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Veterans' Entitlements Amendment Act 1991

Authoritative Version
  • - C2004A04147
  • No longer in force
Act No. 72 of 1991 as made
An Act to amend the Veterans' Entitlements Act 1986
Date of Assent 25 Jun 1991
Date of repeal 10 Mar 2016
Repealed by Amending Acts 1990 to 1999 Repeal Act 2016

Veterans’ Entitlements Amendment Act 1991

No. 72 of 1991

TABLE OF PROVISIONS

 

Section

 

1.

Short title

2.

Commencement

3.

Repeal of section 5 and substitution of new sections:

 

5.

Index of definitions

 

5a.

Repatriation Commission definitions

 

5b.

War and operational area related definitions

 

 

Allotted for duty

 

 

End of World War 1 and 2

 

5c.

Eligibility related definitions

 

5d.

Injury/disease definitions

 

5e.

Family relationships definitions—couples

 

5f.

Family relationships definitions—children

 

5g.

Australian residence definitions

 

5h.

Income test definitions

 

5j.

Investment income definitions

 

5k.

Maintenance income definitions

 

5l.

Assets test definitions

 

5m.

Retirement villages definitions

 

5n.

Rent definitions

 

5p.

Bereavement definitions

 

5q.

General definitions

 

5r.

Determinations having interpretative effect

 

 

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

 

 

Allied veteran determination

 

 

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

 

 

Illness separated couple determination

 

 

Respite care couple determination

 

 

Approved respite care determination


TABLE OF PROVISIONScontinued

Section

 

 

 

 

Prescribed student child determination.

 

5s.

Date of effect of determination granting pension or allowance

4.

Insertion of new section:

 

7a.

Qualifying service

5.

Repeal of Part III and substitution of new Part:

 

 

PART III—SERVICE PENSIONS

 

 

Division 1General features

 

35.

Order of provisions and structure of Divisions

 

35a.

Eligibility for and payability of service pension

 

 

Division 2Claim for qualifying service

 

 

Subdivision AClaim

 

35b.

Need for a claim

 

35c.

Who can claim?

 

35d.

Form of claim

 

35e.

Lodgment of claim

 

35f.

Withdrawal of claim

 

 

Subdivision BInvestigation of claim

 

35g.

Secretary to investigate claim and submit it to Commission

 

 

Subdivision CConsideration and determination of claim

 

35h.

Duties of Commission in relation to claim

 

35j.

Determination of qualifying service to be proof of qualifying service

 

 

Division 3Age service pension

 

 

Subdivision AEligibility for and payability of age service pension

 

36.

Eligibility for age service pension

 

36a.

Age service pension may not be payable in some circumstances

 

36b.

Age service pension generally not payable before claim

 

36c.

Restrictions on dual pensions

 

 

Subdivision BClaim for age service pension

 

36d.

Need for a claim

 

36e.

Who can claim?

 

36f.

Form of claim

 

36g.

Lodgment of claim

 

36h.

Claimant must be Australian resident and in Australia

 

36j.

Withdrawal of claim

 

 

Subdivision CInvestigation of claim

 

36k.

Secretary to investigate claim and submit it to Commission

 

 

Subdivision DConsideration and determination of claim

 

36l.

Duties of Commission in relation to claim

 

36m.

Date of effect of determination

 

 

Subdivision ERate of age service pension

 

36n.

How to work out the rate of a veteran’s age service pension


TABLE OF PROVISIONScontinued

Section

 

 

Subdivision FBereavement payments (death of pensioner partner)

36p.

Eligibility for payments under this Subdivision

36q.

Continued payment of partner’s pension

36r.

Lump sum payable in some circumstances

36s.

Adjustment of person’s age service pension rate

36t.

Effect of death of person entitled to payments under this Subdivision

36u.

Matters affecting payment of benefits under this Subdivision

 

Subdivision GBereavement payments (death of dependent child)

36v.

Bereavement payments on death of dependent child

36w.

Continued payment of child-related amounts

36x.

Lump sum payable in some circumstances

 

Subdivision HBereavement payments (death of recipient)

36y.

Death of recipient

 

Division 4Invalidity service pension

 

Subdivision AEligibility for and payability of invalidity service pension

37.

Eligibility for invalidity service pension

37a.

Invalidity service pension may not be payable in some circumstances

37b.

Invalidity service pension generally not payable before claim

37c.

Restrictions on dual pensions

 

Subdivision BClaim for invalidity service pension

37d.

Need for a claim

37e.

Who can claim?

37f.

Form of claim

37g.

Lodgment of claim

37h.

Claimant must be Australian resident and in Australia

37j.

Withdrawal of claim

 

Subdivision CInvestigation of claim

37k.

Secretary to investigate claim and submit it to Commission

 

Subdivision DConsideration and determination of claim

37l.

Duties of Commission in relation to claim

37m.

Date of effect of determination

 

Subdivision ERate of invalidity service pension

37n.

How to work out the rate of a veteran’s invalidity service pension

 

Subdivision FBereavement payments (death of pensioner partner)

37p.

Eligibility for payments under this Subdivision

37q.

Continued payment of partner’s pension

37r.

Lump sum payable in some circumstances

37s.

Adjustment of person’s invalidity service pension rate

37t.

Effect of death of person entitled to payments under this Subdivision

37u.

Matters affecting payment of benefits under this Subdivision


TABLE OF PROVISIONScontinued

 

Section

 

 

 

 

Subdivision GBereavement payments (death of dependent child)

 

37v.

Bereavement payments on death of dependent child

 

37w.

Continued payment of child-related amounts

 

37x.

Lump sum payable in some circumstances

 

 

Subdivision HBereavement payments (death of recipient)

 

37y.

Death of recipient

 

 

Division 5Wife service pension

 

 

Subdivision AEligibility for and payability of wife service pension

 

38.

Eligibility for wife service pension

 

38a.

Wife service pension may not be payable in some circumstances

 

38b.

Wife service pension generally not payable before claim

 

38c.

Restrictions on dual pensions

 

 

Subdivision BClaim for wife service pension

 

38d.

Need for a claim

 

38e.

Who can claim?

 

38f.

Form of claim

 

38g.

Lodgment of claim

 

38h.

Claimant must be Australian resident and in Australia

 

38j.

Withdrawal of claim

 

 

Subdivision CInvestigation of claim

 

38k.

Secretary to investigate claim and submit it to Commission

 

 

Subdivision DConsideration and determination of claim

 

38l.

Duties of Commission in relation to claim

 

38m.

Date of effect of determination

 

 

Subdivision ERate of wife service pension

 

38n.

How to work out the rate of a woman’s wife service pension

 

 

Subdivision FBereavement payments (death of pensioner partner)

 

38p.

Eligibility for payments under this Subdivision

 

38q.

Continued payment of partner’s pension

 

38r.

Lump sum payable in some circumstances

 

38s.

Effect of death of person entitled to payments under this Subdivision

 

38t.

Matters affecting payment of benefits under this Subdivision

 

 

Subdivision GBereavement payments (death of dependent child)

 

38u.

Bereavement payments on death of dependent child

 

38v.

Continued payment of child-related amounts

 

38w.

Lump sum payable in some circumstances

 

 

Subdivision HBereavement payments (death of recipient)

 

38x.

Death of recipient


TABLE OF PROVISIONScontinued

 

Section

 

 

 

 

Division 6Carer service pension

 

 

Subdivision AEligibility for and payability of carer service pension

 

39.

Eligibility for carer service pension

 

39a.

Carer service pension may not be payable in some circumstances

 

39b.

Carer service pension generally not payable before claim

 

39c.

Restrictions on dual pensions

 

 

Subdivision BClaim for carer service pension

 

39d.

Need for a claim

 

39e.

Who can claim?

 

39f.

Form of claim

 

39g.

Lodgment of claim

 

39h.

Claimant must be Australian resident and in Australia

 

39j.

Withdrawal of claim

 

 

Subdivision CInvestigation of claim

 

39k.

Secretary to investigate claim and submit it to Commission

 

 

Subdivision DConsideration and determination of claim

 

39l.

Duties of Commission in relation to claim

 

39m.

Date of effect of determination

 

 

Subdivision ERate of carer service pension

 

39n.

How to work out the rate of a person’s carer service pension

 

 

Subdivision FBereavement payments (continuation of carer service pension)

 

39p.

Continuation of carer service pension for bereavement period where person cared for dies

 

39q.

Continued carer service pension rate

 

 

Subdivision GBereavement payments (death of pensioner partner)

 

39r.

Eligibility for payments under this Subdivision

 

39s.

Continued payment of partner’s pension

 

39t.

Lump sum payable in some circumstances

 

39u.

Adjustment of person’s carer service pension rate

 

39v.

Effect of death of person entitled to payments under this Subdivision

 

39w.

Matters affecting payment of benefits under this Subdivision

 

 

Subdivision HBereavement payments (death of dependent child)

 

39x.

Bereavement payments on death of dependent child

 

39y.

Continued payment of child-related amounts

 

39z.

Lump sum payable in some circumstances

 

 

Subdivision JBereavement payments (death of recipient)

 

39za.

Death of recipient


TABLE OF PROVISIONScontinued

 

Section

 

 

 

 

Division 7Rate Calculators

 

 

Subdivision AGeneral

 

40.

Steps in rate calculation

 

40a.

Standard categories of family situations

 

40b.

Rate Calculators

 

40c.

Application of income and assets test reductions for income tax purposes

 

 

Subdivision BService pension rate calculator where there are no dependent children

 

41.

Rate of age, invalidity, wife and carer service pension (no dependent children)

 

SERVICE PENSION RATE CALCULATOR WHERE THERE ARE NO DEPENDENT CHILDREN

Module A—Overall rate calculation process

Module B—Maximum basic rate

Module C—Rent assistance

Module D—Ordinary income test

Module E—Maintenance income test

Module F—Assets test

Module G—Remote area allowance

Subdivision CService pension rate calculator where there are dependent children

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

 

SERVICE PENSION RATE CALCULATOR WHERE THERE ARE DEPENDENT CHILDREN

Module A—Overall rate calculation process

Module B—Maximum basic rate

Module C—Additional amounts for dependent children

Module D—Rent assistance

Module E—Ordinary income test

Module F—Maintenance income test

Module G—Assets test

Module H—Remote area allowance

Subdivision D—Service pension rate calculator for blinded veterans

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

 

SERVICE PENSION RATE CALCULATOR FOR BLINDED VETERANS

Module A—Overall rate calculation process

Module B—Maximum basic rate

Module C—Additional amounts for dependent children

Module D—Rent assistance

Module E—Remote area allowance


TABLE OF PROVISIONScontinued

Section

Subdivision EService pension rate calculator for widows and non-illness separated wives

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

SERVICE PENSION RATE CALCULATOR FOR WIDOWS AND NON-ILLNESS SEPARATED WIVES

Module A—Overall rate calculation process

Module B—Maximum basic rate

Module C—Rent assistance

Module D—Ordinary income test

Module E—Maintenance income test

Module F—Assets test

Module G—Remote area allowance

Subdivision FService pension rate calculator for “frozen rate” widows

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

 

SERVICE PENSION RATE CALCULATOR FOR “FROZEN RATE” WIDOWS

Module A—Overall rate calculation process

Module B—Ceiling rate

 

 

Division 8Ordinary income testinvestment income

 

Subdivision AIntroduction

46.

Structure of Division

46a.

Certain capital amounts not covered by other Subdivisions taken to be received over 12 months

 

Subdivision BAccruing return investments

46b.

Investments made before 1 January 1988 with friendly societies or where no immediate return

46c.

Investments made before 1 January 1988 not with friendly societies or where return is not deferred

46d.

Investments made after 1 January 1988

46e.

Actual return not be treated as income

46f.

Rate of return where it can only be approximated

46g.

Reduction of rate of return for investment costs

46h.

Conversion of investment to accruing return investment

 

Subdivision CMarket-linked investments

46j.

Investments made before 9 September 1988

46k.

Special provisions about certain investments made before 9 September 1988

46l.

Investments made after 9 September 1988

46m.

Actual return not to be treated as income

46n.

Product rate of return

46p.

Determination of entitlement of person holding a market-linked investment

46q.

Reduction of rate of return for investment costs

46r.

Conversion of investments to market-linked investments


TABLE OF PROVISIONScontinued

 

Section

 

 

 

 

Subdivision DCompulsorily preserved superannuation

 

46s.

Superannuation benefits received before pension age

 

 

Subdivision EImmediate annuities and superannuation pensions

 

46t.

Immediate annuities

 

46u.

Superannuation pensions

 

 

Division 9Ordinary income testconversion of foreign currency amounts

 

47.

Application of Division

 

47a.

Conversion of foreign currency amounts

 

47b.

Base exchange rate

 

47c.

Re-assessed exchange rate

 

47d.

Applicability of re-assessed exchange rate

 

47e.

Rounding off exchange rates

 

 

Division 10Ordinary income testdisposal of ordinary income

 

48.

Disposal of ordinary income

 

48a.

Amount of disposition

 

48b.

Disposal of ordinary income—not a member of a couple

 

48c.

Disposal of ordinary income—members of couples

 

48d.

Treatment of transactions that constitute both a disposal of ordinary income and a disposal of assets

 

48e.

Dispositions more than 5 years old to be disregarded

 

 

Division 11Ordinary income testearnings credit

 

49.

Earnings credit account balance may be set off against ordinary income from remunerative work

 

49a.

Earnings credit account

 

49b.

Earnings credit account balance

 

EARNINGS CREDIT ACCOUNT BALANCE CALCULATOR

Module A—Overall account balance calculation

Module B—Opening balance

Module C—Earnings credit

Module D—Drawing on account

 

 

Division 12New Enterprise Incentive Scheme

50.

General effect of Division

50a.

Reduction in rate of payments under this Part if recipient or partner also receiving payments under NEIS

50b.

Rate reduction under this Division

 

Division 13General provisions relating to the maintenance income test

51.

Apportionment of capitalised maintenance income

51a.

In-kind housing maintenance—value of substitute for family home


TABLE OF PROVISIONScontinued

 

Section

 

 

 

 

Division 14General provisions relating to the assets test

 

 

Subdivision AValue of person’s assets

 

52.

Certain assets to be disregarded in calculating the value of a person’s assets

 

52a.

Value of annuities

 

52b.

Value of annuity—change of relevant number

 

52c.

Effect of charge or encumbrance on value of assets

 

52d.

Loans

 

 

Subdivision BDisposal of assets

 

52e.

Disposal of assets

 

52f.

Amount of disposition

 

52g.

Disposal of assets—not a member of a couple

 

52h.

Disposal of assets—members of couples

 

52j.

Dispositions more than 5 years old to be disregarded

 

 

Subdivision CSpecial provisions relating to retirement village residents

 

52k.

Retirement village resident

 

52l.

Basis for different treatment

 

52m.

Entry contribution

 

52n.

Extra allowable amount

 

52p.

Renegotiation of retirement village agreement

 

52q.

People who are not members of a couple

 

52r.

Members of couples

 

52s.

Members of illness separated couple (both in retirement village or villages)

 

52t.

Members of illness separated couple (partner not in retirement village and partner property owner)

 

52u.

Members of illness separated couple (partner not in retirement village and partner not property owner)

 

52v.

Members of ordinary couple with different principal homes (both in retirement villages)

 

52w.

Members of ordinary couple with different principal homes (partner not in retirement village and partner property owner)

 

52x.

Members of ordinary couple with different principal homes (partner not in retirement village and partner not property owner)

 

 

Subdivision DFinancial hardship

 

52y.

Access to financial hardship rules

 

52z.

Application of financial hardship rules

 

 

Subdivision EPension loans scheme

 

52za.

Eligibility for participation in pension loans scheme

 

52zb.

Effect of participation in pension loans scheme—pension rate

 

52zc.

Effect of participation in pension loans scheme—creation of debt

 

52zd.

Need for a request to participate

 

52ze.

Additional requirement where person’s assets valued at less than $100,000

 

52zf.

Existence of debt results in charge over assets

 

52zg.

Debt not to be recovered until after death

 

52zh.

Enforcement of charge

 

52zj.

Person ceases to participate in pension loans scheme if value of assets falls below $100,000

 

52zk.

Automatic termination of participation in pension loans scheme

 

52zl.

Registration of charge

 

52zm.

Manner of enforcement of charge


TABLE OF PROVISIONScontinued

 

Section

 

Division 15Fringe benefits

 

 

Subdivision AIntroduction

 

53.

Fringe benefits and treatment at Departmental expense for certain service pensioners

 

 

Subdivision BFringe benefits

 

53a.

Eligibility for fringe benefits

 

53b.

Fringe benefits ordinary income test

 

53c.

Fringe benefits assets test

 

 

Subdivision CTreatment at Departmental expense

 

53d.

Eligibility for treatment at Departmental expense

 

 

Division 16Recipient obligations

 

54.

Secretary may require notification of an event or change of circumstances

 

54a.

Secretary may require recipient to give particular information relevant to the payment of pension

 

54b.

Document served with a section 54 notice

 

54c.

Interpretation

 

 

Division 17Pensioners in certain institutions

 

 

Subdivision AImprisonment

 

55.

Service pension may be suspended or forfeited when pensioner in gaol

 

55a.

Instalments may be redirected to partner or child

 

 

Subdivision BBenevolent homes

 

55b.

Application of Subdivision

 

55c.

Inmate of benevolent home—male, partnered, with child add-on

 

55d.

Inmate of benevolent home—other cases

 

55e.

Pensioner contribution

 

 

Division 18Variation and termination

 

56.

Automatic termination—recipient complying with section 54 notification obligations

 

56a.

Automatic termination—recipient not complying with section 54 notification obligations

 

56b.

Automatic rate reduction—recipient not complying with section 54 notification obligations

 

56c.

Rate increase determination

 

56d.

Rate reduction determination

 

56e.

Cancellation and suspension determination

 

56f.

Resumption of payment after suspension

 

56g.

Date of effect of favourable determination

 

56h.

Date of effect of adverse determination

 

56j.

Pension may be cancelled at pensioner’s request

 

56k.

Pension may be cancelled or suspended if Secretary loses contact with pensioner

 

56l.

Commission may end suspension


TABLE OF PROVISIONScontinued

 

Section

 

Division 19Review of decisions

 

57.

Claimants and service pensioners may seek review of certain decisions

 

57a.

Application for review

 

57b.

Commission’s powers where request for review

 

57c.

Date of effect of certain review decisions

 

57d.

Commission must make written record of review decision and reasons

 

57e.

Person who requested review to be notified of decision

 

57f.

Powers of Commission to gather evidence

 

57g.

Withdrawal of request for review

 

57h.

Commission may reimburse certain expenses

 

 

Division 20—Administration of pension payments

 

 

Subdivision AGeneral administration of pension payments

 

58.

Payment by instalments

 

58a.

Calculation of amount of fortnightly instalment

 

58b.

Effect on instalments of back-dating claim

 

58c.

Manner of payment

 

58d.

Agents

 

58e.

Pension payday falling on public holiday etc.

 

58f.

Payment into bank account etc.

 

58g.

Service pension to be absolutely inalienable

 

58h.

Payments to Commissioner of Taxation at pensioner’s request

 

58j.

Payments to Commissioner of Taxation—section 218 Income Tax Assessment Act

 

 

Subdivision BPayment of service pension outside Australia

 

58k.

Age, invalidity and wife service pensions generally portable

 

58l.

Payment of service pension outside Australia

 

58m.

No portability if claim based on short-term residence

 

58n.

“Transfer” to portable pension


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

account

5q (1)

accruing return investment

5j (1)

acting Commissioner

5a

Acting Deputy President

5a

Acting President

5a

actual market exchange rate

5q (1)

actual value

5m

additional amounts for dependent children

5q (1)

adopted child

5f (1)

allied country

5c (1)

allied mariner

5c (1)

allied veteran

5c (1)

allotted for duty

5b (2)

amount of rent paid or payable

5n (6), (7)

annual rate of return

5j (2)

approved deposit fund

5j (1)

approved Guide to the Assessment of Rates of Veterans’ Pensions

5q (1)

approved respite care

5r

approved Treatment Principles

5q (1)

assessable growth component

5j (1)

assessable period

5j (1)

asset

5l (1)

Australia

5q (1)

Australian mariner

5c (1)

Australian resident

5g (1)

benevolent home

5q (1)

bereavement lump sum period

5p

bereavement notification day

5p

bereavement period

5p

bereavement rate continuation period

5p

blinded in an eye

5d (3)

Board

5q (1)

board

5n (1)

building society

5q (1)

campaign medal

7a (2)

capitalised maintenance income

5k

cash maintenance

5k

child

5f

child support

5k

Commission

5a

commissioner

5a

Commonwealth country

5c (1)

Commonwealth veteran

5c (1)

compulsorily preserved

5j (5)

continuous full-time service

5c (1)

couple

5e (2), (3), (4)

credit union

5q (1)

decision

5q (1)

deductible amount

5j (1)

defence force established by a Commonwealth country

5c (1),(3)

defence force established by an allied country

5c(1)

deferred annuity

5j (1)

dependent child

5f (2), (3), (4), (5)

dependent child add-on

5q (1)

Deputy President

5a

determination of entitlement

5q (1)

disability pension

5n (1)

disease

5d (1)

dispose

5l (1)

dispose of income

5h (1)

domestic payment

5h (3)


INDEX—continued

earned, derived or received

5h (2)

eligible civilian

5c (1)

eligible investment

5J (1)

eligible war service

7

employed child

5f (3)

enemy

5c (1)

exempt assets

5l (1)

first available bereavement adjustment payday

5p

fishing vessel

5c (1)

foreign exchange period

5q (1)

friendly society

5j (1)

general rate

5q (1)

government-in-exile

5c (1)

Government rent

5n (1)

guardian allowance

5q (1)

home equity conversion agreement

5h (1)

illness separated couple

5r (5)

immediate annuity

5j (1)

incapacity from a war-caused injury, a war-caused disease

5d (2)

incapacity from a defence-caused injury, a defence-caused disease

5d (2)

incentive allowance

5q (1)

income

5h (1)

income amount

5h (1)

income from personal exertion

5h (1)

income support pension

5q (1)

Income Tax Assessment Act

5q (1)

injury

5d (1)

in-kind housing maintenance

5k

ineligible property owner

5n (1)

investment product

5j (1)

interest that gives reasonable security of tenure

5l (8)

joint ownership

5q (1)

maintained child

5K (1)

maintenance

5K (1)

maintenance agreement

5K (1)

maintenance income

5K (1)

market-linked investment

5j (1)

member of a couple

5e (1), (2), (3), (4)

member of a unit of the Defence Force

5c (1), (2)

member of the Defence Force

5c (1)

member of the Interim Forces

5c (1)

non-assessable purchase price

5j (1)

non-illness separated wife

5e (1)

operational area

5b (2)

ordinary income

5h (1)

organisation representing veterans

5q (1)

parent

5f (1)

partner

5e (5)

partnered

5e (5)

partnered (partner getting benefit)

5e (5)

partnered (partner getting neither pension nor benefit)

5e (5)

partnered (partner getting pension)

5e (5)

partnered (partner getting pension or benefit)

5e (5)

pension age

5q (1)

pension payday

5q (1)

pension increase child

5f (6)


INDEX—continued

pension period

5q (1)

pension year

5l (9)

period of hostilities

5b (1)

physically present in remote area

5q (2), (3)

PLS assets

5l (1)

port

5q (1)

prescribed educational scheme

5f (1)

prescribed student child

5f (1), 5r (9)

President

5a (1)

principal home

5l (5), (6), (7)

property owner

5l (4)

public unit trust

5j (1)

purchase price

5j (1)

qualifying service

7a

receiving full-time education at a school, college or university

5f (5)

relevant number

5j (1)

remote area

5q (1)

remunerative work

5q (1)

rent

5n (4)

residing in a nursing home

5n (8)

residual capital value

5j (1)

respite care couple

5r (6)

respite period

5q (1)

retirement village

5m

return

5j (1)

rolled-over amount

5j (1)

roll-over immediate annuity

5j (1)

roll-over purchase price

5j (1)

Secretary

5q (1)

service pension

5q (1)

service pensioner

5q (1)

Social Security Act

5q (1)

social security benefit

5q (1)

social security pension

5q (1)

special maintenance income

5K (1)

special mission

5c (1)

statutory rate of return

5j (1)

student child

5f (1)

superannuation benefit

5j (1)

superannuation fund

5j (1)

superannuation pension

5j (1)

unit of the Defence Force

5c (1)

unrealisable asset

5l (11), (12)

value

5l (2), (3)

veteran

5c (1)

war to which this Act applies

5b (1)

war widow

5e (1)

widow

5e (1)

widower

5e (1)

World War 1

5b (1), (3)

World War 2

5b (1), (3)


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 couplegeneral

“(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 couplespecial 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 childresidence 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 educationeducation 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 amountshome 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 amountshome 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 amountsgeneral

“(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 yeardisposal 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 1General 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 2Claim for qualifying service

“Subdivision AClaim

Need for a claim

“35b. A veteran who wants to establish that he or she has rendered qualifying service must make a proper claim for a determination that he or she has rendered such service.

Note 1: a veteran will need to establish the rendering of qualifying service in order to be eligible for age service pension or invalidity service pension (see subsections 36 (1) and 37 (1)).

Note 2: for ‘qualifying service’ see section 7a.

Who can claim?

“35c. (1) Subject to subsection (2), a claim for a qualifying service determination must be made by:

(a)     the veteran who wants to establish that he or she has rendered qualifying service; or

(b)    with the approval of the veteran—another person on the veteran’s behalf.

“(2) If the veteran is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.

Form of claim

“35d. To be a proper claim, the claim must be:

(a)     made in writing; and

(b)    in accordance with a form approved by the Commission; and

(c)     accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim.

Lodgment of claim

“35e. (1) To be a proper claim, the claim must be lodged:

(a)    at an office of the Department in Australia; or

(b)    at a place approved for this purpose by the Commission; or

(c)    with a person approved for this purpose by the Commission.

“(2) The claim is taken to have been lodged on the day it is received:

(a)     at an office of the Department in Australia; or

(b)    at a place approved under subsection (1); or

(c)  by a person approved under subsection (1);

as the case may be.


Withdrawal of claim

“35f. (1) The claimant may withdraw the claim at any time before it is determined by the Commission.

“(2) To withdraw the claim, the claimant must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia.

“(3) A claimant who withdraws a claim may subsequently make another claim for a determination that he or she has rendered qualifying service.

“Subdivision BInvestigation of claim

Secretary to investigate claim and submit it to Commission

“35g. (1) If a veteran makes a proper claim for a determination that he or she has rendered qualifying service, the Secretary must cause an investigation to be made into the matters to which the claim relates.

“(2) When the investigation is completed, the Secretary must cause the claim to be submitted to the Commission for consideration and determination.

“(3) When the claim is submitted to the Commission it must be accompanied by:

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

(b)    any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the claim; and

(c)     any other documents or other evidence under the control of the Department that are relevant to the claim.

“Subdivision CConsideration and determination of claim

Duties of Commission in relation to claim

“35h. (1) When the claim is submitted to the Commission, the Commission must consider all matters that are, in the Commission’s opinion, relevant to the claim and must then determine the claim.

“(2) In considering the claim, the Commission must:

(a)     satisfy itself with respect to; or

(b)     determine;

(as the case requires) all matters relevant to the determination of the claim.

“(3) Without limiting subsection (1), the Commission, in considering the claim, must consider:

(a) the evidence submitted with the claim under section 35g; and


(b) any further evidence subsequently submitted to the Commission in relation to the claim.

Note: a claimant may apply to the Commission for review of a determination made under this section (see Division 19).

Determination of qualifying service to be proof of qualifying service

“35j. A determination by the Commission that a veteran has rendered qualifying service is proof, for all purposes of this Act, that the veteran has rendered qualifying service.

Note: this provision also applies to a decision of the Administrative Appeals Tribunal that a person has rendered qualifying service. This is because subsection 43 (6) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal’s decision is taken to be the decision of the original decision-maker (in this case, the Commission).

“Division 3Age service pension

“Subdivision AEligibility for and payability of age service pension

Eligibility for age service pension

“36. (1) Subject to subsection (4), a person is eligible for an age service pension if the person:

(a)     is a veteran; and

(b)    has rendered qualifying service; and

(c)     has turned:

(i) if the person is a woman—55; or

(ii) if the person is a man—60.

Note: for ‘qualifying service’ see section 7a.

Additional eligibility criterion for Commonwealth veterans, allied veterans and allied mariners

“(2) A person who is a veteran by reason only of being a Commonwealth veteran, an allied veteran or an allied mariner must, in addition to meeting the requirements of subsection (1), have been an Australian resident for a continuous period of at least 10 years.

“(3) Where:

(a)     a veteran has been an Australian resident during more than one period; and

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

(c)     the aggregate of those periods is more than 10 years;

in the application of subsection (2) to the veteran, the period of 10 years specified in that subsection is to be reduced by a period equal to the period by which the aggregate is more than 10 years.

“(4) If:

(a) a veteran lodges a proper claim for an age service pension


before meeting the eligibility requirements referred to in subsection (1); and

(b)  the veteran ceases to be an Australian resident after lodging the claim and before the claim is determined;

the veteran is not eligible for age service pension unless:

(c)     the day on which the veteran met all the eligibility requirements; and

(d)    the day from which age service pension would, if the claim were granted, be payable;

are earlier than the day on which the veteran ceased to be an Australian resident.

Age service pension may not be payable in some circumstances

“36a. (1) Even though a veteran is eligible for an age service pension, the pension may not be payable to the veteran because:

(a)     the pension has not commenced to be payable (see section 36b); or

(b)    the veteran is in gaol (see sections 55 and 55a); or

(c)     the veteran is receiving another pension (see section 36c).

“(2) An age service pension is not payable to a veteran if the veteran’s age service pension rate would be nil.

Note: a veteran whose rate might otherwise be nil under the relevant Pension Rate Calculator may not have a nil rate after the application of the financial hardship provisions (sections 52y and 52z).

Age service pension generally not payable before claim

“36b. (1) An age service pension is not payable to a veteran before the day on which the veteran claims the age service pension.

Initial incorrect claim followed by proper claim

“(2) If:

(a)     a veteran makes a claim (in this subsection called the ‘initial claim’) for age service pension; and

(b)     the claim is not a proper claim; and

(c)     on the day on which the veteran makes the initial claim, the veteran is eligible for age service pension; and

(d)     the veteran subsequently makes a proper claim:

(i) within 3 months after being notified that the initial claim was not a proper claim; or

(ii) if the veteran was not so notified—at any time;

then:

(e)   subsection (1) does not apply to the veteran; and

(f) age service pension is not payable to the veteran before the day on which the initial claim was lodged.


Restrictions on dual pensions

“36c. An age service pension is not payable to a veteran if the veteran is receiving:

(a)     another service pension; or

(b)    a social security pension; or

(c)     a social security benefit.

Note: ‘social security pension’ includes sheltered employment and rehabilitation allowances and ‘social security benefit’ includes job search allowance.

“Subdivision BClaim for age service pension

Need for a claim

“36d. A veteran who wants to be granted an age service pension must make a proper claim for that pension.

Who can claim?

“36e. (1) Subject to subsection (2), the claim must be made by:

(a)     the veteran who wants to be granted the age service pension; or

(b)    with the approval of the veteran—another person on the veteran’s behalf.

“(2) If the veteran is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.

Form of claim

“36f. To be a proper claim, the claim must be:

(a)     made in writing; and

(b)    in accordance with a form approved by the Commission; and

(c)     accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim.

Lodgment of claim

“36g. (1) To be a proper claim, the claim must be lodged:

(a)    at an office of the Department in Australia; or

(b)    at a place approved for this purpose by the Commission; or

(c)    with a person approved for this purpose by the Commission.

“(2) A claim for age service pension is taken to have been lodged on the day it is received:

(a)     at an office of the Department in Australia; or

(b)    at a place approved under subsection (1); or

(c)  by a person approved under subsection (1);

as the case may be.


Claimant must be Australian resident and in Australia

“36h. (1) Subject to subsection (2), a claim is not a proper claim unless the veteran making the claim, or on whose behalf the claim is being made, is:

(a)     an Australian resident; and

(b)    in Australia;

on the day on which the claim is lodged.

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

“(2) Subsection (1) does not apply to a veteran’s claim if:

(a)  the veteran is outside Australia and is receiving:

(i) invalidity service pension; or

(ii) wife service pension; or

(iii) any of the following under the Social Security Act:

(a) age pension;

(b) invalid pension;

(c) wife pension;

(d) carer pension;

(e) sole parent pension;

(f) widow person’s allowance;

(g) widow B pension; and

(b)  the veteran would, if that pension or allowance were cancelled, be eligible for age service pension.

Note: if the veteran ceases to be an Australian resident after having made a proper claim and after having met all the eligibility requirements (section 36), the veteran’s eligibility is not affected.

Withdrawal of claim

“36j. (1) A claimant for age service pension may withdraw the claim at any time before it is determined by the Commission.

“(2) To withdraw the claim, the claimant must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia.

“(3) A claimant who withdraws a claim may subsequently make another claim for an age service pension.

“Subdivision CInvestigation of claim

Secretary to investigate claim and submit it to Commission

“36k. (1) If a person makes a proper claim for age service pension, the Secretary must cause an investigation to be made into the matters to which the claim relates.


“(2) When the investigation is completed, the Secretary must cause the claim to be submitted to the Commission for consideration and determination.

“(3) When the claim is submitted to the Commission it must be accompanied by:

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

(b)    any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the claim; and

(c)     any other documents or other evidence under the control of the Department that are relevant to the claim.

“Subdivision DConsideration and determination of claim

Duties of Commission in relation to claim

“36l. (1) When the claim is submitted to the Commission, the Commission must consider all matters that are, in the Commission’s opinion, relevant to the claim and must then determine the claim.

“(2) In considering the claim, the Commission must:

(a)     satisfy itself with respect to; or

(b)    determine;

(as the case requires) all matters relevant to the determination of the claim.

“(3) Without limiting subsection (1), the Commission, in considering the claim, must consider:

(a)     the evidence submitted with the claim under section 36k; and

(b)    any further evidence subsequently submitted to the Commission in relation to the claim.

Note: a claimant may apply to the Commission for review of a determination made under this section (see Division 19).

Date of effect of determination

“36m. If the Commission determines that the claim is to be granted, the determination takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.

“Subdivision ERate of age service pension

How to work out the rate of a veteran’s age service pension

“36n. (1) Subject to subsection (2), a veteran’s age service pension rate is worked out using the Service Pension Rate Calculator Where There Are No Dependent Children at the end of section 41 (see Division 7).


“(2) The veteran’s age service pension rate is worked out using:

(a)     if the veteran has a dependent child or dependent children— the Service Pension Rate Calculator Where There Are Dependent Children at the end of section 42 (see Division 7); or

(b)    if the veteran is permanently blinded in both eyes—the Service Pension Rate Calculator for Blinded Veterans at the end of section 43 (see Division 7); or

(c)     if the veteran is a war widow who is receiving:

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

(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act;

the ‘Frozen Rate’ Widow Service Pension Rate Calculator at the end of section 45.

Note: before using a Service Pension Rate Calculator see sections 40 to 40c.

“Subdivision FBereavement payments (death of pensioner partner)

Eligibility for payments under this Subdivision

“36p. (1) If:

(a)     a person is receiving an age service pension; and

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

(c)     the person’s partner dies; and

(d)     immediately before the partner died, the partner was receiving:

(i) a service pension; or

(ii) any of the following under the Social Security Act:

(a) an age pension; or

(b) an invalid pension; or

(c) a carer pension; or

(d) a sole parent pension under subparagraph 249 (1) (a) (iv) of the Social Security Act (illness separated couple); or

(e) a sheltered employment allowance instead of an invalid pension; or

(f) a rehabilitation allowance instead of a pension referred to in sub-subparagraph (a) or (b); or

(g) a special needs age, invalid or sole parent pension; the person is eligible for payments under this Subdivision to cover the bereavement period.

Note 1: section 36q provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.


Note 2: section 36r provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.

Note 3: if one member of a couple is receiving a social security payment and the other member is receiving a veterans payment and one of them dies, the bereavement payments will be paid under the Act that governs the survivor’s payment (that is, if the person who dies was receiving a social security payment and the survivor was receiving a veterans payment, the bereavement payments will be made under this Act, but if the person who dies was receiving a veterans payment and the survivor was receiving a social security payment, the bereavement payments will be made under the Social Security Act).

“(2) A person who is eligible for payments under this Subdivision may choose not to receive payments under this Subdivision.

“(3) An election under subsection (2):

(a)     must be made by written notice to the Commission; and

(b)    may be made after the person has been paid an amount or amounts under this Subdivision; and

(c)     cannot be withdrawn after the Department has taken all the action required to give effect to that election.

“(4) If a person is eligible for payments under this Subdivision in relation to the partner’s death, the rate at which age service pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 36s.

“(5) If the person and the person’s partner were an illness separated or a respite care couple immediately before the partner died, this Subdivision applies to the calculation of rates during the bereavement period as if they were not members of an illness separated or a respite care couple.

Continued payment of partner’s pension

“36q. If a person is eligible for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.

Lump sum payable in some circumstances

“36r. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    the first available bereavement adjustment payday occurs before the end of the bereavement period;

there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.


“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement

Step 1.

Add up:

 

 

(a)

the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and

 

(b)

the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday;

 

the result is called the combined pensioner couple rate.

Step 2.

Work out the amount that, but for section 36s, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate.

Step 3.

Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 4.

Work out the number of pension paydays in the bereavement lump sum period.

Step 5.

Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section.

Adjustment of person’s age service pension rate

“36s. If:

(a)     a person is eligible for payments under this Subdivision; and

(b)     the person does not elect under subsection 36p (2) not to receive payments under this Subdivision;

the rate of the person’s age service pension during the bereavement period is worked out as follows:

(c)     during the bereavement rate continuation period, the rate of age service pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;

(d)     during the bereavement lump sum period (if any), the rate at which age service pension is payable to the person is the rate


at which the pension would be payable to the person apart from this Subdivision.

Effect of death of person entitled to payments under this Subdivision

“36t. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    the person dies within the bereavement period; and

(c)     the Commission does not become aware of the death of the person’s partner before the person dies;

there is payable, to such person as the Commission thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.

“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement

Step 1.

Add up:

 

 

(a)

the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and

 

(b)

the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday;

 

the result is called the combined pensioner couple rate.

Step 2.

Work out the amount that, but for section 36s, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate.

Step 3.

Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 4.

Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends.

Step 5.

Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section.


Matters affecting payment of benefits under this Subdivision

“36u. (1) If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)     after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Part or under the Social Security Act; and

(c)     the Commission is not satisfied that the person has not had the benefit of that amount;

the following provisions have effect:

(d)     the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;

(e)     the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).

“(2) If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Part or under the Social Security Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the ‘financial institution’); and

(c)     the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.

“Subdivision GBereavement payments (death of dependent child)

Bereavement payments on death of dependent child

“36v. If:

(a)     a person is receiving an age service pension; and

(b)     a child dies; and

(c)     immediately before the child died, the person’s age service pension rate included:

(i) a dependent child add-on in respect of the child; or

(ii) guardian allowance in respect of the child;


the person is eligible for payments under this Subdivision to cover the bereavement period.

Note 1: section 36w provides for age service pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.

Note 2: section 36x provides for a lump sum to be paid to the person if the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new age service pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.

Note 3: the additional payments preserved by this Subdivision are:

  dependent child add-on;

  guardian allowance;

  additional rent assistance;

  additional remote area allowance.

Continued payment of child-related amounts

“36w. If a person is eligible for payments under this Subdivision in relation to the death of a child, the person’s age service pension rate during the bereavement rate continuation period is to be calculated as if:

(a)     the child had not died; and

(b)    the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.

Lump sum payable in some circumstances

“36x. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of a child; and

(b)    the first available bereavement adjustment payday occurs before the end of the bereavement period;

a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.


“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement

Step 1.

Work out the instalment of age service pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate.

 

Note: section 36w applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period.

Step 2.

Work out the instalment of age service pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s age service pension rate were not calculated under section 36w: the result is called the new rate.

Step 3.

Take the new rate away from the continued rate: the result is called the deceased child component.

Step 4.

Work out the number of pension paydays in the bereavement lump sum period.

Step 5.

Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section.

“Subdivision HBereavement payments (death of recipient)

Death of recipient

“36y. (1) If:

(a)     a person is receiving age service pension; and

(b)    either:

(i) the person is not a member of a couple; or

(ii) the person is a member of a couple and the person’s partner:

(a) is not receiving a service pension; and

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

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

(c)  the person dies;

there is payable, to such person as the Commission thinks appropriate, an amount equal to the amount that would have been payable to the person under this Part on the pension payday after the person’s death if the person had not died.


“(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.

Note: for death of a person eligible for bereavement payments under Subdivision A see section 36t.

“Division 4Invalidity service pension

“Subdivision AEligibility for and payability of invalidity service pension

Eligibility for invalidity service pension

“37. (1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a)     is a veteran; and

(b)    has rendered qualifying service; and

(c)     is, in the opinion of the Commission, permanently incapacitated for work; and

(d)    is under:

(i) if a woman—60; or

(ii) if a man—65.

Note: for ‘qualifying service’ see section 7a.

“(2) For the purposes of this section, a person is taken to be permanently incapacitated for work if:

(a)     the degree of the permanent incapacity for work is 85% or more; or

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

Additional eligibility criterion for Commonwealth veterans, allied veterans and allied mariners

“(3) A person who is a veteran by reason only of being a Commonwealth veteran, an allied veteran or an allied mariner must, in addition to meeting the requirements of subsection (1), have been an Australian resident for a continuous period of at least 10 years.

“(4) For the purpose of applying subsection (3), where:

(a)     a veteran has been an Australian resident during more than one period; and

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

(c)     the aggregate of those periods is more than 10 years,

in the application of subsection (3) to the veteran, the period of 10 years specified in that subsection is to be reduced by a period equal to the period by which the aggregate is more than 10 years.

“(5) Subsection (3) does not apply to a veteran if:


(a)     the veteran became permanently incapacitated for work while the veteran was an Australian resident; and

(b)    the veteran’s permanent incapacity for work was not brought about with a view to obtaining a service pension or a social security pension; and

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

“(6) If:

(a)     a veteran lodges a proper claim for an invalidity service pension before meeting the eligibility requirements referred to in subsection (1); and

(b)    the veteran ceases to be an Australian resident after lodging the claim and before the claim is determined;

the veteran is not eligible for invalidity service pension unless:

(c)     the day on which the veteran met all the eligibility requirements; and

(d)    the day from which invalidity service pension would, if the claim were granted, be payable;

are earlier than the day on which the veteran ceased to be an Australian resident.

Invalidity service pension may not be payable in some circumstances

“37a. (1) Even though a veteran is eligible for an invalidity service pension, the pension may not be payable to the veteran because:

(a)     the pension has not commenced to be payable (see section 37b); or

(b)    the veteran is in gaol (see sections 55 and 55a); or

(c)     the veteran is receiving another pension (see section 37c).

“(2) An invalidity service pension is not payable to a veteran if the veteran’s invalidity service pension rate would be nil.

Note: a veteran whose rate might otherwise be nil under the relevant Pension Rate Calculator may not have a nil rate after the application of the financial hardship provisions (sections 52y and 52z).

Invalidity service pension generally not payable before claim

“37b. (1) An invalidity service pension is not payable to a veteran before the day on which the veteran claims the invalidity service pension.

Initial incorrect claim followed by proper claim

“(2) If:

(a)     a veteran makes a claim (in this subsection called the ‘initial claim’) for invalidity service pension; and

(b)    the claim is not a proper claim; and


(c)     on the day on which the veteran makes the initial claim, the veteran is eligible for invalidity service pension; and

(d)    the veteran subsequently makes a proper claim:

(i) within 3 months after being notified that the initial claim was not a proper claim; or

(ii) if the veteran was not so notified—at any time;

then:

(e)  subsection (1) does not apply to the veteran; and

(f) invalidity service pension is not payable to the veteran before the day on which the initial claim was lodged.

Restrictions on dual pensions

“37c. An invalidity service pension is not payable to a veteran if the veteran is receiving:

(a)     another service pension; or

(b)    a social security pension; or

(c)     a social security benefit.

Note: ‘social security pension’ includes sheltered employment and rehabilitation allowances and ‘social security benefit’ includes job search allowance.

“Subdivision BClaim for invalidity service pension

Need for a claim

“37d. A veteran who wants to be granted an invalidity service pension must make a proper claim for that pension.

Who can claim?

“37e. (1) A veteran may not claim an invalidity service pension if the veteran has turned:

(a)     if a woman—60; or

(b)    if a man—65.

“(2) Subject to subsection (3), a claim for invalidity service pension must be made by:

(a)     the veteran who wants to be granted the invalidity service pension; or

(b)    with the approval of the veteran—another person on the veteran’s behalf.

“(3) If the veteran is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.

Form of claim

“37f. To be a proper claim, the claim must be:

(a) made in writing; and


(b)    in accordance with a form approved by the Commission; and

(c)     accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim.

Lodgment of claim

“37g. (1) To be a proper claim, the claim must be lodged:

(a)     at an office of the Department in Australia; or

(b)    at a place approved for this purpose by the Commission; or

(c)     with a person approved for this purpose by the Commission.

“(2) A claim for invalidity service pension is taken to have been lodged on the day it is received:

(a)     at an office of the Department in Australia; or

(b)    at a place approved under subsection (1); or

(c)  by a person approved under subsection (1);

as the case may be.

Claimant must be Australian resident and in Australia

“37h. (1) Subject to subsection (2), a claim is not a proper claim unless the veteran making the claim, or on whose behalf the claim is being made, is:

(a)     an Australian resident; and

(b)    in Australia;

on the day on which the claim is lodged.

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

“(2) Subsection (1) does not apply to a veteran’s claim if:

(a)  the veteran is outside Australia and is receiving:

(i) age service pension; or

(ii) wife service pension; or

(iii) any of the following under the Social Security Act:

(a) age pension;

(b) invalid pension;

(c) wife pension;

(d) carer pension;

(e) sole parent pension;

(f) widowed person’s allowance;

(g) widow B pension; and

(b)  the veteran would, if that pension or allowance were cancelled, be eligible for invalidity service pension.

Note: if the veteran ceases to be an Australian resident after having made a proper claim and after having met all the eligibility requirements (section 37), the veteran’s eligibility is not affected.


Withdrawal of claim

“37j. (1) A claimant for invalidity service pension may withdraw the claim at any time before it is determined by the Commission.

“(2) To withdraw the claim, the claimant must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia.

“(3) A claimant who withdraws a claim may subsequently make another claim for an invalidity service pension.

“Subdivision CInvestigation of claim

Secretary to investigate claim and submit it to Commission

“37k. (1) If a veteran makes a proper claim for an invalidity service pension, the Secretary must cause an investigation to be made into the matters to which the claim relates.

“(2) When the investigation is completed, the Secretary must cause the claim to be submitted to the Commission for consideration and determination.

“(3) When the claim is submitted to the Commission it must be accompanied by:

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

(b)    any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the claim; and

(c)     any other documents or other evidence under the control of the Department that are relevant to the claim.

“Subdivision DConsideration and determination of claim

Duties of Commission in relation to claim

“37l. (1) When the claim is submitted to the Commission, the Commission must consider all matters that are, in the Commission’s opinion, relevant to the claim and must then determine the claim.

“(2) In considering the claim, the Commission must:

(a)     satisfy itself with respect to; or

(b)    determine;

(as the case requires) all matters relevant to the determination of the claim.

“(3) Without limiting subsection (1), the Commission, in considering the claim, must consider:

(a) the evidence submitted with the claim under section 37k; and


(b) any further evidence subsequently submitted to the Commission in relation to the claim.

Note: a claimant may apply to the Commission for review of a determination made under this section (see Division 19).

Date of effect of determination

“37m. If the Commission determines that the claim is to be granted, the determination takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.

“Subdivision ERate of invalidity service pension

How to work out the rate of a veteran’s invalidity service pension

“37n. (1) Subject to subsection (2), a veteran’s invalidity service pension rate is worked out using the Service Pension Rate Calculator Where There Are No Dependent Children at the end of section 40c (see Division 7).

“(2) The veteran’s invalidity service pension is worked out using:

(a)     if the veteran has a dependent child or dependent children and is not permanently blinded in both eyes—the Service Pension Rate Calculator Where There Are Dependent Children at the end of section 42 (see Division 7); or

(b)    if the veteran is permanently blinded in both eyes—the Service Pension Rate Calculator For Blinded Veterans at the end of section 43 (see Division 7); or

(c)     if the veteran is a war widow who is receiving:

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

(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act;

the ‘Frozen Rate’ Widow Service Pension Rate Calculator at the end of section 45.

Note: before using a Service Pension Rate Calculator see sections 40 to 40c.

“Subdivision FBereavement payments (death of pensioner partner)

Eligibility for payments under this Subdivision

“37p. (1) If:

(a)     a person is receiving an invalidity service pension; and

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

(c)     the person’s partner dies; and

(d)    immediately before the partner died, the partner was receiving:

(i) a service pension; or


(ii) any of the following under the Social Security Act:

(a) an age pension; or

(b) an invalid pension; or

(c) a carer pension; or

(d) a sole parent pension under subparagraph 249 (1) (a) (iv) of the Social Security Act (illness separated couple); or

(e) a sheltered employment allowance instead of an invalid pension; or

(f) a rehabilitation allowance instead of a pension referred to in sub-subparagraph (a) or (b); or

(g) a special needs age, invalid or sole parent pension;

the person is eligible for payments under this Subdivision to cover the bereavement period.

Note 1: section 37q provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.

Note 2: section 37r provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.

Note 3: if one member of a couple is receiving a social security payment and the other member is receiving a veterans payment and one of them dies, the bereavement payments will be paid under the Act that governs the survivor’s payment (that is, if the person who dies was receiving a social security payment and the survivor was receiving a veterans payment, the bereavement payments will be made under this Act, but if the person who dies was receiving a veterans payment and the survivor was receiving a social security payment, the bereavement payments will be made under the Social Security Act).

“(2) A person who is eligible for payments under this Subdivision may choose not to receive payments under this Subdivision.

“(3) An election under subsection (2):

(a)     must be made by written notice to the Commission; and

(b)    may be able after the person has been paid an amount or amounts under this Subdivision; and

(c)     cannot be withdrawn after the Department has taken all the action required to give effect to that election.

“(4) If a person is eligible for payments under this Subdivision in relation to the partner’s death, the rate at which invalidity service pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 37s.

“(5) If the person and the person’s partner were an illness separated or a respite care couple immediately before the partner died, this Subdivision applies to the calculation of rates during the bereavement period as if they were not members of an illness separated or a respite care couple.


Continued payment of partner’s pension

“37q. If a person is eligible for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.

Lump sum payable in some circumstances

“37r. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    the first available bereavement adjustment payday occurs before the end of the bereavement period;

there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.


“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement

Step 1.

Add up:

 

 

(a)

the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and

 

(b)

the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday;

 

the result is called the combined pensioner couple rate.

Step 2.

Work out the amount that, but for section 37s, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate.

Step 3.

Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 4.

Work out the number of pension paydays in the bereavement lump sum period.

Step 5.

Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section.

Adjustment of person’s invalidity service pension rate

“37s. If:

(a)     a person is eligible for payments under this Subdivision; and

(b)    the person does not elect under subsection 37p (2) not to receive payments under this Subdivision;

the rate of the person’s invalidity service pension during the bereavement period is worked out as follows:

(c)     during the bereavement rate continuation period, the rate of invalidity service pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;

(d)    during the bereavement lump sum period (if any), the rate at which invalidity service pension is payable to the person is the


rate at which the pension would be payable to the person apart from this Subdivision.

Effect of death of person entitled to payments under this Subdivision

“37t. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)     the person dies within the bereavement period; and

(c)     the Commission does not become aware of the death of the person’s partner before the person dies;

there is payable, to such person as the Commission thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.

“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement

Step 1.

Add up:

 

 

(a)

the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and

 

(b)

the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday;

 

the result is called the combined pensioner couple rate.

Step 2.

Work out the amount that, but for section 37s, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate.

Step 3.

Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 4.

Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends.

Step 5.

Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of lump sum payable under this section.


Matters affecting payment of benefits under this Subdivision

“37u. (1) If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Part or under the Social Security Act; and

(c)     the Commission is not satisfied that the person has not had the benefit of that amount;

the following provisions have effect:

(d)    the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;

(e)     the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).

“(2) If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of the person’s partner; and

(b)    an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Part or under the Social Security Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the ‘financial institution’); and

(c)     the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.

“Subdivision GBereavement payments (death of dependent child)

Bereavement payments on death of dependent child

“37v. If:

(a)     a person is receiving an invalidity service pension; and

(b)     a child dies; and

(c)     immediately before the child died, the person’s invalidity service pension rate included:

(i) a dependent child add-on in respect of the child; or

(ii) guardian allowance in respect of the child;


the person is eligible for payments under this Subdivision to cover the bereavement period.

Note 1: section 37w provides for invalidity service pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.

Note 2: section 37x provides for a lump sum to be paid to the person if the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new invalidity service pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.

Note 3: the additional payments preserved by this Subdivision are:

  dependent child add-on;

  guardian allowance;

  additional rent assistance;

  additional remote area allowance.

Continued payment of child-related amounts

“37w. If a person is eligible for payments under this Subdivision in relation to the death of a child, the person’s invalidity service pension rate during the bereavement rate continuation period is to be calculated as if:

(a)     the child had not died; and

(b)     the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.

Lump sum payable in some circumstances

“37x. If:

(a)     a person is eligible for payments under this Subdivision in relation to the death of a child; and

(b)    the first available bereavement adjustment payday occurs before the end of the bereavement period;

a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.


“LUMP SUM CALCULATOR

This is how to work out the amount of the lump sum:

Method statement