing in premises that are:

(i) an approved nursing home for the purposes of the National Health Act 1953 or the Nursing Homes Assistance Act 1974; or

(ii) an approved home for the purposes of the Aged or Disabled Persons Homes Act 1954; or

(iii) an approved hostel for the purposes of the Aged or Disabled Persons Hostels Act 1972; or

(c)      a nursing-home type patient, within the meaning of the Health Insurance Act 1973, of a hospital; or

(d)      residing in premises made available for the accommodation of the person by an approved organisation providing hostel care services or personal care services to the person for the purposes of Part III of the Aged or Disabled Persons Homes Act 1954.

Bereavement definitions

“5p. For the purposes of this Act, if a person dies:

(a)     the bereavement period in relation to the person’s death is the period of 14 weeks from the day on which the person dies; and

(b)     the bereavement notification day in relation to the person’s death is the day on which the Commission becomes aware of the death; and

(c)     the first available bereavement adjustment payday in relation to the person’s death is the first payday after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person’s death; and

(d)     the bereavement rate continuation period in relation to the person’s death is the period:

(i) that begins on the day on which the bereavement period begins; and

(ii) that ends:

(a) if the first available bereavement adjustment payday is before the end of the bereavement period—on the day before the first available bereavement adjustment payday; or

(b) if the first available bereavement adjustment payday occurs on or after the day on which the bereavement period ends—the day on which the bereavement period ends; and

(e)  there is a bereavement lump sum period in relation to the person’s death if the first available bereavement adjustment payday occurs before the end of the bereavement period and the bereavement lump sum period is the period that begins on the first available bereavement adjustment payday and ends on the day on which the bereavement period ends.

General definitions

“5q. (1) In this Act, unless the contrary intention appears: ‘account’, in relation to a credit union or building society, means an account maintained by a person with the credit union or building society to which is credited money received on deposit by the credit union or building society from that person;

‘actual market exchange rate’ in relation to a foreign currency, means the on-demand airmail buying rate in relation to that foreign currency available at the Commonwealth Bank of Australia;

‘additional amounts for dependent children’ means amounts added to the maximum basic rate of a service pension by way of dependent child add-on or guardian allowance;

‘approved Guide to the Assessment of Rates of Veterans’ Pensions’ means:

(a)     the document, prepared by the Commission under 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 under 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;

‘Australia’ includes the external territories for the purposes of Part III;

‘benevolent home’ means a home that is a benevolent home for the purposes of the Social Security Act;

‘Board’ means the Veterans’ Review Board continued in existence by section 134;

‘building society’ means an organisation registered as a permanent building society under a law of a State or Territory;

‘credit union’ means an organisation registered as a credit union under a law of a State or Territory;

‘decision’ includes a determination and an assessment;

‘dependent child add-on’ means an amount included in a person’s service pension rate under:

(a)     point 42-C1 of Service Pension Rate Calculator Where There are Dependent Children; or

(b)    point 43-C3 of the Service Pension Rate Calculator for Blinded Veterans (items 1, 2 and 3 of Table C-2);

‘determination of entitlement’, in relation to a person means a determination:

(a)     whether the person is eligible for a pension under this Act; or

(b)    whether a pension under this Act is payable to the person; or

(c)     of the rate at which a pension or allowance under this Act is payable to the person;

‘foreign exchange period’ means:

(a)     the period commencing 20 September and ending on the day before the pension payday that falls closest to the middle of the 6 month period commencing 20 September; and

(b)    the period starting from the pension payday referred to in paragraph (a) and ending on 19 March; and

(c)     the period commencing 20 March and ending on the day before the pension payday that falls closest to the middle of a 6 month period commencing 20 March; and

(d)    the period starting from the pension payday referred to in paragraph (c) and ending on 19 September;

‘general rate’ means the maximum rate per fortnight specified in subsection 22 (3);

‘guardian allowance’ means an amount included in a person’s service pension rate under:

(a)     point 42-C5 of the Service Pension Rate Calculator Where There Are Dependent Children; or

(b)    point 43-C3 of the Service Pension Rate Calculator for Blinded Veterans (item 4 of Table C-3);

‘incentive allowance’ means an incentive allowance under the Social Security Act;

‘income support pension’ means:

(a)     a service pension; or

(b)    a social security pension; or

(c)     a social security benefit;

‘Income Tax Assessment Act’ means the Income Tax Assessment Act 1936;

‘joint ownership’ includes ownership as joint tenants or tenants in common;

‘organisation representing veterans’ means:

(a)   an organisation:

(i) whose members include veterans throughout the Commonwealth; and

(ii) whose objects include that of representing veterans throughout the Commonwealth; or

(b)  an organisation:

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

(ii) whose objects include that of representing those persons throughout the Commonwealth;

‘pension age’ means:

(a)     for a veteran who is a woman—the age of 55 years; or

(b)    for a veteran who is a man—the age of 60 years; or

(c)     for any other woman—the age of 60 years; or

(d)    for any other man—the age of 65 years;

‘pension payday’ means:

(a)     the Thursday falling on 11 July 1991; and

(b)    each succeeding alternate Thursday;

‘pension period’ means a period of 2 weeks that:

(a)     starts immediately after a pension payday; and

(b)    ends at the end of the next pension payday;

‘physically present in a remote area’ has the meaning given by subsection (2);

‘port’ includes airport;

‘remote area’ means:

(a)     those parts of Australia referred to in paragraphs 1 and 2 of Part I of Schedule 2 to the Income Tax Assessment Act; and

(b)    the Territory of Cocos (Keeling) Islands; and

(c)  the Territory of Christmas Island;

‘remunerative work’ includes any remunerative activity;

‘respite period’ in relation to a person who is in approved respite care, means the period:

(a)     starting when the person is admitted to that care; and

(b)    ending when the person:

(i) is discharged from that care; or

(ii) dies while still in that care;

‘Secretary’ means the Secretary to the Department;

‘service pension’ means:

(a)     an age service pension; or

(b)    an invalidity service pension; or

(c)     a wife service pension; or

(d)    a carer service pension;

‘service pensioner’ means a person who is receiving a service pension;

‘Social Security Act’ means the Social Security Act 1991;

‘social security benefit’ means:

(a)    unemployment benefit under Part 2.9; or

(b)    job search allowance under Part 2.10; or

(c)    sickness benefit under Part 2.11; or

(d)    special benefit under Part 2.13;

of the Social Security Act;

‘social security pension’ means:

(a)     age pension under Part 2.1; or

(b)    invalid pension under Part 2.2; or

(c)     wife pension under Part 2.3; or

(d)    carer pension under Part 2.4; or

(e)     sole parent pension under Part 2.5; or

(f)     widowed person allowance under Part 2.6; or

(g)     widow B pension under Part 2.12; or

(h) sheltered employment allowance under Part 2.7; or

(i) rehabilitation allowance under Part 2.8;

of the Social Security Act.

“(2) If:

(a)     a person’s usual place of residence is in the remote area; and

(b)     the person is absent from the remote area for a period;

the person is to be taken to be physically present in the remote area during:

(c)     if the period does not exceed 8 weeks—the whole of that period; or

(d)     if the period exceeds 8 weeks—the first 8 weeks of that period.

“(3) Subsection (2) does not apply to a person in respect of a period during which the person is outside Australia.

Determinations having interpretative effect

Continuous full-time service determination; member of unit of Defence Force determination

“5r. (1) The Minister may, by notice in writing published in the Gazette, make, in respect of a person, or of persons included in a class of persons, specified in the notice, all or any of the following determinations:

(a)     a determination that this Act, or specified provisions of this Act, are to apply to and in relation to the person, or a person included in that class of persons, as if he or she was, while he or she was rendering service of a kind specified in the notice (in this subsection referred to as ‘relevant service’), a member of the Defence Force who was rendering continuous full-time service;

(b)    a determination that this Act, or specified provisions of this Act, are to apply to and in relation to the person (being a member of the Defence Force), or a person included in that class of persons (being members of the Defence Force), as if he or she was, while he or she was rendering relevant service, rendering continuous full-time service;

(c) a determination that this Act, or specified provisions of this Act, are to apply to and in relation to the person, or a person included in that class of persons, as if he or she was, while he or she was rendering relevant service, a member of a specified unit of the Defence Force;

and, if the Minister does so, this Act applies, or the specified provisions of this Act apply, as the case may be, accordingly.

Note: for ‘continuous full-time service’ and ‘member of a unit of the Defence Force’ see subsection 5c (1).

Allied veteran determination

“(2) If a person who is a claimant for an age service pension or an invalidity service pension satisfies the Commission:

(a)  that the person had been appointed or enlisted as a member of the forces or services of:

(i) an allied country, being forces or services of a kind referred to in the definition of ‘defence force established by an allied country’; or

(ii) the government-in-exile of an allied country, being forces or services of a kind referred to in subsection 5c (3); and

(b)  that those forces or services were raised and operated in such a manner that the members of those forces and services:

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

(ii) were subject to the rules and conventions of warfare; 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 or to carry arms at all or to carry arms openly; and

(d)    that it would have been unreasonable, 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 could serve, for the person to have been required to wear a uniform or insignia or to carry arms or to carry arms openly;

the Commission must determine that the person is, for the purposes of the definition of ‘allied veteran’ in subsection 5c (1) to 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.

Person may be treated as not being a member of a couple

“(3) The Commission may determine, for any special reason, that a person who is a member of a couple is not to be treated as a member of a couple for the purposes of this Act.

Note: for ‘member of a couple’ see subsection 5e (2).

“(4) The determination must be in writing.

Illness separated couple determination

“(5) If the Commission is satisfied that:

(a)     2 people are members of a couple; and

(b)     they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and

(c)     because of that inability to live together, their living expenses are, or likely to be greater than they would otherwise be; and

(d)     that inability is likely to continue indefinitely;

the Commission may make a written determination that the 2 people are members of an illness separated couple for the purposes of this Act.

Respite care couple determination

“(6) If the Commission is satisfied that:

(a)     2 people are members of a couple; and

(b)    one of the members of the couple has entered approved respite care; and

(c)     the member who has entered the approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days;

the Commission may make a written determination that the 2 people are members of a respite care couple for the purposes of this Act.

“(7) A determination under subsection (6) takes effect from the day specified by the Commission in the determination, being a day not earlier than 3 months before the Commission is notified that the person has entered approved respite care.

Approved respite care determination

“(8) For the purposes of Part III, a person is in approved respite care if:

(a)     the person is a benefit respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) Regulations); or

(b)    the person is a leave respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) Regulations); or

(c)     the person is an eligible person as defined in the Aged or Disabled Persons Home Act 1954 and is occupying a respite care place as defined in that Act.

Prescribed student child determination

“(9) Where the Commission is satisfied that payments:

(a) under the Tertiary Education Assistance Scheme or the Secondary Allowance Scheme; or

(b)  under:

(i) the Veterans’ Children Education Scheme; or

(ii) the AUSTUDY Scheme; or

(iii) the Assistance for Isolated Children Scheme; or

(c)  under the ABSTUDY Scheme;

are being or will be made to or in respect of a child who has turned 16 (other than a child by reference to whom the rate of those payments is increased) the Commission must, by determination in writing, declare that child to be a prescribed student child for the purposes of this Act as from a day specified in the determination.

“(10) The day specified in the determination may be a day before the day on which the determination is made but must not be a day before:

(a)     in a case to which paragraph (8) (a) applies—1 January 1986; or

(b)    in a case to which (8) (b) applies—1 January 1987; or

(c)     in a case to which (8) (c) applies—1 January 1988.

Date of effect of determination granting pension or allowance

“5s. Where a determination has been made under this Act that a pension or allowance is payable as from a particular day (in this subsection called the ‘day of effect’) that is not a pension payday, the pension or allowance is payable on and from the next pension payday after the day of effect.”.

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

Qualifying service

“7a. (1) For the purposes of Part III, 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 subsection 5b (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; or

(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 General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or

(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; or

(v) rendered service as a member of the United Nations Transition Assistance Group (UNTAG) Namibia, being a force that is designated as required to be armed, in the area described in item 9 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description; or

(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 (not being war or war-like operations so engaged in as part of, or in association with, the British Commonwealth Far East Strategic Reserve):

(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; or

(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; or

(d)     if the person was, during a period of hostilities specified in paragraph (a) or (b) of the definition of ‘period of hostilities’ in subsection 5b (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; or

(e)     if the person is an eligible civilian within the meaning of subsection 5c (1) who was, during a period of hostilities specified in paragraph 5b (1) (b) of the definition of ‘period of hostilities’, detained by the enemy; or

(f) if the person is a person in respect of whom a pension is payable in pursuance of subsection 13 (6); or

(g) if the person is an Australian mariner as defined by subsection 5c (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; or

(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 person 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 subsection 5 (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.

“(2) In subparagraphs (1) (b) (ii) and (1) (h) (ii):

‘campaign medal’, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:

(a) any of the following medals:

(i) 1939-45 Star;

(ii) Atlantic Star;

(iii) Air Crew Europe Star;

(iv) Africa Star;

(v) Pacific Star;

(vi) Burma Star;

(vii) Italy Star;

(viii) France and Germany Star; or

(b) any other medal declared by the regulations to be a campaign medal in relation to service during that period.”.

Repeal of Part III and substitution of new Part

5. Part III of the Principal Act is repealed and the following Part is substituted:

“PART III—SERVICE PENSIONS

“Division 1—General features

Order and structure of Divisions

“35. (1) In this Part:

(a)     Division 2 deals with claims for qualifying service; and

(b)    Divisions 3, 4, 5 and 6 deal with the 4 kinds of service pension (age, invalidity, wife and carer service pension respectively); and

(c)     Division 7 contains the Service Pension Rate Calculators; and

(d)    the remaining Divisions deal with provisions of general application to the 4 kinds of service pension (for example, the assets test and income test and recipient obligations).

“(2) In Divisions 3, 4, 5 and 6 (dealing with each kind of service pension) this is the order in which the provisions are presented:

(a)     eligibility provisions (who is entitled to the pension);

(b)    claim provisions (how a claim is made);

(c)     rates provisions (how much the payment will be);

(d)    bereavement payments (payments available when a person’s partner or child has died).

“(3) Other relevant provisions are referred to in notes at the bottom of key provisions in the Division.

Eligibility for and payability of service pension

“35a. Before a person can be paid a service pension under this Part:

(a)     the person must be eligible for the pension; and

(b)    there must be nothing in this Act that makes the pension not payable to the person (for example, a dual pension provision): the pension must be ‘payable to the person’.

“Division 2—Claim for qualifying service