An Act to provide for the payment of pensions and other benefits to, and to provide medical and other treatment for, veterans and certain other persons, and for other purposes
Part I—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Veterans’ Entitlements Act 1986.
2 Commencement [see Note 1]
This Act shall come into operation on a date to be fixed by Proclamation.
3 Repeal
(1) The Acts specified in Parts I, II, III, IV and V of Schedule 1 are repealed.
(2) The Acts specified in column 1 of Part VI of Schedule 1 are amended as set out in columns 2 and 3 of that Schedule.
4 Extension of Act to external Territories
This Act extends to the external Territories.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Index of definitions
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 |
| Aboriginal study assistance scheme | 5F(1) |
| accommodation bond | 5L(1) |
| accommodation charge | 5L(1) |
| account | 5Q(1) |
| acting commissioner | 5A |
| Acting Deputy President | 5A |
| Acting President | 5A |
| actual market exchange rate | 5Q(1) |
| actual value | 5MC(4) |
| adjusted income | 5H(1) |
| adjusted income reduced rate | 52ZAAA(1) |
| adopted child | 5F(1) |
| advance payment eligible amount | 5Q(1) |
| aged care resident | 5NC(5) |
| 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) |
| approved deposit fund | 5J(1) |
| approved exchange trading system | 5H(11) |
| approved Guide to the Assessment of Rates of Veterans’ Pensions | 5Q(1) |
| approved Treatment Principles | 5Q(1) |
| asset | 5L(1) |
| assets reduced rate | 52ZAAA(1) |
| asset‑tested income stream (long term) | 5J(1) |
| asset‑tested income stream (short term) | 5J(1) |
| asset‑test exempt income stream | 5JA and 5JB |
| ATO small superannuation account | 5J(1) |
| Australia | 5Q(1) |
| Australian mariner | 5C(1) |
| Australian resident | 5G(1) |
| austudy payment | 5Q(1) |
| available money | 5H(1) |
| average weekly earnings | 5NB(1) |
| bank | 5Q(1) |
| bereavement period | 53H |
| blinded in an eye | 5D(3) |
| Board | 5Q(1) |
| board | 5N(1) |
| British nuclear test defence service | 5Q(1A), 68(1), 69B(2), (3), (4) and (5) |
| campaign medal | 7A(2) |
| capitalised maintenance income | 5K(1) |
| cash maintenance | 5K(1) |
| Chairperson | 5AB(1) |
| child | 5F(1) |
| child of veteran or other person | 10 |
| child support | 5K(1) |
| clean energy advance | 5Q(1) |
| clean energy bonus | 5Q(1) |
| clean energy payment | 5Q(1) |
| clean energy underlying payment | 5Q(1) |
| combined couple rate of minimum pension supplement | 5GA(2) |
| combined couple rate of pension supplement | 5GA(1) |
| commencement day | 5J(1) |
| Commission | 5A |
| commissioner | 5A |
| Commonwealth country | 5C(1) |
| Commonwealth veteran | 5C(1) |
| comparable foreign pension | 5Q(1) |
| compensation | 5NB(2) |
| compensation affected pension | 5NB(1) |
| compensation part | 5NB(7), (8) |
| compensation payer | 5NB(1) |
| continuous full‑time service | 5C(1) |
| Convener | 5AB(1) |
| councillor | 5AB(1) |
| couple | 5E(2), (3), (4) |
| CTPA | 5Q(1) |
| current figure | 5NA(1) |
| decision | 5Q(1) |
| deductible amount | 5J(1) |
| defence‑caused injury, defence‑caused disease | 5D(2) |
| Defence Force | 5C(1) |
| defence force established by a Commonwealth country | 5C(1) |
| defence force established by an allied country | 5C(1), (3) |
| Defence Minister | 5Q(1) |
| defence service | 5Q(1A), 68(1) |
| deferred annuity | 5J(1) |
| deferred payment amount | 5MB(6), (7), (8) |
| defined benefit income stream | 5J(1E) |
| dependant | 11 |
| dependent child | 5F(1) |
| deposit money | 5H(1) |
| deprived asset | 5J(2B) |
| Deputy President | 5A |
| disability expenses maintenance | 5K(5) |
| disability pension | 5Q(1) |
| disease | 5D(1) |
| dispose of assets | 52E |
| dispose of real assets | 52ZAAA(1) |
| disposes of ordinary income | 5H(1), 48 |
| domestic payment | 5H(3) |
| domiciled | 5Q(1) |
| earned, derived or received | 5H(2) |
| eligible civilian | 5C(1) |
| eligible descendant | 5P(1) |
| eligible former partner of a qualifying farmer | 5P(2) |
| eligible former partner of a qualifying sugarcane farmer | 5PAA(1) |
| eligible interest | 5PAA(1) |
| eligible war service | 7 |
| EMEP residence | 5Q(1) |
| enemy | 5C(1) |
| entry contribution | 52M |
| essential medical equipment payment | 5Q(1) |
| event that gives rise to an entitlement to compensation | 5NB(11) |
| exchange trading system | 5H(10) |
| exempt funeral investment | 5Q(1) |
| exempt lump sum | 5H(12) |
| Family Assistance Act | 5Q(1) |
| family law affected income stream | 5JC |
| family member | 5L(1) |
| family tax benefit | 5F(1) |
| farm | 5P(1) |
| farm enterprise | 5P(1) |
| financial asset | 5J(1) |
| financial institution | 5Q(1) |
| financial investment | 5J(1) |
| fishing operations | 5L(1) |
| fishing vessel | 5C(1) |
| foreign exchange period | 5Q(1) |
| foreign superannuation fund | 5L(1) |
| foreign superannuation pension | 5L(1) |
| forest operations | 5L(1) |
| former refugee | 5C |
| friendly society | 5J(1) |
| FTB child | 5F(1) |
| general rate | 5Q(1) |
| governing rules | 5J(1) |
| government‑in‑exile | 5C(1) |
| Government rent | 5N(1) |
| granny flat interest | 5MA(2) |
| granny flat resident | 5MA(3) |
| greater amount | 5QAA |
| greatest amount | 5QAA |
| guaranteed amount | 52ZAAA(1) |
| hazardous service | 5Q(1A), 68(1), 120(7) |
| higher amount | 5QAA |
| highest amount | 5QAA |
| holder of a seniors health card | 5PB(1) |
| home equity conversion agreement | 5H(1) |
| illness separated couple | 5R(5) |
| immediate family member | 5Q(1) |
| in a care situation | 5NC(2) |
| incapacity from a defence‑caused injury, a defence‑caused disease | 5D(2) |
| incapacity from a war‑caused injury, a war‑caused disease | 5D(2) |
| incentive allowance | 5Q(1) |
| income | 5H(1) |
| income amount | 5H(1) |
| income reduced rate | 52ZAAA(1) |
| income stream | 5J(1) |
| Income Tax Assessment Act | 5Q(1) |
| income year | 5Q(1) |
| index number | 5NA(1) |
| individual residence contribution | 52M(1C) |
| ineligible property owner | 5N(1) |
| initial payment amount | 5MB(4), (5) |
| injury | 5D(1) |
| in‑kind housing maintenance | 5K(1) |
| in respite care | 5NC(8) |
| investment | 5J(6), (6A) |
| Investor | 5J(1) |
| joint ownership | 5Q(1) |
| least amount | 5QAA |
| lesser amount | 5QAA |
| life expectancy | 5J(1) |
| listed security | 5J(1) |
| loan | 5J(2), (2A) |
| lower amount | 5QAA |
| lowest amount | 5QAA |
| maintained child | 5K(1) |
| maintenance | 5K(1) |
| maintenance agreement | 5K(1) |
| maintenance income | 5K(1) |
| managed investment | 5J(1A), (1B), (1C) |
| maximum Part A rate of family tax benefit | 5F(1) |
| maximum payment rate | 52ZAAA(1) |
| medical equipment | 5Q(1) |
| member | 5AB(1) |
| member of a couple | 5E(2), (3), (4) |
| member of an ordinary couple with different principal homes | 5M(2) |
| member of a Peacekeeping Force | 5Q(1A), 68(1) |
| member of a unit of the Defence Force | 5C(1) |
| member of the Defence Force | 5C(1), (2) |
| member of the Forces | 5Q(1A), 68(1) |
| member of the Interim Forces | 5C(1) |
| Military Rehabilitation and Compensation Act Education and Training Scheme | 5Q(1) |
| Military Rehabilitation and Compensation Commission | 5Q(1) |
| minimum pension supplement amount | 5GA(3) |
| MRCA | 5Q(1) |
| MRCA commencement date | 5Q(1) |
| non‑illness separated spouse | 5E(1) |
| non‑warlike service | 5C(1) |
| operational area | 5B(1) |
| operational service | 6 to 6F |
| ordinary income | 5H(1) |
| organisation representing veterans | 5Q(1) |
| original family law affected income stream | 5JC |
| parent | 5F(1), 10A |
| participating in the pension loans scheme | 52ZAAA(3) |
| partner | 5E(1) |
| 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) |
| peacekeeping service | 5Q(1A), 68(1) |
| pension | 5Q(1) |
| pension age | 5QA, 5QB |
| pension bonus | 5Q(1) |
| pension payday | 5Q(1) |
| pension period | 5Q(1) |
| pension supplement amount | 5Q(1) |
| pension supplement basic amount | 5GA(4) |
| pension year | 5L(9) |
| periodic payments period | 5NB(1) |
| period of hostilities | 5B(1) |
| personally providing community‑based care | 5NC(4) |
| person with medical needs | 5Q(1) |
| physically present in a remote area | 5Q(2), (3) |
| port | 5Q(1) |
| potential compensation payer | 5NB(1) |
| President | 5A |
| primary FLA income stream | 5JC |
| primary producer | 5L(1) |
| primary production | 5L(1) |
| principal beneficiary | 5Q(1) |
| principal home | 5LA |
| prohibited relationship | 5E(6), (7) |
| property owner | 5L(4) |
| proprietary company | 5P(1) |
| public unit trust | 5J(1) |
| purchase price | 5J(1) |
| qualifying age | 5Q(1) |
| qualifying farmer | 5P(3) and (4) |
| qualifying interest | 5P(5) and (6) |
| qualifying service | 5C(1), 7A |
| qualifying sugarcane farmer | 5PAA(1) |
| quarterly pension supplement | 5Q(1) |
| RASF closing day | 5PAA(1) |
| RASF commencement day | 5PAA(1) |
| Rate Calculator | 5Q(1) |
| real assets | 52ZAAA(1) |
| reasonable security of tenure | 5LA(10) |
| receives compensation | 5NB(10) |
| receiving community‑based care | 5NC(3) |
| recoverable amount | 205(8) |
| refugee | 5C |
| registered medical practitioner | 5AB(1) |
| regular care child | 5F(1) |
| reinstated pensioner | 11AA |
| relates to service | 5Q(1B) and (1C) |
| relevant farm asset | 5P(1) |
| relevant number | 5J(1) |
| relevant State land law | 5P(1) |
| relevant sugarcane farm asset | 5PAA(1) |
| remote area | 5Q(1) |
| remunerative work | 5Q(1) |
| rent | 5N |
| Repatriation Private Patient Principles | 5Q(1) |
| residential care charge | 5N(1) |
| residual capital value | 5J(1) |
| respite care couple | 5R(6) |
| retirement age | 5Q(1) |
| retirement savings account | 5J(1) |
| retirement village | 5M(3), (4) |
| retirement village resident | 5M(5) |
| return | 5J(1) |
| Review Council | 5AB(1) |
| sale leaseback agreement | 5MB(2), (3) |
| sale leaseback home | 5MB(9) |
| sale leaseback resident | 5MB(10), (11) |
| secondary FLA income stream | 5JC |
| Secretary | 5Q(1) |
| seniors supplement | 5Q(1) |
| service pension | 5Q(1) |
| service pensioner | 5Q(1) |
| sibling | 5Q(1) |
| Social Security Act | 5Q(1) |
| social security benefit | 5Q(1) |
| social security payment | 5Q(1) |
| social security pension | 5Q(1) |
| sound medical‑scientific evidence | 5AB(2) |
| special disability trust | 5Q(1) |
| special maintenance income | 5K(1) |
| special mission | 5C(1) |
| special residence | 5MC(2) |
| special resident | 5MC(3) |
| step‑child | 5F(1) |
| step‑parent | 5F(1) |
| sugarcane farm | 5PAA(1) |
| sugarcane farm enterprise | 5PAA(1) |
| superannuation benefit | 5J(1) |
| superannuation contributions surcharge | 5J(1) |
| superannuation fund | 5J(1) |
| tax‑exempt pension supplement | 5GA(5) |
| tax file number | 5Q(1) |
| tax year | 5Q(1) |
| tobacco product | 5Q(1) |
| total net value | 5PAA(1) |
| transfer | 5P(7), (8), (9), (10) and (11) |
| transfer (of sugarcane farms and sugarcane farm assets) | 5PAA(1) |
| unit of the Defence Force | 5C(1) |
| unlisted public security | 5J(1) |
| unrealisable asset | 5L(11), (12) |
| use | 5Q(1) |
| value | 5L(2), (3), (3A) |
| veteran | 5C(1) |
| war‑caused death | 8 |
| war‑caused disease | 5D(2), 9 |
| war‑caused injury | 5D(2), 9 |
| war‑caused injury, war‑caused disease | 5D(2) |
| warlike service | 5C(1) |
| war to which this Act applies | 5B(1) |
| war widow | 5E(1) |
| war widower | 5E(1) |
| war widow/war widower—pensioner | 5Q(1) |
| wholly dependent partner | 5E(1) |
| widow | 5E(1) |
| widower | 5E(1) |
| World War 1 | 5B(1), (3) |
| World War 2 | 5B(1), (3) |
| youth allowance | 5Q(1) |
5A Repatriation Commission definitions
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.
5AB Repatriation Medical Authority and Specialist Medical Review Council definitions
(1) In this Act, unless the contrary intention appears:
Chairperson means the Chairperson of the Repatriation Medical Authority.
Convener means the Convener of the Review Council.
councillor means the Convener or any other person holding office as a member of the Review Council.
member means the Chairperson or any other person holding office as a member of the Repatriation Medical Authority.
registered medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory but does not include a person so registered or licensed:
(a) whose registration, or licence to practice, as a medical practitioner in any State or Territory has been suspended, or cancelled, following an inquiry relating to his or her conduct; and
(b) who has not, after that suspension or cancellation, again been authorised to register or practise as a medical practitioner in that State or Territory.
Review Council means the Specialist Medical Review Council established by section 196V.
sound medical‑scientific evidence, in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2).
(2) Information about a particular kind of injury, disease or death is taken to be sound medical‑scientific evidence if:
(a) the information:
(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be caused—meets the applicable criteria for assessing causation currently applied in the field of epidemiology.
5B War and operational area related definitions
(1) In this Act, unless the contrary intention appears:
allotted for duty in an operational area has the meaning given by subsection (2).
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 29 October 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:
(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
(b) in the case of duty that was carried out in an operational area described in item 3A, 3B, 9, 10, 11, 12, 13, 14 or 15 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Defence Minister, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).
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.
5C Eligibility related definitions
(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 sea‑going service on a ship (being a hospital ship, troop transport, supply ship, tug, cable ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel) that was operated by, or on behalf of, a foreign country; and
(b) was at any time during the course of that employment during the period 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, cable 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 of the naval, military or air forces; 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 of service referred to in subparagraph (a)(i), (ii) or (iii).
Note: see also subsection 5R(1).
Defence Force has the same meaning as in the Defence Act 1903.
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 1: for extended meaning of this term in relation to a government‑in‑exile, see subsection (3).
Note 2: for an extended meaning of this term in relation to an allied veteran see subsection 5R(2).
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.
former refugee means a person who was a refugee but does not include a person who ceased to be a refugee because his or her entry permit or visa (as the case may be) was cancelled.
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.
non‑warlike service means service in the Defence Force of a kind determined in writing by the Defence Minister to be non‑warlike service.
operational service has the meaning given by sections 6 to 6F.
qualifying service has the meaning given in section 7A.
refugee has the meaning given by subsection (4).
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 Parts III and VIIC also includes a person who is:
(i) a Commonwealth veteran; or
(ii) an allied veteran; or
(iv) an allied mariner.
Note: Commonwealth veteran, allied veteran and allied mariner are defined in this subsection.
warlike service means service in the Defence Force of a kind determined in writing by the Defence Minister to be warlike service.
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.
Note: for an extended meaning of the defence force of a government‑in‑exile in relation to an allied veteran see subsection 5R(2).
Refugee
(4) For the purposes of Part III, a person is a refugee if the person:
(a) is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of:
(i) a visa or entry permit that fell within Division 1.3—Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(ii) a visa or entry permit that fell within Division 1.5—Group 1.5 (Permanent resident (refugee and humanitarian) (on‑shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(b) was, immediately before 1 February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph (a)(i) or (ii); or
(c) is the holder of:
(i) a permanent protection visa; or
(ii) a permanent visa of a class referred to in Schedule 2A; or
(iii) a permanent visa of a class referred to in a declaration of the Minister under subsection (5) that is in force.
Declaration of class of visas
(5) If:
(a) after the commencement of this subsection, a class of permanent visas (other than a class referred to in Schedule 2A) is prescribed by regulations made for the purposes of section 31 of the Migration Act 1958; and
(b) the Minister is of the view that a person holding a visa of that class should be regarded as a refugee for the purposes of Part III;
the Minister may, by legislative instrument, declare that class of visas to be a class of visas for the purposes of subparagraph (4)(c)(iii).
5D Injury/disease definitions
(1) In this Act, unless the contrary intention appears:
blinded in an eye has the meaning given by subsection (3).
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence‑caused injury or incapacity from a defence‑caused disease has the meaning given by subsection (2).
incapacity from a war‑caused injury or incapacity from a war‑caused disease has the meaning given by subsection (2).
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.
5E Family relationships definitions—couples
(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), (4) and (4A).
non‑illness separated spouse means a person:
(a) who is legally married to another person but living separately and apart from that other person on a permanent basis; and
(b) whose separation has not resulted in a direction under subsection 5R(5).
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).
partnered (partner getting pension or benefit) has the meaning given by subsection (5).
prohibited relationship has the meaning given by subsections (6) and (7).
war widow means a woman:
(a) who was the partner of, was legally married to, or was the wholly dependent partner of:
(i) a veteran; or
(ii) a person who was a member of the Forces for the purposes of Part II or IV of this Act; or
(iii) a person who was a member (within the meaning of the MRCA);
immediately before the death of the veteran or person; and
(b) who:
(i) is receiving a pension payable under Part II or IV of this Act at a rate determined under or by reference to subsection 30(1); or
(ii) has received a lump sum mentioned in paragraph 234(1)(b) of the MRCA, or is receiving a weekly amount mentioned in that paragraph; or
(iii) is receiving a pension that is payable under the law of a foreign country, and that is, in the opinion of the Commission, similar in character to a pension referred to in subparagraph (i).
war widower means a man:
(a) who was the partner of, was legally married to, or was the wholly dependent partner of:
(i) a veteran; or
(ii) a person who was a member of the Forces for the purposes of Part II or IV of this Act; or
(iii) a person who was a member (within the meaning of the MRCA);
immediately before the death of the veteran or person; and
(b) who:
(i) is receiving a pension payable under Part II or IV of this Act at a rate determined under or by reference to subsection 30(1); or
(ii) has received a lump sum mentioned in paragraph 234(1)(b) of the MRCA, or is receiving a weekly amount mentioned in that paragraph; or
(iii) is receiving a pension that is payable under the law of a foreign country, and that is, in the opinion of the Commission, similar in character to a pension referred to in subparagraph (i).
wholly dependent partner has the meaning given by the MRCA.
widow means:
(a) a woman who was the partner of a person immediately before the person died; or
(b) a woman who was legally married to a man, but living separately and apart from him on a permanent basis, immediately before he died.
widower means:
(a) a man who was a partner of a person immediately before the person died; or
(b) a man who was legally married to a woman, but living separately and apart from her on a permanent basis, immediately before she died.
Member of a couple—general
(2) A person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(aa) both of the following conditions are met:
(i) a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii) the person 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 another person, whether of the same sex or a different 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 de facto relationship;
(iv) the person and the partner are not within a prohibited relationship.
Note 1: for living with a person see subsection (3).
Note 3: subsection 5R(5) (determination in relation to an illness separated couple) is a qualification to the definition of a member of a couple.
Note 4: subsection 5R(6) (determination in relation to a respite care couple) is a qualification to the definition of a member of a couple.
(3) For the purposes of subparagraph (2)(b)(i), a person is to be treated as living with another person during:
(a) any temporary absence of one of those persons;
(b) an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
Member of a couple—special excluding determination
(4) A person is not a member of a couple if a determination under subsection 5R(3) is in force in relation to the person.
Note: subsection 5R(3) allows the Commission to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
(4A) The partner of a person who:
(a) is receiving a youth allowance under the Social Security Act; and
(b) is not independent within the meaning of Part 3.5 of that Act;
is not a member of a couple for the purposes of:
(c) the provisions of this Act referred to in the table at the end of this subsection; and
(d) any provision of this Act that applies for the purposes of a provision mentioned in paragraph (c).
Note: Paragraph (d) has the effect of treating a person as not being a member of a couple in provisions that apply for the purposes of the income test, assets test or compensation recovery provisions, including section 5H (Income test definitions), sections 5L and 5LA (Assets test definitions), section 5NB (Compensation recovery definitions) and Divisions 1 to 11 of Part IIIB (General provisions relating to the income and assets tests).
| Affected provisions |
| Item | Provisions of this Act | Subject matter |
| 1 | Part IIIC | Compensation recovery |
| 2 | Module E of the Rate Calculator in Part 2 of Schedule 6 | Ordinary/adjusted income test |
| 3 | Module F of the Rate Calculator in Part 2 of Schedule 6 | Assets test |
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
(ia) is not receiving income support supplement; 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
(ia) income support supplement; 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
(ia) income support supplement; 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.
Prohibited relationship
(6) For the purposes of this Act, a person and his or her partner are within a prohibited relationship if the person is:
(a) an ancestor or a descendant of the partner; or
(b) a brother, sister, half‑brother or half‑sister of the partner.
(7) For the purposes of subsection (6), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.
5F Family relationships definitions—children
(1) In this Act, unless the contrary intention appears:
Aboriginal study assistance scheme means:
(a) the ABSTUDY Scheme; or
(b) the Aboriginal Overseas Study Assistance Scheme; or
(c) a scheme prescribed for the purposes of this definition.
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) a disability support pension; or
(d) a wife pension; or
(e) a carer payment; or
(f) a pension PP (single); or
(g) a widow B pension; or
(h) a widowed person allowance; or
(j) a social security benefit (except youth allowance paid because the person is at least 16 but less than 25 and is receiving full‑time education at a school, college or university);
under the Social Security Act.
dependent child has the same meaning as in the Social Security Act.
family tax benefit has the meaning given by subsection 3(1) of the Family Assistance Act.
FTB child has the meaning given by Subdivision A of Division 1 of Part 3 of the Family Assistance Act.
maximum Part A rate of family tax benefit is the maximum rate worked out in step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act.
parent has a meaning affected by section 10A.
regular care child has the meaning given by subsection 3(1) of the Family Assistance Act.
step‑child: without limiting who is a step‑child of a person for the purposes of this Act, someone who is a child of a partner of the person is the step‑child of the person, if he or she would be the person’s step‑child except that the person is not legally married to the partner.
step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a partner of a parent of the person is the step‑parent of the person, if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.
When a person becomes a dependent child
(2) A person becomes a dependent child at the time when the person would become a dependent child for the purposes of the Social Security Act if that Act applied in respect of the person.
5G Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (1AA).
holder, in relation to a visa, has the same meaning as in the Migration Act 1958.
permanent visa, special category visa and special purpose visa have the same meanings as in the Migration Act 1958.
(1AA) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) the holder of a special category visa who is likely to remain permanently in Australia;
(iv) the holder of a special purpose visa who is likely to remain permanently in Australia.
Note 1: For holder, permanent visa and special purpose visa see subsection (1).
Note 2: Australian citizen is defined in the Australian Citizenship Act 2007.
(1A) In deciding for the purposes of this Act whether or not a person resides in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(ca) the nature and extent of the person’s assets located in Australia; and
(cb) the frequency and duration of the person’s travel outside Australia; and
(d) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(1AB) For the purposes of paragraph (1A)(b), family relationships are taken to include (without limitation):
(a) relationships between partners; and
(b) relationships of child and parent that arise if someone is the parent of a person under section 10A; and
(c) any other relationship that would be a family relationship if a relationship mentioned in paragraph (a) or (b) is taken to be a family relationship.
Papua New Guinea residents
(2) For the purposes of this Act (other than Part VIIC), 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 or income support supplement recipient 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 Parts III, IIIA and IIIB, also taken to be an Australian resident.
(4) If:
(a) a service pensioner or income support supplement recipient is taken to be an Australian resident under subsection (2); and
(b) the pensioner’s non‑illness separated spouse was resident in Papua New Guinea after it became an independent sovereign State;
the non‑illness separated spouse is, for the purposes of Parts III, IIIA and IIIB, also taken to be an Australian resident.
5GA Pension supplement rate definitions
(1) In this Act, the combined couple rate of pension supplement is $2,199.60.
Note 1: This rate is indexed 6 monthly in line with CPI increases (see sections 59B to 59E).
Note 2: This rate is an annual rate.
(2) In this Act, the combined couple rate of minimum pension supplement is $1,185.60.
Note 1: This rate is indexed 6 monthly in line with CPI increases (see sections 59B to 59E).
Note 2: This rate is an annual rate.
(3) In this Act, a person’s minimum pension supplement amount is the amount worked out by:
(a) applying the applicable percentage in the following table to the combined couple rate of minimum pension supplement; and
(b) if:
(i) the person is not partnered; and
(ii) the amount resulting from paragraph (a) is not a multiple of $2.60;
rounding the amount up or down to the nearest multiple of $2.60 (rounding up if the amount is not a multiple of $2.60 but is a multiple of $1.30).
| Item | Person’s family situation | Use this % |
| 1 | Not member of couple | 66.33% |
| 2 | Partnered | 50% |
| 3 | Member of illness separated couple | 66.33% |
| 4 | Member of respite care couple | 66.33% |
Note: A person’s minimum pension supplement amount is an annual rate.
(4) In this Act, a person’s pension supplement basic amount depends on which family situation in the following table applies to the person. The person’s pension supplement basic amount is the corresponding amount set out in the table.
| Item | Person’s family situation | Amount |
| 1 | Not member of couple | $509.60 |
| 2 | Partnered | $426.40 |
| 3 | Member of illness separated couple | $509.60 |
| 4 | Member of respite care couple | $509.60 |
Note 1: Each amount in the table will be indexed 6 monthly in line with CPI increases (see sections 59B to 59E).
Note 2: A person’s pension supplement basic amount is an annual rate.
(5) In this Act, the daily rate of tax‑exempt pension supplement, for a person who is receiving a service pension or income support supplement is the amount a day worked out using the table.
| Tax‑exempt pension supplement |
| Item | Payment received | Amount a day of tax‑exempt pension supplement |
| 1 | Service pension | The amount worked out by: (a) subtracting the person’s pension supplement basic amount from the person’s pension supplement amount; and (b) dividing the result of paragraph (a) by 364 |
| 2 | Income support supplement | The person’s minimum pension supplement amount divided by 364 |
Note: The portion of the person’s service pension or income support supplement equal to the tax‑exempt pension supplement is exempt from income tax (see sections 52‑65 and 52‑70 of the Income Tax Assessment Act 1997).
(6) If a person is receiving a service pension at a rate that:
(a) is worked out under subpoint SCH6‑A1(4) of Schedule 6 and is the revised rate; or
(b) is worked out under subpoint SCH6‑A1(5) of Schedule 6;
subsection (5) applies in relation to the person and the pension as if the person had a pension supplement amount equal to what would be the person’s pension supplement amount if the person were receiving the service pension at the rate worked out under subpoint SCH6‑A1(4) of Schedule 6 and equal to the provisional rate.
5H Income test definitions [see Note 3]
(1) In this Act, unless the contrary intention appears:
adjusted income, in relation to a person for the purpose of assessment of the rate of income support supplement, means the sum of:
(a) the person’s ordinary income; and
(b) a payment that is disability pension under paragraph (d) of the definition of disability pension in section 5Q payable to the person;
(c) any instalment of pension payable to the person under subsection 30(1); and
(ca) if the person was paid a lump sum mentioned in subparagraph 234(1)(b)(i) of the MRCA (wholly dependent partner payment)—any weekly amounts that the person would have been paid if the person had chosen the weekly amount mentioned in subparagraph 234(1)(b)(ii) of that Act; and
(cb) any payment of a weekly amount mentioned in subparagraph 234(1)(b)(ii) of the MRCA (wholly dependent partner payment); and
(d) any instalment of pension that is payable to the person under the law of a foreign country and is, in the opinion of the Commission, similar in character to the pension referred to in paragraph (c).
approved exchange trading system has the meaning given by subsection 5H(11).
available money, in relation to a person, means money that:
(a) is held by or on behalf of the person; and
(b) is not deposit money of the person; and
(c) is not the subject of a loan made by the person.
dad and partner pay means dad and partner pay under the Paid Parental Leave Act 2010.
deposit money, in relation to a person, means the person’s money that is deposited in an account with a financial institution.
disposes of ordinary 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).
exchange trading system has the meaning given by subsection 5H(10).
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 46B and 46C (business income), sections 46D to 46L (deemed income from financial assets) and sections 46Q to 46YA (income from income streams).
Note 2: 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 3: 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).
instalment of parental leave pay means an instalment of parental leave pay under the Paid Parental Leave Act 2010.
ordinary income means income that is not maintenance income or an exempt lump sum.
Note 1: for maintenance income see subsection 5K(1). For exempt lump sum, see subsection (12).
Note 2: The receipt of periodic compensation payments may result in reduction of the person’s rate of service pension or income support supplement under Part IIIC. If this happens, the payments are not treated as ordinary income (see section 59X).
Note 3: For provisions affecting the amount of a person’s ordinary income see sections 46 and 46A (ordinary income concept), sections 46B and 46C (business income), sections 46D to 46L (deemed income from financial assets) and sections 46Q to 46YA (income from income streams).
Earned, derived or received
(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a) an income amount earned, derived or received by any means; and
(b) an income amount earned, derived or received from any source (whether within or outside Australia).
Domestic payments
(3) A payment received by a person is a domestic payment for the purposes of this Act if:
(a) the person receives the payment on the disposal of an asset of the person; and
(b) the asset was used, immediately before the disposal, by the person or the person’s partner wholly or substantially for private or domestic purposes; and
(c) the asset was used by the person or the person’s partner wholly or substantially for those purposes for:
(i) a period of 12 months before the disposal; or
(ii) if the Commission considers it appropriate—a period of less than 12 months before the disposal.
Excluded amounts—home equity conversion (not a member of a couple)
(4) If a person is not a member of a couple, an amount paid to or on behalf of the person under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person from time to time under home equity conversion agreements does not exceed $40,000.
Excluded amounts—home equity conversion (member of a couple)
(5) If a person is a member of a couple, an amount paid to or on behalf of the person or the person’s partner under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person and the person’s partner under home equity conversion agreements from time to time does not exceed $40,000.
Home equity conversion (amount owed)
(6) For the purposes of this Act, the amount owed by a person under a home equity conversion agreement is the principal amount secured by the mortgage concerned and does not include:
(a) any amount representing mortgage fees; or
(b) any amount representing interest; or
(c) any similar liability whose repayment is also secured by the mortgage.
Home equity conversion (principal home)
(7) For the purposes of the definition of home equity conversion agreement in subsection (1), an asset cannot be a person’s principal home unless the person or the person’s partner has a beneficial interest (but not necessarily the sole beneficial interest) in the asset.
Excluded amounts—general
(8) The following amounts are not income in relation to a person for the purposes of this Act:
(a) a payment under Part III or Part IIIA;
(b) a payment of an instalment of pension under Part II or IV;
(ba) a payment of an instalment of a supplement under Part VIIA (veterans supplement);
(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 parental leave pay;
(da) dad and partner pay;
(e) a payment (other than a payment referred to in paragraph (b) or (c)) 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;
Note: However, a payment referred to in paragraph (b), (c) or (e):
(a) is counted in working out the amount of rent assistance a person is entitled to, and may reduce that amount (see Module C of the Rate Calculator); and
(b) is counted in working out a person’s total income for the purposes of the hardship rules (see section 52Z).
(ea) any payment of compensation (other than a payment referred to in paragraph (e)) to the extent that the payment is taken into account:
(i) under Division 5A of Part II; or
(ii) under section 74;
to reduce a disability pension payable to the person under Part 2 or Part 4, as the case requires;
Note: However, a payment referred to in paragraph (ea) is counted in working out a person’s total income for the purposes of the hardship rules (see section 52Z).
(f) a payment by way of allowance (other than a loss of earnings allowance) under Part VI of this Act;
Note: however, a payment referred to in paragraph (f) is counted in working out a person’s total income for the purposes of the hardship rules (see section 52Z).
(faa) a payment, by a foreign country, of an allowance or annuity that is of a similar kind to decoration allowance payable under section 102 or to Victoria Cross allowance payable under section 103;
Note: However, a payment referred to in paragraph (faa) is counted in working out a person’s total income for the purposes of the hardship rules (see section 52Z).
(faaa) a payment under Part VIB (prisoner of war recognition supplement);
Note: However, a payment referred to in paragraph (faaa) is counted in working out a person’s total income for the purposes of the hardship rules (see section 52Z).
(fa) a payment known as a student start‑up scholarship payment, or a relocation scholarship payment, under the Veterans’ Children Education Scheme;
(g) a payment under Part VIIAB, including a payment made under regulations made under that Part;
(gb) a payment under Part VIIAD (seniors supplement);
(h) a payment under the Social Security Act;
(ha) a payment under the ABSTUDY Scheme;
(haa) the amount or value of a scholarship known as a Commonwealth Trade Learning Scholarship;
(hab) a payment of an approved scholarship (within the meaning of subsection 8(1) of the Social Security Act 1991) awarded on or after 1 September 1990;
(hb) the amount or value of:
(i) a scholarship known as a Commonwealth Education Costs Scholarship; or
(ii) a scholarship known as a Commonwealth Accommodation Scholarship;
provided for under the Commonwealth Scholarships Guidelines made for the purposes of Part 2‑4 of the Higher Education Support Act 2003;
(hc) an amount covered by subsection (8A) (about reductions of amounts payable for enrolment or tuition in certain courses);
(hd) a payment covered by subsection (8B) (about payments that are made to an educational institution or the Commonwealth to reduce a person’s liability to the educational institution or Commonwealth and that are made by someone other than the person);
(he) a payment of a scholarship, to the extent that the payment is not income for the purposes of the Social Security Act 1991 because of paragraph 8(8)(zjd) of that Act;
(i) any return on a person’s investment in:
(i) a superannuation fund; or
(ii) an approved deposit fund; or
(iii) a deferred annuity; or
(iiia) an ATO small superannuation account;
until the person:
(iv) reaches pension age; or
(v) commences to receive a pension or annuity out of the fund;
Note 1: for pension age see subsection (9) and sections 5QA and 5QB.
Note 2: for superannuation fund, approved deposit fund, deferred annuity and ATO small superannuation account see subsection 5J(1).
(ia) any return on a person’s investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008);
(j) the value of emergency relief or like assistance;
(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 as in force immediately before 1 July 1999;
(na) a payment of subsidy under Part 3.1 of the Aged Care Act 1997 made to an approved provider (within the meaning of that Act) in respect of care provided to the person;
(nb) an accommodation bond balance (within the meaning of the Aged Care Act 1997) refunded to the person under that Act;
(nc) while a person is accruing a liability to pay an accommodation charge—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person;
Note 1: Accommodation charge has the same meaning as in the Aged Care Act 1997: see subsection 5L(1).
Note 2: For rent, see subsection 5N(2).
Note 3: Under subsections 5LA(8) and (9), the principal home of a person in a care situation may be a place other than the place where the person receives care.
(nd) while a person is liable to pay all or some of an accommodation bond by periodic payments—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person;
(o) a payment under a Commonwealth law, one of whose objects is that of assisting people to purchase or build their own homes;
(oa) a payment by a State or Territory for the purpose 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;
(paa) a payment of family assistance, or of one‑off payment to families, economic security strategy payment to families, back to school bonus,, single income family bonus, clean energy advance or ETR payment under the Family Assistance Act;
(pab) a payment under the scheme determined under Schedule 3 to the Family Assistance Legislation Amendment (More Help for Families—One‑off Payments) Act 2004;
(pac) disability expenses maintenance;
(pa) if:
(i) the person owes money under a mortgage or other arrangement; and
(ii) the person has insurance which requires the insurer to make payments to the creditor when the person is unemployed or ill or in other specified circumstances; and
(iii) payments are made to the creditor under the insurance;
a payment so made;
(q) insurance or compensation payments made because of the loss of, or damage to, buildings, plant or personal effects;
Note: these payments are to be disregarded in calculating the value of a person’s assets (see paragraph 52(1)(o)).
(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, under a law of, or applying in, a country or part of a country, by way of compensation for 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 Labour Market 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 newstart allowance or youth 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) in the case of a person who:
(i) is receiving a service pension, income support supplement, a social security pension or a social security benefit; and
(ii) is in part‑time training, or engaged in part‑time work experience, under a program included in the programs known as Labour Market Programs;
a payment received by the person under that program in respect of the person’s expenses associated with his or her participation in the training or work experience;
(x) a payment received by the person under the scheme known as the New Enterprise Incentive Scheme;
(xaa) a payment made by the Commonwealth known as the Apprenticeship Wage Top‑Up to the person;
(xab) a payment to the person made by the Commonwealth under the program known as Skills for Sustainability for Australian Apprentices;
(xac) a payment to the person made by the Commonwealth under the program known as Tools for Your Trade (within the program known as the Australian Apprenticeships Incentives Program);
(xa) a payment made by the Mark Fitzpatrick Trust or the New South Wales Medically‑Acquired HIV Trust to a person by way of assistance with expenses incurred in relation to a person who has medically acquired HIV infection;
(xb) a payment by the Thalidomide Australia Fixed Trust:
(i) made to, or applied for the benefit of, a beneficiary of the Trust; or
(ii) made to a person in respect of a beneficiary of the Trust;
(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;
(ya) a payment towards the cost of personal care support services for the person that is made under a scheme approved under section 35A of the Social Security Act;
(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 Naval Reserve; or
(ii) the Army Reserve; or
(iii) the Air Force 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);
(zb) a payment that is a bereavement payment under section 98A; or
(zd) a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from a parent, child, brother or sister of the person;
(ze) the value of board or lodging received by the person;
(zea) an amount received under the scheme known as the Western Australian Cost of Living Rebate Scheme;
(zeb) the value of a benefit obtained by using a card known as the Western Australian Country Age Pension Fuel Card;
(zf) a domestic payment;
(zh) a payment received by the person for serving, or being summoned to serve, on a jury;
(zi) a payment received by the person for expenses incurred by the person as a witness, other than an expert witness, before a court, tribunal or commission;
(zj) a return on an exempt funeral investment;
Note: For exempt funeral investment see section 5PC.
(zk) an amount paid by a buyer under a sale leaseback agreement;
(zl) if a person is a member of an approved exchange trading system—an amount credited to the person’s account for the purposes of the scheme in respect of any goods or services provided by the person to another member;
Note: For approved exchange trading system see subsections (10) and (11).
(zm) an advance payment of pension under Part IVA;
(zn) an amount worked out under section 115G;
(zo) a payment under section 47, 56, 81, 205, 214, 217, 226, 239 or 266 of the MRCA to reimburse costs incurred in respect of the provision of goods or services (other than a payment to the person who provided the goods or service);
(zp) a payment (either as a weekly amount or a lump sum) under section 68, 71, 75 or 80 of the MRCA (permanent impairment);
(zq) a payment of a Special Rate Disability Pension under Part 6 of Chapter 4 of the MRCA;
(zr) if subsection 204(5) of the MRCA applies to a person—an amount per fortnight, worked out under section 5I of this Act, that would, apart from this paragraph, be income of the person;
Note: Subsection 204(5) of the MRCA reduces a Special Rate Disability Pension by reference to amounts of Commonwealth superannuation that the person has received or is receiving.
(zs) a payment under the Motor Vehicle Compensation Scheme under section 212 of the MRCA;
(zt) a payment of MRCA supplement under section 221, 245 or 300 of the MRCA;
(zu) a payment of a lump sum mentioned in paragraph 234(1)(a) or subparagraph 234(1)(b)(i), or of a weekly amount mentioned in subparagraph 234(1)(b)(ii), of the MRCA (wholly dependent partner payment);
(zv) a payment under section 242 or 255 of the MRCA (continuing permanent impairment and incapacity etc. payments);
(zw) a payment under section 251 or 253 of the MRCA (eligible young person payment);
(zx) a payment under the scheme set up under section 258 of the MRCA (education scheme for eligible young persons);
(zy) a payment under section 262 of the MRCA (compensation for other dependants);
(zz) a payment under Part 2 of Chapter 6, or Division 2 or 3 of Part 4 of Chapter 6, or subsection 328(4), of the MRCA (compensation for treatment etc.);
(zza) a payment under section 424 of the MRCA (special assistance);
(zzaaaa) a clean energy payment under the MRCA;
(zzaaa) a tax bonus (within the meaning of the Tax Bonus for Working Australians Act (No. 2) 2009);
(zzaa) 2006 one‑off payment to older Australians under Part VIID;
(zzab) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans’ Entitlements Legislation Amendment (One‑off Payments to Increase Assistance for Older Australians and Carers and Other Measures) Act 2006;
(zzac) 2007 one‑off payment to older Australians under Part VIIE;
(zzad) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans’ Affairs Legislation Amendment (One‑off Payments and Other 2007 Budget Measures) Act 2007;
(zzae) 2008 one‑off payment to older Australians under Part VIIF;
(zzaf) a payment under a scheme determined under Schedule 2 to the Social Security and Veterans’ Entitlements Legislation Amendment (One‑off Payments and Other Budget Measures) Act 2008;
(zzag) economic security strategy payment under Part VIIG;
(zzah) a clean energy payment under Part IIIE;
(zzai) ETR payment under Part VIIH;
(zzb) the value of the benefit provided under the initiative known as the Tools for Your Trade initiative;
(zzc) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans’ Entitlements Legislation Amendment (One‑off Payments to Increase Assistance for Older Australians and Carers and Other Measures) Act 2006;
(zzd) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans’ Affairs Legislation Amendment (One‑off Payments and Other 2007 Budget Measures) Act 2007;
(zze) a payment under the scheme determined under Schedule 4 to the Social Security and Veterans’ Entitlements Legislation Amendment (One‑off Payments and Other Budget Measures) Act 2008;
(zzf) a payment under the scheme determined under Schedule 4 to the Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008;
(zzg) a payment under the scheme determined under Schedule 4 to the Household Stimulus Package Act (No. 2) 2009.
Note: However:
(a) some of the amounts referred to in paragraphs (8)(zp), (zq), (zr) and (zu) are counted for the purposes of the hardship rules (see subsection 52Z(3A)); and
(b) the amounts referred to in paragraph (8)(zp) are counted for the purposes of rent assistance (see Module C of the Rate Calculator).
(8A) This subsection covers the amount of a reduction (by discount, remission or waiver) of an amount that would otherwise be payable by a person:
(a) to an educational institution for enrolment or tuition of the person by the institution in a course that:
(i) is determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act; or
(ii) is a Masters or Doctoral degree course accredited as a higher education course by the authority responsible for accrediting higher education courses in the State or Territory in which the course is conducted or by the institution, if it is permitted by a law of the Commonwealth, a State or a Territory to accredit higher education courses that it conducts; or
(iii) is a course of vocational training; or
(b) to the Commonwealth as a result of the person’s enrolment in, or undertaking of, such a course at an educational institution.
(8B) This subsection covers a payment:
(a) that is made to discharge, or to prevent from arising, to any extent:
(i) a person’s actual or anticipated liability to an educational institution for enrolment or tuition of the person by the institution in a course described in paragraph (8A)(a); or
(ii) a person’s actual or anticipated liability to the Commonwealth resulting from the person’s enrolment in, or undertaking of, such a course at an educational institution; and
(b) that is made by someone other than the person; and
(c) that is made to the institution or the Commonwealth; and
(d) that is not made at the direction of the person.
(9) For the purposes of the application of subsection (8) in relation to income support supplement, the reference in subparagraph (8)(i)(iv) to pension age is taken to be a reference to the qualifying age.
Note: For qualifying age see section 5Q.
(10) An exchange trading system is an arrangement between a number of people (members) under which each member may obtain goods or services from another member that is wholly or partly in kind rather than in cash. Each member has, for the purposes of the arrangement, an account:
(a) to which is credited:
(i) the amount representing the value of any goods or services provided by the member to another member; or
(ii) if the goods or services were partly paid for in cash—the amount referred to in subparagraph (i) less the amount so paid in cash; and
(b) to which is debited:
(i) the amount representing the value of any goods or services supplied to the member by another member; or
(ii) if the goods or services were partly paid for in cash—the amount referred to in subparagraph (i) less the amount so paid in cash.
(11) An exchange trading system is an approved exchange trading system if the Commission is satisfied that:
(a) it is a local community‑based system; and
(b) its primary purpose is to help people maintain their labour skills and keep them in touch with the labour market; and
(c) it is not a system run by a person or organisation for profit.
(12) An amount received by a person is an exempt lump sum if:
(a) it is not a periodic amount (within the meaning of subsection 5K(1A)); and
(b) it is not income from remunerative work undertaken by the person; and
(c) it is an amount, or one of a class of amounts, that the Commission determines to be an exempt lump sum.
5I Special Rate Disability Pension reduction amount
For the purposes of paragraphs 5H(8)(zr) and 52Z(3A)(i), the amount per fortnight is:
where:
Special Rate Disability Pension reduction amount means the amount by which the Special Rate Disability Pension (as reduced under subsection 204(3)) is reduced under subsection 204(6) of the MRCA (but not below zero).
5J Financial assets and income streams definitions
(1) In this Act, unless the contrary intention appears:
approved deposit fund has the same meaning as in the Income Tax Assessment Act 1997.
asset‑tested income stream (long term) means an income stream that is an asset‑tested income stream (long term) under section 5JD or an income stream that:
(a) is not an asset‑test exempt income stream; and
(b) has, on its commencement day:
(i) a term of more than 5 years; or
(ii) if the person who has acquired the income stream has a life expectancy of 5 years or less—a term equal to or greater than the person’s life expectancy.
asset‑tested income stream (short term) means an income stream that is an asset‑tested income stream (short term) under section 5JD or an income stream that is neither:
(a) an asset‑test exempt income stream; nor
(b) an asset‑tested income stream (long term).
asset‑test exempt income stream has the meanings given by sections 5JA, 5JB and 5JBA.
ATO small superannuation account means an account kept in the name of an individual under the Small Superannuation Accounts Act 1995.
commencement day, in relation to an income stream, means the first day of the period to which the first payment under the income stream relates.
deductible amount, in relation to a defined benefit income stream for a year, means the sum of the amounts that are the tax free components (worked out under Subdivision 307‑C of the Income Tax Assessment Act 1997 or, if applicable, section 307‑125 of the Income Tax (Transitional Provisions) Act 1997) of the payments received from the defined benefit income stream during the year.
deferred annuity means an annuity, within the meaning of section 10 of the Superannuation Industry (Supervision) Act 1993, that is not presently payable.
defined benefit income stream has the meaning given by subsection (1E).
family law affected income stream has the meaning given by section 5JC.
financial asset means:
(a) a financial investment; or
(b) a deprived asset.
Note: For deprived asset see subsection 5J(2B).
financial investment means:
(a) available money; or
(b) deposit money; or
(c) a managed investment; or
(d) a listed security; or
(e) a loan that has not been repaid in full; or
(f) an unlisted public security; or
(g) gold, silver or platinum bullion; or
(h) an asset‑tested income stream (short term);
but does not include an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008).
Note: For loan see subsections (2) and (2A).
friendly society means:
(a) a body that is a friendly society for the purposes of the Life Insurance Act 1995; or
(b) a body that is registered or incorporated as a friendly society under a law of a State or Territory; or
(c) a body that is permitted, by a law of a State or Territory, to assume or use the expression friendly society; or
(d) a body that, immediately before the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, was registered or incorporated as a friendly society under a law of a State or Territory; or
(e) a body 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 1947.
governing rules, in relation to an income stream, means any trust instrument, other document or legislation, or combination of them, governing the establishment and operation of the income stream.
income stream means:
(a) an income stream arising under arrangements that are regulated by the Superannuation Industry (Supervision) Act 1993; or
(b) an income stream arising under a public sector superannuation scheme (within the meaning of that Act); or
(c) an income stream arising under a retirement savings account; or
(d) an income stream provided as life insurance business by a life company registered under section 21 of the Life Insurance Act 1995; or
(f) an income stream designated in writing by the Commission for the purposes of this definition, having regard to the guidelines determined under subsection (1F); or
(fa) a family law affected income stream;
but does not include any of the following:
(g) available money;
(h) deposit money;
(i) a managed investment;
(j) a listed security;
(k) a loan that has not been repaid in full;
(l) an unlisted public security;
(m) gold, silver or platinum bullion.
investment:
(a) in relation to a superannuation fund, approved deposit fund or deferred annuity—has the meaning given by subsection (6); or
(b) in relation to an ATO small superannuation account—has the meaning given by subsection (6A); or
(c) in relation to an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008)—has the meaning given by subsection (6B).
investor, in relation to an ATO small superannuation account, means the person in whose name the account is kept.
life expectancy has the same meaning as life expectation factor has in section 27H of the Income Tax Assessment Act.
listed security means:
(a) a share in a company; or
(b) another security;
listed on a stock exchange.
managed investment has the meaning given by subsections (1A), (1B) and (1C).
original family law affected income stream has the meaning given by section 5JC.
primary FLA income stream has the meaning given by section 5JC.
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 income stream, means the sum of the payments made to purchase the income stream (including amounts paid by way of employer and employee contributions) less any commuted amounts.
relevant number, in relation to an income stream, means:
(a) if the income stream is payable for a fixed number of years—that number; or
(b) if the income stream is payable during the lifetime of a person and no longer—the number of years of the person’s life expectancy; or
(c) if the income stream:
(i) is jointly owned by a person and his or her partner and is payable for the lifetime of the person or the partner; or
(ii) is payable during the lifetime of a person and then for the lifetime of a reversionary beneficiary;
the number of years in the longer of the relevant life expectancies; or
(d) in any other case—the number that the Commission considers appropriate having regard to the number of years in the total period during which the income stream will be, or may reasonably be expected to be, payable.
residual capital value, in relation to an income stream, means the capital amount payable on the termination of the income stream.
Note: An account‑based income stream does not have a residual capital value (see subsection (9) of this section).
retirement savings account has the meaning that it has in the Retirement Savings Accounts Act 1997.
return:
(a) in relation to an ATO small superannuation account—means so much of the balance of the account as is attributable to interest; or
(aa) in relation to an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008)—means any increase, whether of a capital or income nature and whether or not distributed, in the value or amount of the investment; or
(b) in relation to any other 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.
secondary FLA income stream has the meaning given by section 5JC.
superannuation benefit, in relation to a person, means:
(a) 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; or
(b) a payment under Part 7 of the Small Superannuation Accounts Act 1995, where the payment is in respect of an ATO small superannuation account kept in the name of the person.
superannuation contributions surcharge has the meaning that it has in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
superannuation fund means:
(a) a fund that is or has been a complying superannuation fund within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993 in relation to any tax year; or
(b) an Australian superannuation fund (within the meaning of the Income Tax Assessment Act 1997) that is not a complying superannuation fund mentioned in paragraph (a) in relation to any tax year; or
(c) a scheme for the payment of benefits upon retirement or death that is constituted by or under a law of the Commonwealth or of a State or Territory; or
(d) an RSA within the meaning of the Retirement Savings Accounts Act 1997; or
(e) any of the following funds (unless the fund is a foreign superannuation fund):
(i) a fund to which paragraph 23(jaa), or section 23FC, 121CC or 121DAB, of the Income Tax Assessment Act 1936 (as in force at any time before the commencement of section 1 of the Taxation Laws Amendment Act (No. 2) 1989) has applied in relation to any tax year;
(ii) a fund to which paragraph 23(ja), or section 23F or 23FB, of the Income Tax Assessment Act 1936 (as in force at any time before the commencement of paragraph (a) of the definition of superannuation fund in former subsection 27A(1) of the Income Tax Assessment Act 1936) has applied in relation to the tax year that started on 1 July 1985 or an earlier tax year;
(iii) a fund to which section 79 of the Income Tax Assessment Act 1936 (as in force at any time before 25 June 1984) has applied in relation to the tax year that started on 1 July 1983 or an earlier tax year.
Note: For foreign superannuation fund see subsection 5L(1).
unlisted public security means:
(a) a share in a public company; or
(b) another security;
that is not listed on a stock exchange.
(1A) Subject to subsections (1B) and (1C), an investment is a managed investment for the purposes of this Act if:
(a) the money or property invested is paid by the investor directly or indirectly to a body corporate or into a trust fund; and
(b) the assets that represent the money or property invested (the invested assets) are not held in the names of investors; and
(c) the investor does not have effective control over the management of the invested assets; and
(d) the investor has a legally enforceable right to share in any distribution of income or profits derived from the invested assets.
(1B) Without limiting the generality of subsection (1A) but subject to subsection (1C), the following are managed investments for the purposes of this Act:
(a) an investment in a public unit trust;
(b) an investment in an insurance bond;
(c) an investment with a friendly society;
(d) an investment in a superannuation fund;
Note: see paragraph (1C)(a) for superannuation investments held before pension age is reached.
(e) an investment in an approved deposit fund;
Note: see paragraph (1C)(b) for investments in approved deposit funds held before pension age is reached.
(f) an investment in a deferred annuity;
Note: see paragraph (1C)(c) for deferred annuities held before pension age is reached.
(g) an investment in an ATO small superannuation account.
Note: See paragraph (1C)(ca) for investments in ATO small superannuation accounts held before pension age is reached.
(1C) The following are not managed investments for the purposes of this Act:
(a) an investment in a superannuation fund if the investor has not yet turned pension age;
(b) an investment in an approved deposit fund if the investor has not yet turned pension age;
(c) an investment in a deferred annuity if the investor has not yet turned pension age;
(ca) an investment in an ATO small superannuation account if the investor has not yet turned pension age;
(cb) an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008);
(d) deposit money;
(e) a loan;
(f) an asset‑test exempt income stream;
(g) an asset‑tested income stream (long term);
(h) an asset‑tested income stream (short term).
Note 1: for pension age see subsection (1D) and sections 5QA and 5QB.
Note 2: for deposit money see subsection 5H(1).
Note 3: For provisions relating to when a loan is taken to be made see subsection (2).
Note 4: Asset‑test exempt income streams are dealt with under sections 46T to 46VA.
Note 5: Asset‑tested income streams (long term) are dealt with under sections 46W to 46YA.
(1D) For the purposes of the application of subsection (1C) in relation to income support supplement, the references in paragraphs (1C)(a), (b) and (c) to pension age are taken to be references to the qualifying age.
Note: For qualifying age see section 5Q.
(1E) An income stream is a defined benefit income stream if:
(a) under the Superannuation Industry (Supervision) Regulations 1994, the income stream is taken to be a pension for the purposes of the Superannuation Industry (Supervision) Act 1993; and
(b) except in the case of an income stream arising under a superannuation fund established before 20 September 1998—the income stream is provided under rules that meet the standards of subregulation 1.06(2) of the Superannuation Industry (Supervision) Regulations 1994; and
(ba) in the case of an income stream arising under a superannuation fund established before 20 September 1998—the income stream is provided under rules that meet the standards determined, by legislative instrument, by the Minister; and
(c) in any case—the income stream is attributable to a defined benefit interest within the meaning of the Superannuation Industry (Supervision) Regulations 1994 (for this purpose, disregard subparagraph 1.03AA(1)(b)(ii) of those regulations).
(1F) The Commission may determine, by legislative instrument, guidelines to be complied with when designating an income stream for the purposes of the definition of income stream in subsection (1).
(2) The following rules apply for the purposes of this Act:
(a) the acquisition by a person of debentures, bonds or other securities is treated as the making of a loan by the person;
(b) a person is not treated as having made a loan merely because:
(i) the person has an account with a financial institution; or
(ii) the person has paid an entry contribution.
Note: For entry contribution see section 52M.
(2A) Subsection (2) does not limit the meaning of the word loan in this Act.
(2B) For the purposes of this Act, an asset is a deprived asset if:
(a) a person has disposed of the asset; and
(b) the value of the asset is included in the value of the person’s assets by Subdivision BA or BB of Division 11 of Part IIIB.
Note: For circumstances in which a person is taken to dispose of assets see section 52E.
(2C) To avoid doubt, neither an accommodation bond (within the meaning of the Aged Care Act 1997: see subsection 5L(1) of this Act) nor an accommodation bond balance (within the meaning of that Act) is a financial investment for the purposes of this Act.
(6) For the purposes of this Act, a person has an investment in a superannuation fund, approved deposit fund or deferred annuity if the person has benefits in the fund or under the annuity (whether the benefits are attributable to amounts paid by the person or someone else).
(6A) For the purposes of this Act:
(a) a person has an investment in an ATO small superannuation account if:
(i) the account is kept in the name of the person; and
(ii) the balance of the account exceeds nil; and
(b) the amount or value of that investment equals the balance of the account.
(6B) For the purposes of this Act, a person has an investment in an FHSA (within the meaning of the First Home Saver Accounts Act 2008) if the person has benefits in the FHSA (whether the benefits are attributable to amounts paid by the person or someone else).
(9) To avoid doubt, for the purposes of this Act, an account‑based income stream does not have a residual capital value.
5JA Meaning of asset‑test exempt income stream—lifetime income streams
General requirements
(1) An income stream provided to a person is an asset‑test exempt income stream for the purposes of this Act if:
(aa) subject to subsection (1AA), the income stream’s commencement day happens before 20 September 2007; and
(a) it is an income stream arising under a contract, or governing rules, that meet the requirements of subsection (2) and the Commission has not made a determination under subsection (4) in respect of the income stream; and
(b) subject to subsections (1B), (1C) and (1D), the Commission is satisfied that in relation to an income stream, provided by a class of provider specified by the Commission for the purposes of this paragraph, there is in force a current actuarial certificate that states that the actuary is of the opinion that, for the financial year in which the certificate is given, there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules; and
(c) the Commission is satisfied that the requirements of subsection (2) are being given effect to from the commencement day of the income stream.
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
Determination under subsection (5)
(1A) An income stream provided to a person is an asset‑test exempt income stream for the purposes of this Act if the Commission has made a determination under subsection (5) in respect of the income stream.
Defined benefit income streams
(1AA) Paragraph (1)(aa) does not apply if the income stream is a defined benefit income stream.
Guidelines relating to actuarial certificates
(1B) The Commission may determine, by legislative instrument, guidelines to be complied with when determining whether an actuarial certificate is in force.
Exception to paragraph (1)(b)
(1C) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1)(b) is in force in relation to an income stream, then paragraph (1)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Commission in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
One certificate a financial year
(1D) For the purposes of paragraph (1)(b), if an actuarial certificate is given to the Commission in a financial year in relation to an income stream, then any actuarial certificate given to the Commission later in that financial year in relation to that income stream has no effect.
Requirements of contract/governing rules for provision of income stream
(2) A contract, or the governing rules, for the provision of an income stream to a person meet the requirements of this subsection if the contract or governing rules specify:
(a) that payments under the income stream are to be made at least annually throughout the life of the person and, if there is a reversionary beneficiary:
(i) throughout the reversionary beneficiary’s life; or
(ii) if the reversionary beneficiary is a child of the person or of a former reversionary beneficiary under the income stream—at least until he or she turns 16; or
(iii) if the child referred to in subparagraph (ii) is a full‑time student who has turned 16—at least until the end of his or her full‑time studies or until he or she turns 25, whichever occurs sooner; and
(b) the total amount of the payments that may be made under the income stream in the first year after the commencement day of the income stream (not taking commuted amounts into account); and
(c) that the total amount of the payments that may be made under the income stream in any other year (not taking commuted amounts into account) may not fall below the total amount of the payments made under the income stream in the immediately preceding year (the previous total), and may not exceed the previous total:
(i) if subparagraph (ii) does not apply—by more than 5% of the previous total; or
(ii) if the index number for the second last quarter before the day on which the first of those payments is to be made (recent index number) exceeds the index number for the same quarter in the immediately preceding year (base index number) by more than 4% of the base index number—by more than such percentage of the previous total as is worked out under the formula:
(d) if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and
(e) if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and
(f) if the income stream is not a defined benefit income stream—that the amount paid as the purchase price for the income stream is wholly converted into income; and
(g) that the income stream has no residual capital value; and
(h) that the income stream cannot be commuted except:
(i) if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or
(ii) if the commutation is made to the benefit of a reversionary beneficiary or of the person’s estate, on the death of the person within the life expectancy period for the income stream; or
(iii) if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or
(iv) to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or
(iva) to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or
(ivb) to the extent necessary to give effect to an order under Part VIIIAA of the Family Law Act 1975; or
(v) to the extent necessary to pay a hardship amount; and
Note 1: For non‑commutation funded income stream, see subsection (7).
Note 1A: For life expectancy period, see subsection (7).
Note 1B: For asset‑test exempt income stream, see section 5J.
Note 2: For hardship amount see subsection (7).
(i) that the income stream cannot be transferred to a person except:
(i) on the death of the primary beneficiary, to a reversionary beneficiary; or
(ii) on the death of a reversionary beneficiary, to another reversionary beneficiary; and
(j) that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and
(k) that, if the income stream reverts, it must not have a reversionary component greater than the benefit that was payable immediately before the reversion; and
(l) that, if the income stream is commuted, the commuted amount must not be greater than the benefit that was payable immediately before the commutation.
(2A) A contract, or the governing rules, for the provision to a person of an income stream that meets all of the requirements of subsection (2), except the requirement of paragraph (2)(c), are taken to meet the requirements of subsection (2) if the contract or governing rules specify that any provision included in the contract or governing rules in accordance with paragraph (2)(c) does not apply in any year in which:
(a) the person ceases to receive income under an income stream jointly and begins to receive income under a single income stream; and
(b) the total amount received in the year under the single income stream is less than the total amount received by the person in the previous year but is not nil.
Matters not required of income stream
(3) For the purpose of determining whether an income stream meets the requirements of subsection (2), it is immaterial that:
(a) if the primary beneficiary dies within the life expectancy period for the income stream, a surviving reversionary beneficiary may be paid an amount equal to the total of the payments that the primary beneficiary would (if he or she had not died) have received from the day of the death until the end of that period; and
(b) if:
(i) the primary beneficiary dies within the life expectancy period for the income stream; and
(ii) there is no surviving reversionary beneficiary;
an amount, not exceeding the difference between:
(iii) the sum of the amounts that would have been so payable to the primary beneficiary in that period; and
(iv) the sum of the amounts paid to the primary beneficiary;
is payable to the primary beneficiary’s estate, and
(c) if:
(i) the primary beneficiary dies within the life expectancy period for the income stream; and
(ii) there is a surviving reversionary beneficiary who also dies within that period;
there is payable to the reversionary beneficiary’s estate an amount determined as described in paragraph (b) as if that paragraph applied to the reversionary beneficiary.
Determination that income stream not asset‑test exempt
(4) The Commission may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Commission is satisfied that the person who has purchased the income stream has commuted an asset‑test exempt income stream within 6 months after its commencement day on at least 3 occasions since the person first received a service pension, an income support supplement or a social security payment.
Determination that income stream is asset‑test exempt
(5) The Commission may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Commission is to have regard to the guidelines (if any) determined under subsection (6).
(5A) To avoid doubt, a determination under subsection (5) may be made in respect of an income stream regardless of the income stream’s commencement day.
(5B) A determination under subsection (5) is not a legislative instrument.
Guidelines to be complied with in making determination
(6) The Commission may determine, by legislative instrument, guidelines to be complied with when making a determination under subsection (5).
Definitions
(7) In this section:
hardship amount, in relation to a person, means an amount determined by the Commission for the purposes of this definition if:
(a) the person applies in writing to the Commission to be allowed to commute the whole or part of an income stream because of extreme financial hardship; and
(b) the Commission is satisfied that:
(i) the person’s circumstances are exceptional and could not be reasonably foreseen at the time the person purchased the income stream; and
(ii) the person has insufficient liquid assets or other assets (excluding the person’s principal home) that could be realised to avoid the extreme financial hardship; and
(iii) that amount is required to meet unavoidable expenditure.
life expectancy period, for an income stream, means:
(a) in a case where:
(i) there was only one primary beneficiary on the commencement day; and
(ii) the primary beneficiary has decided not to round up his or her life expectancy for the purposes of this definition;
the period starting on the income stream’s commencement day, and equal to the shorter of:
(iii) the primary beneficiary’s life expectancy on the commencement day; and
(iv) 20 years; or
(b) in a case where:
(i) there was only one primary beneficiary on the commencement day; and
(ii) paragraph (a) does not apply;
the period starting on the income stream’s commencement day, and equal to the shorter of:
(iii) the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and
(iv) 20 years; or
(c) in a case where:
(i) there were 2 primary beneficiaries on the commencement day; and
(ii) those primary beneficiaries have decided not to round up their life expectancies for the purposes of this definition;
the period starting on the income stream’s commencement day, and equal to the shorter of:
(iii) the greater of the life expectancies, on the commencement day, of the primary beneficiaries; and
(iv) 20 years; or
(d) in a case where:
(i) there were 2 primary beneficiaries on the commencement day; and
(ii) paragraph (c) does not apply;
the period starting on the income stream’s commencement day, and equal to the shorter of:
(iii) the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of the primary beneficiaries; and
(iv) 20 years.
liquid assets, in relation to a person, means the person’s cash and readily realisable assets, and includes:
(a) the person’s shares and debentures in a public company within the meaning of the Corporations Act 2001; and
(b) managed investments; and
(c) insurance policies that can be surrendered for money; and
(d) amounts deposited with, or lent to, a bank or other financial institution by the person (whether or not the amount can be withdrawn or repaid immediately); and
(e) amounts due, and able to be paid, to the person by, or on behalf of, a former employer of the person.
non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.
unavoidable expenditure, in relation to a person, means one or more of the following:
(a) essential medical expenses of the person, or the person’s partner, to the extent that the expenses are not covered by health insurance or other contracts or arrangements;
(b) the cost of:
(i) replacing the person’s principal home; or
(ii) essential repairs to the person’s principal home;
to the extent that the cost of the replacement or repairs is not covered by an insurance policy;
(c) expenditure to buy replacement essential household goods because of the loss of those goods to the extent that the cost of replacement is not covered by an insurance policy.
5JB Meaning of asset‑test exempt income stream—life expectancy income streams
(1) An income stream provided to a person is also an asset‑test exempt income stream for the purposes of this Act if:
(a) the following criteria are satisfied:
(i) the income stream’s commencement day happens before 20 September 2007;
(ii) subsection (1A) applies; or
(b) subsection (1B) applies.
No determination under subsection (3)
(1A) This subsection applies if:
(aa) the person to whom the income stream is being provided is:
(i) the primary beneficiary; or
(ii) the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death; and
Note: For reversionary partner, see subsection (7).
(a) the income stream is an income stream arising under a contract, or governing rules, that meet the requirements of subsection (2) and the Commission has not made a determination under subsection (3) in respect of the income stream; and
(b) subject to subsections (1C), (1D) and (1E), the Commission is satisfied that, in relation to an income stream provided by a class of provider specified by the Commission for the purposes of this paragraph, there is in force a current actuarial certificate that states that the actuary is of the opinion that, for the financial year in which the certificate is given, there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules; and
(c) the Commission is satisfied that the requirements of subsection (2) have been given effect to from the commencement day of the income stream; and
(d) in the case of an income stream acquired before 20 September 2004 that is provided to a primary beneficiary’s reversionary beneficiary—the remaining term (in years) of the income stream is equal to the life expectancy (in years) of the primary beneficiary’s reversionary beneficiary.
Note: For paragraph (b), financial year means a period of 12 months commencing on 1 July: see the Acts Interpretation Act 1901.
Determination under subsection (4)
(1B) This subsection applies if the Commission has made a determination under subsection (4) in respect of the income stream.
Guidelines relating to actuarial certificates
(1C) The Commission may determine, by legislative instrument, guidelines to be complied with when determining whether an actuarial certificate is in force.
Exception to paragraph (1A)(b)
(1D) If, on 30 June in a financial year, an actuarial certificate referred to in paragraph (1A)(b) is in force in relation to an income stream, then paragraph (1A)(b) does not apply in relation to the next financial year (the later year) for the period:
(a) beginning on 1 July of the later year; and
(b) ending at the earlier of the following:
(i) the start of the first day in the later year on which any actuarial certificate is given to the Commission in relation to that income stream;
(ii) the end of the period of 26 weeks beginning on 1 July of the later year.
One certificate a financial year
(1E) For the purposes of paragraph (1A)(b), if an actuarial certificate is given to the Commission in a financial year in relation to an income stream, then any actuarial certificate given to the Commission later in that financial year in relation to that income stream has no effect.
Requirements of contract/governing rules for provision of income stream
(2) A contract, or the governing rules, for the provision of an income stream to a person meets the requirements of this subsection if the contract or governing rules specify:
(a) the income stream’s term, which must comply with subsection (2B), (2C) or (2E); and
(aa) that payments under the income stream are to be made at least annually during the income stream’s term; and
(b) the total amount of the payments that may be made under the income stream in the first year after the commencement day of the income stream (not taking commuted amounts into account); and
(c) that the total amount of the payments that may be made under the income stream in any other year (not taking commuted amounts into account) may not fall below the total amount of the payments made under the income stream in the immediately preceding year (the previous total), and may not exceed the previous total:
(i) if subparagraph (ii) does not apply—by more than 5% of the previous total; or
(ii) if the index number for the second last quarter before the day on which the first of those payments is to be made (recent index number) exceeds the index number for the same quarter in the immediately preceding year (base index number) by more than 4% of the base index number—by more than such percentage of the previous total as is worked out under the formula:
(d) if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and
(e) if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and
(f) if the income stream is not a defined benefit income stream—that the amount paid as the purchase price for the income stream is wholly converted into income; and
(g) that the income stream has no residual capital value; and
(h) that the income stream cannot be commuted except:
(i) if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or
(ii) if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or
(iii) if the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death survives the primary beneficiary—on or after the partner’s death; or
(iv) if subparagraph (iii) does not apply—on or after the primary beneficiary’s death; or
(ivaa) to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or
(iva) to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or
(ivb) to the extent necessary to give effect to an order under Part VIIIAA of the Family Law Act 1975; or
(vi) to the extent necessary to pay a hardship amount; and
Note 1: For non‑commutation funded income stream, see subsection (7).
Note 1A: For asset‑test exempt income stream, see section 5J.
Note 2: For hardship amount see subsection (7).
(i) that the income stream cannot be transferred except on death; and
(j) that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and
(k) that, if the income stream reverts, it must not have a reversionary component greater than the benefit that was payable immediately before the reversion; and
(l) that, if the income stream is commuted, the commuted amount must not be greater than the benefit that was payable immediately before the commutation.
Compliance with subsection (2) if certain conditions are met
(2A) A contract, or the governing rules, for the provision to a person of an income stream that meets all of the requirements of subsection (2), except the requirement of paragraph (2)(c), are taken to meet the requirements of subsection (2) if the contract or governing rules specify that any provision included in the contract or governing rules in accordance with paragraph (2)(c) does not apply in any year in which:
(a) the person ceases to receive income under an income stream jointly and begins to receive income under a single income stream; and
(b) the total amount received in the year under the single income stream is less than the total amount received by the person in the previous year but is not nil.
Term of the income stream
(2B) If, on an income stream’s commencement day, there is only one primary beneficiary, the income stream’s term complies with this subsection if it is a period of whole years that:
(a) starts on the income stream’s commencement day; and
(b) is at least as long as the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and
(c) is at most as long as the greater of:
(i) what would be the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day if the primary beneficiary were 5 years younger; and
(ii) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then).
(2C) If, on an income stream’s commencement day, there is only one primary beneficiary, the income stream’s term complies with this subsection if it is a period of whole years that:
(a) starts on the income stream’s commencement day; and
(b) is at least as long as the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the primary beneficiary; and
(ii) the primary beneficiary’s reversionary partner on that day; and
(c) is at most as long as the period worked out under subsection (2D).
(2D) For the purposes of paragraph (2C)(c), the period is the greater of:
(a) the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the primary beneficiary, if the primary beneficiary were 5 years younger; and
(ii) the primary beneficiary’s reversionary partner on that day, if the partner were 5 years younger; and
(b) the greater of:
(i) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then); and
(ii) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary’s reversionary partner on the commencement day reaches age 100 (assuming that the partner lives until then).
(2E) If, on an income stream’s commencement day, there are 2 primary beneficiaries (the first primary beneficiary and the second primary beneficiary), the income stream’s term complies with this subsection if it is a period of whole years that:
(a) starts on the income stream’s commencement day; and
(b) is at least as long as the lesser of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the first primary beneficiary; and
(ii) the second primary beneficiary; and
(c) is at most as long as the period worked out under subsection (2F).
(2F) For the purposes of paragraph (2E)(c), the period is the greater of:
(a) the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the first primary beneficiary, if the first primary beneficiary were 5 years younger; and
(ii) the second primary beneficiary, if the second primary beneficiary were 5 years younger; and
(b) the greater of:
(i) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the first primary beneficiary reaches age 100 (assuming that the first primary beneficiary lives until then); and
(ii) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the second primary beneficiary reaches age 100 (assuming that the second primary beneficiary lives until then).
Determination that income stream not asset‑test exempt
(3) The Commission may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Commission is satisfied that the person who has purchased the income stream has commuted an asset‑test exempt income stream within 6 months after its commencement day on at least 3 occasions since the person first received a service pension, an income support supplement or a social security payment.
Determination that income stream is asset‑test exempt
(4) The Commission may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Commission is to have regard to the guidelines (if any) determined under subsection (5).
(4A) To avoid doubt, a determination under subsection (4) may be made in respect of an income stream regardless of the income stream’s commencement day.
(4B) A determination under subsection (4) is not a legislative instrument.
Guidelines to be complied with in making determination
(5) The Commission may determine, by legislative instrument, guidelines to be complied with when making a determination under subsection (4).
Interpretation
(7) In this section:
hardship amount has the same meaning as in section 5JA (see subsection 5JA(7).
non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.
reversionary partner, in relation to the primary beneficiary of an income stream and a particular day, means another person who, on that day:
(a) is a member of a couple with the primary beneficiary; and
Note: For member of a couple, see section 5E.
(b) is the person to whom the income stream will revert on the primary beneficiary’s death.
5JBA Meaning of asset‑test exempt income stream—market‑linked income streams
General requirements
(1) An income stream provided to a person is also an asset‑test exempt income stream for the purposes of this Act if:
(a) all of the following criteria are satisfied:
(i) the income stream’s commencement day happens during the period from 20 September 2004 to 19 September 2007 (both dates inclusive);
(ii) the person to whom the income stream is being provided is the primary beneficiary or the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death;
(iii) the income stream is an income stream arising under a contract, or governing rules, that meets the requirements of subsection (2);
(iv) the Commission has not made a determination under subsection (10) in respect of the income stream;
(v) the Commission is satisfied that the requirements of subsection (2) have been given effect to from the day the income stream commenced to be paid; or
Note: For reversionary partner, see subsection (14).
(b) the Commission has made a determination under subsection (11) in respect of the income stream.
Requirements of contract/governing rules for provision of income stream
(2) A contract, or the governing rules, for the provision of an income stream to a person meets the requirements of this subsection if the contract or governing rules specify:
(a) the income stream’s term, which must comply with subsection (3) or (4); and
(b) obligations for the making of payments under the income stream that satisfy the requirements of subsections (5) to (9); and
(c) if the income stream is purchased by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that purchase; and
(d) if the income stream is not purchased, but acquired, by or for the primary beneficiary—that the first payment under the income stream relates to the period commencing on the day of that acquisition; and
(e) that the income stream has no residual capital value; and
(f) that the income stream cannot be commuted except:
(i) if the income stream is a non‑commutation funded income stream and the commutation is made within 6 months after the commencement day of the income stream; or
(ii) if the payment resulting from the commutation is transferred directly to the purchase of another income stream that is an asset‑test exempt income stream; or
(iii) if the primary beneficiary’s reversionary partner (if any) on the day of the primary beneficiary’s death survives the primary beneficiary—on or after the partner’s death; or
(iv) if subparagraph (iii) does not apply—on or after the primary beneficiary’s death; or
(v) to the extent necessary to cover any superannuation contributions surcharge relating to the income stream; or
(vi) to the extent necessary to give effect to an entitlement of the person’s partner or former partner under a payment split under Part VIIIB of the Family Law Act 1975; or
(vii) to the extent necessary to pay a hardship amount; and
Note 1: For non‑commutation funded income stream, see subsection (14).
Note 2: For asset‑test exempt income stream, see section 5J.
Note 3: For hardship amount, see subsection (14).
(g) that the income stream cannot be transferred except on death; and
(h) that neither the capital value of the income stream, nor the income from it, can be used as security for a borrowing; and
(i) that, if the income stream reverts, it must not have a reversionary component greater than the account balance immediately before the reversion; and
(j) that, if the income stream is commuted, the commuted amount must not be greater than the account balance immediately before the commutation.
Term of the income stream
(3) An income stream’s term complies with this subsection if it is a period of whole years that:
(a) starts on the income stream’s commencement day; and
(b) is at least as long as the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day; and
(c) is at most as long as the greater of:
(i) what would be the primary beneficiary’s life expectancy (rounded up, if not consisting of a whole number of years, to the next whole number) on the commencement day if the primary beneficiary were 5 years younger; and
(ii) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then).
(4) An income stream’s term complies with this subsection if it is a period of whole years that:
(a) starts on the income stream’s commencement day; and
(b) is at least as long as the greater of the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the primary beneficiary; and
(ii) the primary beneficiary’s reversionary partner on that day; and
(c) is at most as long as the period worked out under subsection (4A).
(4A) For the purposes of paragraph (4)(c), the period is the greater of:
(a) the greater of what would be the life expectancies (rounded up, if not consisting of a whole number of years, to the next whole number), on the commencement day, of:
(i) the primary beneficiary, if the primary beneficiary were 5 years younger; and
(ii) the primary beneficiary’s reversionary partner on that day, if the partner were 5 years younger; and
(b) the greater of:
(i) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary reaches age 100 (assuming that the primary beneficiary lives until then); and
(ii) the period (rounded up, if not consisting of a whole number of years, to the next whole number) starting on the commencement day and ending on the day on which the primary beneficiary’s reversionary partner on the commencement day reaches age 100 (assuming that the partner lives until then).
Total amount payable in each financial year—general rule
(5) For each financial year wholly or partly within the income stream’s term, the total amount of the payments to be made under the income stream must not be less than 90%, nor greater than 110%, of the amount worked out under the formula:
where:
account balance means:
(a) if the financial year includes the income stream’s commencement day—the opening account balance for the income stream; or
(b) otherwise—the account balance for the income stream at the start of the financial year.
PF means the payment factor for the income stream for the financial year, worked out under principles determined by the Commission under subsection (5A).
(5A) The Commission must, by legislative instrument, determine principles for the purposes of the definition of PF in subsection (5).
Other rules about payments under the income stream
(6) If the income stream’s commencement day is not a 1 July, a total amount worked out under subsection (5) for the financial year starting on the preceding 1 July must be reduced on a pro‑rata basis by reference to the number of days in the financial year that are on and after the commencement day.
(7) If:
(a) the income stream’s commencement day happens in June; and
(b) no payment is made under the income stream for the financial year in which the commencement day happens;
subsections (5) and (6) do not apply to the income stream for that financial year.
(8) If the amount (the test amount) of a payment to be made under the income stream on a day in a financial year:
(a) is worked out by reference to a total amount worked out under subsection (5) (and subsection (6), if applicable) for the financial year; and
(b) exceeds the income stream’s account balance on that day;
then:
(c) the account balance (if any) must be paid instead of the test amount; and
(d) that total amount described in paragraph (a) must be reduced by the amount of the excess.
(9) If the income stream has a positive account balance at the end of its term, a payment equal to that account balance must be made within 28 days after the end of the term.
Determination that income stream not asset‑test exempt
(10) The Commission may determine that an income stream that meets the requirements of subsection (2) is not an asset‑test exempt income stream if the Commission is satisfied that:
(a) the primary beneficiary has commuted an asset‑test exempt income stream on at least 3 occasions since the person first received a service pension, an income support supplement or a social security payment; and
(b) on at least 3 of those occasions, the commutation happened within 6 months after the commencement day of the income stream concerned.
Determination that income stream is asset‑test exempt
(11) The Commission may determine, in writing, that an income stream is an asset‑test exempt income stream for the purposes of this Act. In making the determination, the Commission must have regard to the guidelines (if any) determined under subsection (12).
(11A) To avoid doubt, a determination under subsection (11) may be made in respect of an income stream regardless of the income stream’s commencement day.
(11B) A determination under subsection (11) is not a legislative instrument.
Guidelines to be complied with in making determination
(12) The Commission may determine, by legislative instrument, guidelines to be complied with when making a determination under subsection (11).
Definitions
(14) In this section:
hardship amount has the same meaning as in section 5JA (see subsection 5JA(7)).
non‑commutation funded income stream means an income stream that has not been purchased by transferring directly to the purchase of the income stream a payment resulting from the commutation of another asset‑test exempt income stream.
reversionary partner, in relation to the primary beneficiary of an income stream and a particular day, means another person who, on that day:
(a) is a member of a couple with the primary beneficiary; and
Note: For member of a couple, see section 5E.
(b) is the person to whom the income stream will revert on the primary beneficiary’s death.
5JC Family law affected income streams
If:
(a) an income stream is acquired or purchased (the original family law affected income stream) by a person (the member); and
(b) the member’s partner or former partner (the non‑member) becomes entitled to be paid some or all of that income stream under:
(i) a payment split under Part VIIIB of the Family Law Act 1975; or
(ii) an order under Part VIIIAA of the Family Law Act 1975;
then so much (if any) of the income stream paid to the non‑member as a series of ongoing payments (secondary FLA income stream) and the remainder (if any) of the income stream paid to the member as such a series of payments (primary FLA income stream) are each family law affected income streams.
5JD Asset‑tested status of secondary FLA income streams
If there is a primary FLA income stream
(1) If a primary FLA income stream is, or would be if the income stream were assessed for the purposes of this Act:
(a) an asset‑tested income stream (long term); or
(b) an asset‑tested income stream (short term);
then the secondary FLA income stream to which it is related is also to be treated as if it were assessed as an income stream of that kind.
If there is no primary FLA income stream
(2) If:
(a) there is no primary FLA income stream in relation to a secondary FLA income stream; and
(b) had there been a primary FLA income stream in relation to that secondary FLA income stream it would have been assessed for the purposes of this Act as either an asset‑tested income stream (long term) or an asset‑tested income stream (short term);
then the secondary FLA income stream is to be treated as if it were assessed as an income stream of that kind.
5K Maintenance income definitions
(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.
Note 3: For periodic amount see subsection (1A).
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 dependent child of the person:
(a) that is a periodic amount; or
(b) that is an amount of $1,500 or less.
Note 1: 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)).
Note 2: For periodic amount see subsection (1A).
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.
disability expenses maintenance has the meaning given by subsection (5).
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 (3) and (4) 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;
but does not include disability expenses maintenance.
Note: See also subsection (2) and section 51 (apportionment of 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.
Note: see also subsection 51A(1) (in‑kind housing maintenance—value of substitute for former family home).
(1A) For the purposes of subsection (1), an amount is a periodic amount if it is:
(a) the amount of one payment in a series of related payments, even if the payments are irregular in time and amount; or
(b) the amount of a payment making up for arrears in such a series.
(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.
(5) A payment or benefit is disability expenses maintenance of a person if:
(a) the payment or benefit is provided for expenses arising directly from:
(i) a physical, intellectual or psychiatric disability; or
(ii) a learning difficulty;
of a dependent child of the person; and
(b) the disability or difficulty is likely to be permanent or to last for an extended period; and
(c) the payment or benefit is received:
(i) by the person for the maintenance of the dependent child; or
(ii) by the dependent child for the child’s own maintenance; and
(d) the payment or benefit is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child.
5L Assets test definitions
(1) In this Act, unless the contrary intention appears:
accommodation bond has the same meaning as in the Aged Care Act 1997.
accommodation charge has the same meaning as in the Aged Care Act 1997.
asset means property or money (including property or money outside Australia).
Note: However, certain property or money is to be disregarded when calculating the value of a person’s assets for certain purposes (for example, see subsection 52(1)).
dispose of assets has the meaning given by section 52E.
family member, in relation to a person, means:
(a) the partner or a parent of the person; or
(b) a sister, brother or child of the person; or
(c) another person who, in the Commission’s opinion, should be treated for the purposes of this definition as one of the person’s relations described in paragraph (a) or (b).
fishing operations means:
(a) operations relating directly to the taking or catching of fish, turtles, crustacea, oysters or other shellfish; or
(b) oyster farming; or
(c) pearling operations;
but does not include:
(d) whaling; or
(e) operations conducted otherwise than for the purposes of a business.
foreign superannuation fund has the same meaning as in the Income Tax Assessment Act 1997.
foreign superannuation pension means a pension presently payable from a foreign superannuation fund.
forest operations means:
(a) the planting or tending in a plantation or forest of trees intended for felling; or
(b) the felling of trees in a plantation or forest;
but does not include operations conducted otherwise than for the purposes of a business.
pension year has the meaning given by subsection (9).
primary producer means a person whose principal occupation is primary production.
primary production means production resulting directly from:
(a) the cultivation of land; or
(b) the maintenance of animals or poultry for the purpose of selling them or their bodily produce, including natural increase; or
(c) fishing operations; or
(d) forest operations;
and includes the manufacture of dairy produce by the person who produced the raw material used in that manufacture.
principal home has the meaning given by section 5LA.
property owner has the meaning given by subsection (4).
reasonable security of tenure has the meaning given by subsection 5LA(10).
unrealisable asset has the meaning given by subsections (11) and (12).
value has the meaning given by subsections (2), (3) and (3A).
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 52KA‑52X (special residences).
(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.
(3A) A reference in this Act to the value of a liability of a person is, if the liability is shared by the person with another person, a reference to the value of the person’s share of the liability.
(3B) To avoid doubt, an accommodation bond balance (within the meaning of the Aged Care Act 1997) in respect of an accommodation bond (within the meaning of that Act: see subsection (1) of this section) paid by a person is taken to be an asset of the person.
(3C) To avoid doubt, a person’s entitlement to be paid a pension bonus, pension bonus bereavement payment, DFISA bonus or DFISA bonus bereavement payment is taken not to be an asset of the person for the purposes of this Act.
(3D) Subsection (3C) is to be disregarded in determining whether any other entitlement is an asset for the purposes of this Act.
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 while:
(i) the whole or a part of the proceeds of the sale of the person’s principal home are disregarded under subsection 52(2); or
(ii) the value of a residence, land or a structure is disregarded under subsection 52(2).
Note: see also sections 52KA‑52X (special residences).
Pension year—disposal of assets
(9) A reference in sections 52E to 52J (disposal of assets) to a pension year, in relation to a person who is receiving a service pension, income support supplement 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.
No pension year to extend beyond 30 June 2002
(9A) No period after 30 June 2002 is, or is a part of, a pension year of a person. If, apart from this subsection, a period beginning before 1 July 2002 and ending on or after that date would be a pension year of a person, the part of that period that ends immediately before that date is taken to be a pension year of the person.
(10) The lending of money after 22 May 1986 is not a disposition of an asset for the purposes of section 52E.
Pre‑pension year—disposal of assets
(10A) A reference in sections 52FA and 52GA (disposal of assets) to a pre‑pension year, in relation to a person who is claiming:
(a) a service pension; or
(b) income support supplement; or
(c) a social security pension;
is a reference to the period of 12 months ending on the day that is the person’s provisional commencement day and each preceding period of 12 months.
Note: A disposition of assets that is more than 5 years old is disregarded (see section 52J).
No pre‑pension year to extend beyond 30 June 2002
(10B) No period after 30 June 2002 is, or is a part of, a pre‑pension year of a person. If, apart from this subsection, a period beginning before 1 July 2002 and ending on or after that date would be a pre‑pension year of a person, the part of that period that ends immediately before that date is taken to be a pre‑pension year of the person.
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 or an income support supplement, 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.
5LA Principal home definition for the purpose of the assets test
Principal home
(1) 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 land adjacent to the dwelling‑house to the extent that:
(i) the land is held on the same title document as the land on which the dwelling‑house is located; and
(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; 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.
(2) The Commission may determine that land is to be treated, for the purpose of subparagraph (1)(a)(i), as if it were held on the same title document as other land if any of the following apply:
(a) the dwelling‑house is located on both blocks of land;
(b) the dwelling‑house is located on one of the blocks of land but that block and the other block, taken together, are a place, or are part of a place, that is protected under a law of the Commonwealth, or of a State or Territory, because of its natural, historic or indigenous heritage;
(c) the alienation of one of the blocks of land without the other would seriously undermine the function of the house as a dwelling.
Note: A mere loss of amenity, such as the loss of a swimming pool, garden, tennis court or view, would not seriously undermine the function of a house as a dwelling.
Private land use test
(3) The private land use test is satisfied in relation to land if:
(a) the area of land, together with the area of the ground floor of the dwelling‑house, is not more than 2 hectares; and
(b) the land is used primarily for private or domestic purposes in association with the dwelling‑house.
To whom does the extended land use test apply?
(4) The extended land use test applies to a person in relation to land adjacent to the dwelling‑house if:
(a) the person has reached the qualifying age; and
(b) the person is eligible to receive a service pension or income support supplement and that pension or supplement is payable to the person; and
(c) the dwelling‑house has been the person’s principal home for 20 years or more continuously.
Note: For qualifying age see section 5Q.
(5) Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling‑house in which the person lives is a member of a couple:
(a) the extended land use test applies to the first person’s partner (the second person); and
(b) the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling‑house continues to be the second person’s principal home.
Extended land use test
(6) The extended land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling‑house, is more than 2 hectares; and
(b) the Commission determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.
(7) In determining whether a person is making effective use of the land, the Commission is to take into account the following matters:
(a) where the land is located;
(b) the size of the block of land;
(c) the person’s family situation;
(d) the person’s health;
(e) whether the land contains a dwelling‑house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment (within the meaning of the Social Security Act 1991);
(f) whether the land is being used to support:
(i) a family member of the person; or
(ii) a child of a family member of the person;
(g) any current commercial use of the land;
(h) any potential commercial use of the land;
(i) whether the person’s capacity to make commercial use of the land is diminished because the person, or the person’s partner, has responsibility for the care of another person;
(j) whether the block of land is an amalgamation of 2 or more blocks and, if so:
(i) when the amalgamation occurred; and
(ii) whether the amalgamation reduced the potential for the land to produce personal income or to support the person;
(k) environmental issues relating to the land;
(l) any other matter that the Commission considers relevant.
Effect of absences from principal home
(8) A residence of a person is taken to be the person’s principal home during:
(a) if the Commission is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident—any period during which:
(i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and
(b) if the Commission is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident—any period during which:
(i) the person is liable to pay all or some of an accommodation bond by periodic payments (or would be liable to do so, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and
(c) any period during which the residence is, because of paragraph (a) or (b), the principal home of the person’s partner.
Note 1: Accommodation charge and accommodation bond have the same meaning as in the Aged Care Act 1997: see subsection 5L(1).
Note 2: For rent, see subsection 5N(2). For in a care situation, see subsection 5NC(2). For aged care resident, see subsection 5NC(5).
Note 3: This subsection is not meant to imply that a person may have more than one principal home at the same time.
Note 4: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997. For rules about accommodation bonds, see Division 57 of that Act.
(9) 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 or any longer period determined under subsection (9A)) during which the person is temporarily absent from the residence; and
(b) if the person is in a care situation or is an aged care resident—the period of 2 years beginning when the person started to be in a care situation or an aged care resident; and
(c) any period during which:
(i) the person is in a care situation or is an aged care resident; and
(ii) the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person’s partner or non‑illness separated spouse; and
(d) if:
(i) the person is in a care situation or is an aged care resident; and
(ii) while paragraph (c) applies, the person’s partner or non‑illness separated spouse dies while in a care situation or while an aged care resident; and
(iii) the person’s partner or non‑illness separated spouse had been in a care situation or an aged care resident for less than 2 years;
the period of 2 years beginning at the time the person’s partner or non‑illness separated spouse started to be in a care situation or an aged care resident; and
(e) where:
(i) the person is in a care situation or is an aged care resident; and
(ii) while paragraph (c) applies, the person’s partner or non‑illness separated spouse dies (but not while in a care situation or while an aged care resident);
the period of 2 years from that death; and
(f) any period of up to 2 years while the person is absent from the residence and is personally providing community‑based care for another person.
Note 1: For in a care situation, see subsection 5NC(2).
Note 2: For aged care resident, see subsection 5NC(5).
(9A) For the purposes of paragraph (9)(a), the Commission may determine, in writing, a period of up to 24 months if:
(a) a person’s principal home is lost or damaged (including, for example, by a natural disaster); and
(b) the loss or damage was not wilfully caused by the person; and
(c) the person is making reasonable attempts, as a result of the loss or damage, to:
(i) rebuild or repair the principal home; or
(ii) sell the principal home in order to purchase or build another residence that is to be the person’s principal home; or
(iii) purchase or build another residence that is to be the person’s principal home; and
(d) the person has made those attempts within a reasonable period after the loss or damage; and
(e) the person has experienced delays beyond his or her control in:
(i) rebuilding, repairing or selling the principal home; or
(ii) purchasing or building the other residence.
Reasonable security of tenure
(10) 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.
Definition of title document
(11) In this section:
title document, in relation to land, means:
(a) in relation to land title which is registered under a Torrens system of registration—the certificate of title for the land; or
(b) in any other case—the last instrument by which title to the land was conveyed.
Application of Legislative Instruments Act 2003
(12) A determination under subsection (2) or paragraph (6)(b) is not a legislative instrument.
5M Retirement village definitions
(1) In this Act:
member of an ordinary couple with different principal homes has the meaning given by subsection (2).
retirement village has the meaning given by subsections (3) and (4).
retirement village resident has the meaning given by subsection (5).
(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).
(3A) For the purposes of paragraph (3)(b), if accommodation in premises is primarily intended for persons who are a certain age that is more than 55 years, the accommodation in those premises is taken to be primarily intended for persons who are at least 55 years old.
(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) A person is a retirement village resident if the person’s principal home is in a retirement village.
Note: Subsection (3A) was inserted as a response to the decision of the Federal Court in Repatriation Commission v Clarke (unreported, VG73 of 1991).
5MA Granny flat definitions
(1) In this Act, unless the contrary intention appears:
granny flat interest has the meaning given by subsection (2).
granny flat resident has the meaning given by subsection (3).
(2) A person has a granny flat interest in the person’s principal home if:
(a) the residence that is the person’s principal home is a private residence; and
(b) the person has acquired for valuable consideration or has retained:
(i) a right to accommodation for life in the residence; or
(ii) a life interest in the residence.
(2A) Subsection (2) does not apply:
(a) to a person to whom Division 8 of Part IIIB applies because the person has transferred his or her qualifying interest in a farm in accordance with paragraph 49A(1)(a) or (2)(a); or
(b) if the person’s partner has transferred by way of gift:
(i) to an eligible descendant of the person; or
(ii) jointly to an eligible descendant of the person and to the descendant’s partner;
his or her qualifying interest in a farm—to the person’s partner;
if the person or the person’s partner (as the case may be), on so transferring his or her qualifying interest in the farm, has retained a life interest in the dwelling house on the farm, and in any adjacent area of land used primarily for private or domestic purposes in association with that dwelling‑house, that constitute his or her principal home.
(2B) Subsection (2) does not apply:
(a) to a person to whom Division 8A of Part IIIB applies because the person has transferred his or her eligible interest in a sugarcane farm in accordance with paragraph 49Q(1)(a) or (2)(a); or
(b) if the person’s partner has transferred by way of gift:
(i) to an eligible descendant of the person; or
(ii) jointly to an eligible descendant of the person and to the descendant’s partner;
his or her eligible interest in a sugarcane farm—to the person’s partner;
if the person or the person’s partner (as the case may be), on so transferring his or her eligible interest in the farm, has retained a life interest in the dwelling house on the farm, and in any adjacent area of land used primarily for private or domestic purposes in association with that dwelling‑house, that constitute his or her principal home.
(3) A person is a granny flat resident if the person has a granny flat interest in the person’s principal home.
5MB Sale leaseback definitions
(1) In this Act, unless the contrary intention appears:
deferred payment amount has the meaning given by subsections (6), (7) and (8).
initial payment amount has the meaning given by subsections (4) and (5).
sale leaseback agreement has the meaning given by subsections (2) and (3).
sale leaseback home has the meaning given by subsection (9).
sale leaseback resident has the meaning given by subsections (10) and (11).
(2) An agreement is a sale leaseback agreement, in relation to a person, if:
(a) under the agreement the person agrees to sell his or her principal home; and
(b) the residence that is the person’s principal home is a private residence; and
(c) under the agreement the person retains a right to accommodation in the residence; and
(d) under the agreement the buyer is to pay an amount when the person vacates the residence or when the person dies.
(3) An agreement is a sale leaseback agreement for the purposes of this Act if the agreement is an agreement in respect of which a determination under subsection 5R(14) is in force.
(4) The initial payment amount, in relation to a sale leaseback agreement, is the amount that the Commission determines to be the initial amount that the buyer is to pay under the sale leaseback agreement.
(5) In making the determination the Commission is to have regard to the following:
(a) the consideration to be provided by the parties to the sale leaseback agreement;
(b) when that consideration is to be provided;
(c) the payments that are to be made under the sale leaseback agreement;
(d) when those payments are to be made;
(e) any other relevant matters.
(6) The deferred payment amount, in relation to a sale leaseback agreement, is the total amount to be paid by the buyer under the sale leaseback agreement less the initial payment amount.
(7) If the Commission considers that, for any special reason in a particular case, the deferred payment amount should be another amount, the deferred payment amount is that other amount.
Note: sections 52E to 52JE (disposal of assets) may be relevant to working out the deferred payment amount.
(8) Without limiting subsection (7), the Commission may consider that the deferred payment amount should be another amount if:
(a) the parties to the sale leaseback agreement are not at arm’s length; or
(b) the parties to the sale leaseback agreement have undervalued the sale leaseback home so as to reduce the total amount to be paid by the buyer under the agreement.
(9) A residence is a sale leaseback home if the residence is subject to a sale leaseback agreement.
(10) A person is a sale leaseback resident if:
(a) the person’s principal home is subject to a sale leaseback agreement; and
(b) the person is a party to the sale leaseback agreement.
(11) If a person is a member of a couple, the person is a sale leaseback resident if:
(a) the person lives in the sale leaseback home; and
(b) the person’s partner is a sale leaseback resident.
Note: subsection (11) will only be used if a person is not a sale leaseback resident under subsection (10).
5MC Special residence and resident definitions
(1) In this Act, unless the contrary intention appears:
actual value has the meaning given by subsection (4).
special residence has the meaning given by subsection (2).
special resident has the meaning given by subsection (3).
(2) A residence is a special residence if the residence is:
(a) in a retirement village; or
(b) a granny flat; or
(c) a sale leaseback home.
(3) A person is a special resident if the person is:
(a) a retirement village resident; or
(b) a granny flat resident; or
(c) a sale leaseback resident.
(4) In Subdivision C of Division 11 (sections 52KA to 52X), 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 that would be the value of the person’s assets apart from the provisions in point SCH6‑F2.
5N Rent definitions
(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.
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.
Note 1: Subsection (5) deals with the situation when the name of an authority is altered.
Note 2: Rent payable by a person for living in premises in respect of which someone else pays Government rent may also be regarded as Government rent (see subsection (4)).
ineligible property owner means a property owner other than:
(a) a person who is a property owner by virtue of paragraph 5L(4)(c); or
(c) a person who:
(i) is absent from the person’s principal home, in relation to which the person is a property owner; and
(ii) is in a care situation but is not residing in a retirement village; or
(ca) a person who:
(i) is absent from the person’s principal home, in relation to which the person is a property owner; and
(ii) is personally providing community‑based care for another person; 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 section 5LA, for personally providing community‑based care, see subsection 5NC(4), for in a care situation see subsection 5NC(2).
rent has the meaning given by this section.
residential care charge means an amount paid by, or on behalf of, a person to an approved provider (within the meaning of the Aged Care Act 1997) for the provision of care to the person, but does not include an accommodation bond within the meaning of that Act.
(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, that are in Australia and are occupied by the person as the person’s principal home; or
(ia) as a condition of occupancy of premises, or of a part of premises, that are in Australia and are occupied by the person to allow him or her personally to provide community‑based care for another person; or
(ii) for services provided in a retirement village in Australia that is the person’s principal home; or
(iii) if the person is in a care situation and the place where the person receives the care is a place in Australia that is the person’s principal home or would be the person’s principal home apart from subsection 5LA(8) or (9)—for accommodation in the place where the person receives care; or
(iv) for lodging in premises in Australia that are the person’s principal home; or
(v) for the use of a site in Australia 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 in Australia 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 section 5LA.
(3) Subparagraphs (2)(a)(ii) to (vi) (inclusive) do not limit the generality of subparagraph (2)(a)(i).
(3AA) To avoid doubt, an amount that is paid or becomes payable by a person is not rent in relation to the person (either at the time when it is paid or becomes payable or at any later time) if the amount is, or forms part of, a special resident’s entry contribution in relation to the person in respect of a retirement village under section 52M, whether the amount is paid or payable (whether wholly or partly) in a lump sum, by instalments or otherwise.
(3AB) If the whole or any part of an amount that is not rent in relation to a person as mentioned in subsection (3AA) is, or will or may become, repayable to the person, any amount by which the amount so repayable is reduced is not rent in relation to the person (either at the time when the reduction occurs or at any later time).
(3A) If a person is in a care situation and the person’s principal home is not the place where the person receives the care, the person’s rent may be an amount described in any of the subparagraphs of paragraph (2)(a) that applies to the person but cannot include amounts described in different subparagraphs of paragraph (2)(a).
Note: Under subsection 5LA(8) or (9), the principal home of a person in a care situation may be a place other than the place where the person receives care.
(3B) If an amount described in subparagraph (2)(a)(ia) and an amount described in another subparagraph of paragraph (2)(a) are payable by a person, the person’s rent may be an amount described in either of those subparagraphs but cannot include amounts described in different subparagraphs of paragraph (2)(a).
Note: Under subsection 5LA(8) or (9), premises occupied by a person as described in subparagraph (2)(a)(ia) may not be the person’s principal home.
(4) If a person pays, or is liable to pay, rent for living in premises in respect of which another person pays Government rent, the rent paid or payable by the person for living in those premises is taken to be Government rent, unless:
(a) the rent paid by the other person is at or above a rate that the authority receiving the rent has told the Department is the market rate; or
(b) the person shares the premises with that other person and the person’s income has been taken into account in calculating the amount of Government rent payable in respect of those premises.
(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).
People in care situations
(7) Where:
(a) a person in a care situation pays, or is liable to pay, amounts for accommodation and other services in the care situation; 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).
5NA Indexation and rate adjustment definitions
(1) In this Act, unless the contrary intention appears:
current figure, as at a particular time and in relation to an amount that is to be indexed or adjusted under Division 18 of Part IIIB, means:
(a) if the amount has not yet been indexed or adjusted under Division 18 before that time—the amount; and
(b) if the amount has been indexed or adjusted under Division 18 before that time—the amount most recently substituted for the amount under Division 18 before that time.
index number, in relation to a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in respect of that quarter.
Publication of substituted index numbers
(2) Subject to subsection (3), if at any time (whether before or after the commencement of this section), the Australian Statistician publishes an index number for a quarter in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
Change to CPI reference base
(3) If at any time (whether before or after the commencement of this section) the Australian Statistician changes the reference base for the Consumer Price Index, regard is to be had, for the purposes of applying this section after the changed index place, only to index numbers published in terms of the new reference base.
5NB Compensation recovery definitions
(1) In this Act, unless the contrary intention appears:
average weekly earnings, in relation to a lump sum preclusion period, means the amount:
(a) estimated as the average total weekly earnings, during a particular month, of all employees (all persons) in Australia; and
(b) last published by the Australian Statistician before the lump sum compensation payment became payable.
Note: For lump sum preclusion period see subsections 59Q(3) to (7).
compensation has the meaning given by subsection (2).
Note: See also section 59O.
compensation affected pension means:
(a) an invalidity service pension payable to a person who has not reached pension age; or
(b) a partner service pension payable to a person who has not reached pension age; or
(c) income support supplement payable to a person who has not reached qualifying age; or
(f) an education entry payment payable to a person who:
(i) is receiving invalidity service pension or partner service pension; or
(ii) is receiving income support supplement and has not reached qualifying age.
Note 1: For pension age see sections 5QA and 5QB.
Note 2: For qualifying age see section 5Q.
compensation part, in relation to a lump sum compensation payment, has the meaning given by subsections (7) and (8).
compensation payer means:
(a) a person who is liable to make a compensation payment; or
(b) an authority of a State or Territory that has determined that it will make a payment by way of compensation to another person, whether or not the authority is liable to make the payment.
event that gives rise to an entitlement to compensation has the meaning given by subsection (11).
periodic payments period means:
(a) the period to which a periodic compensation payment, or a series of periodic compensation payments, relates; or
(b) in the case of a payment of arrears of periodic compensation payments—the period to which those payments would have related if they had not been made by way of arrears payment.
potential compensation payer means a person who, in the Commission’s opinion, may become a compensation payer.
receives compensation has the meaning given by subsection (10).
Compensation
(2) For the purposes of Part IIIC, compensation means:
(a) a payment of damages or compensation; or
(b) a payment under a scheme of insurance or compensation under a law of the Commonwealth or of a State or Territory, or under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or of a claim under such an insurance scheme;
made wholly or partly in respect of lost earnings or lost capacity to earn. The payment may be in the form of a lump sum (or part of a lump sum) or in the form of periodic payments and may be made either within or outside Australia, but it does not include any payment that, under subsection (3), (4), (5), (6) or (6A), is excluded from the application of this subsection.
Note: Under section 59O, a person may be treated as having received compensation that the person would have received but for the effect of a State or Territory law.
(3) Subsection (2) does not apply to a periodic payment or a lump sum payment referred to in paragraph 26(1)(b) or (2)(b) or subsection 30(3).
(4) Subsection (2) does not apply to a compensation payment if:
(a) the recipient has made contributions (for example, by way of insurance premiums) towards the payment; and
(b) either:
(i) the agreement under which the contributions are made does not provide for the amounts that would otherwise be payable under the agreement being reduced or not payable because the recipient is eligible for or receives the compensation affected pension under this Act; or
(ii) the agreement does so provide but the compensation payment has been calculated without reference to the provision.
(5) Subsection (2) does not apply to any payment of compensation made to a person that was taken into account under Division 5A of Part II to reduce the amount, or stop the payment, of a pension that, apart from that Division, would have been payable to the person under that Part.
(6) Subsection (2) does not apply to any payment of compensation made to a person that was taken into account under Division 4 of Part IV to reduce the amount, or stop the payment, of a pension that, apart from that Division, would have been payable to the person under that Part.
(6A) A payment under a law of the Commonwealth, a State or a Territory that provides for the payment of compensation for a criminal injury does not constitute compensation for the purposes of this Act.
(6B) The reference in subsection (6A) to a criminal injury is a reference to a personal injury suffered, or a disease or condition contracted, as a result of the commission of an offence.
Compensation part of a lump sum
(7) Subject to subsection (8), for the purposes of Part IIIC, the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(b) 50% of the payment if the following circumstances apply:
(i) the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(c) if paragraphs (a) and (b) do not apply—so much of the payment as is, in the Commission’s opinion, in respect of lost earnings or lost capacity to earn, or both.
(8) If a person:
(a) has received periodic compensation payments in respect of lost earnings or lost capacity to earn; and
(b) after receiving those payments, receives a lump sum compensation payment in respect of the lost earnings or lost capacity to earn (the LSP); and
(c) because of receiving the LSP, becomes liable to repay an amount (the Repaid Periodic Compensation Payment—RPCP) equal to the periodic compensation payments received;
then, for the purposes of subsection (7), the amount of the lump sum compensation payment is:
(9) For the purposes of Part IIIC, a payment of arrears of periodic compensation payments is not a lump sum compensation payment.
Note: For the treatment of a payment of arrears of periodic compensation payments where, at the time of the event that gave rise to the compensation payments, the person was receiving a payment under this Act that is covered by Part IIIC, see point SCH6‑E4.
Receives compensation
(10) A person receives compensation whether he or she receives it directly or whether another person receives it, on behalf of, or at the direction of the first person.
Event giving rise to entitlement
(11) For the purposes of Part IIIC, the event that gives rise to a person’s entitlement to compensation for a disease, injury or condition is:
(a) if the disease, injury or condition was caused by an accident—the accident; or
(b) in any other case—the disease, injury or condition first becoming apparent;
and is not, for example, the decision or settlement under which the compensation is payable.
Insurer
(12) A reference in Part IIIC to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer against a liability arising from a claim for compensation includes a reference to:
(a) an authority of a State or Territory that is liable to indemnify a compensation payer against such a liability, whether the authority is so liable under a contract, a law or otherwise; or
(b) an authority of a State or Territory that determines to make a payment to indemnify a compensation payer against such a liability, whether or not the authority is liable to do so.
5NC In care definitions
(1) In this Act:
aged care resident has the meaning given by subsection (5).
in a care situation has the meaning given by subsection (2).
in respite care has the meaning given by subsection (8).
personally providing community‑based care has the meaning given by subsection (4).
receiving community‑based care has the meaning given by subsection (3).
(2) A person is in a care situation if:
(a) the person is residing in premises at which accommodation is provided exclusively or principally for people who have a mental disability; or
(b) the person is a nursing‑home type patient, within the meaning of the Health Insurance Act 1973, of a hospital; or
(c) the person is in respite care; or
(d) the person is receiving community‑based care.
(3) A person is receiving community‑based care if, in the Commission’s opinion, the person needs, and has been receiving or is likely to receive, a substantial level of care in a private residence for at least 14 consecutive days.
(4) A person is personally providing community‑based care for another person if, in the Commission’s opinion:
(a) the first‑mentioned person is personally providing for the other person, in a private residence, a substantial level of care needed by the other person; and
(b) has personally provided, or is likely to personally provide, that level of care for at least 14 consecutive days.
(5) Subject to subsections (6) and (7), a person is an aged care resident for the purposes of this Act if:
(a) the person:
(i) is being provided with residential care through an aged care service conducted by an approved provider; and
(ii) has been provided, or in the Commission’s opinion is likely to be provided, with residential care for at least 14 consecutive days; and
(b) an approval for residential care or flexible care under Part 2.3 of the Aged Care Act 1997 is in force in respect of the person.
(6) A person is taken not to be an aged care resident if the person is in respite care.
(7) The Commission may determine, for the purposes of subsection (5), that a person is taken not to be an aged care resident on a day that occurs:
(a) after the person in fact became an aged care resident; and
(b) before the day occurring 15 days after the person in fact became an aged care resident;
if the Commission is satisfied that, immediately before the day, the person was liable to pay rent.
(8) A person is in respite care on a particular day if the person is eligible for a respite care supplement in respect of that day under section 44‑12 of the Aged Care Act 1997.
(9) In this section, the following terms have the same meanings as in the Aged Care Act 1997:
| aged care service |
| approved provider |
| flexible care |
| provide |
| residential care |
5P Retirement assistance for farmers definitions
(1) In this Act, unless the contrary intention appears:
eligible descendant, in relation to a person, means:
(a) a child, step‑child or adopted child of the person or of a partner of the person; or
(b) a descendant in direct line of a child described in paragraph (a); or
(c) any other person who, in the opinion of the Commission, should be treated for the purposes of this definition as a person described in paragraph (a) or (b).
eligible former partner of a qualifying farmer has the meaning given by subsection (2).
farm means any land that is used:
(a) for the purposes of a farm enterprise; or
(b) in connection with a farm enterprise.
farm enterprise means an enterprise carried on within any of the agricultural, horticultural, pastoral or aquacultural industries.
proprietary company has the meaning that it has in the Corporations Act 2001.
qualifying farmer has the meaning given by subsections (3) and (4).
qualifying interest has the meaning given by subsections (5) and (6).
relevant farm asset, in relation to a farm, means any livestock, crop, plant or equipment that is a produce of, or is used for the purposes of, the farm enterprise.
relevant State land law means any of the following laws:
(a) the Real Property Act 1900 of New South Wales;
(b) the Transfer of Land Act 1958 of Victoria;
(c) the Land Title Act 1994 of Queensland;
(d) the Transfer of Land Act 1893 of Western Australia;
(e) the Real Property Act, 1886 of South Australia;
(f) the Land Titles Act 1980 of Tasmania;
(g) the Real Property Act 1925 of the Australian Capital Territory;
(h) the Real Property Act of the Northern Territory;
(i) a law of a Territory (other than the Australian Capital Territory or the Northern Territory) making similar provision for the registration of dealings with land as the laws mentioned above.
transfer:
(a) in relation to a qualifying interest in a farm—has the meaning given by subsections (7), (8), (10) and (11); or
(b) in relation to a qualifying interest in a relevant farm asset—has the meaning given by subsections (9) and (11).
(2) A person is an eligible former partner of a qualifying farmer if:
(a) the person was, but no longer is (whether because of death or any other reason), the partner of another person; and
(b) on the day on which the person ceased to be the partner of the other person, the other person was a qualifying farmer; and
(c) after ceasing to be the partner of the other person, the person has not again become a member of a couple; and
(d) the person has a qualifying interest in a farm or farms in which the other person had a qualifying interest.
Note: For qualifying interest see subsection (5).
(3) A person is a qualifying farmer if:
(a) the person has, has not ceased to have, and has continuously had for a period of at least 15 years, a qualifying interest in a farm; and
(b) during a period of 15 years, the person or the person’s partner:
(i) has contributed a significant part of his or her labour and capital to the development of a farm or farms; and
(ii) has derived a significant part of his or her income from that farm or those farms.
Note: For qualifying interest see subsection (5).
(4) A person is also a qualifying farmer if:
(a) the person has a qualifying interest in one or more than one farm; and
(b) the qualifying interest in the farm, or each of the farms, was acquired by the person before 15 September 1997; and
(c) the person or the person’s partner or former partner has been involved in farming in Australia for a continuous period of 20 years, or for periods that together add up to 20 years, by:
(i) contributing a significant part of his or her labour to farm enterprises; and
(ii) deriving a significant part of his or her income from farm enterprises.
Note: For qualifying interest see subsection (5).
(5) A person has a qualifying interest in a farm if:
(a) the person has a legal estate or interest in the farm; or
(b) the person has a transferable legal right or a transferable licence to occupy the farm for a particular purpose of the farm enterprise; or
(c) as the mortgagor of a legal estate or interest in the farm (being an estate or interest that is not registered under a relevant State land law), the person has an equitable estate or interest in the farm; or
(d) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm.
(6) A person has a qualifying interest in a relevant farm asset if the person:
(a) has a legal interest in the farm asset; or
(b) is a shareholder in a proprietary company that has a legal estate or interest in the farm asset.
(7) Subject to subsections (8), (10) and (11), a qualifying interest that a person has in a farm is transferred to another person if, and only if, the qualifying interest:
(a) ceases to be vested in the person; and
(b) becomes vested in the other person.
(8) To avoid any doubt, it is stated that if a person who transfers a legal estate or interest in a farm to another person is, under a relevant State land law, registered as being the proprietor (whether that word or any other word is used) of that estate or interest, the legal estate or interest in the farm is taken not to have become vested in the other person unless and until the transfer is registered in accordance with that law.
Note: For relevant State land law see subsection (1).
(9) Subject to subsection (11), a qualifying interest that a person has in a relevant farm asset is transferred to another person if, and only if, the qualifying interest:
(a) ceases to be vested in the person; and
(b) becomes vested in the other person.
(10) If, as the mortgagor of a legal estate or interest in a farm (see paragraph (5)(c)), a person has a qualifying interest in the farm, the person is taken to have transferred that qualifying interest in the farm to another person only if the person:
(a) has, under a relevant State land law, become registered as the proprietor (whether that word or any other word is used) of the legal estate or interest in the farm; and
(b) has then transferred that legal estate or interest to the other person.
(11) If a person has a qualifying interest in a farm or a relevant farm asset because (see paragraphs (5)(d) and (6)(b)) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm, or a legal interest in the relevant farm asset (as the case may be), the person is taken to have transferred to another person his or her qualifying interest in the farm or relevant farm asset only if the person:
(a) has acquired the company’s legal estate or interest in the farm or the company’s legal interest in the relevant farm asset; and
(b) has then transferred it to the other person.
5PAA Retirement assistance for sugarcane farmers definitions
(1) In this Act, unless the contrary intention appears:
eligible former partner of a qualifying sugarcane farmer has the meaning given by subsection (2).
eligible interest has the meaning given by subsections (5) and (6).
qualifying sugarcane farmer has the meaning given by subsections (3) and (4).
RASF closing day has the meaning given by section 49M.
RASF commencement day has the meaning given by section 49M.
relevant sugarcane farm asset means any relevant farm asset that is a produce of, or is used for the purposes of, a sugarcane farm enterprise.
Note: For relevant farm asset see subsection 5P(1).
sugarcane farm means a farm that is used predominantly for the purposes of a sugarcane farm enterprise.
Note: For farm see subsection 5P(1).
sugarcane farm enterprise means a farm enterprise where:
(a) a majority of the enterprise is undertaken for the purposes of growing commercial quantities of sugar cane; or
(b) if paragraph (a) does not apply—a significant proportion of the enterprise is undertaken for the purposes of growing commercial quantities of sugar cane and the Commission has determined, in accordance with any guidelines made by the Commission for the purposes of this paragraph, that there are special circumstances that mean that the farm enterprise should be treated as an enterprise to which paragraph (a) applies.
Note: For farm enterprise see subsection 5P(1).
total net value has the meaning given by section 49R.
transfer:
(a) in relation to an eligible interest in a sugarcane farm—has the meaning given by subsections (7), (8), (10), (11) and (12); or
(b) in relation to an eligible interest in a relevant sugarcane farm asset—has the meaning given by subsections (9), (11) and (12).
Note: Subsection 5P(1) also contains other definitions relevant to the operation of Division 8A of Part IIIB.
(2) A person is an eligible former partner of a qualifying sugarcane farmer if:
(a) the person was, but no longer is (whether because of death or any other reason), the partner of another person; and
(b) on the day on which the person ceased to be the partner of the other person, the other person was a qualifying sugarcane farmer; and
(c) after ceasing to be the partner of the other person, the person has not again become a member of a couple; and
(d) the person has an eligible interest in a sugarcane farm or sugarcane farms in which the other person had an eligible interest.
Note: For eligible interest see subsection (5).
(3) A person is a qualifying sugarcane farmer if:
(a) the person has, has not ceased to have, and has continuously had for a period of at least 15 years, an eligible interest in a farm; and
(b) the farm is a sugarcane farm and has been a sugarcane farm:
(i) for at least the last 2 years; and
(ii) at all times since 29 April 2004; and
(c) during a period of 15 years, the person or the person’s partner:
(i) has contributed a significant part of his or her labour and capital to the development of a farm or farms; and
(ii) has derived a significant part of his or her income from that farm or those farms; and
(d) during at least the last 2 years:
(i) that contribution of labour and capital has been to the development of a sugarcane farm or sugarcane farms; and
(ii) that derivation of income has been from that sugarcane farm or those sugarcane farms.
Note: For eligible interest see subsection (5).
(4) A person is also a qualifying sugarcane farmer if:
(a) the person has an eligible interest in one or more than one sugarcane farm; and
(b) the eligible interest in the farm, or each of the farms, was acquired by the person before 29 April 2004; and
(c) the person or the person’s partner or former partner has been involved in farming in Australia for a continuous period of 20 years, or for periods that together add up to 20 years, by:
(i) contributing a significant part of his or her labour to farm enterprises; and
(ii) deriving a significant part of his or her income from farm enterprises; and
(d) during at least the last 2 years:
(i) that contribution of labour has been to sugarcane farm enterprises; and
(ii) that derivation of income has been from sugarcane farm enterprises.
Note: For eligible interest see subsection (5).
(5) A person has an eligible interest in a sugarcane farm if:
(a) the person has a legal estate or interest in the farm; or
(b) the person has a transferable legal right or a transferable licence to occupy the farm for a particular purpose of the farm enterprise; or
(c) as the mortgagor of a legal estate or interest in the farm (being an estate or interest that is not registered under a relevant State land law), the person has an equitable estate or interest in the farm; or
(d) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm; or
(e) the value of the person’s assets includes an amount calculated (in accordance with section 52ZZR) by reference to the value of the farm.
Note: The eligible interest in a sugarcane farm that is relevant for the operation of Division 8A of Part IIIB is the interest held by a person immediately before that interest is transferred to an eligible descendant. So, for example, to find out whether an interest is covered by paragraph (e), the provisions of Division 11A of Part IIIB must be applied in relation to the person’s circumstances as they were immediately before the transfer.
(6) A person has an eligible interest in a relevant sugarcane farm asset if:
(a) the person has a legal interest in the relevant farm asset; or
(b) the person is a shareholder in a proprietary company that has a legal estate or interest in the relevant farm asset; or
(c) the value of the person’s assets includes an amount calculated (in accordance with section 52ZZR) by reference to the value of the relevant farm asset.
Note: The eligible interest in a relevant sugarcane farm asset that is relevant for the operation of Division 8A of Part IIIB is the interest held by a person immediately before that interest is transferred to an eligible descendant. So, for example, to find out whether an interest is covered by paragraph (c), the provisions of Division 11A of Part IIIB must be applied in relation to the person’s circumstances as they were immediately before the transfer.
(7) Subject to subsections (8), (10), (11) and (12), an eligible interest that a person has in a sugarcane farm is transferred to another person if, and only if, the eligible interest:
(a) ceases to be vested in the person; and
(b) becomes vested in the other person.
(8) To avoid any doubt, it is stated that if a person who transfers a legal estate or interest in a sugarcane farm to another person is, under a relevant State land law, registered as being the proprietor (whether that word or any other word is used) of that estate or interest, the legal estate or interest in the farm is taken not to have become vested in the other person unless and until the transfer is registered in accordance with that law.
Note: For relevant State land law see subsection 5P(1).
(9) Subject to subsections (11) and (12), an eligible interest that a person has in a relevant sugarcane farm asset is transferred to another person if, and only if, the eligible interest:
(a) ceases to be vested in the person; and
(b) becomes vested in the other person.
(10) If, as the mortgagor of a legal estate or interest in a sugarcane farm (see paragraph (5)(c)), a person has an eligible interest in the farm, the person is taken to have transferred that eligible interest in the farm to another person only if the person:
(a) has, under a relevant State land law, become registered as the proprietor (whether that word or any other word is used) of the legal estate or interest in the farm; and
(b) has then transferred that legal estate or interest to the other person.
(11) If a person has an eligible interest in a sugarcane farm or a relevant sugarcane farm asset because (see paragraphs (5)(d) and (6)(b)) the person is a shareholder in a proprietary company that has a legal estate or interest in the farm, or a legal interest in the relevant farm asset (as the case may be), the person is taken to have transferred to another person his or her eligible interest in the farm or relevant farm asset only if the person:
(a) has acquired the company’s legal estate or interest in the farm or the company’s legal interest in the relevant farm asset; and
(b) has then transferred it to the other person.
(12) An eligible interest that a person (the first person) has in a sugarcane farm or a relevant sugarcane farm asset because (see paragraphs (5)(e) and (6)(c)) the value of the first person’s assets includes an amount calculated (in accordance with section 52ZZR) by reference to the value of the farm or relevant farm asset is transferred to another person if:
(a) the first person is divested of that eligible interest; and
(b) as a result, the other person gains an eligible interest in the farm or relevant farm asset of a value that is referrable to the full value of the eligible interest divested.
(13) To avoid doubt, if:
(a) a person is able to transfer an eligible interest under either subsection (11) or (12); and
(b) the person transfers that interest under subsection (12);
the person is not required to meet the requirements of subsection (11) in relation to the transfer.
5PB Seniors health card definitions
(1) In this Act, unless the contrary intention appears:
holder of a seniors health card has the meaning given by subsection (2).
(2) A person is the holder of a seniors health card while there is in force a determination under section 118ZG or 118ZP that the person is entitled to a seniors health card.
5PC Exempt funeral investments
(1) Work out whether a funeral investment that relates to a particular funeral is an exempt funeral investment by applying these rules:
(a) the expenses for the funeral must not be prepaid; and
(b) in relation to that funeral:
(i) only one investment of not more than $10,000 can be an exempt funeral investment; or
(ii) only two investments that combined are not more than $10,000 can be exempt funeral investments.
Note: The amounts in paragraph (1)(b) are indexed each year on 1 July (see Division 18 of Part IIIB).
(2) Disregard any return on an investment in determining the amount of an investment for the purposes of this section.
(3) For the purposes of subsection (1), a funeral investment means an investment, being an investment that cannot be realised before maturity and the return on which is not payable before maturity, that:
(a) matures on the death of whichever member of a couple dies first or dies last and is to be applied on maturity to the expenses of the funeral of that member of the couple; or
(b) matures on the death of:
(i) the investor; or
(ii) if the investor is a member of a couple at the time the investment is made, the investor’s partner at that time;
and is to be applied on maturity to the expenses of the funeral of the person on whose death it matures.
5Q General definitions
(1) In this Act, unless the contrary intention appears:
account, in relation to a financial institution, means the account maintained by a person with the institution to which is credited money received on deposit by the institution 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.
advance payment eligible amount, for a person, means:
(a) if the person is receiving a service pension worked out under subpoint SCH6‑A1(2) of Schedule 6—the sum of the following amounts:
(i) the person’s maximum basic rate;
(ii) the amount (if any) by which the person’s pension supplement amount exceeds the person’s minimum pension supplement amount; or
(b) otherwise—the result of paragraph (a) worked out as if the person were receiving a service pension worked out under subpoint SCH6‑A1(2) of Schedule 6.
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, when used in a geographical sense, includes the external Territories for the purposes of section 5PAA, Parts III, IIIA and IIIAB, Division 8A of Part IIIB, Subdivision E of Division 11 of Part IIIB, sections 52ZO and 58A, Parts IIID, VIIA, VIIAD and VIIC, section 132 and Schedule 6.
austudy payment has the meaning given by the Social Security Act 1991.
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.
Board means the Veterans’ Review Board continued in existence by section 134.
clean energy advance means an advance described in Subdivision A or C of Division 1 of Part IIIE.
clean energy bonus under an Act or scheme means any of the following that is provided for by the Act or scheme:
(a) a payment known as a clean energy advance;
(c) an increase that is described using the phrase “clean energy” and affects the rate of another payment that is provided for by the Act or scheme.
clean energy payment means:
(a) clean energy advance; or
(c) an essential medical equipment payment.
clean energy underlying payment means:
(a) a pension under Part II or IV at a rate determined under or by reference to Division 4 of Part II; or
(b) a pension under Part II or IV at a rate determined under or by reference to subsection 30(1); or
(c) service pension; or
(d) seniors supplement.
comparable foreign pension means a payment that is:
(a) available from a foreign country; and
(b) similar to a service pension, income support supplement or a social security pension.
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
CTPA means the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.
decision includes a determination and an assessment.
Defence Force Income Support Allowance or DFISA means Defence Force Income Support Allowance under Part VIIAB.
Defence Minister has the meaning given by the Military Rehabilitation and Compensation Act 2004.
DFISA bonus means DFISA bonus under Part VIIAB (and does not include DFISA bonus bereavement payment under Subdivision C of Division 3 of that Part).
DFISA bonus bereavement payment means a DFISA bonus bereavement payment under Subdivision C of Division 3 of Part VIIAB.
disability pension, for the purposes of Parts III and IIIA, means:
(a) a pension under Part II or IV (other than a pension that is payable under section 30 to a dependant of a deceased veteran); 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 payment (other than a pension referred to in paragraph (a) or (c) 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.
domiciled has a meaning affected by section 11B.
EMEP residence has the meaning given by section 63A.
essential medical equipment payment has the meaning given by section 63A.
exempt funeral investment has the meaning given by section 5PC.
Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.
financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959.
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).
immediate family member, of a person, means an individual:
(a) who is a natural parent, adoptive parent or step‑parent of the person; or
(ab) who is the person’s parent because of subsection 10A(1); or
(b) who is, or was when the person was under 18 years of age, a legal guardian of the person; or
(c) who is a grandparent of the person; or
(d) who is a sibling of the person.
incentive allowance has the meaning that was given to that expression by the Social Security Act 1991 as in force immediately before 12 November 1991.
Income Tax Assessment Act means the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997.
income year has the meaning given by the Income Tax Assessment Act 1997.
joint ownership includes ownership as joint tenants or tenants in common.
medical equipment has the meaning given by section 63A.
Military Rehabilitation and Compensation Act Education and Training Scheme means the scheme determined under section 258 of the Military Rehabilitation and Compensation Act 2004.
Military Rehabilitation and Compensation Commission means the Military Rehabilitation and Compensation Commission established under section 361 of the MRCA.
MRCA means the Military Rehabilitation and Compensation Act 2004.
MRCA commencement date means the date on which section 3 of the MRCA commences.
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, in Parts IIIA, IIIAB, IIIB and IIIC, section 122B and Schedule 6, includes income support supplement.
pension age:
(a) in relation to a veteran—has the meaning given by section 5QA; or
(b) in relation to a person other than a veteran—has the meaning given by section 5QB.
Note: The qualifying age for income support supplement is separately provided for (see section 5Q).
pension bonus means pension bonus under Part IIIAB (and does not include pension bonus bereavement payment under Division 11A of that Part).
pension bonus bereavement payment means a pension bonus bereavement payment under Division 11A of Part IIIAB.
pension payday means:
(a) the Thursday falling on 11 July 1991; and
(b) each succeeding alternate Thursday.
Note: Part of an instalment of a pension may be paid on a different day if a determination is in force under subsection 58(3A) or 121(5A) (about weekly payments of pension instalments).
pension period means a period of 2 weeks that:
(a) starts 2 days before the beginning of a pension payday; and
(b) ends 2 days before the beginning of the next pension payday.
pension supplement amount, for a person:
(a) whose rate of service pension is worked out under subpoint SCH6‑A1(2) or (3) of Schedule 6; or
(b) whose rate of service pension is worked out under subpoint SCH6‑A1(4) of Schedule 6 and is the provisional rate worked out under that subpoint;
means the amount worked out and added under the pension supplement Module of the Rate Calculator.
person with medical needs has the meaning given by section 63A.
physically present in a remote area has the meaning given by subsection (2).
port includes airport.
principal beneficiary, of a special disability trust, has the meaning given by subsection 52ZZZWA(1).
qualifying age for a person means:
(a) if the person is a veteran—the pension age for that person; or
(b) if the person is not a veteran—the age that would be the pension age for that person if he or she were a veteran.
quarterly pension supplement means the separate payment described in subsection 60A(1).
Rate Calculator means the Rate Calculator in Part 2 of Schedule 6.
recoverable amount has the meaning given by subsection 205(8).
remote area means:
(a) those parts of Australia referred to in Part I of Schedule 2 to the Income Tax Assessment Act; and
(aa) those parts of Australia referred to in Part II of that Schedule to that Act that are further than 250 kilometres by the shortest practicable surface route from the nearest urban centre with a census population (within the meaning of that Act) of 2,500 or more; and
(ab) those places in Australia that, for the purposes of that Act, are treated as if they were in a part of Australia referred to in paragraph (a) or (aa).
remunerative work includes any remunerative activity.
Repatriation Private Patient Principles means the principles, as in force from time to time, determined by the Commission under section 90A.
retirement age:
(a) in relation to a person who is a war widow or a war widower but is not a veteran—means the age that would be the pension age for that person if he or she were a veteran; or
(b) in relation to any other person—means the pension age for that person.
Secretary means the Secretary of the Department.
seniors supplement means seniors supplement under Part VIIAD.
service pension means:
(a) an age service pension; or
(b) an invalidity service pension; or
(c) a partner service pension.
service pensioner means a person who is receiving a service pension.
sibling, of a person, except for the purposes of sections 123 to 123E, includes a half‑brother, half‑sister, adoptive brother, adoptive sister, stepbrother or stepsister of the person, but does not include a foster‑brother or foster‑sister of the person.
Note: For the meaning of sibling in sections 123 to 123E, see subsection 123(1).
Social Security Act means the Social Security Act 1991.
social security benefit has the same meaning as it has in the Social Security Act.
social security payment has the same meaning as in the Social Security Act.
social security pension has the same meaning as it has in the Social Security Act.
special disability trust has the meaning given by section 52ZZZW.
tax file number has the same meaning as in Part VA of the Income Tax Assessment Act 1936.
tax year means:
(a) a year of income (within the meaning of the Income Tax Assessment Act 1936); or
(b) an income year.
temporarily, in relation to a departure or absence from Australia, has a meaning affected by subsection (3) or (4), as the case requires.
tobacco product means:
(a) tobacco (in any form); or
(b) any product that:
(i) contains tobacco as its main or a substantial ingredient; and
(ii) is not included in the Australian Register of Therapeutic Goods kept under the Therapeutic Goods Act 1989.
use, in relation to a tobacco product, includes smoke, chew or inhale.
war widow/war widower—pensioner means:
(a) a person who is receiving a pension under Part II or IV of this Act at a rate determined under or by reference to subsection 30(1); or
(b) a person who has received a lump sum mentioned in paragraph 234(1)(b) of the MRCA, or who is receiving a weekly amount mentioned in that paragraph.
youth allowance has the meaning given by the Social Security Act 1991.
(1A) In Parts VIII, XI and XIA, unless the contrary intention appears:
British nuclear test defence service has the same meaning as in Part IV.
defence service has the same meaning as in Part IV.
hazardous service, in relation to a member of the Forces, has the same meaning as in section 120.
member of a Peacekeeping Force has the same meaning as in Part IV.
member of the Forces has the same meaning as in Part IV.
peacekeeping service has the same meaning as in Part IV.
Definition of relates to service for injuries, diseases and deaths
(1B) For the purposes of this Act, an injury, disease or death relates to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) in the case of an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(e) in the case of a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f) in the case of a death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
Definition of relates to service for aggravations and material contributions
(1C) For the purposes of this Act, an aggravation of, or a material contribution to, an injury or disease relates to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) in the case of an aggravation of, or a material contribution to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(e) in the case of an aggravation of, or a material contribution to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
(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.
Note: the rule set out in subsection (2) may be modified by a determination under subsection 5R(11) or 5R(12).
(3) In determining whether a person has left Australia temporarily or otherwise, regard is to be had to the following:
(a) the purpose for which the person left Australia;
(b) the intended duration of the person’s absence from Australia;
(c) the frequency of the occasions on which the person has left Australia.
(4) In determining whether a person is absent from Australia temporarily or otherwise, regard is to be had to the following:
(a) the purpose of the absence;
(b) the intended duration of the absence;
(c) the frequency of such absences.
(5) For the purposes of this Act, if under a provision of this Act one person is the child of another person because the person is a child of the other person within the meaning of the Family Law Act 1975, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
Note: Paragraph 10(1)(b) and paragraph (b) of the definition of child in section 52ZO are examples of provisions under which one person may be the child of another person because the person is a child of the other person within the meaning of the Family Law Act 1975.
(6) Subsection (5) does not apply for the purposes of determining when a person and his or her partner are within a prohibited relationship under subsection 5E(6). However, this does not prevent expressions used in subsection 5E(6) from having their ordinary meaning.
5QAA Equal amounts
(1) Where:
(a) a provision of this Act refers to:
(i) the greater or greatest, or the higher or highest; or
(ii) the lesser or least, or the lower or lowest;
of 2 or more amounts; and
(b) the amounts are equal;
the provision is taken to refer to one only of the amounts.
(2) Where:
(a) a provision of this Act refers to the greatest or highest of 3 or more amounts; and
(b) 2 or more (but not all) of the amounts are equal and exceed the other amount or other amounts;
the provision is taken to refer to one only of those equal amounts.
(3) Where:
(a) a provision of this Act refers to the least or lowest of 3 or more amounts; and
(b) 2 or more (but not all) of the amounts are equal and are less than the other amount or other amounts;
the provision is taken to refer to one only of those equal amounts.
5QA Pension age for veterans
(1) This section deals with the pension age for veterans.
Men
(2) A man reaches pension age when he turns 60 years.
Women
(3) A woman born before 1 July 1940 reaches pension age when she turns 55.
(4) A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.
| Table |
| Column 1 Item no. | Column 2 Period within which woman was born (both dates inclusive) | Column 3 Pension age |
| 1. | From 1 July 1940 to 31 December 1941 | 55 years and 6 months |
| 2. | From 1 January 1942 to 30 June 1943 | 56 years |
| 3. | From 1 July 1943 to 31 December 1944 | 56 years and 6 months |
| 4. | From 1 January 1945 to 30 June 1946 | 57 years |
| 5. | From 1 July 1946 to 31 December 1947 | 57 years and 6 months |
| 6. | From 1 January 1948 to 30 June 1949 | 58 years |
| 7. | From 1 July 1949 to 31 December 1950 | 58 years and 6 months |
| 8. | From 1 January 1951 to 30 June 1952 | 59 years |
| 9. | From 1 July 1952 to 31 December 1953 | 59 years and 6 months |
(5) A woman born on or after 1 January 1954 reaches pension age when she turns 60.
5QB Pension age for persons other than veterans
(1) This section deals with the pension age for persons other than veterans.
Men
(2) A man born during the period specified in column 2 of an item in the following table reaches pension age when he turns the age specified in column 3 of that item.
| Table—Pension age for men |
| Column 1 Item | Column 2 Period during which man was born | Column 3 Pension age |
| 1 | On or before 30 June 1952 | 65 years |
| 2 | 1 July 1952 to 31 December 1953 | 65 years and 6 months |
| 3 | 1 January 1954 to 30 June 1955 | 66 years |
| 4 | 1 July 1955 to 31 December 1956 | 66 years and 6 months |
| 5 | On or after 1 January 1957 | 67 years |
Women
(3) A woman born before 1 July 1935 reaches pension age when she turns 60 years.
(4) A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item.
| Table |
| Column 1 Item no. | Column 2 Period within which woman was born (both dates inclusive) | Column 3 Pension age |
| 1. | From 1 July 1935 to 31 December 1936 | 60 years and 6 months |
| 2. | From 1 January 1937 to 30 June 1938 | 61 years |
| 3. | From 1 July 1938 to 31 December 1939 | 61 years and 6 months |
| 4. | From 1 January 1940 to 30 June 1941 | 62 years |
| 5. | From 1 July 1941 to 31 December 1942 | 62 years and 6 months |
| 6. | From 1 January 1943 to 30 June 1944 | 63 years |
| 7. | From 1 July 1944 to 31 December 1945 | 63 years and 6 months |
| 8. | From 1 January 1946 to 30 June 1947 | 64 years |
| 9. | From 1 July 1947 to 31 December 1948 | 64 years and 6 months |
(5) A woman born during the period specified in column 2 of an item in the following table reaches pension age when she turns the age specified in column 3 of that item.
| Table—Pension age for women |
| Column 1 Item | Column 2 Period during which woman was born | Column 3 Pension age |
| 1 | 1 January 1949 to 30 June 1952 | 65 years |
| 2 | 1 July 1952 to 31 December 1953 | 65 years and 6 months |
| 3 | 1 January 1954 to 30 June 1955 | 66 years |
| 4 | 1 July 1955 to 31 December 1956 | 66 years and 6 months |
| 5 | On or after 1 January 1957 | 67 years |
5R Determinations having interpretative effect
Continuous full‑time service determination; member of unit of Defence Force determination
(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 their 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 is in respite care; and
(c) the member who is in 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.
Note: For in respite care, see subsection 5NC(8).
(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 is in respite care.
Remote area determination—current or future absence from remote area
(11) If the Commission is satisfied that:
(a) a person’s age or invalidity service pension or income support supplement includes an amount of remote area allowance; and
(b) the person’s remote area allowance includes an amount for an FTB child or a regular care child; and
(d) the absence is, or is likely to be, longer than 8 weeks; and
(e) the absence is due to special circumstances (for example, the person’s medical treatment or the person’s attendance at a rehabilitation or training course);
the Commission may make a written determination that, despite that absence, the person’s rate of pension or income support supplement continues to include remote area allowance for the period specified in the determination while the person has an FTB child, or a regular care child, (as the case requires).
Note 1: For an FTB child and a regular care child see subsection 5F(1).
Note 2: a person whose absence from a remote area is longer than 8 weeks would not normally continue to be entitled to remote area allowance (see subsection 5Q(2)).
Remote area determination—past absence from remote area
(12) If the Commission is satisfied that, in relation to a period:
(a) a person is receiving an age or invalidity service pension or income support supplement; and
(b) the person’s usual place of residence is in a remote area; and
(c) because the person is absent from the remote area for longer than 8 weeks, the person’s rate of service pension or income support supplement ceases to include an amount by way of remote area allowance; and
(d) immediately before the person’s rate ceases to include remote area allowance, the remote area allowance includes an amount for an FTB child or a regular care child;
the Commission may make a written determination that, despite that absence, the person’s rate of pension or income support supplement continues to include remote area allowance for the period specified in the determination while the person has an FTB child, or a regular care child, (as the case requires).
Note 1: For an FTB child and a regular care child see subsection 5F(1).
Note 2: a person whose absence from a remote area is longer than 8 weeks would not normally continue to be entitled to remote area allowance (see subsection 5Q(2)).
(13) The period specified by the Commission in a determination under subsection (12) must not commence earlier than 3 months before the Commission is notified that the person is absent from the remote area.
Sale leaseback agreement determination
(14) The Commission may determine that an agreement is a sale leaseback agreement if the Commission is satisfied that the agreement is substantially similar in its effect to an agreement referred to in subsection 5MB(2).
(15) The determination must be in writing.
5T Lodgment of claims, applications, requests and documents
(1) This section regulates the lodgment of all claims, applications, requests or other documents under this Act.
Note: So far as concerns the lodgment of documents with the Veterans’ Review Board, the Repatriation Medical Authority and the Specialist Medical Review Council, these matters are dealt with in Parts IX, XIA and XIB respectively.
(2) For the purposes of this Act, a claim, application, request or other document, other than a claim, application, request or other document that is approved by the Commission for electronic lodgment and that is transmitted electronically:
(a) is taken to have been lodged at an office of the Department in Australia only if the claim, application, request or other document is:
(i) lodged at a place approved by the Commission for the purposes of this subsection; or
(ii) delivered to a person approved by the Commission for the purposes of this subsection; and
(b) is taken to have been so lodged on the day on which it is received at that place or delivered to that person.
(3) For the purposes of this Act, a claim, application, request or other document that is approved by the Commission for electronic lodgment and that is transmitted electronically:
(a) is taken to have been lodged at an office of the Department in Australia only if the claim, application, request or document is transmitted electronically:
(i) in a manner approved by the Commission for the purposes of this subsection; and
(ii) to an electronic address approved by the Commission for the purposes of this subsection;
in relation to claims, applications, requests or documents of that kind; and
(b) is taken to have been so lodged on the day on which it is so received at that electronic address.
(4) Claims, applications, requests and other documents transmitted electronically other than in a manner approved by the Commission or to an electronic address other than an electronic address approved by the Commission are not to be treated as having been validly lodged.
(5) The Commission may approve a place within or outside Australia for the purposes of subparagraph (2)(a)(i).
(6) For the purposes of this Act, a claim, application, request or other like document is taken to have been made on the day on which, under subsection (2) or (3), it is taken to have been lodged at an office of the Department in Australia.
(7) For the purposes of this Act, a notice or like document is taken to have been given on the day on which, under subsection (2) or (3), it is taken to have been lodged at an office of the Department in Australia.
(8) If any provision of this Act requires any material to be lodged in support of a claim, application, request or other document, that supporting material:
(a) unless paragraph (b) applies—may be lodged in accordance with this section in the same manner as the claim, application, request or other document to which it relates; and
(b) if the supporting material is not appropriate to be lodged in the same manner as the claim, application, request or other document to which it relates—may be lodged in such other manner contemplated by this section as the Commission approves.
5U Notes
For the purposes of this Act, a Note is taken to be part of:
(a) if the Note immediately follows a section that does not contain subsections—the section; or
(b) if the Note immediately follows a subsection—the subsection; or
(c) if the Note immediately follows a point in a Rate Calculator—the point; or
(d) if the Note immediately follows a Step in a Method statement and is aligned with the text of the Step—the Step; or
(e) if the Note immediately follows a Table—the Table; or
(f) if the Note immediately follows a paragraph and is aligned with the text of the paragraph—the paragraph.
6 Operational service—general outline
Sections 6A to 6F deal with operational service as set out in the following table:
| Operational service |
| Item | Section number | Type of operational service |
| 1 | 6A | Operational service—world wars |
| 2 | 6B | Operational service—Australian mariners |
| 3 | 6C | Operational service—post World War 2 service in operational areas |
| 4 | 6D | Operational service—other post World War 2 service |
| 4A | 6DA | Operational service—minesweeping and bomb/mine clearance service |
| 4B | 6DB | Operational service—service on submarine special operations from 1978 to 1992 |
| 5 | 6E | Operational service—Korean demilitarised zone and Vietnam |
| 6 | 6F | Operational service—warlike and non‑warlike service |
6A Operational service—world wars
(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full‑time service of a kind referred to in column 3 of that item.
| Operational service |
| Item | Person | Nature of service |
| 1 | A member of the Defence Force | (a) continuous full‑time service outside Australia during a war to which this Act applies (b) continuous full‑time service for a period of at least 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) between 19 February 1942 and 12 November 1943 (both dates inclusive) (c) continuous full‑time service during a war to which this Act applies rendered within Australia immediately before, or immediately after, a period of continuous full‑time service of the kind referred to in paragraph (a) or (b) (d) continuous full‑time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy |
| 2 | A member of the Defence Force who enlisted in the Defence Force while living on a Torres Strait Island | (a) continuous full‑time service for a period of at least 3 months on that island between 14 March 1942 and 18 June 1943 (both dates inclusive) (b) continuous full‑time service during a war to which this Act applies rendered within Australia immediately before, or immediately after, a period of continuous full‑time service of the kind referred to in paragraph (a) |
| 3 | A member of the naval, military or air forces of a Commonwealth country or of an allied country who was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces | Continuous full‑time service during a war to which this Act applies rendered: (a) outside that country; or (b) within that country but in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy |
Note: Section 11B may affect a person’s domicile immediately before appointment or enlistment.
(2) A person referred to in column 2 of an item in the following table is taken to have been rendering operational service during the period, or at the time, specified in column 3 of that item.
| Operational service |
| Item | Person | Relevant period or time |
| 1 | A person who was, during a war to which this Act applies, employed by the Commonwealth on a special mission outside Australia | The period during which the person was so employed by the Commonwealth |
| 2 | An eligible civilian who was killed, during the invasion of the Territory of Papua or the Territory of New Guinea during World War 2, as a result of action by the enemy | The time of the event as a result of which the person was killed |
| 3 | An eligible civilian who was detained by the enemy during World War 2 | The period during which the person was so detained |
| 4 | A person who, while rendering continuous full‑time service as a member of the Defence Force within Australia during World War 2, was injured, or contracted a disease, as a result of enemy action | The time of the event as a result of which the person was injured or contracted the disease |
(3) Any continuous full‑time service that was rendered during World War 2 by a member of the Defence Force (other than a member of the Interim Forces) on or after the cut off date for the member is not taken to be operational service.
(4) For the purposes of subsection (3), the cut off date for a member of the Defence Force is the date applicable to the member in accordance with the following table:
| Cut off date |
| Item | Member | Date |
| 1 | A member who was appointed or enlisted for war service in any part of the Defence Force that was raised during World War 2 for war service, or solely for service during that war or during that war and a definite period immediately following that war | 1 July 1951 |
| 2 | A member who was appointed or enlisted in the Citizen Forces and was called up for continuous full‑time service for the duration of, or directly in connection with, World War 2 | 1 July 1951 |
| 3 | A member who served in the British Commonwealth Occupation Force in Japan | 1 July 1951, or the day on which the member arrived back in Australia on the completion of his or her service in that Force, whichever is the earlier |
| 4 | Any other member | 3 January 1949 |
6B Operational service—Australian mariners
(1) A person is taken to have been rendering operational service during:
(a) any period of employment outside Australia as an Australian mariner on a ship; or
(b) any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment referred to in paragraph (a).
(2) A person who, while employed within Australia as an Australian mariner on a ship, was injured, or contracted a disease, as a result of enemy action is taken to have been rendering operational service at the time of the event as a result of which the person was injured or contracted the disease.
(3) A person who was employed within Australia as an Australian mariner on a ship in such circumstances that the employment should, in the opinion of the Commission, be treated as employment in actual combat against the enemy is taken to have been rendering operational service while the person was so employed.
(4) Without limiting subsection (1), a person is taken to have been employed outside Australia as an Australian mariner on a ship in each of the following circumstances:
(a) at any time when the person was at a place outside Australia on leave from the ship while the ship was at a port outside Australia;
(b) at any time when the person was outside Australia while on his or her way to take up employment as an Australian mariner on a ship;
(c) while the person was awaiting return to Australia from employment as an Australian mariner on a ship;
(d) while the person was returning to Australia from employment as an Australian mariner on a ship.
(5) For the purposes of this section, if a person was employed as an Australian mariner on a ship undertaking a voyage for the purpose of going from a place within Australia to another place within Australia, the person is taken to have been employed within Australia during the whole of the voyage.
(6) In this section:
Australia does not include an external territory.
6C Operational service—post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full‑time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full‑time service.
(2) A member of the naval, military or air forces of a Commonwealth country or of an allied country who:
(a) was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces; and
(b) has rendered continuous full‑time service in an operational area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full‑time service.
Note: Section 11B may affect a person’s domicile immediately before appointment or enlistment.
(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full‑time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
(4) If, while rendering continuous full‑time service in an operational area, a member of the Defence Force has:
(a) returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces; or
(b) returned to Australia on emergency or other leave granted on compassionate grounds; or
(c) returned to Australia on duty; or
(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force;
only so much of the period of service of the member within Australia after his or her return and while the member:
(e) continued to be allotted for duty in an operational area; or
(f) continued to be a member of a unit of the Defence Force allotted for duty in an operational area;
as does not exceed 14 days is taken, for the purposes of subsection (1), to be a period when the member was rendering continuous full‑time service in the operational area.
6D Operational service—other post World War 2 service
(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a) was assigned for service:
(i) in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or
(ii) in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii) in North East Thailand (including Ubon) at any time during the period from and including 28 July 1962 to and including 24 June 1965; or
(iv) in North East Thailand (not including Ubon) at any time during the period from and including 31 May 1962 to and including 27 July 1962; or
(b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, 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.
Note: Service in Ubon in Thailand between 31 May 1962 and 27 July 1962 is taken to be operational service because of section 6C and item 3A in Schedule 2.
(2) A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full‑time service as:
(a) a member of the Defence Force; or
(b) a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).
(3) For the purposes of subsection (2), the operational service of a person to whom this section applies:
(a) is taken to have started:
(i) if the person was in Australia on the day (relevant day) from which his or her unit was assigned for service as described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be)—on the day on which the member left the last port of call in Australia for that service; or
(ii) if the person was outside Australia on the relevant day—on that day; and
(b) is taken to have ended:
(i) if the member was assigned for service in another country or area outside Australia (not being an operational area)—the day from which the member was assigned to that other country or area, or the day on which the member arrived at that other area, whichever is the later; or
(ii) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
6DA Operational service—minesweeping and bomb/mine clearance service
A member of the Defence Force is taken to have been rendering operational service during any period of service in respect of which the member 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.
6DB Operational service—service on submarine special operations from 1978 to 1992
A member of the Defence Force is taken to have been rendering operational service during any period of continuous full‑time service for which the following conditions are met:
(a) the period started on or after 1 January 1978 and ended on or before the end of 31 December 1992;
(b) the service was on submarine special operations;
(c) the member:
(i) has been awarded the Australian Service Medal with Clasp “SPECIAL OPS” for the service; or
(ii) has become eligible for that award for the service; or
(iii) would have been eligible for that award for the service if the member had not already been awarded it for other service.
6E Operational service—Korean demilitarised zone and Vietnam
A member of the Defence Force who was assigned for service:
(a) in the demilitarised zone between North Korea and South Korea after 18 April 1956; or
(b) on HMA Ship Vampire or Quickmatch in Vietnam during the period from and including 25 January 1962 to and including 29 January 1962;
is taken to have been rendering operational service while he or she was so rendering continuous full‑time service in that zone or in Vietnam (as the case may be) during the period in which he or she was so assigned for service.
6F Operational service—warlike and non‑warlike service
A member of the Defence Force is taken to have been rendering operational service during any period of warlike service or non‑warlike service of the member.
7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
(b) a person who has rendered continuous full‑time service (not being operational service) as a member of the Defence Force during World War 1 shall be taken to have been rendering eligible war service while the person was so rendering continuous full‑time service; and
(c) a person who has rendered continuous full‑time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full‑time service; and
(d) a person who rendered continuous full‑time service (not being operational service) as a member of the Interim Forces during World War 2 on or after 1 July 1947 shall be taken to have been rendering eligible war service while the person was so rendering continuous full‑time service; and
(e) a person who was employed on a ship as an Australian mariner is taken to have been rendering eligible war service:
(i) if part of that employment was operational service—for the part of that employment that was not operational service; or
(ii) in any other case—while the person was so employed.
Note 1: For World War 1 and World War 2 see subsection 5B(1).
Note 2: For operational service see sections 6 to 6F.
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).
(2) A person who rendered continuous full‑time service in the Defence Force during World War 2:
(a) if the person was appointed or enlisted for war service in any part of the Defence Force that was raised during World War 2 for war service or solely for service in time of that war or during that time and a definite time thereafter—on or after 1 July 1951;
(b) if the person was appointed or enlisted in the Citizen Forces and was called up for continuous full‑time service for the duration of, or directly in connection with, World War 2—on or after 1 July 1951; or
(c) if the person was not appointed or enlisted as set out in paragraph (a) or (b)—on or after 3 January 1949;
shall not be taken, by virtue of paragraph (1)(c), to have been rendering eligible war service while the person was so rendering continuous full‑time service.
(3) Without limiting paragraph (1)(e), a person is taken to be employed on a ship as an Australian mariner while the person was at a place (being a place that is in Australia but is not on land in Australia) in the course of proceeding to employment on a ship as an Australian mariner.
(4) For the purposes of subsection (3), Australia does not include an external territory.
7A Qualifying service
(1) For the purposes of Parts III and VA and sections 85 and 118V, 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 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
(iv) rendered warlike service; or
(v) rendered continuous full‑time service on submarine special operations, at some time in the period starting on 1 January 1978 and ending at the end of 31 December 1992, for which the person has been awarded, or has become eligible to be awarded, the Australian Service Medal with Clasp “SPECIAL OPS”; or
(vi) rendered continuous full‑time service on submarine special operations, at some time in the period starting on 1 January 1978 and ending at the end of 31 December 1992, for which the person would have been eligible to be awarded the Australian Service Medal with Clasp “SPECIAL OPS” if the person had not already been awarded it for other service; 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:
(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 (b) of the definition of period of hostilities in subsection 5B(1), 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 5C(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.
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).
(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.
8 War‑caused death
(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war‑caused injury or a war‑caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war‑caused, the death is to be taken to have been war‑caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
(2) Paragraph (1)(a), (b), (c) or (d) does not apply to the death of a veteran if the death:
(a) resulted from the veteran’s serious default or wilful act; or
(b) arose from:
(i) a serious breach of discipline committed by the veteran; or
(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.
(3) Subsection (1) does not apply to the death of a veteran if the death of the veteran resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
(4) Paragraph (1)(c) does not apply:
(a) to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of duty in a case where the veteran had delayed commencing the journey for a substantial time after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duties; or
(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
(5) Paragraph (1)(e) does not apply to the death of a veteran from an injury or disease, being injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran, unless the veteran has rendered operational service or the period of the eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
(6) Despite subsection (1), the death of a veteran is taken not to have been war‑caused if the veteran’s death is related to the veteran’s eligible war service only because:
(a) in the case of a veteran who had not used tobacco products before 1 January 1998—the veteran used tobacco products after 31 December 1997; or
(b) in the case of a veteran who had used tobacco products before 1 January 1998—the veteran increased his or her use of tobacco products after 31 December 1997.
9 War‑caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war‑caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war‑caused disease contracted by the veteran.
(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:
(a) resulted from the veteran’s serious default or wilful act; or
(b) arose from:
(i) a serious breach of discipline committed by the veteran; or
(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.
(4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
(5) Paragraph (1)(c) does not apply:
(a) to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duty; or
(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
(6) Paragraph (1)(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):
(a) if the aggravation of the injury or disease:
(i) resulted from the veteran’s serious default or wilful act;
(ii) arose from a serious breach of discipline committed by the veteran; or
(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
(7) Despite subsection (1), the injury or disease of a veteran is taken not to have been war‑caused if that injury or disease is related to the veteran’s eligible war service only because:
(a) in the case of a veteran who had not used tobacco products before 1 January 1998—the veteran used tobacco products after 31 December 1997; or
(b) in the case of a veteran who had used tobacco products before 1 January 1998—the veteran increased his or her use of tobacco products after 31 December 1997.
9A Most war‑caused injuries, diseases and deaths no longer covered by this Act
(1) A veteran’s injury, disease or death is taken not to be war‑caused if:
(a) the injury is sustained, the disease is contracted, or the death occurs, on or after the MRCA commencement date; and
(b) the injury, disease or death either:
(i) relates to service rendered by the person on or after that date; or
(ii) relates to service rendered by the person before, and on or after, that date.
Note: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for such injuries, diseases and deaths.
(2) If an injury or disease of a veteran has been aggravated, or materially contributed to, by service, the aggravation or material contribution is taken not to be war‑caused if:
(a) the aggravation or material contribution occurs on or after the MRCA commencement date (even if the original injury is sustained, or the original disease is contracted, before that date); and
(b) the aggravation or material contribution either:
(i) relates to service rendered by the person on or after that date; or
(ii) relates to service rendered by the person before, and on or after, that date; and
(c) if section 12 of the CTPA applies to the veteran—after receiving a notice under that section, the veteran makes a claim under section 319 of the MRCA (or continues with a claim already made under that section) in respect of the aggravated injury or disease.
Note 1: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for such aggravations and material contributions.
Note 2: Compensation remains payable under this Act for the original injury or original disease.
(3) To avoid doubt, service is rendered before, and on or after, the MRCA commencement date whether the service spans the commencement date or is rendered during separate periods before and on or after that date.
10 Child of a veteran or other person
(1) In this Act, a reference to a child of a veteran or of a deceased veteran is a reference to:
(a) a child of the veteran or an adopted child of the veteran; or
(b) a child who is a child of the veteran within the meaning of the Family Law Act 1975; or
(c) any other child who is, or was immediately before the death of the veteran, wholly or substantially dependent on the veteran.
(3) For the purposes of subsection (1), where a veteran is, under a law of the Commonwealth or of a State or Territory, liable to maintain a child, the child shall be deemed to be wholly or substantially dependent on that veteran.
(4) In this section, a reference to a veteran shall be read as including a reference to a person who is a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
(5) In this Act, unless the contrary intention appears, a reference to a child of a person (not being a person who is a veteran or a member referred to in subsection (4)) shall be read as a reference to a person who would, in accordance with subsection (1), be a child of that person if that person were a veteran.
10A Parent of a person
(1) Without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person (other than an adopted child) if the other person is a child of the person within the meaning of the Family Law Act 1975.
(2) For the purposes of this Act, parent of a person who is an adopted child means an adoptive parent of the person.
11 Dependants
(1) In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
(a) the partner; or
(b) a non‑illness separated spouse; or
(c) a widow or widower (other than a widow or a widower who marries, re‑marries or enters into a de facto relationship); or
(ca) a reinstated pensioner; or
(d) a child;
of the veteran.
Note 1: A veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.
Note 2: For the meaning of reinstated pensioner see section 11AA.
Note 3: Subsection (4) affects the meaning of widow in paragraph (c).
Note 4: Section 11A affects formation of an opinion as to whether 2 people are living together in a de facto relationship.
(2) Without limiting the generality of subsection (1) in its application to a veteran (including a veteran who has died) who is, or was:
(a) a descendant of an indigenous inhabitant of the Torres Strait Islands; or
(b) a male aboriginal native of Australia;
who served during World War 2 in the Defence Force at a rate of pay less than the minimum rate of pay that was prescribed as payable to a male member of the Australian Military Forces and whose services have been terminated by discharge or death, a person whom the Commission, by instrument in writing, determines to be, for the purposes of this section, a person who is dependent on the veteran is a dependant of the veteran.
(3) In subsection (1), a reference to a veteran shall be read as including a reference to a person who is a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
(4) In paragraph (1)(c), widow does not include a reinstated pensioner.
Note: For the meaning of reinstated pensioner see section 11AA.
11AA Reinstated pensioner
In this Act, unless the contrary intention appears:
reinstated pensioner means a person who the Commission has determined under section 13AG to be a reinstated pensioner.
11A De facto relationships
In forming an opinion for the purposes of this Act whether 2 people are living together in a de facto relationship, regard is to be had to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as being in a de facto relationship with each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a de facto relationship.
11B Domicile
(1) A person is taken for the purposes of this Act to have been capable of having an independent domicile at a time before 1 July 1982 if the person had turned 18 at or before that time.
Note: Subsection 8(1) of the Domicile Act 1982 has a similar effect for a time occurring on or after 1 July 1982.
(2) Subsection (1) has effect despite any rule of law to the contrary.
Part II—Pensions, other than service pensions, for veterans and their dependants
Division 1—Interpretation
12 Interpretation
In this Part, unless the contrary intention appears:
pension means a pension under this Part.
Division 2—Eligibility for pension
13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war‑caused; or
(b) a veteran is incapacitated from a war‑caused injury or a war‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
(2) Where:
(a) a veteran has died;
(b) the death of the veteran was not war‑caused; and
(c) the veteran was, immediately before the veteran’s death:
(i) a veteran to whom subsection 22(4) or section 23, 24 or 25 applied; or
(ii) a veteran to whom section 22 applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act.
(2A) If:
(a) a veteran has died; and
(b) the veteran’s death was not war‑caused; and
(c) the veteran was a prisoner of war at a time before 1 July 2004 when the veteran was on operational service;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act.
(2B) The date of commencement of a pension payable under subsection (2A) is not to be earlier than 1 January 1993.
(3) Where a pension in respect of the incapacity of a veteran from war‑caused injury or war‑caused disease, or both, is granted, after the death of the veteran, as from a date before the death of the veteran, subsection (2) applies as if the veteran had been in receipt of that pension immediately before the veteran died.
(4) Where:
(a) a veteran who has rendered operational service has died;
(b) the death of the veteran was not war‑caused;
(c) the veteran is survived by a child of the veteran; and
(d) the Commission is satisfied that the child is not being maintained by a parent, adoptive parent or step‑parent of the child;
the Commonwealth is, subject to subsection (7) of this section and to the other provisions of this Act, liable to pay pension to that child.
(5) The Commonwealth is not liable to pay a pension under subsection (1) to a veteran who is a veteran by reason only that he or she has rendered operational service as described in item 3 of the table in subsection 6A(1) or as described in subsection 6C(2) unless the veteran is residing in, and is physically present in, Australia or an external Territory at the time when he or she makes a claim for the grant of the pension in accordance with section 14 or, if the veteran has made 2 or more such claims, at the time when he or she made the first of those claims.
(6) Where the death of a person who is, or was, a member of the Defence Force, or the incapacity of such a person from injury or disease:
(a) resulted from an occurrence that happened, or a disease that was contracted, on or after 31 July 1962:
(i) as a result of action of hostile forces; or
(ii) while the person was engaged in warlike operations against hostile forces;
being an occurrence that happened, or a disease that was contracted, outside Australia while the person was rendering continuous full‑time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area; or
(b) has arisen out of or is attributable to:
(i) action by hostile forces; or
(ii) the engagement of the person in warlike operations against hostile forces;
on or after 31 July 1962 outside Australia while the person was rendering continuous full‑time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area;
the Commonwealth is, subject to subsection (7) of this section and to the other provisions of this Act, liable to pay:
(c) in the case of the death of the person—pensions to the dependants of the person; or
(d) in the case of the incapacity of the person—pension to the person;
in accordance with this Act, and this Act, other than subsections (1) to (5), inclusive, of this section, applies to and in relation to the person as if the person were a veteran and the death of the person were war‑caused, the injury suffered by the person were a war‑caused injury or the disease contracted by the person were a war‑caused disease, as the case may be.
Subsection (6) ceases to apply
(6A) The Commonwealth is not liable, under subsection (6), to pay a pension in respect of a person’s death, or the incapacity of a person, if:
(a) either:
(i) the occurrence resulting in the death or incapacity happened on or after the MRCA commencement date; or
(ii) the disease was contracted on or after the MRCA commencement date; and
(b) either:
(i) the occurrence or disease relates to service rendered by the person on or after that date; or
(ii) the occurrence or disease relates to service rendered by the person before, and on or after, that date (whether the service spans the commencement date or is rendered during separate periods before and on or after that date).
(7) The Commonwealth is not liable to pay a pension:
(a) to a dependant of a veteran, being a child of the veteran, under subsection (1), (2) or (2A);
(b) to a child of a veteran under subsection (4); or
(c) to a dependant of a person, being a child of the person, under subsection (6);
if the dependant has attained the age of 16 years and payments, by way of a living allowance, are being made in respect of the child:
(d) by way of youth allowance; or
(e) under the scheme known as the Assistance for Isolated Children Scheme; or
(f) under the scheme known as the ABSTUDY scheme; or
(g) under the scheme known as the Post‑Graduate Awards Scheme; or
(h) under the scheme known as the Veterans’ Children Education Scheme.
(7A) The Commonwealth is liable to pay a pension to a reinstated pensioner.
(8) Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) re‑marries, marries or enters into a de facto relationship after the death of the veteran and after the commencement of this Act:
(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant the pension:
(i) was made before the commencement of this Act; or
(ii) was or is made after the commencement of this Act upon consideration or re‑consideration of a claim for that pension that was duly made (whether before or after the commencement of this Act) before the re‑marriage, marriage or entry into the de facto relationship occurred; and
(b) a decision granting a pension to the dependant under this section made after the commencement of this Act by the Commission, the Board or the Administrative Appeals Tribunal after that re‑marriage, marriage or entry into the de facto relationship occurred (including a decision granting such a pension as from a date before that re‑marriage, marriage or entry into the de facto relationship occurred) is void and of no effect unless the decision was made upon consideration or re‑consideration of a claim for that pension made as described in subparagraph (a)(ii).
Note: For the meaning of reinstated pensioner see section 11AA.
(8A) Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) has re‑married or married after the death of the veteran but on or before 28 May 1984:
(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant the pension was made before the commencement of section 7 of the Veterans’ Affairs Legislation Amendment Act 1988; and
(b) a decision granting a pension to the dependant under this section made after the commencement referred to in paragraph (a) by the Commission, the Board or the Administrative Appeals Tribunal (including a decision granting such a pension as from a date before that commencement) is void and of no effect.
Note: For the meaning of reinstated pensioner see section 11AA.
(8B) If:
(a) a male dependant of a deceased veteran (not being a child of the veteran) has re‑married or married after the death of the veteran; and
(b) the re‑marriage or marriage occurred before 22 January 1991;
the Commonwealth is not liable to pay a pension to that dependant under this section.
(9) Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow or widower of a deceased veteran, the Commonwealth is not liable to pay another pension to the person under this Part as the widow or widower of another deceased veteran or under Part IV as the widow or widower of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1).
(10) Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a veteran, would, but for this subsection, become eligible to receive a pension under this Part or Part IV as the child of another deceased person, being a veteran, or a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), the Commonwealth is liable to pay a pension to the person under this Part or Part IV as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this subsection referred to as the relevant deceased person) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then:
(a) if the relevant deceased person is a veteran—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or
(b) in any other case—the Commonwealth is not liable to pay a pension to the person under this Part.
(11) In this section (other than in subsections (7A), (8), (8A), (8B), (9) and (10)), a reference to a veteran shall be read as a reference to a person (including a deceased person) who is, because of section 7, taken to have rendered eligible war service.
Division 2A—Verification determinations for reinstated pensioners
13AA Application for verification determination
A person who wants to be determined by the Commission to be a reinstated pensioner (a verification determination) must make a proper application.
13AB Who may apply
(1) An application for a verification determination may be made:
(a) by the person (the applicant) who wants to be determined to be a reinstated pensioner; or
(b) with the approval of the applicant, by another person on behalf of the applicant.
(2) If the applicant is unable, by reason of physical or mental incapacity, to approve a person to make the application on his or her behalf, the Commission may approve another person to make the application.
13AC Application for verification determination
An application for a verification determination:
(a) must be in writing and in accordance with a form approved by the Commission; and
(b) must be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
13AE Investigation by the Secretary
(1) If an application is made for a verification determination, the Secretary must investigate the matters to which the application relates.
(2) When the investigation is completed, the Secretary must submit the application to the Commission for its consideration and determination.
(3) When an application is submitted to the Commission it must be accompanied by:
(a) any evidence supplied by the applicant in connection with the application; and
(b) any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the application; and
(c) any other documents or other evidence under the control of the Department that are relevant to the application.
13AF Duties of Commission in relation to application for verification determination
(1) If an application is submitted to the Commission in accordance with subsection 13AE(2), the Commission must:
(a) consider all matters that, in the Commission’s opinion, are relevant to the application; and
(b) determine all matters relevant to the determination of the application.
(2) Without limiting paragraph (1)(a), the matters that the Commission must consider include:
(a) the evidence and documents that were submitted with the application; and
(b) any further evidence subsequently submitted to the Commission in relation to the application.
13AG Verification determination
(1) The Commission must determine that a person is a reinstated pensioner if the Commission is satisfied that:
(a) the person was eligible for and receiving a pension, on or before 28 May 1984, under one of the repealed Acts as a widow of a deceased member of the Forces or a widow of an Australian Mariner; and
(b) the person remarried on or before that date; and
(c) the pension was cancelled under the repealed Act only because the person married or remarried.
(2) A determination under this section:
(a) must be in writing; and
(b) takes effect from the day, under section 13B, that pension becomes liable to be paid to the reinstated pensioner.
(3) In subsection (1):
Australian Mariner has the meaning it had in the Seamen’s War Pensions and Allowances Act 1940.
pension means:
(a) in relation to a repealed Act set out in paragraph (a) of the definition of repealed Act—pension (other than service pension) payable to a widow under that repealed Act in respect of the death of a member of the Forces; and
(b) in relation to the Seamen’s War Pensions and Allowances Act 1940—pension payable to a widow under that Act in respect of the death of an Australian Mariner.
repealed Act means:
(a) an Act specified in Part I, II, III, IV or V of Schedule 1; or
(b) the Seamen’s War Pensions and Allowances Act 1940.
(4) A reference in subsection (1) to a member of the Forces is a reference to:
(a) a member of the Forces within the meaning of:
(i) Divisions 1, 6 and 8 of Part III of the Repatriation Act 1920; or
(ii) the Repatriation (Far East Strategic Reserve) Act 1956; or
(iii) the Repatriation (Special Overseas Service) Act 1962; and
(b) a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1) of this Act; and
(c) a member of the Interim Forces within the meaning of the Interim Forces Benefits Act 1947; and
(d) a person the incapacity or death of whom was taken, by section 7A of the Repatriation (Special Overseas Service) Act 1962, to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces.
Division 3—Claims for pensions and applications for increases in pensions
13A Certain dependants to be automatically paid pension
(1) If:
(a) a veteran dies; and
(b) the veteran is survived by a dependant of the deceased veteran; and
(c) the veteran:
(i) was, immediately before the veteran’s death, a veteran to whom subsection 22(4) or section 23, 24 or 25 applied; or
(ii) was, immediately before the veteran’s death, a veteran to whom section 22 applied who was in receipt of a pension the rate of which had been increased under subsection 27(2) by an amount specified in any of items 1 to 8 of the Table in subsection 27(1); or
(iii) is a veteran to whom subsection 13(3) applies;
the pension payable to the dependant in respect of the death of the veteran is payable:
(d) without the dependant having to make a claim for the pension under section 14; and
(e) without the Commission having to make a determination under section 19.
Note: for the dependant’s eligibility for pension see subsection 13(2).
(1A) If:
(a) a veteran dies; and
(b) the veteran is survived by a person who is a dependant of the veteran; and
(c) the veteran was a prisoner of war at a time when the veteran was on operational service; and
(d) at the time when the veteran dies, the Secretary:
(i) is aware of the person’s existence; and
(ii) is aware that the person is a dependant of the veteran; and
(iii) has enough information about the veteran’s and the person’s circumstances to know that a pension is payable to the dependant under subsection 13(2A);
the pension payable to the dependant in respect of the death of the veteran is payable:
(e) without the dependant having to make a claim for the pension under section 14; and
(f) without the Commission having to make a determination under section 19.
Note: for the dependant’s eligibility for pension see subsection 13(2A).
(2) The pension is payable from and including the day after the veteran died.
Note: for the rate at which the pension is payable to the dependant see section 30.
13B Reinstated pensioners to be automatically paid pension
(1) If the Commission makes a determination under section 13AG that a person is a reinstated pensioner, the pension payable to the reinstated pensioner under subsection 30(1) is payable:
(a) without the reinstated pensioner having to make a claim for the pension under section 14; and
(b) without the Commission having to make a determination under section 19.
(2) The Commonwealth is liable to pay the pension from the later of the following dates:
(a) 1 January 2002; or
(b) the date that an application for the determination in respect of the reinstated pensioner was lodged under section 13AD.
14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)).
(2) Where a determination under this Act is in force determining that any incapacity from which a veteran is suffering resulted from war‑caused injury or war‑caused disease, or both, but a pension was not granted to the veteran on the ground that the extent of the incapacity was insufficient to justify the grant of a pension, subsection (1) does not apply to a claim for a pension in respect of that incapacity.
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
(5) Where:
(a) a veteran has made a claim for a pension under this section in respect of incapacity from a particular injury or disease; and
(b) the claim has not been finally determined;
the veteran is not empowered to make another claim for a pension under this section in respect of incapacity from that injury or disease.
(6) Where:
(a) a person has made a claim for a pension under this section in respect of the death of a veteran; and
(b) the claim has not been finally determined;
the person is not empowered to make another claim for a pension under this section in respect of the death of that veteran.
(7) For the purposes of this section, a claim is finally determined when either:
(a) a decision that has been made in respect of the claim is not subject to any form of appeal or review; or
(b) a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.
15 Application for increase in pension
(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
(1A) However, a veteran who:
(a) receives a notice under section 12 of the CTPA in respect of an aggravation of, or a material contribution to, an injury or disease; and
(b) after receiving the notice, makes a claim under section 319 of the MRCA (or continues with a claim already made under that section) in respect of the aggravation or material contribution;
is not entitled to apply for an increase in the rate of the pension on the ground that the veteran’s incapacity has increased because of that aggravation or material contribution.
Note: Under section 12 of the CTPA, a veteran who has a war‑caused or defence‑caused injury or disease that is aggravated or materially contributed to by service after the MRCA commencement date can choose whether the MRCA or the VEA will apply to the aggravated injury or disease.
(2) Where there is in force in respect of the incapacity of a veteran a determination of a kind referred to in subsection 14(2) but a pension has not been granted to the veteran on the ground that the extent of the incapacity is insufficient to justify the grant of a pension under this Part, the veteran may make application, in accordance with subsection (3) of this section, for a pension on the ground that the incapacity of the veteran has increased since the grant of a pension in respect of the incapacity was refused or last refused.
(3) An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.
(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.
(5) Where:
(a) a person has made an application under this section for a pension at an increased rate, or for a pension; and
(b) the application has not been finally determined;
the person is not empowered to make another application under this section.
(6) For the purpose of subsection (5), an application is finally determined when either:
(a) a decision that has been made in respect of the application is not subject to any form of appeal or review; or
(b) a decision that has been made in respect of the application was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.
16 Who may make claim or application
A claim under subsection 14(1) for a pension for a veteran or for a dependant of a deceased veteran, an application under subsection 15(1) for an increase in the rate of pension payable to a veteran or an application under subsection 15(2) for a pension for a veteran may be made:
(a) by the veteran or dependant, as the case may be;
(b) with the approval of the veteran or dependant, as the case may be, by another person on behalf of the veteran or dependant;
(c) in the case of a veteran or dependant, as the case may be, who is unable, by reason of physical or mental incapacity, to approve a person to make the claim or application on his or her behalf—by another person, being a person approved by the Commission, on behalf of the veteran or dependant; or
(d) in the case of a dependant who is under the age of 18 years:
(i) by a parent or guardian of the dependant;
(ii) by another person approved by a parent or guardian of the dependant; or
(iii) if there is not a parent or guardian of the dependant alive, or willing and able to make, or approve a person to make, such a claim or application on behalf of the dependant—by another person, being a person approved by the Commission;
on behalf of the dependant.
17 Investigation by the Secretary
(1) Where a claim is made for a pension under subsection 14(1), or an application is made for an increased pension under subsection 15(1) or for a pension under subsection 15(2), the Secretary shall cause an investigation to be made into the matters to which the claim or application relates.
(2) The Secretary shall, upon completion of the investigation in respect of a claim or application, cause the claim or application to be submitted to the Commission for its consideration and determination.
(3) A claim or application submitted to the Commission under subsection (2) shall be accompanied by:
(a) any evidence furnished by the claimant or applicant in connection with the claim or application; and
(b) the documents relevant to the claim or application that are under the control of the Department, including any evidence or documents relevant to the claim or application obtained in the course of the investigation of the claim or application under subsection (1).
18 Duties of Commission in relation to pensions
(1) It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.
(2) Where the Board, the Administrative Appeals Tribunal or a court makes a decision remitting to the Commission a matter, being:
(a) the assessment of the rate, or increased rate, at which a pension is to be payable under this Part; or
(b) the fixing of the date as from which a decision of the Board, the Administrative Appeals Tribunal or the court is to operate;
it is the duty of the Commission to determine that matter having regard to the provisions of this Act and the reasons of the Board, the Administrative Appeals Tribunal or the court, as the case may be, for that decision.
19 Determination of claims and applications
(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a) consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and
(b) subject to this section, determine the claim as provided by subsection (3); and
(c) subject to this section, determine an application under subsection 15(1) under subsection (5D); and
(d) subject to this section, determine an application under subsection 15(2) as provided by subsection (5).
(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:
(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);
(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and
(c) any evidence, documents or other material furnished to the Commission under section 32.
(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i) the incapacity of a veteran from war‑caused injury or war‑caused disease, or both; or
(ii) the death of a veteran that was war‑caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).
(4) The Commission must determine an application under subsection 15(2) as provided by subsection (5).
(4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).
(5) The Commission must determine an application under subsection 15(2) as follows:
(a) first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran;
(b) then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D).
(5A) If:
(a) paragraph (3)(b) applies in respect of a claim; or
(b) subsection (4A) applies in respect of an application under subsection 15(1); or
(c) paragraph (5)(b) applies in respect of an application under subsection 15(2);
the Commission must assess the matters set out in subsection (5C).
(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.
(5C) The matters that the Commission must assess are:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.
(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.
(5E) Pension is payable from the date of effect of the determination made under:
(i) in the case of a claim—subsection (3); or
(ii) in the case of an application made under subsection 15(2)—paragraph (5)(a); or
(iii) in the case of an application made under subsection 15(1)—subsection (5D).
(5F) A determination under:
(a) subsection (3), in respect of a claim; or
(b) subsection (5), in respect of an application under subsection 15(2); or
(c) subsection (5D), in respect of an application under subsection 15(1);
takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination.
(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
(7) Where:
(a) the Commission, upon considering a claim for a pension in respect of the incapacity of a veteran from injury or disease determines, or is satisfied, that the veteran suffered the injury or contracted the disease as claimed and that the injury is a war‑caused injury or the disease is a war‑caused disease, as the case may be; and
(b) the Commission is also satisfied a determination under this Act is in force determining that the veteran has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that:
(i) that injury is a war‑caused injury, or is, in accordance with subsection 70(3), a defence‑caused injury for the purposes of subsection 70(1); or
(ii) that disease is a war‑caused disease, or is, in accordance with subsection 70(3), a defence‑caused disease for the purposes of subsection 70(1);
as the case may be, whether or not a pension under Part II or Part IV, as the case requires, has been granted in respect of that injury or disease;
the Commission shall not, in a case where the claimant is in receipt of a pension under Part II or Part IV in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such defence‑caused injury as war‑caused injury and any such defence‑caused disease as war‑caused disease:
(c) if the claimant is not in receipt of a pension under Part II or Part IV—determine whether the claimant is entitled to be granted a pension under Part II and, if it determines that the claimant is entitled to be granted such a pension, assess the rate of the pension to be granted to the claimant in accordance with the preceding provisions of this section; or
(d) if the claimant is in receipt of a pension under Part II or Part IV—re‑assess the rate of that pension in accordance with the preceding provisions of this section.
(8) Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence.
(9) In this section:
application means an application made in accordance with section 15.
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
claim means a claim made in accordance with section 14.
relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:
(a) in support of the claim or application; or
(b) if a part only of the claim or application was granted—in support of that part of the claim or application.
19A Refusal to undergo medical examination etc. may delay consideration of claim or application
(1) Where:
(a) a claimant, being a veteran, has refused or failed to undergo a medical examination for the purpose of the investigation of the claim or the consideration of the claim by the Commission; or
(b) a claimant has refused or failed:
(i) to consent to the release to the Secretary, or to the Commission, of information concerning a veteran for the purpose of the investigation or consideration of the claim; or
(ii) to comply with a request under paragraph 32(1)(c) to furnish material to the Commission;
the Commission may, if it is of the opinion that that medical examination, information or material is likely to affect the decision it will make in respect of the claim, defer further consideration of the claim until the veteran has undergone the medical examination, or the claimant has consented to the release of the information or furnished the material, as the case may be, and, if it does so, the Commission shall serve on the claimant a notice, in writing, informing the claimant that the claim has been so deferred.
(2) If, at the expiration of 6 months after a claimant has been informed under subsection (1) that a claim has been deferred by reason of the refusal or failure of a veteran to undergo a medical examination, the veteran has not undergone the medical examination, the claim shall, by force of this subsection, be deemed to have been refused.
(3) If, at the expiration of 6 months after a claimant has been informed under subsection (1) that a claim has been deferred by reason that the claimant has refused or failed to consent to the release of information or to furnish material:
(a) the claimant has not consented to the release of the information; or
(b) the claimant has not furnished the material or satisfied the Commission that the material is not in the claimant’s possession or under the claimant’s control;
as the case may be, the claim shall, by force of this subsection, be deemed to have been refused.
(4) In this section:
claimant means a person who has made a claim under section 14 or an application under section 15.
20 Dates of effect that may be specified in respect of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted (other than a claim to which subsection (2A) applies), the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
(2) Where:
(a) a person makes a claim for a pension in writing (other than a claim to which subsection (2B) applies), but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a);
(b) the person subsequently makes a claim for the pension in accordance with a form so approved:
(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved;
the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.
(2A) If:
(a) a claim in accordance with section 14 for a pension for a dependant of a deceased veteran, being a dependant who is the widow or widower of the veteran, is granted; and
(b) the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a), was received at an office of the Department in Australia less than 6 months after the death of the veteran;
the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim a date not earlier than 6 months before the date on which the claim for a pension was received.
(2B) If:
(a) a person makes a claim for a pension for a dependant of a deceased veteran, being a dependant who is the widow or widower of the veteran, that is in writing but not in accordance with a form approved for the purposes of paragraph 14(3)(a); and
(b) that claim is made less than 6 months after the death of the veteran; and
(c) the person subsequently makes a claim for the pension in accordance with an approved form:
(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with an approved form; or
(ii) within 6 months after the person had been so notified; and
(d) a pension for a dependant of a deceased veteran, being a dependant who is the widow or widower of the veteran, is granted to the person on consideration of the claim in accordance with an approved form;
the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim a date not earlier than 6 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.
(3) Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.
21 Dates of effect that may be specified in respect of grant of applications under section 15
(1) The Commission may, subject to this Act, specify as a date that a determination of an application made under section 15 takes effect in respect of a person, the date on which the application, in accordance with a form approved for the purposes of paragraph 15(3)(a) was received at an office of the Department in Australia.
Note: A determination of an application under subsection 15(1) is made under subsection 19(5D). A determination of an application under subsection 15(2) is made under subsection 19(5).
(2) Where:
(a) a person makes an application in writing of a kind referred to in subsection 15(1) or (2), but otherwise than in accordance with a form approved for the purposes of paragraph 15(3)(a);
(b) the person subsequently makes an application of a kind so referred to in accordance with a form so approved:
(i) at a time when the person had not been notified by the Department, in writing, that it would be necessary to make the application in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) an increased pension, or a pension, is granted to the person upon consideration of that application in accordance with a form so approved;
the Commission may, subject to this Act, specify as a date that a determination of an application made under section 15 takes effect, the date on which the application referred to in paragraph (a) was received at an office of the Department in Australia.
Note: A determination of an application under subsection 15(1) is made under subsection 19(5D). A determination of an application under subsection 15(2) is made under subsection 19(5).
(3) Nothing in this section empowers the Commission to specify as a date that a determination of an application made under section 15 takes effect in respect of a person, a date before the date that the person became eligible to be granted the increased pension, or pension, as the case may be.
Note: A determination of an application under subsection 15(1) is made under subsection 19(5D). A determination of an application under subsection 15(2) is made under subsection 19(5).
Division 4—Rates of pensions payable to veterans
21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3) The Commission may determine that the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war‑caused injury or war‑caused disease, or both, is insufficient to justify the grant of a pension.
22 General rate of pension and extreme disablement adjustment
(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war‑caused injury or war‑caused disease, or both, as the case may be.
(3) For the purposes of this section, the maximum rate per fortnight is $338.94 per fortnight.
(4) Where:
(a) either:
(i) the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii) a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b) the veteran has attained the age of 65;
(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d) the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is $510.40 per fortnight.
(5) For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a) the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b) amounts are being deducted from the pension under section 30P, 79 or 205; or