Commencement
2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Schedule 1 (other than items 9, 48, 49, 51 and 60) and Schedule 7 are taken to have commenced on 1 July 1995.
(3) Subject to subsection (4), Schedules 2, 3, 4 and 5, items 1 and 2 of Schedule 6, and Schedule 8 commence, or are taken to have commenced, on 1 October 1995.
(4) If this Act receives the Royal Assent before 1 October 1995, items 4, 11, 13 and 16 of Schedule 2 commence on the day on which this Act receives the Royal Assent.
(5) Items 3 and 4 of Schedule 6 commence on 1 January 1996.
Schedules
3. The Acts specified in the Schedules to this Act are amended in accordance with the applicable items in the Schedules, and the other items in the Schedules have effect according to their terms.
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SCHEDULE 1 Section 3
AMENDMENTS OF THE DEFENCE SERVICE HOMES ACT 1918
1. Subsection 4(1) (definition of borrower):
Add at the end “and includes an assignee in relation to a subsidised advance”.
2. Subsection 4(1) (paragraphs (a), (b), (c) and (d) of the definition of Holding):
(a) Omit “he”, substitute “he or she”.
(b) Add at the end “or”.
3. Subsection 4(1) (paragraph (e) of the definition of Holding):
Omit “him”, substitute “him or her”.
4. Subsection 4(1) (paragraph (f) of the definition of Holding):
(a) Omit “he”, substitute “he or she”.
(b) Add at the end “or”.
5. Subsection 4(1) (definition of Holding):
Add at the end:
“(g) land which he or she holds by way of a company title; or
(h) land of which he or she is the lessee under a lease that the Bank considers is adequate security for a subsidised advance to be made to him or her;”.
6. Subsection 4(1) (definition of Holding):
Add at the end:
“Note: An interest in a holding may be a joint interest in accordance with section 4AB.”.
7 Subsection 4(1) (definition of retirement village):
Add at the end:
“or (c) a granny flat;”.
8. Subsection 4(1) (paragraph (a) of the definition of reviewable decision):
Omit “or a certificate of entitlement”, substitute “, a certificate of entitlement or a certificate of assignment”.
SCHEDULE 1—continued
9. Subsection 4(1) (after paragraph (d) of the definition of reviewable decision):
Insert:
“(da) cancelling a subsidy under section 27A;”.
10. Subsection 4(1):
Insert:
“assigned advance means a subsidised advance to an assignee, in accordance with a certificate of assignment issued under section 23A.
assignee means an assignee referred to in section 23A.
assignor means an assignor referred to in section 23A.
certificate of assignment means a certificate of assignment issued under section 23A.
company title, in relation to land, means a right of occupancy of the land, or of a dwelling-house or part of a dwelling-house erected on the land, arising from the holding of shares in a corporation that has an interest in the land or dwelling-house.
granny flat means any form of residence:
(a) that is the principal home of an eligible person; and
(b) that is not owned, wholly or partly, by the eligible person; and
(c) that is, or is a part of, a private residence; and
(d) in respect of which the eligible person has a right of accommodation for an indefinite period.
lease, in relation to land held by way of company title, includes an agreement similar to a lease.
mortgage includes a security over an interest in shares that are shares giving rise to a company title.”.
11. Subsection 4(2A):
Omit “For the purposes of”, substitute “Subject to subsection (2AA), for the purposes of”.
12. After subsection 4(2A):
Insert:
“(2AA) Subsection (2A) does not apply in relation to a person who, during the Second World War, was:
(a) a member of the Women’s Royal Australian; Naval Service, the Australian Women’s Auxiliary Australian Air Force; or
SCHEDULE 1—continued
(b) a member of the Australian Army Medical Women’s Service, other than a member of the Australian Imperial Force; or
(c) a full-time paid member of the Voluntary Aid Detachment.
“(2AB) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a person of a kind referred to in subsection (2AA) is not taken to have been a purchaser or borrower, merely because the person previously became a purchaser or borrower on the basis that:
(a) the person’s husband is or was an eligible person, and as a result they were, under subsection 4A(1), treated together as an eligible person for the purposes of this Act; or
(b) the person’s husband was an eligible person, and the person became an eligible person because her husband died; or
(c) the person is an eligible person because she is a dependent parent.”.
13. Section 4:
Add at the end:
“(9) A reference in this Act to an advance that a person may seek from the Bank, includes a reference to such an advance that a person may seek from the Bank on behalf of an assignee, or a proposed assignee, of the person.
“(10) A reference in this Act to an assignee of a person is a reference to another person in relation to whom the first-mentioned person is an assignor.
“(11) For the purposes of the definitions of further advance and initial advance in subsection 4(1), if the subsidised advance in question is an assigned advance in respect of an assignor:
(a) a reference in those definitions to the person to whom the advance in question is made is a reference to the assignee; and
(b) the assignee is not taken to have previously been a purchaser or borrower merely because the assignee previously became a purchaser or borrower, either as an eligible person in his or her own right or as an assignee in relation to another assignor.
“(12) For the purposes of paragraph (b) of the definition of further advance in subsection 4(1), a person is not taken to have been a purchaser or borrower immediately before an assigned advance is made, merely because the person is a purchaser or borrower, as an assignee, in relation to an assignor other than the one in question.
“(13) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a person who has been an assignor is taken to have been a borrower unless the person:
SCHEDULE 1—continued
(a) was an assignor merely because the person is or was the personal representative of a deceased assignor; or
(b) was an assignor merely because the person is or was an assignor together with the person’s spouse, and became such an assignor on the basis that the person’s spouse was an eligible person.”.
14. After section 4AA:
Insert:
Joint ownership
“4AB.(1) A reference in this Act to any of the following kinds of property:
(a) land;
(b) a suburban holding under the Crown Lands Consolidation Act, 1913 of New South Wales, or under that Act as amended at any time, or under an Act enacted in substitution for that Act;
(c) a unit defined in a units plan registered in accordance with a law of the Australian Capital Territory relating to unit titles;
(d) a right of residence in a retirement village;
includes a reference to such property held by a person as a joint tenant or tenant in common.
“(2) A reference in this Act to a dwelling-house includes a reference to a dwelling-house that is built in or on land, such a suburban holding or such a unit, that is held by a person as a joint tenant or tenant in common.
“(3) A reference in this Act to a purchaser or borrower includes a reference to a person who is a purchaser or borrower as a joint tenant or tenant in common.
Note: Section 17A deals with the issue of certificates of entitlement in relation to joint tenancies and tenancies in common.”.
15. Part III (heading):
Omit the heading, substitute:
“PART III—NOTICES OF ELIGIBILITY, CERTIFICATES OF ENTITLEMENT AND CERTIFICATES OF ASSIGNMENT”.
16. Subsection 15(1):
Add at the end:
“; (e) a certificate of assignment”.
SCHEDULE 1—continued
17. Subsection 17(1):
Omit “advance to the applicant”, substitute “advance to the applicant or the assignee of the applicant”.
18. Paragraphs 17(3)(c) and (d):
Omit the paragraphs, substitute:
“(c) if subsection 34(2) applies—specify the rates of interest and proportions of the further advance to which each of those rates of interest apply, as required by that subsection;
(d) in any other case—specify the rate of interest payable on the advance; and”.
19. Section 17:
Add at the end:
“(4) A certificate of entitlement issued under this section must:
(a) if the certificate relates to an initial advance, or a further advance, that is not an assigned advance—specify that the advance is for the purposes referred to in subsection 18(2) (other than paragraph 18(2)(1)); or
(b) if the certificate relates to an initial advance, or a further advance, that is an assigned advance—specify that the advance is for the purpose of assisting the assignee of the applicant in obtaining a right of residence in the retirement village in question; or
(c) if the certificate relates to an additional advance that is not an assigned advance—specify that the advance is for the purposes referred to in subsection 18(3) (other than paragraph 18(3)(g)); or
(d) if the certificate relates to an additional advance that is an assigned advance—specify that the advance is for the purpose of assisting the assignee of the applicant in continuing to hold a right of residence in the retirement village in question; or
(e) in any other case—specify the purpose of the advance.”.
20. After section 17:
Insert:
Criteria for issue of certificate of entitlement: joint ownership
“17A.(1) The Secretary must not issue a certificate of entitlement under this Part to an applicant if the applicant’s interest or right is in the form of a joint tenancy, unless the Secretary is satisfied that:
SCHEDULE 1—continued
(a) the application was made by a person and his or her wife or husband who, under subsection 4A(1), are treated together as an eligible person for the purposes of this Act; or
(b) the only other joint tenant is the applicant’s wife or husband, who is also an eligible person.
“(2) The Secretary must not issue a certificate of entitlement under this Part to an applicant if the applicant’s interest or right is in the form of a tenancy in common, unless the Secretary is satisfied that the interest or right, at the time when the application was lodged, would have had a value, if it were unencumbered, of not less than the sum of:
(a) all advances in relation to the applicant, in respect of which subsidy is payable; and
(b) the advance to which the certificate would relate.
“(3) In this section:
interest or right, in relation to an applicant, means the applicant’s interest or proposed interest concerned in respect of a holding, or the applicant’s right or proposed right of residence concerned in respect of a retirement village (as the case requires).”.
21. Paragraph 18(l)(b):
Omit the paragraph, substitute:
“(b) the person:
(i) is not the owner of a dwelling-house; and
(ii) does not have a right of residence in a retirement village; and
(iii) does not own an interest in shares giving rise to a company title in respect of land on which a dwelling-house is built;
other than the dwelling-house, right of residence or company title in respect of which the advance is payable; and”.
22. Paragraph 18(l)(e):
Omit the paragraph, substitute:
“(e) if the person has a husband or wife (other than a husband or wife from whom he or she is permanently separated)—the husband or wife:
(i) is not the owner of a dwelling-house; and
(ii) does not have a right of residence in a retirement village; and
(iii) does not own an interest in shares giving rise to a company title in respect of land on which a dwelling-house is built;
SCHEDULE 1—continued
other than the dwelling-house, right of residence or company title in respect of which the advance is payable; and”.
23. Paragraph 18(1) (g):
Omit the paragraph, substitute:
“(g) such advance will be secured by:
(i) in the case of an assigned advance—except as provided by the agreement, a first or subsequent mortgage over the assignee’s interest in the retirement village and over any other person’s interest in the retirement village; or
(ii) in any other case—except as provided by the agreement, a first mortgage over the person’s interest in the holding and over any other person’s interest in the holding.”.
24. Paragraphs 18(2) (d) and (e):
Omit “owned by”, substitute “of”.
25. Paragraph 18(2)(f):
Omit “on a holding of the person”, substitute “on the person’s interest in a holding”.
26. Subsection 18(2):
Add at the end:
“; or (1) in the case of an assigned advance—to be assisted in obtaining a right of residence in the retirement village”.
27. Subparagraph 18(3)(a)(i):
Omit “owned by”, substitute “of”.
28. Paragraph 18(3)(e):
Omit “on a holding of the person”, substitute “on the person’s interest in a holding”.
29. Subsection 18(3):
Add at the end:
“; or (g) in the case of an assigned advance—to be assisted in continuing to hold a right of residence in the retirement village”.
30. After subsection 20(1):
Insert:
“(1A) For the purposes of paragraph (1)(b), the person is taken to be a borrower in relation to a right of residence in a retirement village if the person is, or will be, an assignor in relation to the advance.”.
SCHEDULE 1—continued
31. After subsection 21(1):
Insert:
“(1A) For the purposes of paragraph (1)(a), the person is taken to be a borrower in relation to a right of residence in a retirement village if the person is, or will be, an assignor in relation to the advance.”.
32. Subsection 22(1):
Omit “While any land”, substitute “Subject to subsection (1AA), if any land”.
33. After subsection 22(1):
Insert:
“(1AA) Subsection (1) does not apply if the subsidised advance referred to in paragraph (1)(b) is an assigned advance.”.
34. After subsection 22(7):
Insert:
“(8) A reference in this section to a transfer, in relation to land or land and a dwelling-house, includes a reference to a transfer of shares giving rise to a company title in respect of the land or land and dwelling-house.”.
35. After section 23:
Insert in Part III:
Certificates of assignment
“23A.(1) Subject to this Act, the Secretary may, on application by an eligible person (the assignor) for a certificate of assignment, issue (the assignor) with such a certificate certifying that subsidy is payable by the Commonwealth to the Bank if, in accordance with the certificate, the Bank makes an advance to another person (the assignee).
“(2) The Secretary must not issue the assignor with a certificate of assignment unless:
(a) the Secretary is satisfied that the assignee owns or will own a retirement village that:
(i) is primarily for the accommodation of eligible persons; or
(ii) is a granny flat; and
(b) the Secretary is satisfied that the assignee will assist the assignor to obtain and continue to hold a right of residence in the retirement village, if the Bank makes such an advance to the assignee; and
SCHEDULE 1—continued
(c) the applicant has already been issued with a certificate of entitlement that is in force that:
(i) specifies, under subsection 17(4), a purpose of a kind referred to in paragraph 18(2)(l) or (3)(g); and
(ii) was not issued under section 22; and
(d) a subsidised advance has not been made to the assignor in relation to that certificate of entitlement; and
(e) the assignor and the assignee have agreed to conditions of a kind specified in a determination made by the Secretary under subsection (3).
“(3) The Secretary may make written determinations specifying the kinds of conditions to which an assignor and assignee must agree before a certificate of assignment can be issued to the assignor.
“(4) A certificate of assignment issued under this section remains in force until subsidy in respect of the assigned advance concerned ceases to be payable under this Act.
“(5) A certificate of assignment issued under this section must:
(a) specify the maximum amount in respect of which subsidy is payable, being an amount determined under section 25; and
(b) specify the maximum term of the advance; and
(c) specify the purpose of the advance; and
(d) specify the rate of interest payable on the advance; and
(e) contain particulars of such other matters as are specified in a determination made by the Secretary under subsection (6).
‘‘(6) The Secretary may make written determinations as to the kind of matters to be included in a certificate of assignment pursuant to paragraph (5)(e).
“(7) Determinations made under subsections (3) and (6) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. ”.
36. Subsection 24(1):
Add at the end “or the assignee of a person”.
37. Paragraph 25(l)(b):
Omit the paragraph, substitute:
“ ; and (b) in the case of an additional advance—such amount as the Secretary determines is necessary to give effect to the purpose for which the advance is made, being an amount that is not more than the amount by which $25,000 exceeds:
SCHEDULE 1—continued
(i) in the case of an assigned advance—the sum of the amounts of the assigned advances made to the assignee in relation to the person; or
(ii) in any other case—the sum of the amounts of the contract of sale, Corporation advance, initial advance or further advance and any previous additional advance made to the person; and”.
38. Subparagraph 25(l)(d)(i):
After “borrower or purchaser” insert “, or the assignee of the person was a borrower in respect of the person (as the case requires)”.
39. Subsection 25(1A):
Add at the end “or the assignee of the person (as the case requires)”.
40. Subsection 26(1):
After “subsidised advance to a person” insert “, or the assignee of a person, ”.
41. Paragraph 26(1)(a):
After “made by the person” insert “or the assignee of the person”.
42. After paragraph 26(l)(a):
Insert:
“; or (aa) a certificate of assignment in relation to that advance was issued to the person as a result of a false statement made by the person or the assignee of the person; or”.
43. After paragraph 26(1) (b):
Insert:
“; or (ba) the person was not, when a certificate of assignment in relation to the advance was issued to the person, entitled to the certificate; or”.
44. Paragraph 26(1) (c):
After “the person” insert or the assignee of the person, ”.
45. After subsection 26(2A):
Insert:
“(2B) If:
(a) the Commonwealth is paying subsidy on an assigned advance; and
SCHEDULE 1—continued
(b) the Secretary is satisfied that:
(i) the assignor has agreed to transfer the right of residence in the retirement village, or has given up the right of residence in the retirement village; or
(ii) the assignee has agreed to transfer all or part of his or her interest in the retirement village, or has terminated the assignor’s right of residence in the retirement village;
the Secretary may, by notice of cancellation given to the assignor, cancel the subsidy on the date specified in the notice, being a date not earlier than the date of the notice.
“(2C) If the Secretary cancels a subsidy under subsection (2B), the Bank may, from the date when the cancellation of subsidy takes effect, charge an interest rate in relation to the advance that is an interest rate applicable to similar loans provided by the Bank to mortgagors generally.”.
46. Subsection 26(5):
Omit “to the Bank”, substitute:
“: (a) to the Bank; and
(b) in the case of an assigned advance—to the assignee”.
47. Paragraph 26(7) (a):
After “subsidised advance to a person” insert “, or to the assignee of a person,”.
48. After section 27:
Insert:
Cancellation of subsidy if the eligible person dies
“27A.(1) Subject to subsection (3), the Secretary may cancel subsidy on a subsidised advance in respect of a person, or the assignee of a person, if:
(a) the person has died; and
(b) 3 months has elapsed from the date on which the person died; and
(c) the Secretary is satisfied that there is no surviving wife or husband of the person, to whom a certificate of entitlement could be issued under section 22, in relation to the land or land and dwelling-house concerned, or in relation to the right of residence in the retirement village concerned (as the case requires); and
(d) the Secretary considers it appropriate to cancel the subsidy.
“(2) Subject to subsection (3), the Secretary may cancel subsidy in relation to a portfolio asset entered into by a person if:
SCHEDULE 1—continued
(a) the person has died; and
(b) 3 months has elapsed from the date on which the person died; and
(c) the Secretary is satisfied that there is no surviving wife or husband of the person, to whom a certificate of entitlement could be issued under section 22, in relation to the land or land and dwelling-house concerned, or in relation to the right of residence in the retirement village concerned (as the case requires); and
(d) the Secretary considers it appropriate to cancel the subsidy.
“ (3) If subsidy is being paid in respect of a wife and husband who, under subsection 4A(1), are treated together as an eligible person for the purposes of this Act, the Secretary may only cancel subsidy under subsection (1) or (2) if:
(a) both the wife and husband have died; and
(b) 3 months has elapsed from the death of the wife or the death of the husband, whichever is the later.
“(4) If the Secretary cancels subsidy under subsection (1) or (2), the Secretary must:
(a) Give a notice of cancellation to the executor or personal representative of the person who has died; and
(b) give a copy of the notice of cancellation to the Bank; and
(c) in the case of an assigned advance—give a copy of the notice of cancellation to the assignee.
“(5) The cancellation takes effect, and the subsidy concerned ceases to be payable, on the date specified in the notice, being a date not earlier than the date of the notice.
“(6) If the Secretary cancels subsidy under subsection (1) or (2), the Bank may, from the date when the cancellation of subsidy takes effect, charge an interest rate in relation to the advance that is an interest rate applicable to similar loans provided by the Bank to mortgagors generally.”.
49. Subsection 29(1):
(a) After “subsidy in relation to” insert “an advance to”.
(b) Omit all the words from and including “section 26 or 27” to and including “paragraph 27(l)(a), (b) or (c), ”, substitute:
“section 26, 27 or 27A, for a reason referred to in:
(a) paragraph 26(1)(a), (b) or (c); or
(b) subsection 26(2), (2B) or (7); or
(c) paragraph 27(1)(a), (b) or (c); or
(d) subsection 27A(1) or (2);”.
SCHEDULE 1—continued
50. After paragraph 29(2) (c):
Insert:
“(ca) where subparagraph 26(2B)(b)(i) applied—the whole of the amount of subsidy paid in respect of the person since the day when the assignor agreed to transfer the right of residence in the retirement village, or gave up the right of residence in the retirement village; or
(cb) where subparagraph 26(2B)(b)(ii) applied—the whole of the amount of subsidy paid in respect of the person since the day on which the assignee agreed to transfer the interest in the retirement village, or terminated the assignor’s right of residence in the retirement village; or”.
51. After paragraph 29(2)(d):
Insert:
“(e) where subsection 27A(1) or (2) applied—the whole of the amount of subsidy paid in respect of the person since the day on which the cancellation of subsidy took effect;”.
52. Subsection 29(3):
Omit “to the Bank”, substitute:
“: (a) to the Bank; and
(b) if subsection 26(2B) applied—to the assignor”.
53. Section 34:
Repeal the section, substitute:
Rate of interest on further advances
“34.(1) Subject to subsection (2), the rate of interest that is to be specified under paragraph 17(3)(d) in a certificate of entitlement in relation to a further advance that a person may seek from the Bank is the rate of interest per year of the last preceding previous advance.
“(2) If, at the time when subsidy is or was most recently payable in relation to the last preceding previous advance, subsidy is or was payable in respect of the person in relation to one or more other previous advances:
(a) the rates of interest that are to be specified under paragraph 17(3)(c) in a certificate of entitlement in relation to a further advance that a person may seek from the Bank are the rates of interest per year that applied to those previous advances; and
SCHEDULE 1—continued
(b) in relation to each such interest rate—the proportion of the further advance to be so specified in relation to that interest rate is the proportion of the sum of amounts outstanding in respect of all the previous advances that are amounts to which that interest rate applies.
“(3) In this section:
previous advance, in relation to a further advance in respect of a person, means an advance (whether a Corporation advance, initial advance, additional advance or further advance) in respect of which the person is or was a borrower, or a contract of sale, in respect of which the person is or was a purchaser, preceding the further advance in question.”.
54. Paragraph 36(1)(d):
Omit the paragraph, substitute:
“(d) in the case of a further advance:
(i) if the person has ceased to be a purchaser or borrower in relation to the last preceding previous advance—a term equal to the unexpired part of the last preceding previous advance at the time immediately before the person ceased to be such a purchaser or borrower; or
(ii) in any other case—a term equal to the unexpired part of the last preceding previous advance; and”.
55. Subsection 36(4):
Omit the subsection, substitute:
“(4) In this section:
previous advance, in relation to a further advance in respect of a person, means an advance (whether a Corporation advance, initial advance, additional advance or further advance) in respect of which the person is or was a borrower, or a contract of sale, in respect of which the person is or was a purchaser, preceding the further advance in question.”.
56. After paragraph 38C(1)(g):
Insert:
“ (ga) a dwelling-house wholly or partially owned by an eligible person;
(gb) a dwelling-house wholly owned by a person and his or her wife or husband who, under subsection 4A(1), are treated together as an eligible person for the purposes of this Act;”.
SCHEDULE 1—continued
57. After subparagraph 38C(1)(h)(ii):
Insert:
“ ; or (iii) that is referred to in paragraph (ga) or (gb);”.
58. Paragraph 38C(l)(j):
Omit “or (g)”, substitute “, (g), (ga) or (gb)”.
59. Subsection 38C(2):
Omit “or (g)”, substitute “, (g), (ga) or (gb)”.
60. Subsection 38D(2):
Omit the subsection.
61. Paragraph 38E(l)(a):
Omit the paragraph, substitute:
“(a) the Commonwealth has undertaken insurance under section 38C in relation to a dwelling-house only because:
(i) the Corporation proposed to make a Corporation advance in respect of a person; or
(ii) a person has applied for a certificate of entitlement in relation to that dwelling-house; or
(iii) a person is an eligible person; and”.
62. Paragraph 38E(1)(b):
(a) Omit “the applicant for the advance or certificate”, substitute “the person”.
(b) Omit “the applicant has disposed”, substitute “the person has disposed”.
63. Subparagraphs 38E(1)(b)(ii), (iii) and (iv):
Omit “applicant”, substitute “person”.
64. Paragraph 38E(2)(a):
Omit “applicant”, substitute “person”.
65. Subsection 38E(4):
Omit the subsection, substitute:
“(4) If subparagraph (1)(a)(iii) applies, and the person who died is survived by a widow or widower, the Secretary must not give a notice under paragraph (2)(b) in relation to the dwelling-house unless the Secretary is satisfied that the widow or widower is not an eligible person.”.
SCHEDULE 1—continued
66. Application
Despite the amendments made by this Schedule, section 36 of the Defence Service Homes Act 1918, as in force immediately before the commencement of this item, continues to apply in respect of certificates of entitlement in relation to a further advance that a person may seek from the Bank, if:
(a) subsidy was not payable on 9 May 1995 in relation to the advance (whether a Corporation advance, initial advance, additional advance or further advance) in respect of which the person is or was a borrower, or the contract of sale, in respect of which the person is or was a purchaser, directly preceding the further advance in question; and
(b) the prescribed period, as defined in subsection 36(4) of the Defence Service Homes Act 1918, as in force immediately before the commencement of this item, equals or exceeds 25 years as at 9 May 1995.
–––––––––––––
SCHEDULE 2 Section 3
AMENDMENTS OF THE VETERANS’ ENTITLEMENTS ACT 1986 RELATING TO PRELIMINARY ISSUES CONCERNING ELIGIBILITY FOR PAYMENTS
1. Subsection 5C(1) (definition of veteran):
Add at the end:
“Note: Commonwealth veteran, allied veteran and allied mariner are defined in this subsection.”.
2. Subsection 5C(1):
Insert:
“operational service has the meaning given by section 6.”.
3. Paragraphs 6(l)(a) and (d):
Before “a person who has” insert “subject to subsection (3), ”.
4. Paragraph 6(1) (e):
Omit the paragraph, substitute:
“(e) subject to subsections (5) and (6), a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia in an operational area (not being service rendered, as a member of the Naval Forces in the complement of a sea-going vessel, in the area described in item 2 or 3 of Schedule 2 (in column 1) while that area was an operational area) as:
(i) a member of a unit of the Defence Force that was allotted for duty; or
(ii) a person who was allotted for duty;
in that operational area, is taken to have been rendering operational service during the period in which the person or the unit was so allotted for duty; and”.
5. Subsection 6(1):
Add at the end:
“; and (s) subject to subsection (10), a person who, as a member of the Defence Force, was assigned for service, and has rendered continuous full-time service:
(i) in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; and
SCHEDULE 2—continued
(ii) as a member of a unit of the Defence Force that was assigned for service in that country during that period and that is included in a written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act;
is taken to have been rendering operational service during the period in which the person was so assigned for service.”.
6. Subsection 6(1) (Notes):
Omit the Notes, substitute:
“Note 1: For allotted for duty in an operational area see subsection 5B(2).
Note 2: For war to which this Act applies, World War 1 and World War 2 see subsection 5B(1).
Note 3: For allied country, Australian mariner, Commonwealth country, continuous full-time service, eligible civilian, enemy, member of the Defence Force, member of the Interim Forces and special mission see subsection 5C(1).
Note 4: Subsections (7), (8) and (9) contain information that is relevant to paragraphs (o), (p), (q) and (r).”.
7. Subparagraph 6(5)(b)(i):
Omit the subparagraph, substitute:
“(i) if the person was assigned for duty from an operational area to another area outside Australia (not being an operational area)—the day on which the person arrived at that other area or the day as from which the person was assigned to that other area at a time when the person was in that other area; or”.
8. Subparagraph 6(5)(b)(ii):
Omit “on” (first occurring).
9. Section 6:
Add at the end:
“(10) For the purposes of this Act, the operational service of a person in Japan, being the operational service of the person described in paragraph (1)(s):
(a) is taken to have commenced:
(i) if the person was in Australia on the day as from which the person was assigned for service in Japan—on the day on which the person departed from the last port of call in Australia for that operational service; or
(ii) if the person was outside Australia on the day as from which the person was assigned for service in Japan—on the day as from which the person was so assigned for service; and
SCHEDULE 2—continued
(b) is taken to have ended at the expiration of:
(i) if the person was assigned for service in another country or area outside Australia (not being an operational area)—the day on which the person arrived at that other country or area or the day as from which the person was assigned to that other country or area at a time when the person was in that other country or area; or
(ii) in any other case—the day on which the person arrived at the first port of call in Australia on returning from operational service.”.
10. Subsection 7(1) (Notes):
Omit the Notes, substitute:
“Note 1: For World War 1 and World War 2 see subsection 5B(1).
Note 2: For operational service see section 6.
Note 3: For Australian mariner, continuous full-time service, member of the Defence Force and member of the Interim Forces see subsection 5C(1).
Note 4: Subsections (3) and (4) contain information that is relevant to paragraph (e).”.
11. Subparagraphs 7A(l)(a)(iii) and (iv):
Omit the subparagraphs, substitute:
“(iii) subject to subsection (1A), rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or”.
12. Subsection 7A(1):
Add at the end:
“Note 1: For period of hostilities see subsection 5B(1) and for allotted for duty in an operational area see subsection 5B(2).
Note 2: For allied mariner, allied veteran, Australian mariner, defence force established by a Commonwealth country, defence force established by an allied country, eligible civilian, enemy, member of a unit of the Defence Force, member of the Defence Force and special mission see subsection 5C(1).”.
13. After subsection 7A(1):
Insert:
“(1A) Service rendered 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 must be 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.”.
SCHEDULE 2—continued
14. Subsection 36(1):
Add at the end (before Note 1):
“Note 1A: For veteran see subsection 5C(1).”.
15. Subsection 37(1) (Note):
Omit the Note, substitute:
“Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.”.
16. Application
The amendments made by items 4, 11 and 13 apply to:
(a) any decision made under the Veterans’ Entitlements Act 1986 after the commencement of those items; and
(b) any decision made after the commencement of those items on a review of a decision made under that Act, whether the decision being reviewed was made before or after that commencement.
_____________
SCHEDULE 3 Section 3
AMENDMENT OF THE VETERANS’ ENTITLEMENTS ACT 1986RELATING TO PENSIONS OTHER THAN SERVICE PENSIONS
1. After section 27:
Insert:
Calculation of arrears of pension
“27A.(1) This section applies if:
(a) a pension becomes payable, or becomes payable at an increased rate, under this Part to a veteran from a date (the operative date) before the date on which a decision to grant the pension, or to increase the rate of the pension, (the decision) is made; and
(b) the veteran is a member of a couple or was a member of a couple at any time during the period between the operative date and the date of the decision (the arrears period); and
(c) the veteran’s partner was receiving:
(i) a social security pension or benefit; or
(ii) income support supplement;
at any time during the arrears period; and
(d) the rate at which the social security pension or benefit or income support supplement is payable to the veteran’s partner is reduced as a result of the pension becoming payable to the veteran, or becoming payable to the veteran at an increased rate, as the case requires.
Note: The amount of arrears of pension payable to a veteran may also be affected by section 205 or 205AA.
“(2) The amount of the pension payable to the veteran in respect of the arrears period is reduced by an amount calculated as follows:
SCHEDULE 3—continued
| Method statement |
| Step 1. | Work out the total amount of the pension that would have been paid to the veteran during the arrears period if the decision had been made on the operative date. |
| Step 2. | Work out the total amount (if any) of the pension that was paid to the veteran during the arrears period. |
| Step 3. | Subtract the amount obtained in Step 2 from the amount obtained in Step 1. The result is called the provisional arrears. |
| Step 4. | Work out the total amount of social security pension or benefit or income support supplement that was paid to the veteran’s partner during the arrears period. |
| Step 5. | Work out the total amount (if any) of social security pension or benefit or income support supplement that would have been payable to the veteran’s partner during the arrears period if the decision had been made on the operative date. |
| Step 6. | Subtract the amount obtained in Step 5 from the amount obtained in Step 4. The result is called the excess payment. |
| Step 7. | If the excess payment is equal to or more than the provisional arrears, the pension payable to the veteran in respect of the arrears period is reduced by the amount of the provisional arrears. |
| Step 8. | If the excess payment is less than the provisional arrears, the amount of the pension payable to the veteran in respect of the arrears period is reduced by the amount of the excess payment. |
Certain decisions under section 27A reviewable under the Social Security Act
“27B.(1) This section applies if:
(a) a decision is made under section 27A in relation to the amount of arrears of pension to be paid to a veteran; and
(b) subparagraph 27A(1)(c)(i) applies in relation to the veteran.
“(2) The calculations made under Steps 4, 5 and 6 of the Method statement in section 27A in relation to the payment and payability of a social security pension or benefit are, for the purposes of the Social Security Act,
SCHEDULE 3—continued
taken to be decisions made under that Act by an officer (other than the Secretary) of the Department administered by the Minister administering that Act.”
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SCHEDULE 4 Section 3
AMENDMENTS OF THE VETERANS’ ENTITLEMENTS ACT 1986 RELATING TO SERVICE PENSIONS
1. Section 35B:
Add at the end (before the Notes):
“(2) A person who wants to establish for the purposes of paragraph 38(1)(aa) or (e) that his or her partner or deceased partner has rendered qualifying service must make a proper claim for a determination that the person’s partner or deceased partner has rendered such service.”.
2. Subsection 35C(1):
Add at the end:
“; or (c) a person who wants to establish for the purposes of paragraph 38(1)(aa) or (e) that his or her partner or deceased partner has rendered qualifying service; or
(d) with the approval of the person referred to in paragraph (c) of this subsection—another person on the person’s behalf.”.
3. Subsection 38(1):
Omit “subsection (4)”, substitute “subsections (1B) and (4)”.
4. Subparagraph 38(1)(a)(ii):
Omit “the compensation recovery provisions in Part IIIC”, substitute “one or more disqualifying provisions”.
5. After paragraph 38(1)(a):
Insert:
“(aa) is a person:
(i) who is a member of a couple; and
(ii) whose partner is a veteran who has rendered qualifying service; and
(iii) who is qualified for an age pension under the Social Security Act; or”.
6. Subparagraph 38(1)(b)(ii):
Omit the subparagraph, substitute:
“(ii) whose non-illness separated spouse is receiving an age service pension or an invalidity service pension, or would be receiving such a pension if not for the operation of one or more disqualifying provisions; or”.
SCHEDULE 4—continued
7. Subparagraph 38(1)(c)(i):
Omit “who, immediately before his or her death, was receiving an age service pension or an invalidity service pension”.
8. After subparagraph 38(1)(c)(i):
Insert:
“(ia) whose partner, immediately before his or her death, was receiving an age service pension or an invalidity service pension, or would have been receiving such a pension if not for the operation of one or more disqualifying provisions; and”.
9. Subsection 38(1):
Add at the end:
“; or (e) is a person:
(i) who is the widow or widower of a veteran who has rendered qualifying service; and
(ii) who is qualified for an age pension under the Social Security Act.”.
10. After subsection 38(1):
Insert:
“(1A) For the purposes of subsection (1), a disqualifying provision is a section of this Part or of Part IIIB or IIIC that has the effect that an age service pension or an invalidity service pension that would otherwise be payable to a person is not, or ceases to be, payable.
“(1B) Subject to subsections (1C) and (1D), a person is not eligible for a partner service pension under subsection (1) unless the person:
(a) has reached the age of 50 years; or
(b) has a dependent child when he or she makes a claim for the pension.
“(1C) Subsection (1B) does not apply to a person:
(a) whose claim for a partner service pension had not been determined before 1 October 1995 but who was eligible, at the date of the claim, for the pension; or
(b) who was determined by the Commission, before 1 October 1995, to be eligible for a partner service pension;
unless the person’s pension is or has been cancelled for any reason.
“(1D) Subsection (1B) does not apply to a person whose partner is a veteran to whom section 24 applies.”.
SCHEDULE 4—continued
11. Subsections 38(3) and 38(3A):
Omit “or (d)” (wherever occurring), substitute “, (d) or (e)”.
12. Subsection 41(5):
Omit the subsection.
13. Point 41-B1 of the Rate Calculator in section 41 (Table B—item 2):
Omit the item.
14. Point 41-B1 of the Rate Calculator in section 41(Table B—item 3—column 2):
Omit “(partner getting pension or benefit)”.
15. Point 41-B1 of the Rate Calculator in section 41 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E, and for illness separated couple and respite care couple see subsections 5R(5) and (6).”.
16. Point 41-C12 of the Rate Calculator in section 41 (Table C-2—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
17. Point 41-C12 of the Rate Calculator in section 41 (Table C-2—items 3 and 4):
Omit the items.
18. Point 41-C12 of the Rate Calculator in section 41 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E.”.
19. Point 41-C12 of the Rate Calculator in section 41 (Note 2):
Omit “items 2, 3 and 4 of Table C-2 apply”, substitute “Item 2 of Table C-2 applies”.
20. Point 41-C12 of the Rate Calculator in section 41 (Rent Assistance Examples—Example 2):
Omit “Item 4 of Table C-2 applies”, substitute “Item 2 of Table C-2 applies”.
21. Point 41-D4 of the Rate Calculator in section 41 (Table D-1—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
22. Point 41-D4 of the Rate Calculator in section 41 (Table D-1—items 3 and 4):
Omit the items.
SCHEDULE 4—continued
23. Point 41-D4 of the Rate Calculator in section 41 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E.”.
24. Point 41-D4 of the Rate Calculator in section 41 (Note 2):
Omit “items 2, 3 and 4 of Table D-l apply”, substitute “Item 2 of Table D-l applies”.
25. Point 41-D5 of the Rate Calculator in section 41 (Table D-2—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
26. Point 41-D5 of the Rate Calculator in section 41 (Table D-2—items 3 and 4):
Omit the items.
27. Point 41-D5 of the Rate Calculator in section 41 (Notes):
Omit the Notes, substitute:
“Note 1: For member of a couple and partnered see section 5E.
Note 2: For ordinary income excess see point 41-D6.”.
28. Point 41-F3 of the Rate Calculator in section 41 (Table F-l—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
29. Point 41-F3 of the Rate Calculator in section 41 (Table F-l—item 3):
Omit the item.
30. Point 41-F3 of the Rate Calculator in section 41 (Note 1):
Omit the Note, substitute:
“Note 1: For member of couple and partnered see section 5E.”.
31. Point 41-F3 of the Rate Calculator in section 41 (Note 3):
Omit “items 2 and 3 apply”, substitute “Item 2 applies”.
32. Point 41-F4 of the Rate Calculator in section 41 (Table F-2—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
33. Point 41-F4 of the Rate Calculator in section 41 (Table F-2—items 3 and 4):
Omit the items.
SCHEDULE 4—continued
34. Point 41-F4 of the Rate Calculator in section 41 (Notes 1 and 2):
Omit the Notes, substitute:
“Note 1: For member of a couple and partnered see section 5E.”.
35. Point 41-F4 of the Rate Calculator in section 41 (Note 4):
Omit “Items 2, 3 and 4 of Table F-2 apply”, substitute “Item 2 of Table F-2 applies”.
36. Subsection 42(4):
Omit the subsection.
37. Point 42-B1 of the Rate Calculator in section 42 (Table B—item 2):
Omit the item.
38. Point 42-B1 of the Rate Calculator in section 42 (Table B—item 3—column 2):
Omit “(partner getting pension or benefit)”.
39. Point 42-B1 of the Rate Calculator in section 42 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E, and for illness separated couple and respite care couple see subsections 5R(5) and (6).”.
40. Point 42-C2 of the Rate Calculator in section 42 (Table C-1—item 3—column 8):
Insert “woman”.
41. Point 42-C2 of the Rate Calculator in section 42 (Table C-1—item 7—column 4):
Insert “man”.
42. Point 42-D12 of the Rate Calculator in section 42 (Table D-2—item 2):
Omit the item.
43. Point 42-D12 of the Rate Calculator in section 42 (Table D-2—item 3—column 2):
Omit “(partner getting pension)”.
44. Point 42-D12 of the Rate Calculator in section 42 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple, partnered and dependent child see sections 5E and 5F.”.
SCHEDULE 4—continued
45. Point 42-D12 of the Rate Calculator in section 42 (Note 2):
Omit “items 2, 3 and 4 of Table D-2 apply”, substitute “Item 3 of Table D-2 applies”.
46. Point 42-D16 of the Rate Calculator in section 42 (Rent Assistance Examples—Example 2):
Omit “Item D-3 of Table D-2 applies”, substitute “Item 3 of Table D-2 applies”.
47. Point 42-E4 of the Rate Calculator in section 42 (Table E-1—items 2 and 3):
Omit the items.
48. Point 42-E4 of the Rate Calculator in section 42 (Table E-1—item 4):
Omit “(partner getting pension)”.
49. Point 42-E4 of the Rate Calculator in section 42 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple, partnered and dependent child see sections 5E and 5F.”.
50. Point 42-E4 of the Rate Calculator in section 42 (Note 2):
Omit “items 2, 3 and 4 of Table E-1 apply”, substitute “Item 4 of Table E-1 applies”.
51. Point 42-E11 of the Rate Calculator in section 42 (Note 3):
Omit the Note.
52. Point 42-E11 of the Rate Calculator in section 42 (Note 4):
Omit “42-E11”, substitute “42-E12”.
53. Point 42-G3 of the Rate Calculator in section 42 (Table G-1—item 2—column 2):
Omit “(partner getting neither pension nor benefit)”.
54. Point 42-G3 of the Rate Calculator in section 42 (Table G-1—item 3):
Omit the item.
55. Point 42-G3 of the Rate Calculator in section 42 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E.”.
SCHEDULE 4—continued
56. Point 42-G3 of the Rate Calculator in section 42 (Note 3):
Omit “items 2 and 3 apply”, substitute “Item 2 of Table G-l applies”.
57. Point 42-G4 of the Rate Calculator in section 42 (Note 3):
Omit the Note.
58. Subsection 43(3):
Omit the subsection.
59. Point 43-B1 of the Rate Calculator in section 43 (Table B—item 2):
Omit the item.
60. Point 43-B1 of the Rate Calculator in section 43 (Table B—item 3—column 2):
Omit “(partner getting pension or benefit)”.
61. Point 43-B1 of the Rate Calculator in section 43 (Note 1):
Omit the Note, substitute:
“Note 1: For member of a couple and partnered see section 5E^and for illness separated couple and respite care couple see subsections 5R(5) and (6).”.
62. Point 43-C2 of the Rate Calculator in section 43 (Table C-1—item 3—column 8):
Insert “woman”.
63. Point 43-C2 of the Rate Calculator in section 43 (Table C-1—item 7—column 4):
Insert “man”.
64. Before section 197:
Insert in Part XII:
Saving and transitional provisions
“197A. The saving and transitional provisions in Schedule 5 have effect according to their terms.”.
65. After Schedule 4:
Add:
“SCHEDULE 5 Section 197A
“SAVINGS AND TRANSITIONAL PROVISIONS
Service pensions—changes introduced on 1 October 1995
“1.(1) Despite sections 41, 42, and 43, if:
SCHEDULE 4—continued
(a) a person was receiving a service pension immediately before 1 October 1995; and
(b) the person was a member of a couple immediately before 1 October 1995; and
(c) the person’s partner was not, immediately before 1 October 1995, receiving a social security pension, a service pension or an income support supplement; and
(d) the amount that was the person’s maximum basic rate in respect of the service pension for the last payment period before 1 October 1995 exceeds the amount of the person’s maximum basic rate on 1 October 1995; and
(e) the amount of that excess exceeds, in relation to a particular period, the sum of:
(i) the increased amounts (if any) for the original components of the rate of service pension payable to the person in respect of the payment period; and
(ii) the new components (if any) of the rate of service pension payable to the person in respect of the payment period; and
(iii) the increased amounts (if any) for those new components; and
(f) this clause has not ceased to apply to the person because of subclause (2);
in calculating the amount of service pension payable to the person in respect of the payment period, an amount equal to the difference between:
(g) the amount of the excess referred to in paragraph (d); and
(h) the sum referred to in paragraph (e);
is to be added to the person’s maximum basic rate.
“(2) This clause ceases to apply if:
(a) the person ceases to receive that service pension; or
(b) the person ceases to be a member of that couple; or
(c) the person’s partner receives a social security pension, a service pension or an income support supplement.
“(3) In this clause:
increased amount, in relation to an original component or a new component, means the amount (if any) by which the amount of the component exceeds the lowest amount of the component payable in any payment period ending after 1 October 1995.
SCHEDULE 4—continued
original component means:
(a) a person’s maximum basic rate that was used in calculating the person’s rate of service pension for the last payment period before 1 October 1995; or
(b) an additional amount that was added to the person’s maximum basic rate in calculating the person’s rate of service pension for that payment period.
new component means:
(a) any additional amount that, in calculating a person’s rate of service pension, is added to the person’s maximum basic rate, being an additional amount that would not have been so added in respect of the last payment period before 1 October 1995; or
(b) any amount by which a person’s rate of service pension has increased as a result of a change in the person’s circumstances on or after 1 October 1995.
payment period means the period in respect of which a payment of service pension is payable.”.
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SCHEDULE 5 Section 3
CONSEQUENTIAL AMENDMENT OF THE SOCIAL SECURITY ACT 1991 RELATING TO SERVICE PENSIONS
1. Paragraph 771HA(1)(c):
After “age pension, ” insert “service pension, ”.
––––––––––––––
SCHEDULE 6 Section 3
AMENDMENTS OF THE VETERANS’ ENTITLEMENTS ACT 1986 RELATING TO INCOME SUPPORT SUPPLEMENT
1. Paragraph 45A(l)(b):
Add at the end:
“ ; or (iv) is partnered (partner getting pension).”.
2. Subsection 45A(1):
Add at the end:
“Note: For partnered (partner getting pension) see paragraph 5E(5)(d).”.
3. Paragraph 45ZE(d):
(a) Omit “point 45X-A1”, substitute “point 45X-B1”.
(b) After “adjusted income reduced rate” insert “(disregarding any payments under subsection 30(1))”.
4. Paragraph 45ZE(e):
(a) Omit “point 45Y-A1”, substitute “point 45Y-B1”.
(b) After “adjusted income reduced rate” insert “(disregarding any payments under subsection 30(1))”.
––––––––––––
SCHEDULE 7 Section 3
AMENDMENT OF THE VETERANS’ ENTITLEMENTS ACT 1986 RELATING TO MEDICAL AND OTHER TREATMENT
1. Subsection 85(2):
Omit “or pulmonary tuberculosis”, substitute “, pulmonary tuberculosis or post-traumatic stress disorder”.
–––––––––––––
SCHEDULE 8 Section 3
AMENDMENTS OF THE VETERANS’ ENTITLEMENTS ACT 1986 RELATING TO SENIORS HEALTH CARDS
1. Subparagraph 118V(2)(c)(ii):
Omit “veteran.”, substitute “veteran; and”.
2. Subsection 118V(2) (Note 2):
Omit the Note.
3. Subsection 118V(2) (Note):
Renumber the Note as Note 5.
4. Section 118V:
Add at the end (after the Notes):
“(3) A person is eligible for a seniors health card if:
(a) the person is:
(i) the non-illness separated spouse of a person who is receiving an age or invalidity service pension; or
(ii) the non-illness separated spouse of a person who is eligible for a seniors health card under subsection (1); or
(iii) a widow or widower of a veteran; and
(b) the person is eligible for a partner service pension or income support supplement; and
(c) the person has reached:
(i) if the person is not a veteran—pension age; or
(ii) if the person is a veteran—the age that would be the pension age for that person if he or she were not a veteran; and
(d) the person is an Australian resident; and
(e) the person is in Australia; and
(f) the person is not receiving a service pension or income support supplement; and
(g) the person is not receiving a social security pension or benefit; and
(h) the person satisfies the seniors health card ordinary income test; and
(i) the person is not eligible for a seniors health card under subsection (1).
Note 1: For non-illness separated spouse, widow and widower see subsection 5E(1).
Note 2: For veteran see subsection 5C(1).
Note 3: For pension age see section 5QB.
Note 4: For Australian resident see section 5G.
Note 5: For seniors health card ordinary income test see section 118ZAA.”.
[Minister's second reading speech made in—
House of Representatives on 21 September 1995 Senate on 17 October 1995]