Contents
Part VI—Allowances and other benefits 1
Division 1—Preliminary 1
94.......................... Interpretation....................................................................... 1
96.......................... Application......................................................................... 1
Division 2—Eligibility for allowances and other benefits 3
97.......................... Clothing allowance............................................................. 3
98.......................... Attendant allowance............................................................ 4
98A....................... Bereavement payment in respect of partnered veterans receiving pensions by way of compensation 6
98AA.................... Bereavement payments in respect of certain single veterans receiving pensions by way of compensation............................................................................................ 9
98B........................ Funeral benefits—automatic grant to estate of certain deceased veterans 9
99.......................... Further funeral benefits—veterans.................................... 10
100........................ Funeral benefits—dependants of deceased veterans......... 13
102........................ Decoration allowance........................................................ 14
103........................ Victoria Cross allowance.................................................. 15
104........................ Recreation transport allowance......................................... 16
105........................ Vehicle Assistance Scheme.............................................. 18
106........................ Special assistance.............................................................. 20
108........................ Loss of earnings allowance............................................... 20
109........................ Advances on account of loss of earnings allowance......... 26
110........................ Travelling expenses.......................................................... 26
Division 3—Procedural 29
111........................ Application....................................................................... 29
112........................ Time for applying for certain benefits............................... 31
113........................ Time for applying for funeral benefit................................ 31
114........................ Commencement of payment of certain allowances............ 33
115........................ Review of decision etc...................................................... 33
Part VIA—Rehabilitation 36
Division 1—Preliminary 36
115A..................... Definitions........................................................................ 36
115B...................... Veterans’ Vocational Rehabilitation Scheme.................... 37
Division 2—Provisions relating to the income of veterans who participate in vocational rehabilitation programs 40
115C...................... Rate of pension while on program.................................... 40
115D..................... Reduced daily pension amount—pensions under Parts II and IV 40
115E...................... Application for increase in reduced daily pension amount 43
115F...................... Determination by the Commission.................................... 44
115G..................... Excluded income amount—invalidity service pensions.... 45
Division 3—Recovery of cost of rehabilitation 46
115H..................... Recovery of cost of rehabilitation..................................... 46
115J....................... Where a person receives a notice under subsection 115H(6) 48
115K...................... Recovery of amount by the Commonwealth..................... 49
115L...................... Determination of amount of costs of rehabilitation programs.. 49
Part VIB—Prisoner of war recognition supplement 50
Division 1—Eligibility for prisoner of war recognition supplement 50
115M..................... Eligibility for prisoner of war recognition supplement...... 50
115N..................... When prisoner of war recognition supplement is payable. 51
Division 2—Rate of prisoner of war recognition supplement 53
115P...................... Rate of prisoner of war recognition supplement............... 53
Division 3—Claims for prisoner of war recognition supplement 54
115Q..................... Making of claims.............................................................. 54
115R...................... Determination of claims.................................................... 54
Part VII—Veterans’ Children Education Scheme 55
116........................ Interpretation..................................................................... 55
116A..................... Determination of class of persons for the purposes of paragraph (e) of the definition of eligible child in subsection 116(1)............................................................. 58
116B...................... Eligible child of a veteran—person may apply for determination under subsection 116C(2) 58
116C...................... Eligible child of a veteran—Commission may determine that a person is a member of a class under section 116A..................................................................... 59
116CA................... Determination of class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran in subsection 116(1)............................................. 60
116CB................... Eligible grandchild of a Vietnam veteran—person may apply for determination under subsection 116CC(2).......................................................................................... 60
116CC................... Eligible grandchild of a Vietnam veteran—Commission may determine that a person is a member of a class under section 116CA........................................................ 61
116D..................... Review of Commission’s decisions.................................. 61
117........................ Veterans’ Children Education Scheme.............................. 63
118........................ Commission may provide benefits under Veterans’ Children Education Scheme 64
Part VIIAA—Education entry payment 65
118AA.................. Eligibility.......................................................................... 65
118AAB................ Need for a claim................................................................ 65
118AAC................ Entitlement to and amount of payment.............................. 66
118AAD............... Payment to be refunded.................................................... 66
Part VIIA—Veterans supplement 67
Division 1—Eligibility for veterans supplement 67
118A..................... Veterans supplement for dependants of deceased veterans or for persons eligible for pharmaceutical benefits.......................................................................................... 67
118B...................... Veterans supplement for certain Part II and Part IV pensioners or for World War 1 veterans 68
Division 2—Rate of veterans supplement 70
118C...................... Rate of veterans supplement—section 118A.................... 70
118D..................... Rate of veterans supplement—section 118B..................... 70
Part VIIAD—Energy supplement 71
Division 1—Eligibility 71
118P...................... Eligibility for energy supplement...................................... 71
118PA................... When energy supplement is payable................................. 75
Division 2—Rate of energy supplement 77
118PB................... Rate of energy supplement................................................ 77
Division 3—Payment of energy supplement 78
118PC................... Payment of energy supplement......................................... 78
Part VIIC—Seniors health card 79
Division 1—Eligibility for and entitlement to a seniors health card 79
Subdivision A—Eligibility 79
118V..................... Eligibility for seniors health card...................................... 79
Subdivision B—Entitlement 82
118W..................... Entitlement to a seniors health card................................... 82
118X..................... Social Security cardholder not entitled.............................. 82
Subdivision C—Modifications of provisions in this Division 82
118XA.................. Modifications if person’s rate of service pension or income support supplement is nil on 1 January 2017.......................................................................................... 82
118XB................... Other modifications because of social security law........... 83
Division 2—Claim for seniors health card 84
118Y..................... Need for a claim................................................................ 84
118Z...................... Who can claim?................................................................. 84
118ZA................... Making a claim................................................................. 84
118ZC................... Claimant must be an Australian resident and in Australia. 85
118ZD................... Claim may be withdrawn.................................................. 85
Division 3—Investigation of claim 87
118ZE.................... Secretary to investigate claim and submit it to Commission 87
Division 4—Consideration and determination of claim 88
118ZF.................... Duties of Commission in relation to claim........................ 88
118ZG................... Entitlement determination.................................................. 89
118ZH................... Date of effect of determination.......................................... 89
Division 5—Cardholder’s obligations 90
118ZI..................... Secretary may require notice of the happening of event or a change in circumstances 90
118ZJ.................... Secretary may require particular information relevant to eligibility for seniors health card 92
118ZJA................. When copy of notice of assessment of taxable income to be given to Department 93
Division 6—Continuation, variation and termination 95
118ZK................... Continuing effect of determination.................................... 95
118ZL.................... Person ceases to be entitled to card automatically—recipient complying with section 118ZI notification obligations........................................................................ 95
118ZM.................. Person ceases to be entitled to card automatically—recipient not complying with section 118ZI notification obligations........................................................................ 96
118ZN................... Determination that a person ceases to be entitled to a seniors health card 96
118ZO................... Person may cease to be entitled to a seniors health card for failure to comply with section 118ZJ notice.......................................................................................... 97
118ZP.................... Resumption of entitlement................................................ 97
118ZQ................... Date of effect of favourable determination........................ 98
118ZR................... Date of effect of adverse determination............................. 98
Division 7—Review of decisions 100
118ZS.................... Review of certain decisions............................................ 100
118ZT.................... Application for review.................................................... 100
118ZU................... Commission’s powers where request for review............ 100
118ZV................... Date of effect of certain review decisions....................... 101
118ZW.................. Commission must make written record of review decision and reasons 101
118ZX................... Person who requested review to be notified of decision. 102
118ZY................... Powers of Commission to gather evidence..................... 102
118ZZ.................... Withdrawal of request for review................................... 103
Division 8—Seniors Health Card Income Test Calculator 105
118ZZA................. Seniors Health Card Income Test Calculator.................. 105
Part VIII—General provisions applicable to pensions etc. 113
119........................ Commission not bound by technicalities......................... 113
120........................ Standard of proof............................................................ 115
120A..................... Reasonableness of hypothesis to be assessed by reference to Statement of Principles 117
120B...................... Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles 119
121........................ Instalments of pension.................................................... 120
122........................ Payment of pension........................................................ 123
122A..................... Pension or supplement may be paid to bank etc.............. 124
122AA.................. Use and disclosure of account details............................. 126
122B...................... Direct deductions at person’s request............................. 126
122C...................... Payment of pension or allowance outside Australia........ 127
123........................ Interpretation................................................................... 127
123A..................... Payment of pension etc. on death of person.................... 129
123B...................... Distribution where deceased leaves valid will................. 130
123C...................... Intestacy.......................................................................... 131
123D..................... Statutory order of distribution......................................... 132
123E...................... Non‑distributable amounts.............................................. 133
124........................ Termination of pension................................................... 133
125........................ Pensions etc. absolutely inalienable................................ 135
126........................ Death of claimant etc....................................................... 135
126A..................... Death of a person who has not made a formal claim etc. 136
127........................ Power to obtain information........................................... 137
128........................ Secretary may obtain information etc.............................. 140
128A..................... Provision of tax file numbers.......................................... 143
129........................ Self‑incrimination........................................................... 146
129A..................... Manner of giving notice or other document.................... 146
130........................ Furnishing of information............................................... 147
131........................ Interpretation................................................................... 148
132........................ Payment of travelling expenses in certain cases.............. 148
132A..................... Advance of travelling expenses...................................... 152
Part IX—Veterans’ Review Board 153
Division 1—Preliminary 153
133........................ Interpretation................................................................... 153
133A..................... Board’s objective............................................................ 154
Division 2—Continuance of Veterans’ Review Board 156
134........................ Continuance of Veterans’ Review Board........................ 156
Division 3—Review by the Board of decisions 157
135........................ Review of decisions in respect of pensions and attendant allowances 157
136........................ Application for review.................................................... 160
137........................ Secretary to prepare report.............................................. 161
137A..................... Ongoing requirement for lodging material documents with Board 162
138........................ Board not bound by technicalities etc.............................. 163
138A..................... Board may remit matters to Commission for further consideration 164
139........................ Decision of Board........................................................... 165
140........................ Board to give notice of decision and reasons to parties... 165
140A..................... Correction of errors in decisions or statements of reasons 167
Division 4—Organization of the Board 168
141........................ Constitution of Board for exercise of powers................. 168
141A..................... Management of administrative affairs of Board.............. 168
142........................ Arrangement of business of Board................................. 169
143........................ Members to constitute Board.......................................... 169
144........................ Member ceasing to be member etc.................................. 170
Division 4A—Alternative dispute resolution processes 172
145A..................... Referral of review for alternative dispute resolution process 172
145B...................... Directions by Principal Member..................................... 173
145C...................... Agreement about the terms of a decision etc................... 173
145D..................... Evidence not admissible.................................................. 175
145E...................... Eligibility of person conducting alternative dispute resolution process to sit as a member of the Board 175
145F...................... Participation by telephone etc.......................................... 176
145G..................... Engagement of persons to conduct alternative dispute resolution processes 176
Division 5—Proceedings before the Board 177
146........................ Principal Member or Senior Member to preside at hearing 177
147........................ Parties to review before Board........................................ 177
148........................ Procedure of Board......................................................... 178
149........................ Questions to be decided by majority of Board................ 181
150........................ Hearing to be in private except in special circumstances. 181
151........................ Powers of Board............................................................. 181
152........................ Request to Secretary for documents etc.......................... 183
153........................ Information may be made available to parties................. 183
154........................ Period of operation of certain decisions of Board........... 184
155........................ Dismissal of applications................................................ 184
155A..................... Review by Administrative Appeals Tribunal.................. 187
Division 6—Date of operation of decisions of Board 188
156........................ Date of operation of decision by Board.......................... 188
157........................ Dates that may be specified............................................. 188
Division 7—Membership of the Board 192
158........................ Appointment of members of Board................................ 192
159........................ Terms of appointment..................................................... 192
160........................ Remuneration and allowances of members..................... 192
161........................ Acting members.............................................................. 193
162........................ Leave of absence............................................................. 194
163........................ Resignation..................................................................... 195
164........................ Removal from office....................................................... 195
165........................ Disclosure of interests.................................................... 197
Division 8—Miscellaneous 199
166........................ Delegation....................................................................... 199
167........................ Immunity........................................................................ 199
168........................ Failure of witness to attend............................................. 200
169........................ Refusal to be sworn or to answer questions etc.............. 201
170........................ Contempt of Board......................................................... 202
170A..................... Medical expenses............................................................ 203
170B...................... Travelling expenses for obtaining medical evidence....... 204
170C...................... Advance of travelling expenses...................................... 205
171........................ Fees for witnesses.......................................................... 206
172........................ Staff to assist Board........................................................ 206
173........................ Oath or affirmation of office........................................... 207
Part X—Review of decisions by Administrative Appeals Tribunal 208
174........................ Interpretation................................................................... 208
175........................ Applications for review.................................................. 208
176........................ Application of Administrative Appeals Tribunal Act...... 211
177........................ Effective dates of certain determinations relating to payment of pension or seniors health card 213
178........................ Period of operation of certain decisions of Administrative Appeals Tribunal 216
Part XI—The Repatriation Commission 218
Division 1—Establishment, functions and powers 218
179........................ Continuance of Commission........................................... 218
179A..................... Application of the Public Governance, Performance and Accountability Act 2013 to the Commission 218
180........................ Functions of Commission............................................... 219
180A..................... Determination by Commission....................................... 219
181........................ Powers of Commission.................................................. 223
Division 2—Constitution and meetings of Commission 224
182........................ Membership of the Commission..................................... 224
183........................ President and Deputy President...................................... 225
184........................ Appointment of Secretary as a Commissioner and President 225
185........................ Remuneration and allowances......................................... 226
186........................ Leave of absence............................................................. 226
187........................ Resignation..................................................................... 226
188........................ Termination of appointment............................................ 226
189........................ Commissioner to disclose any interest in claims for pensions etc. 229
191........................ Acting commissioners.................................................... 230
192........................ Acting President or Deputy President............................. 231
193........................ Appointment to act as President and also Secretary........ 234
194........................ Appointments................................................................. 236
195........................ Meetings......................................................................... 237
Division 3—Staff 239
196........................ Staff................................................................................ 239
Part XIA—The Repatriation Medical Authority 240
Division 1—Establishment, functions and powers 240
196A..................... Establishment of Authority............................................. 240
196AA.................. Application of the Public Governance, Performance and Accountability Act 2013 to the Authority 240
196B...................... Functions of Authority................................................... 241
196C...................... Powers of Authority with respect to investigations........ 248
196CA................... Authority not required to investigate certain requests..... 250
196CB................... Authority may consolidate requests................................ 250
196E...................... Request for an investigation, review etc.......................... 250
196F...................... Submissions to the Authority......................................... 251
196G..................... Notice of investigation.................................................... 252
196H..................... Copyright in submissions............................................... 253
196I....................... Access to information..................................................... 253
196J....................... Notice of decision not to make etc. Statement of Principles 254
196K...................... Repatriation Medical Authority to send information to Review Council 254
196KA................... Definitions for the purposes of the MRCA.................... 255
Division 2—Constitution and meetings 256
196L...................... Membership.................................................................... 256
196M..................... Qualifications.................................................................. 256
196N..................... Tenure of office.............................................................. 256
196O..................... Resignation..................................................................... 256
196P...................... Termination of appointment............................................ 256
196Q..................... Acting Chairperson......................................................... 257
196R...................... Meetings......................................................................... 257
196S...................... Remuneration and allowances......................................... 257
Division 3—Staff and consultants 259
196T...................... Staff................................................................................ 259
196U..................... Consultants..................................................................... 259
Part XIB—The Specialist Medical Review Council 260
Division 1—Establishment and functions 260
196V..................... Establishment of Specialist Medical Review Council..... 260
196VA.................. Application of the Public Governance, Performance and Accountability Act 2013 to the Review Council........................................................................................ 260
196W..................... Functions of Review Council......................................... 261
196X..................... Notification of decision of Review Council to be notified in Gazette 264
196Y..................... Request for review of contents of Statement of Principles etc. 264
196Z...................... Request for review of decision of Repatriation Medical Authority not to carry out an investigation 265
196ZA................... Submissions to Review Council..................................... 266
196ZB................... Notice of investigation.................................................... 267
196ZC................... Copyright in submissions............................................... 268
196ZD................... Access to information..................................................... 268
Division 2—Constitution and meetings 269
196ZE.................... Membership.................................................................... 269
196ZF.................... Qualifications.................................................................. 269
196ZG................... Tenure of office.............................................................. 269
196ZH................... Resignation..................................................................... 270
196ZI..................... Termination of appointment............................................ 270
196ZJ.................... Acting Convener............................................................. 270
196ZK................... Conduct of reviews......................................................... 270
196ZL.................... Remuneration and allowances......................................... 271
Division 3—Staff 272
196ZM.................. Staff................................................................................ 272
Division 4—Payment of medical and travelling expenses 273
196ZN................... Medical expenses............................................................ 273
196ZO................... Travelling expenses for obtaining medical evidence....... 273
196ZP.................... Advance of travelling expenses for obtaining medical evidence 274
196ZQ................... Travelling expenses for making oral submissions.......... 275
Division 5—Lodgement of requests and applications 277
196ZR................... Lodgement of requests and applications......................... 277
Part XII—Miscellaneous 278
197A..................... Saving and transitional provisions.................................. 278
197........................ Pensions etc. not for certain members of the Defence Force 278
198........................ Variation of rates of certain pensions.............................. 279
198A..................... Variation of rates of orphan’s pension............................ 283
198D..................... Variation of rates of certain allowances etc..................... 285
198E...................... Variation of amount of essential medical equipment payment 288
198F...................... Indexation of veterans supplement.................................. 288
198FA................... Indexation of Victoria Cross allowance.......................... 289
198FAA................ Indexation of seniors health card income limit................ 291
198FB................... Rates for service pension and income support supplement increased on 20 September 2009 292
198G..................... 1 July 2000 increase in certain amounts.......................... 293
198GA.................. 1 July 2000 increase in rent assistance amounts............. 295
198H..................... Adjustment of amounts following 1 July 2000 increase. 295
198J....................... 1 July 2000 increase in income test free area.................. 301
198K...................... 1 July 2000 increase in assets test free area.................... 302
198L...................... 1 July 2000 increase in income/assets reduction limit..... 302
198M..................... Rounding off provisional replacement amounts.............. 302
198MA.................. Adjustment of indexation factor under section 59D for limited time on and after 20 March 2013 for certain purposes......................................................................... 303
198MB.................. Adjustment of living cost indexation factor for limited time on and after 20 March 2013 for certain purposes........................................................................................ 305
198N..................... Cancellation of entitlement to pension............................. 307
199........................ Appropriation................................................................. 308
200........................ Commission may accept contributions............................ 308
201........................ Commission may administer trusts................................. 309
202........................ Appointment of trustees.................................................. 311
202A..................... Commission or public servant acting as trustee.............. 313
202B...................... Other person acting as trustee......................................... 314
203........................ International arrangements.............................................. 315
204........................ Debt recovery relating to payment of comparable foreign pension 316
205........................ Recovery of overpayments............................................. 317
205AAA............... Notices in respect of debt................................................ 321
205AAB................ Interest on debt............................................................... 323
205AAC................ Determination that interest not to be payable................... 324
205AAD............... Administrative charge..................................................... 325
205AAE................ Penalty interest rate......................................................... 326
205AA.................. Recovery of overpayment by deduction from other pension, benefit or allowance 326
205AB................... Recovery of certain amounts from financial institutions. 327
205A..................... Commission may take action in relation to money owing to pensioners 329
205B...................... Certain decisions of Commission reviewable under Social Security Act etc. 331
206........................ Waiver etc. of debts........................................................ 332
208........................ Offences......................................................................... 332
209........................ Multiple offences............................................................ 335
210........................ Judicial notice to be taken of certain matters................... 335
210A..................... Evidence......................................................................... 336
211........................ Order for repayment of pension etc................................ 336
212........................ Delegation by Minister................................................... 338
213........................ Delegation by Commission............................................. 339
214........................ Delegation by Secretary.................................................. 340
214A..................... Telephone access to offices at cheap rate........................ 340
215........................ Annual report.................................................................. 341
216........................ Regulations..................................................................... 342
Part VI—Allowances and other benefits
Division 1—Preliminary
94 Interpretation
In this Part, unless the contrary intention appears:
(a) a reference to a hospital or other institution shall be read as including a reference to a home, a hostel, a medical centre, an out‑patient clinic and a rehabilitation or training establishment; and
(b) treatment has the same meaning as it has in Part V.
96 Application
(1) Without prejudice to its effect apart from this section, this Part has effect in relation to a person who is, or has been:
(a) a member of the Forces as defined by subsection 68(1); or
(b) a member of a Peacekeeping Force as defined by subsection 68(1);
and in relation to a dependant of such a person who has died, in like manner as it has effect in relation to a veteran and a dependant of a deceased veteran, respectively.
(2) For the purpose only of applying this Part as provided in subsection (1):
(a) a reference in this Part to a veteran shall be read as a reference to a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1);
(b) a reference in this Part to a war‑caused injury shall be read as a reference to a defence‑caused injury;
(c) a reference in this Part to a war‑caused disease shall be read as a reference to a defence‑caused disease;
(d) a reference in this Part to the death of a veteran that was war‑caused shall be read as a reference to the death of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), that was defence‑caused;
(e) a reference in this Part to a pension under Part II shall be read as a reference to a pension under Part IV;
(f) the references in subparagraph 102(1)(b)(ii) and subsections 108(8) and (9) to section 26 shall be read as references to section 26 (in its application to pensions under Part IV) or subsection 74(8); and
(g) a reference in this Part to a claim or application under Part II shall be read as a reference to a claim or application made under section 14 or 15, in its application to pensions under Part IV.
Division 2—Eligibility for allowances and other benefits
97 Clothing allowance
(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called clothing allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1:
| Column 1 | Column 2 |
| Kinds of incapacity | Rate per fortnight
$ |
| 1. One leg and one arm amputated | 7.20 |
| 2. One leg or one arm amputated | 3.30 |
| 3. Both legs or both arms amputated | 4.60 |
| 4. One leg amputated, causing essential hip disarticulation | 4.60 |
| 5. Blinded in both eyes | 3.30 |
(2) Where the Commission is satisfied that it is necessary for a veteran who is being paid a clothing allowance under subsection (1) by reason of a kind of incapacity described in item 2, 3 or 4 (in column 1) of the table in subsection (1) to use a crutch or crutches in addition to any artificial aid, that subsection has effect as if the rate specified in that item (in column 2) were an amount per fortnight equal to the amount specified in item 1 (in column 2) of that table.
(3) Where:
(a) a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind other than a kind described in column 1 of the table in subsection (1); and
(b) exceptional wear and tear, or exceptional damage, to the clothing of the veteran occurs by reason of the kind of incapacity from which the veteran is suffering;
the Commission may grant to the veteran a clothing allowance at such rate, not exceeding an amount per fortnight equal to the amount specified in item 2 (in column 2) of that table, as the Commission deems fit.
(4) Where a veteran is granted a clothing allowance under subsection (1) and is also granted a clothing allowance under subsection (3), clothing allowance shall be paid to the veteran at a rate per fortnight equal to the sum of:
(a) the rate per fortnight at which the allowance was granted under subsection (1); and
(b) the rate per fortnight at which the allowance was granted under subsection (3).
(5) For the purpose of this section:
(a) amputation of a hand of a veteran shall be treated as amputation of an arm of the veteran; and
(b) amputation of a foot of a veteran shall be treated as amputation of a leg of the veteran.
(6) Clothing allowance may be paid to a veteran by fortnightly instalments, or in such other manner as is determined by the Commission, but the amount, or sum of the amounts, of clothing allowance paid to a veteran in any period of 12 consecutive months shall not exceed an amount equal to the sum of 26 fortnightly instalments.
98 Attendant allowance
(1) Where a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran:
| Column 1 | Column 2 |
| Kinds of incapacity | Rate per fortnight
$ |
| 1. Blinded in both eyes | 84.30 |
| 2. Blinded in both eyes together with total loss of speech or total deafness | 168.60 |
| 3. Both arms amputated | 168.60 |
| 4. Both legs amputated and one arm amputated | 84.30 |
| 5. Both legs amputated at the hip or one leg amputated at the hip and the other leg amputated in the upper third | 84.30 |
(2) Where:
(a) a veteran is being paid a pension under Part II in respect of incapacity:
(i) from a war‑caused injury or a war‑caused disease affecting the cerebro‑spinal system; or
(ii) from a war‑caused injury or a war‑caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro‑spinal system; and
(b) the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
(3) For the purposes of the application of the table in subsection (1) to and in relation to a veteran, a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated.
(4) Where a veteran is cared for, at public expense, in a hospital or other institution, attendant allowance is not payable to the veteran in respect of the period commencing on the day of the first pension period occurring after the veteran commences to be so cared for and ending on the day on which the veteran ceases to be so cared for.
(4B) Attendant allowance is not payable to a veteran if carer payment under Part 2.5 of the Social Security Act:
(a) is payable to a person because the person is caring for the veteran; or
(b) would be payable to a person because the person is caring for the veteran, apart from:
(i) the payment being suspended under the social security law; or
(ii) the rate of the payment being nil because of action taken in relation to the payment under Chapter 5 of the Social Security Act 1991 (about overpayments and debt recovery).
(5) Where the Commission makes a decision with respect to an application for attendant allowance under this section, section 34 applies to and in relation to the decision in like manner as it applies to and in relation to a decision with respect to a claim for pension in accordance with section 14.
98A Bereavement payment in respect of partnered veterans receiving pensions by way of compensation
(1) This section applies where a veteran dies if the veteran was, immediately before his or her death:
(a) a member of a couple; and
(b) receiving a pension under Part II or IV (other than a pension payable to a person as a dependant of a deceased veteran).
(2) The widow or widower of the deceased veteran is entitled, in respect of the period of 12 weeks after the deceased veteran’s death, to payments at:
(a) if the deceased veteran was, immediately before his or her death, in receipt of that pension at a rate under subsection 22(4), 23(4), (5) or (6) or 24(4), (5), (5A) or (6)—the rate at which that pension would have been payable to him or her, if he or she had not died, on the first available pension pay day after the Commission becomes aware of the death; or
(b) in any other case—the lower of the following:
(i) the rate at which that pension would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the Commission becomes aware of the death;
(ii) the general rate in force on that pension pay day.
(3) Where:
(a) the widow or widower dies within 12 weeks after the death of the deceased veteran; and
(b) the Commission has not become aware of the death of the deceased veteran before the death of the widow or widower;
there is payable, to such person as the Commission thinks appropriate, in respect of the deceased veteran, an amount worked out using the formula:
where:
deceased veteran’s amount means:
(a) if the deceased veteran was, immediately before his or her death, in receipt of the pension covered by paragraph (1)(b) at a rate under subsection 22(4), 23(4), (5) or (6) or 24(4), (5), (5A) or (6)—the amount of that pension that would have been payable to him or her, if he or she had not died, on the first available pension pay day after the death of the widow or the widower; or
(b) in any other case—the lower of the following:
(i) the amount of the pension covered by paragraph (1)(b) that would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the death of the widow or the widower;
(ii) the amount that would have been payable to the deceased veteran, if he or she had not died, on the first available pension pay day after the death of the widow or widower, at the general rate in force on that pension pay day.
(4) Subsection (2) does not apply:
(a) if the Commission does not become aware of the veteran’s death until after the death of the widow or widower; or
(b) in respect of any pension pay day after the death of the widow or widower.
(5) Where:
(a) within the period of 12 weeks after the death of a veteran, an amount to which the veteran would have been entitled if he or she had not died has been paid by way of a pension covered by paragraph (1)(b) into an account with a bank; and
(b) this section applies in relation to the death of the veteran; and
(c) the bank pays to the widow or widower of the deceased veteran, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (a);
then, in spite of anything in any other law, the bank is not liable to the Commonwealth, the personal representative of the deceased veteran, or anyone else, for any loss incurred because of the payment of that money to the widow or widower.
(6) In this section:
first available pension pay day, in relation to the death of a veteran, means the first pension pay day after the Commission becomes aware of the death for which it is practicable to terminate or adjust the payments being made by way of pension covered by paragraph (1)(b) in respect of the deceased veteran.
98AA Bereavement payments in respect of certain single veterans receiving pensions by way of compensation
(1) The Commission must pay an amount (bereavement payment), worked out in accordance with subsection (2), to the estate of a deceased veteran if:
(a) immediately before the veteran died, he or she was not a member of a couple; and
(b) immediately before the veteran died, he or she was being paid a pension under Part II as a veteran to whom subsection 22(4) or section 24 applied; and
(c) the veteran died in indigent circumstances; and
(d) an application for the bereavement payment is made in accordance with sections 111 and 112.
(2) The amount of the bereavement payment is 6 times the amount of the pension that would have been payable to the veteran, if he or she had not died, on the first pension pay day after he or she died.
98B Funeral benefits—automatic grant to estate of certain deceased veterans
(1) The Commission is to grant a benefit (funeral benefit) to the estate of a deceased veteran if, immediately before the veteran died:
(a) he or she was being paid a pension under Part II at the rate specified in subsection 22(4); or
(b) he or she was being paid a pension under Part II as a veteran to whom section 24 applied; or
(c) he or she was being paid a pension under Part II at a rate that had been increased under section 27 because the veteran was incapacitated from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(d) the Commission was satisfied that the veteran had, before the MRCA commencement date, been made a prisoner of war at a time when the veteran was rendering operational service.
(2) The amount of the funeral benefit is $2,000.
99 Further funeral benefits—veterans
(1) The Commission may grant a benefit, called a funeral benefit, towards the funeral expenses incurred in respect of the funeral of:
(a) a veteran whose death was war‑caused;
(d) a veteran who has died in indigent circumstances; or
(e) subject to subsection (3), a veteran who has died:
(i) in an institution;
(ii) while travelling to or from an institution;
(iii) after having been discharged from an institution in which the veteran was being treated for a terminal illness; or
(iv) while being treated for a terminal illness at the veteran’s home instead of at an institution.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(2) The Commission may grant a benefit (funeral benefit) towards the funeral expenses incurred in respect of the funeral of a veteran if, after the death of the veteran:
(a) a pension is granted to the veteran that is determined to be payable, from a date before the veteran’s death:
(i) at a rate that is worked out under subsection 22(4); or
(ii) at a rate that is worked out under section 24; or
(iii) at a rate that is worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(b) the rate of a pension that was payable to the veteran under Part II is increased, as from a date before the veteran’s death because:
(i) subsection 22(4) or section 24 applied to the veteran as from that date; or
(ii) section 27 applied to the veteran as from that date because of incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(c) information is received which satisfies the Commission that the veteran was, before the MRCA commencement date, made a prisoner of war at a time when the veteran was rendering operational service.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(3) A funeral benefit must not to be granted under paragraph (1)(e) unless:
(a) if subparagraph (1)(e)(i) or (ii) applies—treatment is or was provided in the institution; and
(b) in any case—the treatment is or was arranged:
(i) by the Commission under Part V of this Act; or
(ii) by the Military Rehabilitation and Compensation Commission under Chapter 6 of the MRCA.
(3A) A funeral benefit is not to be granted under subsection (2) in respect of a veteran if a funeral benefit has been granted to his or her estate under section 98B.
(4) A funeral benefit under this section in respect of a deceased veteran consists of:
(a) a sum of $2,000 or an amount equal to the amount paid or payable in respect of the funeral of the deceased veteran, whichever is less; and
(b) subject to subsection (5), if:
(i) the veteran died at a place other than the veteran’s ordinary place of residence; and
(ii) the veteran was absent from the veteran’s ordinary place of residence for the purpose of obtaining medical treatment; and
(iii) the Commission or the Military Rehabilitation and Compensation Commission arranged for the provision of the treatment; and
(iv) a charge was made by the funeral director expressly for transporting the body of the deceased veteran from the place where the veteran died to the place where the veteran ordinarily resided immediately before the veteran died;
a sum equal to a reasonable charge for so transporting the body of the deceased veteran.
(5) Paragraph (4)(b) does not apply to a charge made by a funeral director for transporting the body of the deceased veteran:
(a) outside Australia; or
(b) from one place in the metropolitan area of a capital city to another place in the metropolitan area of that city.
(6) For the purposes of subparagraph (4)(b)(ii), but without limiting the generality thereof, a veteran shall be deemed to be absent from the veteran’s ordinary place of residence for the purpose of obtaining medical treatment:
(a) if the veteran is travelling from his or her ordinary place of residence for the purpose of obtaining medical treatment;
(b) if the veteran is returning to his or her ordinary place of residence after having obtained medical treatment;
(c) if the veteran is being provided with medical treatment at a place other than his or her ordinary place of residence; or
(d) if the veteran is away from his or her ordinary place of residence on the recommendation of his or her doctor by way of treatment for an injury or disease.
(7) In paragraph (4)(a), the amount paid or payable in respect of the funeral of a deceased veteran means, in a case where the deceased veteran was, immediately before his or her death, a member of a contributory funeral benefit fund, the amount by which the cost of the funeral exceeds the amount of the benefit payable from that fund in relation to the deceased veteran.
100 Funeral benefits—dependants of deceased veterans
(1) If:
(a) a dependant (other than a reinstated pensioner) of a deceased veteran, being:
(i) a veteran whose death was war‑caused; or
(ii) a veteran who, immediately before his or her death, was being paid pension under Part II as a veteran to whom section 24 applied; or
(iii) a veteran who, immediately before his or her death, was being paid pension under Part II at a rate that had been increased under section 27 by reason that the veteran was incapacitated from a war‑caused injury or a war‑caused disease of a kind described in item 1, 2, 3, 4, 5, 6, 7 or 8 in the table in subsection 27(1); or
(b) a reinstated pensioner;
has died in indigent circumstances, the Commission may grant a benefit, called funeral benefit, towards the funeral expenses incurred in respect of the funeral of the dependant.
Note: See sections 111 and 113 for the making of an application for a funeral benefit under this subsection.
(1A) The Commission may grant a benefit towards the funeral expenses incurred in respect of a person’s funeral if:
(a) either:
(i) the person was a wholly dependent partner of a deceased member; or
(ii) the person was both an eligible young person, and a dependant of a deceased member, immediately before the member’s death; and
(b) the person died in indigent circumstances; and
(c) section 12 of the MRCA applies in respect of the member.
Note: Expressions used in this subsection have the same meanings as they have in the MRCA (see subsection (4)).
(2) A funeral benefit under this section in respect of a deceased dependant of a deceased veteran is a sum of $2,000 or an amount equal to the amount paid or payable in respect of the funeral of the deceased dependant, whichever is less.
(3) In subsection (2), the amount paid or payable in respect of the funeral of a deceased dependant means, in a case where the dependant was, immediately before his or her death, a member of a contributory funeral benefit fund, the amount by which the cost of the funeral exceeds the amount of the benefit payable from that fund in relation to the deceased dependant.
(4) Expressions used in subsection (1A) have the same meanings as they have in the MRCA.
102 Decoration allowance
(1) Subject to this section, the Commission may grant an allowance, called decoration allowance, to a veteran who has been awarded an eligible decoration or eligible decorations if the veteran:
(a) is in receipt of a pension under Part II; or
(b) would be in receipt of a pension under Part II but for:
(i) the cancellation, under subsection 124(1), of a pension that had been granted to the veteran under Part II; or
(ii) section 26, 30C or 30D.
(4) Decoration allowance granted to a veteran under this section is payable at the rate of $2.10 per fortnight.
(5) In this section:
eligible decorations means:
(a) the following decorations awarded for gallantry during a war to which this Act applies or during warlike operations:
(i) the Victoria Cross;
(ii) the Cross of Valour;
(iii) the Star of Courage;
(iv) the Distinguished Service Order;
(v) the Distinguished Service Cross;
(vi) the Military Cross;
(vii) the Distinguished Flying Cross;
(viii) the Distinguished Conduct Medal;
(ix) the Conspicuous Gallantry Medal;
(x) the Distinguished Service Medal;
(xi) the Military Medal;
(xii) the Distinguished Flying Medal;
(xiii) the member of the Most Excellent Order of the British Empire (Military Division);
(xiv) the Medal of the Most Excellent Order of the British Empire (Military Division) (1919‑1958);
(xv) the Medal of the Most Excellent Order of the British Empire (Military Division) with Gallantry Emblem (1958‑1974);
(xvi) the Victoria Cross for Australia;
(xvii) the Star of Gallantry;
(xviii) the Medal for Gallantry; and
(b) the George Cross; and
(c) the George Medal; and
(d) such other decorations, awarded for gallantry during a war to which this Act applies or during warlike operations, as are prescribed.
103 Victoria Cross allowance
(1) Subject to this section, the Commission may grant an allowance, called Victoria Cross allowance, to a veteran who has been awarded the Victoria Cross or the Victoria Cross for Australia.
(2) Victoria Cross allowance granted to a veteran under this section is in addition to any decoration allowance that has been or may be granted to the veteran under section 102.
(4) Victoria Cross allowance granted to a veteran under this section is payable at the rate of $3,230 per year.
Note: The amount fixed by this subsection is indexed annually in line with CPI increases. See section 198FA.
104 Recreation transport allowance
(1) Subject to this section, the Commission may grant an allowance, called recreation transport allowance, to a veteran who is suffering an incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table:
| Column 1 | Column 2 |
| Description of incapacity | Rate per fortnight
$ |
| 1. Both legs amputated above the knees | 44.80 |
| 2. Negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only | 44.80 |
| 3. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2 | 44.80 |
| 4. Both arms amputated at or above the wrists | 22.40 |
| 5. Both legs amputated below the knees | 22.40 |
| 6. One leg amputated above the knee and the other below the knee | 22.40 |
| 7. One leg amputated above or below the knee and one arm amputated below the elbow | 22.40 |
| 8. Blinded in both eyes | 22.40 |
| 9. Incapacitated to an extent that, in the opinion of the Commission, is similar in effect or severity to the extent of incapacity associated with a disability described in item 4, 5, 6, 7 or 8 | 22.40 |
| 10. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar in degree to the handicap with regard to locomotion associated with a disability described in item 5, 6, 7 or 8 | 22.40 |
(2) For the purposes of subsection (1):
(a) a leg that has been rendered permanently and wholly useless above the knee or below the knee shall be treated as if it had been amputated above the knee or below the knee, as the case may be; and
(b) an arm that has been rendered permanently and wholly useless at or above the wrist or below the elbow, shall be treated as if it had been amputated at or above the wrist, or below the elbow, as the case may be.
(3) Recreation transport allowance is payable to a veteran, in respect of the costs incurred by the veteran in travelling for recreational purposes, at the rate specified in column 2 of the table in subsection (1) opposite to the kind of incapacity described in column 1 from which the veteran is suffering.
(4) Recreation transport allowance is not payable to a veteran under subsection (1):
(a) in respect of any period during which the veteran is being cared for, at public expense, in a hospital or other institution; or
(b) if the veteran has participated, or is participating, in the Vehicle Assistance Scheme:
(i) during the period of 2 years commencing on, and including, the date on which the veteran was first provided with a vehicle under that Scheme;
(ii) during the period of 2 years commencing on, and including, the date on which a replacement motor vehicle grant was or is made under that Scheme in respect of the veteran;
(iii) during any period during which there is, under that Scheme, due and payable by the veteran to the Commission the whole or part of an amount equal to the cost to the Commission of providing the veteran with a motor vehicle under that Scheme; or
(iv) during any other period during which the veteran is, under that Scheme, eligible to be paid an allowance as a contributor towards the running and maintenance of a vehicle provided for the veteran under that Scheme.
(5) For the purpose of the application of subsection (4), a vehicle provided for a veteran before 22 May 1986 under the scheme known as the “Gift Car Scheme” shall, after the commencement of this subsection, be deemed to have been provided under the Vehicle Assistance Scheme.
105 Vehicle Assistance Scheme
(1) The Commission may, in writing, determine a scheme for the provision of motor vehicles to veterans eligible under this section to participate in the scheme and for the payment of allowances towards the cost of running and maintaining vehicles so provided.
(5) A veteran is, subject to subsection (7), eligible to participate in the scheme if the veteran is incapacitated from war‑caused injury or war‑caused disease by reason of:
(a) amputation of both legs above the knee;
(b) amputation of one leg above the knee and, in addition:
(i) amputation of the other leg at or above the ankle and amputation of one arm at or above the wrist; or
(ii) amputation of both arms at or above the wrists;
(c) complete paraplegia resulting in the total loss of voluntary power in both legs to the extent that there is insufficient power for purposeful use for stance or locomotion; or
(d) a condition that, in the opinion of the Commission, is similar in effect or severity to a condition described in paragraph (a) or (b).
(7) For the purposes of subsection (5):
(a) a leg that has been rendered permanently and wholly useless above the knee shall be treated as if it had been amputated above the knee;
(b) a veteran shall not be taken to be incapacitated by reason of the disability described in paragraph (5)(c) unless the disability is such that surgical or other therapeutic measures are not reasonably capable of restoring power for purposeful use for stance or locomotion.
Determination must be approved by the Minister
(8) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(9) A determination under subsection (1) approved by the Minister and as in force from time to time is the Vehicle Assistance Scheme.
Variation or revocation of Vehicle Assistance Scheme
(10) The Commission may, by written determination, vary or revoke the Vehicle Assistance Scheme.
(11) A determination under subsection (10) has no effect unless the Minister has approved it in writing.
Legislative instruments
(12) A determination under subsection (1) or (10) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
Provision of benefits
(13) The Commission may provide benefits for veterans referred to in subsection (5) under and in accordance with the provisions of the Vehicle Assistance Scheme.
106 Special assistance
(1) Subject to subsection (2), the Commission may, in such circumstances, and subject to such conditions (if any), as are prescribed in a legislative instrument made by the Commission for the purposes of this subsection, in its discretion, grant to a veteran, or to a dependant of a veteran or deceased veteran, assistance or benefits of such a kind, and of such an amount or value, as it deems fit in all the circumstances of the case.
(2) The Commission must not grant assistance or benefits to a person under subsection (1):
(a) in circumstances in which the person is eligible to be granted an allowance or assistance under another provision of this Act; or
(b) to a veteran, or a dependant of a veteran or a deceased veteran, if the veteran is only a veteran because of service rendered after the MRCA commencement date.
Note: The Military Rehabilitation and Compensation Commission can grant assistance or benefits to veterans who render service after the MRCA commencement date, or to dependants of such veterans (see section 424 of the MRCA).
108 Loss of earnings allowance
(1) The Commission may grant an allowance, called loss of earnings allowance, to a person in accordance with the provisions of this section.
(2) Loss of earnings allowance may be granted to a veteran, in respect of any loss of salary or wages, or loss of earnings on his or her own account from an occupation in which he or she is engaged, suffered by reason of:
(a) the veteran’s undergoing treatment for incapacity from a war‑caused injury or a war‑caused disease;
(b) the veteran’s having to wait for the supply of, or repairs to, an artificial replacement or other surgical aid or appliance necessitated by such an incapacity;
(c) an investigation of a claim or application made by the veteran under Part II or of a pension granted to the veteran under that Part; or
(d) the veteran’s undergoing treatment associated with such an investigation;
for the period in respect of which the veteran suffered that loss.
(3) Where:
(a) a veteran travels for the purpose of:
(i) obtaining treatment;
(ii) restoration of his or her health;
(iii) being fitted with surgical aids or appliances or artificial replacements;
(iv) an investigation referred to in paragraph (2)(c); or
(v) any other matter related to the payment of a pension; and
(b) the Commission authorizes a person to accompany the veteran as his or her attendant;
loss of earnings allowance may be granted to the attendant, in respect of any loss of salary or wages, or loss of earnings on his or her own account, suffered by reason of having so accompanied the veteran, for the period in respect of which the attendant suffered that loss.
(4) Where a claim for pension for a veteran or a dependant of a veteran:
(a) is made by another person, as provided by section 16, on behalf of the veteran or dependant; or
(b) is prosecuted by a person who is the legal personal representative of the claimant, or by a person approved under section 126, following the death of the claimant;
loss of earnings allowance may be granted to the person, in respect of any loss of salary or wages, or loss of earnings on his or her own account, suffered by reason of an investigation under section 17 of the claim for the period in respect of which the person suffered that loss.
(5) Subject to subsection (6), where, in any year, a veteran who is an employee of another person:
(a) was granted leave of absence on account of illness for a period in respect of which the veteran was absent from his or her employment for a reason referred to in paragraph (2)(a), (b), (c) or (d);
(b) was, during a subsequent period of that year, absent from his or her employment by reason of:
(i) any illness or disease; or
(ii) undergoing treatment related to any illness or disease;
other than a war‑caused illness or a war‑caused disease; and
(c) has incurred loss of salary or wages as a result of absence from his or her employment referred to in paragraph (b) of this subsection;
loss of earnings allowance may be granted to the veteran, in respect of that loss of salary or wages, for the period in respect of which the veteran suffered that loss.
(6) Where, in a year, the period, or aggregate of the periods, for which loss of earnings allowance is payable to a veteran by virtue of subsection (5) has equalled:
(a) the period, or aggregate of the periods, referred to in paragraph (5)(a) for which the veteran has been absent from his or her employment in that year; or
(b) a period equal to the period credited, or notionally credited, in respect of the veteran for that year, under the terms and conditions of his or her employment, by way of sick leave credit (however described);
whichever is the less, loss of earnings allowance is not payable to the veteran by virtue of subsection (5) in respect of any part of the remainder of that year.
(7) Loss of earnings allowance is not payable to a person under this section in respect of any period in respect of which the person is paid pension under Part II at the rate specified in subsection 24(4).
(8) The amount of loss of earnings allowance payable to a veteran by virtue of subsection (2) or (5) in respect of loss of salary or wages, or of earnings on his or her own account, (in this subsection referred to as the relevant loss of remuneration) suffered by the veteran in respect of a period (in this subsection referred to as the relevant period) is:
(a) an amount equal to:
(i) unless subparagraph (ii) or (iii) applies—the amount of pension that would be payable to the veteran in respect of the relevant period if the veteran were a veteran to whom section 24 applied and the veteran’s pension were required to be calculated at the rate specified in subsection 24(4) (in this subsection that amount of pension is referred to as the maximum amount in respect of the relevant period);
(ii) if the veteran is in receipt of a pension under Part II—the amount by which the maximum amount in respect of the relevant period exceeds the amount of pension under Part II that is payable to the veteran in respect of the relevant period; or
(iii) if the veteran is not in receipt of a pension under Part II but would be in receipt of such a pension but for the provisions of section 26, 30C or 30D or is in receipt of a pension under Part II that has been reduced in accordance with the provisions of that section—the amount by which the maximum amount in respect of the relevant period exceeds the amount of pension under Part II that would be payable to the veteran in respect of the relevant period if section 26, 30C or 30D, as the case requires, were omitted from this Act; or
(b) an amount equal to the amount that the veteran would have earned, or could reasonably be expected to have earned, from the occupation referred to in subsection (2) of this section or from the employment referred to in subsection (5) of this section, as the case may be, in respect of the relevant period by way of salary or wages or of earnings on his or her own account less an amount equal to the sum of:
(i) the amount (if any) earned by the veteran from that occupation or employment, or from any other occupation or employment, in respect of the relevant period by way of salary or wages or earnings on his or her own account;
(ii) the amount (if any) that the veteran receives, or is entitled to receive, in respect of the relevant period, by way of compensation for the relevant loss of remuneration, under a law of the Commonwealth, a State, a Territory or a country other than Australia that makes provision for the payment of compensation or other benefits to persons in respect of incapacities arising out of, or in the course of, employment or caused by, or arising out of, the use of motor vehicles;
(iii) the amount (if any) that the veteran receives, or is entitled to receive, from his or her employer by way of gratuity or other payment in respect of the relevant loss of remuneration suffered by the veteran in respect of the relevant period; and
(iv) the amount (if any) that the veteran receives, or is entitled to receive, in respect of the relevant loss of remuneration suffered by the veteran in respect of the relevant period, under a contract, arrangement or agreement (including a contract of insurance), whether or not the veteran is a party to the contract, arrangement or agreement, but not being an amount of a kind referred to in subparagraph (ii) or (iii);
whichever is the lesser amount.
(9) The amount of loss of earnings allowance payable to a person by virtue of subsection (3) in respect of a period is:
(a) the amount that would be payable to the person in respect of the period in accordance with paragraph (8)(b) if the person were a veteran who was entitled to be paid that allowance by virtue of subsection (2); or
(b) the amount that would be payable to the person in respect of the period by way of pension under Part II if the person were eligible to be paid a pension under that Part, section 24 applied to the person and section 26, 30C or 30D did not apply to the person;
whichever is the lesser amount.
(10) The amount of loss of earnings allowance payable to a person by virtue of subsection (4) in respect of a period is such amount as the Commission considers reasonable in all the circumstances but not exceeding the amount that the person would have earned, or could reasonably be expected to have earned, in the period by way of salary and wages, or earnings on his or her own account.
(11) Loss of earnings allowance is not payable to a person under this section unless the person furnishes to the Commission such information (including certificates of medical practitioners or other persons) as is required by the regulations to be so furnished.
(12) In this section:
leave of absence on account of illness, in relation to a veteran who is an employee of another person, means leave of absence from the veteran’s employment granted to the veteran without loss of earnings by reason of any illness or incapacity or treatment provided for an illness or incapacity.
year, in relation to a veteran who is an employee of another person, means the period of 12 months that commenced on the date on which, under his or her terms and conditions of employment, the veteran was last credited, or last notionally credited, with a period by way of sick leave (however described).
Note: If section 25A applies to a veteran, the rate at which loss of earnings allowance is payable to the veteran is reduced in accordance with that section.
109 Advances on account of loss of earnings allowance
(1) Where the Commission is satisfied:
(a) that a person may reasonably be expected to become entitled to be paid loss of earnings allowance under section 108 in respect of a period (in this section called the period of entitlement); and
(b) that it is, in all the circumstances, appropriate for the person to be paid an advance on account of the loss of earnings allowance that the person is expected to become entitled to be paid in respect of a period (in this section called the period of advance), being the whole or a part of the period of entitlement;
the Commission may authorize payment to the person of an advance accordingly in respect of the period of advance.
(2) The amount paid to a person by way of advance under subsection (1) in respect of a period of advance, or the aggregate of the amounts so paid to a person in respect of the periods of advance included in a period of entitlement, as the case may be, shall not exceed the amount estimated by the Commission to be the amount of loss of earnings allowance likely to be payable to the person in respect of that period of advance or those periods of advance, as the case may be.
(3) If the amount of the advance, or the sum of the amounts of advances, paid to a person in relation to a period of entitlement exceeds the amount of loss of earnings allowance that becomes payable to the person in respect of that period of entitlement, the person is liable to pay an amount equal to the excess to the Commonwealth.
110 Travelling expenses
(1) Where a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, for the purpose of:
(a) obtaining treatment;
(b) restoration of his or her health; or
(c) being fitted with surgical aids or appliances or artificial replacements;
the veteran, or the dependant, as the case may be, is, subject to this section and to such conditions as are prescribed, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.
(1A) If:
(a) a veteran travels, with the approval of the Commission under subsection (1), for the purpose of obtaining treatment; and
(b) the treatment is of a kind prescribed in an instrument under subsection (6); and
(c) the veteran’s partner travels for the purpose of participating in that treatment;
the veteran’s partner is, subject to this section and to such conditions as are prescribed by the regulations, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed by the regulations.
Note: For treatment see section 94 and Part V.
(2) Subject to such conditions as are prescribed, where:
(a) a veteran, or a dependant of a deceased veteran, travels, with the approval of the Commission, as described in subsection (1); and
(b) the Commission authorises a person to accompany the veteran or dependant as his or her attendant;
the attendant is, subject to this section, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.
(2A) An approval under subsection (1) or an authorisation under paragraph (2)(b) may be given before or after the travel is completed.
(3) Travelling expenses are not payable under this section in respect of travel outside Australia.
(3A) Travelling expenses are not payable under this section in respect of treatment obtained under subsection 85(2A) (treatment for certain injuries covered by the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988).
Note: Travelling expenses incurred in respect of treatment obtained under subsection 85(2A) may be payable under section 16 of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
(4) Where the Commission is satisfied:
(a) that a person may reasonably be expected to become entitled to be paid travelling expenses under this section; and
(b) that it is in all the circumstances appropriate for the person to be paid an advance on account of the travelling expenses that the person is expected to become entitled to be paid;
the Commission may authorise payment to the person of an advance on account of the travelling expenses that the person is expected to become entitled to be paid.
(5) If the amount of the advance paid to a person on account of any travelling expenses in respect of any travel of the person exceeds the amount of travelling expenses that become payable to the person in respect of that travel, the person is liable to repay an amount equal to the excess to the Commonwealth.
(6) The Commission may, by legislative instrument, prescribe kinds of treatment for the purposes of paragraph (1A)(b).
Division 3—Procedural
111 Application
(1) Each of the following allowances, payments or benefits is a benefit to which this section applies, namely:
(a) clothing allowance;
(b) attendant allowance;
(ba) bereavement payment under section 98AA;
(c) funeral benefit under section 99 or 100;
(d) Victoria Cross allowance;
(e) recreation transport allowance;
(g) loss of earnings allowance;
(h) travelling expenses.
(2) An application for a benefit to which this section applies:
(a) shall be in accordance with a form approved by the Commission;
(b) shall be accompanied by such certificates and other evidence (relevant to the applicant’s entitlement to the benefit) as are required to be furnished by this Act, the regulations or the form of 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.
(3) An application for a benefit to which this section applies may be made:
(a) by the person eligible to be granted the benefit; or
(b) with the approval of that person or of the Commission under subsection (4), by another person on behalf of that person.
(4) Where a person eligible to be granted a benefit to which this section applies is unable, by reason of physical or mental ailment, to approve a person to make an application for that benefit on his or her behalf, the Commission may approve a person to make the application on his or her behalf.
(5) Where an application for a benefit to which this section applies is made by a person on behalf of another person, the other person on whose behalf the application is made, and not the person making the application on behalf of that other person, shall be treated as the applicant.
(6) For the purposes of this Division, where:
(a) a person makes an application in writing for an allowance or benefit to which this section applies, but otherwise than in accordance with a form approved for the purposes of subsection (2); and
(b) the person subsequently makes an application for the allowance or benefit 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;
the Commission may treat the application referred to in paragraph (b) as having been received at an office of the Department in Australia on the date on which the application referred to in paragraph (a) was so received.
(7) An applicant for a benefit to which this section applies may, at any time before the application is determined by the Commission, by notice in writing forwarded to the Commission at an office of the Department in Australia, withdraw the application.
(8) The withdrawal of an application for a benefit to which this section applies does not prevent the applicant from subsequently making another application for such a benefit.
112 Time for applying for certain benefits
(1A) An application for bereavement payment under section 98AA in respect of a deceased veteran must be made within 12 months after the death of the veteran.
(2) An application for loss of earnings allowance for a period in respect of which a person has suffered a loss of salary or wages, or loss of earnings on his or her own account, as set out in subsection 108(2), (3), (4) or (5), shall be made within 12 months after the commencement of that period.
(3) An application for travelling expenses in connection with travel referred to in subsection 110(1), (1A) or (2) must be made within:
(a) 12 months after the completion of that travel; or
(b) if the Commission thinks that there are exceptional circumstances that justify extending that period—such further period as the Commission allows.
(4) An application made to the Commission for the grant of:
(aa) bereavement payment under section 98AA; or
(b) loss of earnings allowance; or
(c) travelling expenses;
after the expiration of the period applicable to the application by virtue of subsection (1A), (2) or (3), as the case requires, is of no force or effect.
113 Time for applying for funeral benefit
(1) Subject to this section, application may be made to the Commission for the grant of a funeral benefit under section 99 or 100 in respect of the funeral of a person, being:
(a) a deceased veteran;
(b) a deceased dependant of a deceased veteran;
within 12 months after the death of the person.
(2) Where, after the death of a veteran, a decision is made under this Act:
(a) determining that the death was war‑caused;
(b) granting a pension under Part II in respect of the veteran, as from a date before the death of the veteran:
(i) at a rate that is worked out under subsection 22(4); or
(ii) at a rate that is worked out under section 24; or
(iii) at a rate that is worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1); or
(c) increasing the rate of the pension granted to the veteran under Part II as from a date before the death of the veteran:
(i) to a rate worked out under subsection 22(4) or section 24; or
(ii) to a rate worked out under section 27 because the veteran was suffering from incapacity from a war‑caused injury or a war‑caused disease of a kind described in any of items 1 to 8 of the Table in subsection 27(1);
application for the grant of a funeral benefit under section 99 in respect of the funeral of the veteran may be made to the Commission within the period of 12 months after the date on which that decision was made or within the period of 3 months after the date on which the Veterans’ Affairs Legislation Amendment Act 1987 received the Royal Assent, whichever last expires.
(3) Where, after the death of a veteran, the Commission gives an approval of a kind referred to in subsection 99(3) in relation to the veteran, application may be made to the Commission for the grant of a funeral benefit under section 99 in respect of the funeral of the veteran within 12 months after the date on which that approval was given.
(5) Application made to the Commission for the grant of a funeral benefit under section 99 or 100 in respect of the funeral of a person after the expiration of the period specified in subsection (1), (2) or (3) of this section, whichever is applicable, is of no force or effect.
114 Commencement of payment of certain allowances
(1) Subsection (2) applies to:
(a) clothing allowance;
(b) attendant allowance; and
(c) recreation transport allowance.
(2) An allowance to which this subsection applies payable to a veteran by reason that the veteran is suffering incapacity from a war‑caused injury or a war‑caused disease is payable:
(a) if application for the allowance is made within 3 months after the date on which the determination was made under this Act determining that the injury was a war‑caused injury or the disease was a war‑caused disease, as the case may be—as from the date on which that determination was made; or
(b) in any other case—as from the date on which the veteran’s application for the allowance in respect of that war‑caused injury or war‑caused disease is received at an office of the Department in Australia.
115 Review of decision etc.
(1) Subject to subsection (2), a person who is dissatisfied with a decision of the Commission in respect of an application for:
(a) clothing allowance; or
(aa) bereavement payment under section 98AA; or
(b) funeral benefits under section 99 or 100; or
(c) decoration allowance; or
(d) Victoria Cross allowance; or
(e) recreation transport allowance; or
(g) loss of earnings allowance;
may request the Commission, in writing, to review the decision, and, where such a request is duly made, the Commission shall review the decision, or cause the decision to be reviewed by a person to whom the Commission has delegated its powers under this section (not being the person who made the decision).
(1A) A request under subsection (1) must be lodged with the Commission 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.
(2) A request under subsection (1) to review a decision of the Commission shall set out particulars of the grounds on which the request is made, and may be made within 3 months after service on the person to whom the decision relates of notice of the decision, but not otherwise.
(3) Where the Commission reviews a decision under subsection (1), the Commission may affirm or set aside the decision and, if it sets aside the decision, it shall make such other decision as it considers to be in accordance with this Act.
(4) Where the Commission makes a decision, in substitution for the decision set aside, granting an application for an allowance specified in subsection (1), it may approve payment of the allowance as from a date not earlier than the date as from which the Commission could have approved payment of the allowance if it had made the substituted decision in place of the original decision.
(5) Sections 57D, 57E and 57F apply to a review under this section in like manner as they apply to a review under Division 16 of Part IIIB and, for the purpose of their application to a review under this section:
(a) references in sections 57D, 57E and 57F to Division 16 of Part IIIB shall be read as references to this section; and
(b) references in section 57F to a review shall be read as references to a review under subsection (1) of this section.
(6) A reference in subsection (1) to a decision in respect of an application for funeral benefits under section 99 shall be read as not including a reference to a decision of the Commission to grant, or refuse to grant, an approval of a kind referred to in paragraph 99(3)(a) or (b).
Part VIA—Rehabilitation
Division 1—Preliminary
115A Definitions
(1) In this Part, unless the contrary intention appears:
CPI indexation day means:
(a) for the purposes of section 115D—the day that begins each relevant period within the meaning of that term in section 198; and
(b) for the purposes of section 115G—a day that is an indexation day for the maximum basic rate under subsection 59B(1).
member of a Peacekeeping Force has the same meaning as in subsection 68(1).
member of the Forces has the same meaning as in subsection 68(1).
unaffected pension rate means the rate of pension that a veteran would have received if the veteran had not undertaken a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
unemployment includes:
(a) retirement from remunerative work; and
(b) undertaking less than 16 hours of remunerative work in a pension period;
but does not include any period of paid leave.
veteran means:
(a) a person:
(i) who is, because of section 7, taken to have rendered eligible war service; or
(ii) in respect of whom a pension is payable under subsection 13(6); or
(iii) who satisfies subsection 37(3); or
(b) a member of the Forces; or
(c) a member of a Peacekeeping Force.
work and pension income rate of a veteran, in relation to a pension period, has the meaning given by subsections (2) and (3).
Veteran to whom section 23 applies
(2) If section 115D applies to a veteran because of subsection 115D(1), then the work and pension income rate of the veteran for a pension period is worked out using the following formula:
Veteran to whom section 24 applies
(3) If section 115D applies to a veteran because of subsection 115D(1A), then the work and pension income rate of the veteran for a pension period is worked out using the following formula:
115B Veterans’ Vocational Rehabilitation Scheme
(1) The Commission may, in writing, determine a scheme to assist specified classes of veterans who render service before the MRCA commencement date to find employment and to continue in employment.
Note: A rehabilitation program that is being provided to a veteran under the scheme might cease if the veteran is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(5) Without limiting the powers of the Commission under subsection (1), the scheme may make provision for and in relation to:
(a) the provision of rehabilitation programs, under the scheme, to specified veterans; and
(b) the provision of vocational guidance and assistance, under the scheme, to specified veterans; and
(c) the payment of financial assistance, under the scheme, to specified veterans in respect of education or training that is being undertaken under the scheme by the veterans; and
(d) the provision of services in relation to the assessment of veterans for participation in rehabilitation programs; and
(da) the provision of services, under the scheme, to specified veterans for the management of medical conditions of those veterans; and
(db) the provision of psychosocial services, under the scheme, to specified veterans; and
(e) the payment of financial assistance, under the scheme, to specified veterans in respect of transport costs arising from the veterans’ participation in the scheme; and
(f) the payment of financial assistance, under the scheme, to specified veterans in respect of aids that enable the veterans to participate in, or assist veterans to participate in, the scheme; and
(g) the provision for review of determinations under section 115F; and
(h) the payment of financial assistance, under the scheme, to specified employers in respect of the provision by the employers of employment to veterans as mentioned in subsection (1).
Determination must be approved by the Minister
(6) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(7) A determination under subsection (1) approved by the Minister and as in force from time to time is the Veterans’ Vocational Rehabilitation Scheme.
Variation or revocation of Veterans’ Vocational Rehabilitation Scheme
(8) The Commission may, by written determination, vary or revoke the Veterans’ Vocational Rehabilitation Scheme.
(9) A determination under subsection (8) has no effect unless the Minister has approved it in writing.
Legislative instruments
(10) A determination under subsection (1) or (8) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
Consultation
(11) Before making a determination under subsection (1) or (8), the Commission must consult such organisations and associations, representing the interests of the veteran community, as the Commission thinks appropriate.
Division 2—Provisions relating to the income of veterans who participate in vocational rehabilitation programs
115C Rate of pension while on program
(1) Subject to sections 115D and 115G, this section applies while a veteran is undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
(2) If this section applies to a veteran, the rate of pension payable to the veteran is equal to the amount the veteran would receive if the veteran were not undertaking the program.
115D Reduced daily pension amount—pensions under Parts II and IV
Application of section
(1) This section applies to a veteran if:
(a) section 23 applies to the veteran; and
(b) the veteran is engaged in remunerative work of 20 hours or more per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
The section sets out how to work out the veteran’s reduced daily pension amount.
Note 1: This amount is used to work out the rate of pension payable under section 23.
Note 2: This section does not apply to certain veterans: see subsections (5) and (6).
(1A) This section also applies to a veteran if:
(a) section 24 applies to the veteran; and
(b) the veteran is engaged in remunerative work of more than 8 hours per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme.
The section sets out how to work out the veteran’s reduced daily pension amount.
Note 1: This amount is used to work out the rate of pension payable under section 24.
Note 2: This section does not apply to certain veterans: see subsections (5) and (6).
Reduced daily pension amount during the initial period
(2) A veteran’s reduced daily pension amount for a pension period that occurs within the initial period is worked out using the following formula:
Note 1: Expressions used in this subsection are defined in subsection (7).
Note 2: The Commission can increase a reduced daily pension amount under section 115F.
Reduced daily pension amount during the second period
(3) A veteran’s reduced daily pension amount for a pension period that occurs within the second period is worked out using the following formula:
Note 1: Expressions used in this subsection are defined in subsection (7).
Note 2: The Commission can increase a reduced daily pension amount under section 115F.
Reduced daily pension amount 5 years after the initial period
(4) A veteran’s reduced daily pension amount for a pension period that occurs more than 5 years after the end of the initial period is nil.
Note: The Commission can increase a reduced daily pension amount under section 115F.
Veteran who is unemployed for at least 2 weeks
(5) This section does not apply to a veteran who is unemployed for a continuous period of at least 2 weeks in respect of the pension periods within that 2 week period.
Veteran who is blinded in both eyes
(6) This section does not apply to a veteran for a pension period if the veteran is receiving a pension for the period at the special rate because of subsection 24(3).
Definitions
(7) In this section:
CPI amount means the amount worked out using the following formula:
daily above general rate for a veteran means the rate worked out using the following formula:
initial period for a veteran means the period:
(a) that begins on the day after the day the veteran first commenced remunerative work as a result of undertaking a vocational rehabilitation program; and
(b) that ends immediately before the first CPI indexation day that occurs more than 2 years after that day.
pension rate on commencement for a veteran means the rate of pension under this Act that was payable to the veteran on the day on which the veteran commenced his or her vocational rehabilitation program.
second period means the period:
(a) that begins immediately after the initial period; and
(b) runs for 5 years.
taper amount for a veteran means the following amount:
(a) if the veteran’s average weekly hours are 40 hours or more—zero;
(b) if subsection (1) applies and the veteran’s average weekly hours are less than 40 hours—the amount worked out using the following formula:
(c) if subsection (1A) applies and the veteran’s average weekly hours are less than 40 hours—the amount worked out using the following formula:
115E Application for increase in reduced daily pension amount
(1) This section applies if, because of the application of section 115D in respect of the rate of pension payable to a veteran, the work and pension income rate of the veteran in relation to a pension period is or would be less than the unaffected pension rate for the veteran in relation to that period.
(2) A veteran to whom this section applies may apply to the Commission to have the reduced daily pension amount under section 115D increased.
(3) An application must be:
(a) in writing; and
(b) in accordance with a form approved by the Commission; and
(c) accompanied by any relevant documentary evidence in relation to salary, wages and other earnings from remunerative work for the period to which the application relates; and
(d) lodged at an office of the Department in Australia in accordance with section 5T.
(4) An application lodged in accordance with section 5T is taken to have been made on a day determined under that section.
115F Determination by the Commission
(1) This section applies if, after considering an application under section 115E, the Commission is satisfied that the rate at which a pension has been, is being or is to be paid, to a veteran resulted, or would result, in a work and pension income rate for the applicant in relation to a pension period that is less or would be less than the unaffected pension rate in relation to that period.
(2) If this section applies, the Commission may increase in writing the veteran’s reduced daily pension amount under section 115D, for a past, present or future pension period, to the amount that the Commission is satisfied results in the work and pension income rate being equal to the unaffected pension rate.
(3) A determination takes effect on the day on which the determination is made.
115G Excluded income amount—invalidity service pensions
(1) The excluded income amount in respect of a veteran for a pension period that occurs within the period (the initial period) that begins on the day after the veteran first commenced remunerative work as a result of undertaking the vocational rehabilitation program and ends immediately before the first CPI indexation day that is more than 2 years after the beginning of the initial period is half of the earnings of the veteran in each pension period.
(2) The excluded income reduction amount in respect of a veteran for each pension period that occurs within each consecutive 6 month period during the 5 years that begins immediately after the initial period is worked out using the following formula:
where:
no. of 6 month periods means the number of consecutive 6 month periods that have begun in the 5 year period.
earnings means salary, wages or earnings from remunerative work in each pension period.
(2A) If the veteran does not undertake any remunerative work in a continuous period of at least 6 months:
(a) in working out the length of the initial period, or the 5‑year period mentioned in subsection (2), in relation to the veteran, disregard that continuous period; and
(b) in doing calculations under subsection (1) or (2) in relation to the veteran, disregard that continuous period.
(3) This section has effect only for the purposes of working out the amount of a veteran’s invalidity service pension.
(4) This section is subject to section 46AD (about no double income reductions under this section and section 46AA).
Division 3—Recovery of cost of rehabilitation
115H Recovery of cost of rehabilitation
(1) In this section, compensation, in relation to a person who is undertaking, or has undertaken, a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme, means an amount that is by way of compensation or damages, or is, in the opinion of the Commission, in the nature of compensation or damages, in respect of the disease, disability or condition because of which the rehabilitation program is being, or has been, undertaken.
(2) This section applies if a veteran who is undertaking, or has undertaken, a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme:
(a) has made a claim against another person for compensation, or may be, or may become, entitled to be paid compensation by another person, in relation to the disease, disability or condition because of which the rehabilitation program is being, or has been, undertaken; or
(b) is entitled, whether because of an order of a court, a settlement of a claim for compensation or otherwise, to be paid compensation by another person; or
(c) has been paid compensation by another person, whether because of an order of a court, a settlement of a claim for compensation or otherwise.
(3) A reference in subsection (2) to another person includes a reference to the Commonwealth, a State, a Territory or an authority of the Commonwealth, a State or a Territory.
(4) If this section applies, the Commission may give to the veteran a written notice requiring the veteran to pay for:
(a) a rehabilitation program or any part of such a program that has been undertaken by the veteran under the Veterans’ Vocational Rehabilitation Scheme before the day on which the notice was given to the veteran; and
(b) a rehabilitation program or any part of such a program undertaken at any time on or after the day on which the notice was given to the veteran;
in relation to the disease, disability or condition.
(5) On being given the notice, the veteran becomes, by force of this section, liable to pay to the Commonwealth an amount equal to the cost, or amounts equal to the sum of the costs, as determined by the Commission, of and incidental to:
(a) a rehabilitation program or any part of such a program that has been undertaken by the veteran under the Veterans’ Vocational Rehabilitation Scheme before the day on which the notice was given to the veteran; and
(b) a rehabilitation program or any part of such a program undertaken at any time on or after the day on which the notice was given to the veteran.
(6) If the veteran is, under subsection (5), liable to make payment to the Commonwealth for a rehabilitation program provided by the Commission, the Commission may, by written notice given to a person who:
(a) may be, or may become, liable; or
(b) is liable;
to pay compensation to, or for the benefit of, the veteran in respect of the disease, disability or condition, inform the person that the veteran is liable to make payment to the Commonwealth for a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme, whether undertaken before or after the giving of the notice.
(7) A reference in subsection (6) to a person includes a reference to an insurer who, under a contract of insurance, is liable to indemnify the person or is liable to pay compensation to, or for the benefit of, the veteran against that liability.
115J Where a person receives a notice under subsection 115H(6)
(1) This section applies to a person if the person has been given a notice under subsection 115H(6).
(2) If the person:
(a) is, on being given the notice, liable to pay compensation to, or for the benefit of, the veteran to whom the notice relates in respect of the disease, disability or condition to which the notice relates; or
(b) becomes, after receiving the notice, so liable to pay compensation; or
the person becomes liable, because of this subsection, to pay to the Commonwealth:
(c) an amount equal to the cost of the rehabilitation program that the veteran is liable, or may become liable, under subsection 115H(5), to pay; or
(d) an amount equal to the amount of compensation that the person is liable, or becomes liable, so to pay;
whichever is the less.
(3) If, before the notice was given to the person, the person paid to, or for the benefit of, the veteran the whole of the compensation that the person was liable to pay in respect of the disease, disability or condition to which the notice relates, the notice has no effect.
(4) If a person is liable, or becomes liable, to pay an amount to the Commonwealth under subsection (2), the person must not, without the permission of the Commission, pay the compensation, or any part of the compensation, to, or for the benefit of, the veteran.
(5) Payment to the Commonwealth of an amount under subsection (2) operates, to the extent of the payment:
(a) as a discharge to the person of his or her liability to pay compensation to the veteran entitled to receive the compensation; and
(b) as a discharge of the veteran’s liability under subsection 115H(5).
115K Recovery of amount by the Commonwealth
The Commonwealth may recover in a court of competent jurisdiction an amount that a person is liable to pay to the Commonwealth under subsection 115H(5) or 115J(2).
115L Determination of amount of costs of rehabilitation programs
(1) This section applies if the Commission determines, in writing, the amount of the cost of, or incidental to, a rehabilitation program under a Veterans’ Vocational Rehabilitation Scheme for a veteran during a specified period in respect of a disease, disability or condition in relation to which a notice has been given under subsection 115H(4).
(2) The Commission may give a notice to the veteran containing a copy of that determination, or notices to the veteran and the person referred to in subsection 115H(6) containing copies of that determination.
(3) If the Commission gives a copy of a determination to a veteran or a person under subsection (2), the copy is, for all purposes, prima facie evidence:
(a) that the copy of the determination set out in the notice is a true copy of the determination of which it purports to be a copy; and
(b) that the determination was duly made by the Commission; and
(c) that the amount specified in the determination is the amount which the veteran is liable, by force of subsection 115H(5), to pay to the Commonwealth as the cost of and incidental to the rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme during the period so specified for and in relation to that disease, disability or condition.
(4) The giving of a notice, or notices, under subsection (2) does not prevent the making of a further determination or determinations, and the giving by the Commission of a further notice or further notices under that subsection.
Part VIB—Prisoner of war recognition supplement
Division 1—Eligibility for prisoner of war recognition supplement
115M Eligibility for prisoner of war recognition supplement
World War 2 internments—European States
(1) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of an enemy State at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945.
(2) A civilian is eligible for a prisoner of war recognition supplement if:
(a) the civilian was interned by the military forces of an enemy State at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945; and
(b) the civilian was domiciled in Australia immediately before the civilian’s internment.
World War 2 internments—Japan
(3) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of Japan at any time during the period beginning on 7 December 1941 and ending at the end of 29 October 1945.
(4) A civilian is eligible for a prisoner of war recognition supplement if:
(a) the civilian was interned by the military forces of Japan at any time during the period beginning on 7 December 1941 and ending at the end of 29 October 1945; and
(b) the civilian was domiciled in Australia immediately before the civilian’s internment.
North Korean internments
(5) A veteran is eligible for a prisoner of war recognition supplement if the veteran was interned by the military forces of North Korea at any time during the period beginning on 27 June 1950 and ending at the end of 19 April 1956.
One supplement only
(6) A person is not entitled to more than one prisoner of war recognition supplement.
Definitions
(7) In this section:
civilian means a person who is not a veteran.
enemy State means:
(a) a European State that was at war with the Crown at any time during the period starting on 3 September 1939 and ending at the end of 11 May 1945; or
(b) a European ally (whether or not a State) of a State covered by paragraph (a).
interned means:
(a) confined in a camp, building, prison, cave or other place (including a vehicle); or
(b) restricted to residing within specified limits.
military forces means air forces, naval forces, land forces or other military forces (however described).
115N When prisoner of war recognition supplement is payable
(1) If, on 20 September 2011, the Commission is satisfied that a person is eligible for a prisoner of war recognition supplement, the supplement is payable to the person without the person having to make a claim for the supplement under Division 3.
(2) If subsection (1) does not apply in relation to a person, a prisoner of war recognition supplement is not payable to the person unless the person makes a claim for the supplement under Division 3.
(3) A prisoner of war recognition supplement is not payable to a person in relation to a pension period if before the start of that period:
(a) the person had elected not to be covered by this Part; and
(b) that election had not been withdrawn.
(4) An election, or a withdrawal of an election, under this section:
(a) must be by document lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been made on a day determined under that section.
Division 2—Rate of prisoner of war recognition supplement
115P Rate of prisoner of war recognition supplement
The rate of prisoner of war recognition supplement under section 115M is $500.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198D.
Division 3—Claims for prisoner of war recognition supplement
115Q Making of claims
(1) A claim for a prisoner of war recognition supplement must be made in accordance with procedures determined by the Commission under subsection (2).
Note: A prisoner of war recognition supplement will be made automatically to those eligible persons the Department is aware of.
(2) The Commission may, in writing, determine the procedures for making claims.
(3) A determination made under subsection (2) is not a legislative instrument.
115R Determination of claims
(1) Claims are to be determined by the Commission.
(2) If the Commission determines that a prisoner of war recognition supplement is payable to a person, the determination takes effect on the day on which the determination is made or on such earlier day as is specified in the determination.
(3) A person who is dissatisfied with the Commission’s decision on a claim may apply to the Administrative Appeals Tribunal for review of the decision.
Part VII—Veterans’ Children Education Scheme
116 Interpretation
(1) In this Part, unless the contrary intention appears:
eligible child means:
(a) an eligible child of a member of the Forces, or of a member of a Peacekeeping Force; or
(b) an eligible child of a veteran.
eligible child of a member of the Forces, or of a member of a Peacekeeping Force means:
(a) a child of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, being a member:
(i) whose death was defence‑caused; or
(ii) who was, immediately before his or her death, a member to whom subsection 22(4) or section 24 applied; or
(iii) who was, immediately before his or her death, in receipt of a pension under Part IV in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(b) a child of a member of the Forces, or of a member of a Peacekeeping Force, being a member:
(i) to whom subsection 22(4) or section 24 applies; or
(ii) who is in receipt of a pension under Part IV in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1).
eligible child of a veteran means:
(a) a child of a deceased veteran, being a veteran:
(i) whose death was war‑caused; or
(ii) who was, immediately before his or her death, a veteran to whom subsection 22(4) or section 24 applied; or
(iii) who was, immediately before his or her death, in receipt of a pension under Part II in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(iv) who was a prisoner of war at a time when the veteran was on operational service; or
(b) a child of a veteran, being a veteran:
(i) to whom subsection 22(4) or section 24 applies; or
(ii) who is in receipt of a pension under Part II in respect of incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1); or
(d) a child of a deceased veteran, being a child who is in receipt of, or is eligible to be granted, a pension under subsection 13(4); or
(e) a person determined under subsection 116C(2) to be included in a class that has been determined by the Commission under subsection 116A(1) for the purposes of this paragraph.
eligible grandchild of a Vietnam veteran means a person determined under subsection 116CC(2) to be included in a class of persons that has been determined by the Commission under subsection 116CA(1) for the purposes of this definition.
grandchild of a veteran means a person who is a child of a person who is a child of the veteran. The definition of child in subsection 5F(1) does not apply for the purposes of this definition.
Note: Section 10 deals with interpreting references to a child of a veteran or to a child of a person who is not a veteran.
member of the Forces and member of a Peacekeeping Force have the same respective meanings as they have in Part IV.
Vietnam service means operational service in Vietnam that is covered by section 6C, 6E or 6F.
(2) If, after the death of a member of the Forces, or of a member of a Peacekeeping Force, a pension is granted in respect of the member under Part IV, or the rate of the pension granted to the member under Part IV is increased, as from a date before the death of the member in circumstances where:
(a) subsection 22(4) or section 24 applied to the member; or
(b) the member was suffering from an incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1);
then, the member is taken, for the purposes of the definition of eligible child of a member of the Forces, or of a member of a Peacekeeping Force in subsection (1), to have been:
(c) if paragraph (a) applies—a member to whom subsection 22(4) or section 24 applied immediately before his or her death; or
(d) if paragraph (b) applies—in receipt of that pension or of pension at that increased rate, as the case may be, immediately before his or her death.
(3) If, after the death of a veteran, a pension is granted in respect of the veteran under Part II, or the rate of the pension granted to the veteran under Part II is increased, as from a date before the death of the veteran in circumstances where:
(a) subsection 22(4) or section 24 applied to the veteran; or
(b) the veteran was suffering from an incapacity of a kind described in item 1, 2, 3, 4, 5 or 6 of the table in subsection 27(1);
then, the veteran is taken, for the purposes of the definition of eligible child of a veteran in subsection (1), to have been:
(c) if paragraph (a) applies—a veteran to whom subsection 22(4) or section 24 applied immediately before his or her death; or
(d) if paragraph (b) applies—in receipt of that pension or of pension at that increased rate, as the case may be, immediately before his or her death.
(4) Where:
(a) before an eligible child attains the age of 25 years, approval is given under the Veterans’ Children Education Scheme for the child to undertake a course of education or training;
(b) the child attains the age of 25 years before completing that course; and
(c) the child continues, after attaining the age of 25 years, to undertake that course for the purpose of completing it;
this Part applies to and in relation to the continued undertaking of that course by the child after he or she attained the age of 25 years as if he or she were under the age of 25 years.
116A Determination of class of persons for the purposes of paragraph (e) of the definition of eligible child in subsection 116(1)
(1) The Commission may, by legislative instrument, determine a class of persons for the purposes of paragraph (e) of the definition of eligible child of a veteran in subsection 116(1). However, the persons must be the children of veterans who render service before the MRCA commencement date.
Variation or revocation
(2) The Commission may, by legislative instrument, vary or revoke a determination under subsection (1).
116B Eligible child of a veteran—person may apply for determination under subsection 116C(2)
(1) An application for a determination under subsection 116C(2) to be made in respect of a person who is, or was, the child of a veteran may be made, in writing, to the Commission:
(a) in the case of a person (the child) who is, or was, the child of a veteran and who is over the age of 18 years:
(i) by the child; or
(ii) with the approval of the child, by another person on behalf of the child; or
(iii) if the child 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 child; or
(b) in the case of a person who is, or was, the child of a veteran and who is under the age of 18 years:
(i) by a parent or guardian of the child; or
(ii) by another person approved by a parent or guardian of the child; or
(iii) if there is no parent or guardian of the child alive, or willing and able to make, or approve a person to make, such an application on behalf of the child—by another person, being a person approved by the Commission;
on behalf of the child.
(2) An application under subsection (1) 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.
116C Eligible child of a veteran—Commission may determine that a person is a member of a class under section 116A
(1) If an application has been made under section 116B in respect of a person, the Commission must decide whether the person the subject of the application falls within a class of persons determined by the Commission under subsection 116A(1).
(2) If the Commission decides that the person falls within a class of persons determined by the Commission under subsection 116A(1), the Commission must determine, in writing, that the person is included in the specified class.
(3) The Commission must give the person written notice of the Commission’s decision under subsection (1).
116CA Determination of class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran in subsection 116(1)
(1) The Commission may, by legislative instrument, determine a class of persons for the purposes of the definition of eligible grandchild of a Vietnam veteran in subsection 116(1). However, the persons must be the grandchildren of veterans who have rendered Vietnam service.
Note: The Veterans’ Children Education Scheme already covers children of veterans who have rendered Vietnam service.
Variation or revocation
(2) The Commission may, by legislative instrument, vary or revoke a determination under subsection (1).
116CB Eligible grandchild of a Vietnam veteran—person may apply for determination under subsection 116CC(2)
(1) An application for a determination under subsection 116CC(2) to be made in respect of a person who is, or was, the grandchild of a veteran may be made, in writing, to the Commission:
(a) in the case of a person who is, or was, the grandchild of a veteran and who is over the age of 18 years:
(i) by the grandchild; or
(ii) with the approval of the grandchild, by another person on behalf of the grandchild; or
(iii) if the grandchild is unable, by reason of physical or mental incapacity, to approve a person to make the claim or application on the grandchild’s behalf—by another person, being a person approved by the Commission, on behalf of the grandchild; or
(b) in the case of a person who is, or was, the grandchild of a veteran and who is under the age of 18 years:
(i) by a parent or guardian of the grandchild; or
(ii) by another person approved by a parent or guardian of the grandchild; or
(iii) if there is no parent or guardian of the grandchild alive, or willing and able to make, or approve a person to make, such an application on behalf of the grandchild—by another person, being a person approved by the Commission;
on behalf of the grandchild.
(2) An application under subsection (1) 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.
116CC Eligible grandchild of a Vietnam veteran—Commission may determine that a person is a member of a class under section 116CA
(1) If an application has been made under section 116CB in respect of a person, the Commission must decide whether the person the subject of the application falls within a class of persons determined by the Commission under subsection 116CA(1).
(2) If the Commission decides that the person falls within a class of persons determined by the Commission under subsection 116CA(1), the Commission must determine, in writing, that the person is included in the specified class.
(3) The Commission must give the person written notice of the Commission’s decision under subsection (1).
116D Review of Commission’s decisions
(1) A person who is dissatisfied with a decision of the Commission under subsection 116C(1) or 116CC(1) may, in writing, request the Commission to review the decision.
(1A) A request under subsection (1) 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.
(2) If a written request is made, the Commission must review the decision, or cause the decision to be reviewed by a person to whom the Commission has delegated its powers under this section (not being the person who made the decision).
(3) When the Commission reviews a decision under subsection (2), it must make a written record of its decision (the review decision) upon review.
(4) The written record must include a statement that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the review decision.
(5) If the review decision affirms or sets aside a decision under subsection 116C(1) or 116CC(1), it must give the person who requested the review of the decision:
(a) a copy of the Commission’s review decision; and
(b) subject to subsection (6), a copy of the statement about the review decision; and
(c) a statement that the person has a right to apply to the Administrative Appeals Tribunal for a review of the review decision.
(6) If the statement referred to in paragraph (5)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who requested review, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
117 Veterans’ Children Education Scheme
(1) The Commission may, in writing, determine a scheme for providing education and training for eligible children and eligible grandchildren of Vietnam veterans.
(5) Without limiting the powers of the Commission under subsection (1), the scheme may make provision for and in relation to:
(a) the provision of free scholarships at schools, colleges and universities for allocation, under the scheme, to eligible children or eligible grandchildren of Vietnam veterans; and
(b) the payment of maintenance allowances in respect of eligible children for whom education or training is being provided under the scheme; and
(c) the making of applications for the provision of education or training for eligible children or eligible grandchildren of Vietnam veterans; and
(d) the investigation and determination of applications referred to in paragraph (c); and
(e) the establishment, membership and operation of Education Boards to perform such functions, and exercise such powers, in, and in connection with, the operation of the scheme as are conferred on them by or under the scheme; and
(f) guidance and counselling services.
Determination must be approved by the Minister
(6) A determination under subsection (1) has no effect unless the Minister has approved it in writing.
(7) A determination under subsection (1) approved by the Minister and as in force from time to time is the Veterans’ Children Education Scheme.
Variation or revocation of Veterans’ Children Education Scheme
(8) The Commission may, by written determination, vary or revoke the Veterans’ Children Education Scheme.
(9) A determination under subsection (8) has no effect unless the Minister has approved it in writing.
Legislative instruments
(10) A determination under subsection (1) or (8) made by the Commission and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.
118 Commission may provide benefits under Veterans’ Children Education Scheme
(1) The Commission may provide benefits for, and in respect of, eligible children or eligible grandchildren of Vietnam veterans under and in accordance with the Veterans’ Children Education Scheme.
(2) The Commission may provide guidance and counselling services under the Veterans’ Children Education Scheme for such other people as the Minister, by legislative instrument, determines.
(3) This section does not apply in relation to a person if the person is receiving a veteran payment.
Part VIIAA—Education entry payment
118AA Eligibility
A person is eligible for an education entry payment under this section if:
(a) either:
(i) the person is receiving a partner service pension, an invalidity service pension or income support supplement, and the person has not reached pension age; or
(ii) the person is receiving a veteran payment, and the person has not reached pension age (within the meaning of subsections 5QB(2), (3), (4) and (5)); and
(c) the person is qualified, or if he or she were not in receipt of financial supplement under the Student Financial Supplement Scheme constituted by Part 4A of the Student Assistance Act 1973 or established under Chapter 2B of the Social Security Act 1991 would be qualified, to receive pensioner education supplement under the Social Security Act or the Student Assistance Act 1973; and
(d) either:
(i) the Commission is satisfied that the person intends to enrol in a full‑time or part‑time course of education that is the subject of a determination made under section 5D of the Student Assistance Act 1973 by the Minister administering that Act; or
(ii) the person is enrolled in such a course; and
(e) the person has not received a payment under this Part for which he or she made a claim in the current calendar year.
118AAB Need for a claim
(1) A person who wants to be granted an education entry payment must make a claim for the payment:
(a) in writing; and
(b) in a form approved by the Commission.
(1A) A claim under subsection (1) 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.
(2) A claim may be withdrawn at any time before it is determined, either orally or by document lodged at an office of the Department in Australia in accordance with section 5T.
(2A) A withdrawal by document lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(3) A claim that is withdrawn is taken not to have been made.
118AAC Entitlement to and amount of payment
(1) An education entry payment is payable to the person if, after considering the claim, the Commission determines that the claim is to be granted.
(2) The amount of an education entry payment is $208.
118AAD Payment to be refunded
If:
(a) the Commission determined that a claim for education entry payment was to be granted to a person because the Commission was satisfied that the person intended to enrol in a course referred to in subparagraph 118AA(d)(i); and
(b) an amount of education entry payment was paid to the person; and
(c) subsequently the person is not enrolled in the course;
the person must repay to the Commonwealth the amount of the payment.
Part VIIA—Veterans supplement
Division 1—Eligibility for veterans supplement
118A Veterans supplement for dependants of deceased veterans or for persons eligible for pharmaceutical benefits
(1) Subject to this section, a person is eligible for veterans supplement under this section if:
(a) the person is receiving a pension whose rate is specified under subsection 30(2); or
(b) but for subsection 13(7), a pension would have been payable to the person at a rate specified under subsection 30(2); or
(c) the person is eligible for pharmaceutical benefits under the Repatriation Pharmaceutical Benefits Scheme.
(2) A person is not eligible for veterans supplement under this section if:
(a) the person is receiving a social security payment; or
(b) the person is receiving a service pension or a veteran payment; or
(c) the person is a war widow/war widower—pensioner.
Note: For war widow/war widower—pensioner see section 5Q.
(3) A person who leaves Australia otherwise than temporarily is not eligible for veterans supplement under this section after the day on which he or she left Australia.
(4) A person who is temporarily absent from Australia and has been so absent for more than 26 weeks is not eligible for veterans supplement under this section after the first 26 weeks of the absence.
118B Veterans supplement for certain Part II and Part IV pensioners or for World War 1 veterans
(1) Subject to this section, a person is eligible for veterans supplement under this section if:
(a) the person is eligible for a pension at a rate specified in subsection 22(4); or
(b) the person is eligible for a pension at a rate specified in section 24; or
(c) the person is eligible for a pension, the rate of which is increased under subsection 27(2) by an amount specified in any of items 1 to 8 of the table in subsection 27(1); or
(d) the person is eligible for a pension at the rate specified in subsection 30(1) and the person is under qualifying age.
Note: For qualifying age see section 5Q.
(2) Subject to this section, a person is eligible for veterans supplement under this section if the person is:
(a) a veteran who rendered eligible war service during World War 1; or
(b) a Commonwealth veteran who rendered continuous full‑time service during World War 1; or
(c) an allied veteran who rendered continuous full‑time service during World War 1.
Note: For World War 1 see subsections 5B(1) and (3).
(3) A person is not eligible for veterans supplement under this section if:
(a) the person is receiving a social security payment; or
(b) the person is receiving a service pension, income support supplement or a veteran payment; or
(c) the person is receiving energy supplement under Part VIIAD of this Act or Part 2.25B of the Social Security Act; or
(d) the person is receiving MRCA supplement under Division 4 of Part 7 of Chapter 4, or Division 5 of Part 2 of Chapter 5, of the MRCA.
(4) A person who leaves Australia otherwise than temporarily is not eligible for veterans supplement under this section after the day on which he or she left Australia.
(5) A person who is temporarily absent from Australia and has been so absent for more than 26 weeks is not eligible for veterans supplement under this section after the first 26 weeks of the absence.
Division 2—Rate of veterans supplement
118C Rate of veterans supplement—section 118A
The rate of veterans supplement under section 118A is $6.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198F.
118D Rate of veterans supplement—section 118B
The rate of veterans supplement under section 118B is $6.00 per fortnight.
Note: The amount specified in this section is adjusted annually in line with CPI increases under section 198F.
Part VIIAD—Energy supplement
Division 1—Eligibility
118P Eligibility for energy supplement
Person holds a seniors health card
(1) A person is eligible for energy supplement if:
(a) the person is the holder of a seniors health card; and
(aa) the person:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks; and
(b) the person is not receiving any of the following:
(i) a service pension;
(ii) income support supplement;
(iii) a social security pension or social security benefit;
(iv) energy supplement under Part 2.25B of the Social Security Act.
(1A) Subject to subsections (1C), (1E) and (1G), subsection (1) applies to a person on or after the commencement of this subsection only if on 19 September 2016:
(a) energy supplement was payable to the person under section 118PA; or
(b) energy supplement was payable to the person under section 1061UA of the Social Security Act 1991.
Note: For subsection (1) to apply to the person on a day on or after that commencement, the person needs to satisfy paragraphs (1)(a) to (b) on that day.
(1B) Subject to subsection (1G), if:
(a) energy supplement was payable to a person under section 118PA, or section 1061UA of the Social Security Act 1991, on 19 September 2016; and
(b) energy supplement ceases to be payable to the person under either of those sections on or after 20 September 2016;
then subsection (1) of this section does not apply, and never again applies, to the person from:
(c) if the cessation occurred before the commencement of this subsection—the start of the day this subsection commences; or
(d) if the cessation occurred on or after the commencement of this subsection—the start of the day of that cessation.
(1C) If:
(a) a person was not eligible for energy supplement under subsection (1) on 19 September 2016; and
(b) on 19 September 2016 the person was receiving an income support payment (within the meaning of the Social Security Act 1991), where energy supplement was used to work out the rate of that payment; and
(c) on a day (the cessation day) on or after the commencement of this subsection the person ceases to be in receipt of any income support payment (within the meaning of the Social Security Act 1991); and
(d) on the day before the cessation day the person was receiving an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(e) the person is required to make a claim for a seniors health card in order for such a card to be granted to the person;
the person can become eligible for energy supplement under subsection (1) only if the person makes a claim for a seniors health card within the period of 6 weeks beginning on the cessation day.
(1D) Subject to subsection (1G), if:
(a) as a result of a claim mentioned in subsection (1C), a person becomes the holder of a seniors health card on a day; and
(b) energy supplement ceases to be payable to the person under section 118PA on or after that day;
then subsection (1) of this section does not apply, and never again applies, to the person from the start of the day of that cessation.
(1E) If:
(a) a person was not eligible for energy supplement under subsection (1) on 31 December 2016; and
(b) on that day, the person was receiving a service pension and an amount of energy supplement was added to the rate of that pension; and
(c) under subsection 118XA(3), the Commission made a determination under section 118ZG that the person is entitled to a seniors health card;
the person can become eligible for energy supplement under subsection (1) of this section because of being the holder of that card.
(1F) Subject to subsection (1G), if:
(a) as mentioned in paragraph (1E)(c), a person becomes the holder of a seniors health card on a day; and
(b) energy supplement ceases to be payable to the person under section 118PA on or after that day;
then subsection (1) of this section does not apply, and never again applies, to the person from:
(c) if the cessation occurred before the commencement of this subsection—the start of the day this subsection commences; or
(d) if the cessation occurred on or after the commencement of this subsection—the start of the day of that cessation.
(1G) If:
(a) on a day on or after 20 September 2016 the person ceases to hold a seniors health card under this Act or the Social Security (Administration) Act 1999; and
(b) on that day the person receives an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(c) on a day (the cessation day) on or after the commencement of this subsection the person ceases to be in receipt of any income support payment (within the meaning of the Social Security Act 1991); and
(d) on the day before the cessation day the person was receiving an income support payment (within the meaning of the Social Security Act 1991) where energy supplement was used to work out the rate of that payment; and
(e) the person is required to make a claim for a seniors health card in order for such a card to be granted to the person;
the person can become eligible for energy supplement under subsection (1) only if the person makes a claim for a seniors health card within the period of 6 weeks beginning on the cessation day.
Person holds a gold card
(2) A person is eligible for energy supplement if:
(a) the person is the holder of a gold card; and
(b) the person has reached qualifying age; and
(c) the person:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks; and
(d) the person is not receiving any of the following:
(i) a service pension;
(ii) income support supplement;
(iii) a social security pension or social security benefit;
(iv) energy supplement under Part 2.25B of the Social Security Act.
(3) In this section:
gold card means a card known as the Repatriation Health Card—For All Conditions, that evidences a person’s eligibility, under this Act, the Military Rehabilitation and Compensation Act 2004, the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 or the Treatment Benefits (Special Access) Act 2019, to be provided with treatment for all injuries or diseases.
Portability
(4) If:
(a) on 19 September 2016 energy supplement was payable to a person under section 118PA; and
(b) either:
(i) the person is absent from Australia on 19 September 2016 and has been so for a continuous period not exceeding 6 weeks; or
(ii) the person leaves Australia on a day on or after 20 September 2016 and, on the day before so leaving, energy supplement was payable to the person under section 118PA; and
(c) the person returns to Australia, where the period of that absence has exceeded 6 weeks but not exceeded 19 weeks; and
(d) the person is the holder of a seniors health card on the day before the person returns to Australia;
then the person is taken to have been eligible for energy supplement under this section on each day that occurs in the period beginning on the day after the end of that 6‑week period of absence and ending at the end of the day before the person returned to Australia.
(5) Subsection (4) does not limit section 118PB.
Note: After the person’s period of absence exceeds 6 weeks, there will be no daily rate of energy supplement for the person: see subsection 118PB(2).
118PA When energy supplement is payable
(1) Energy supplement is payable to a person in relation to each day on which the person is eligible for the supplement.
(2) However, energy supplement is not payable to the person in relation to a day if:
(a) before that day:
(i) the person had elected not to be covered by this Part; and
(ii) that election had not been withdrawn; or
(b) subsection 122A(1C) (failing to nominate a bank account) applies to the person.
Division 2—Rate of energy supplement
118PB Rate of energy supplement
(1) If subsection (2) applies to the person on a day, the person’s daily rate of energy supplement, for that day, is 1/364 of the amount worked out using the following table:
| Energy supplement |
| Item | Person’s family situation | Amount of energy supplement |
| 1 | Not a member of a couple | $366.60 |
| 2 | Partnered | $275.60 |
| 3 | Member of an illness separated couple | $366.60 |
| 4 | Member of a respite care couple | $366.60 |
Note: For member of a couple, partnered, illness separated couple and respite care couple see subsections 5E(1) and (5) and 5R(5) and (6) respectively.
(2) This subsection applies to a person on a day if on that day the person is residing in Australia and either:
(a) is in Australia; or
(b) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks.
Division 3—Payment of energy supplement
118PC Payment of energy supplement
(1) Energy supplement under this Part is to be paid by instalments.
(2) An instalment of energy supplement is to be paid to a person as soon as is reasonably practicable after the end of an instalment period.
(3) The amount of the instalment is worked out by:
(a) working out the person’s amount of energy supplement for each day in the instalment period (using the daily rate of the supplement for that day); and
(b) adding up the amounts resulting from paragraph (a).
(4) In this section:
instalment period means a period:
(a) in relation to each day of which energy supplement is payable to the person; and
Note: For when energy supplement is payable to the person, see section 118PA.
(b) that either begins on any 20 March, 20 June, 20 September or 20 December or does not include any such day; and
(c) that either ends on any 19 March, 19 June, 19 September or 19 December or does not include any such day; and
(d) that is not included in a longer instalment period.
Part VIIC—Seniors health card
Division 1—Eligibility for and entitlement to a seniors health card
Subdivision A—Eligibility
118V Eligibility for seniors health card
(1) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) has reached pension age; and
(d) is an Australian resident; and
(f) is not receiving a service pension; and
(fa) is not receiving a veteran payment; and
(g) is not receiving a social security pension or benefit; and
(h) satisfies the seniors health card income test.
Note 1: For qualifying service see section 7A.
Note 2: For Australian resident see section 5G.
Note 3: For seniors health card income test see section 118ZZA.
Note 4: For pension age see section 5QA.
(1A) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if the person:
(a) is a war widow or a war widower; and
(b) has reached qualifying age; and
(c) is an Australian resident; and
(e) is not receiving income support supplement; and
(f) satisfies the seniors health card income test; and
(g) is not eligible for a seniors health card under subsection (1).
Note 1: For Australian resident see section 5G.
Note 2: For seniors health card income test see section 118ZZA.
Note 3: For war widow and war widower see subsection 5E(1).
Note 4: For qualifying age see section 5Q.
Partner of person eligible for card under subsection (1)
(2) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if:
(a) the person is a member of a couple; and
(b) the person’s partner is eligible for a seniors health card under subsection (1); and
(c) the person has reached:
(i) if the person is not a veteran—pension age; or
(ii) if the person is a veteran—the age that would be the pension age for that person if he or she were not a veteran; and
(d) the person is an Australian resident; and
(f) the person is not receiving a service pension; and
(fa) the person is not receiving a veteran payment; and
(g) the person is not receiving a social security pension or benefit; and
(h) the person satisfies the seniors health card income test; and
(i) the person is not eligible for a seniors health card under subsection (1) or (1A).
Note 1: For member of couple and partner see section 5E.
Note 3: For Australian resident see section 5G.
Note 4: For seniors health card income test see section 118ZZA.
Note 5: For pension age see section 5QB.
(3) Subject to subsection (4) and sections 118XA and 118XB, a person is eligible for a seniors health card if:
(a) the person is:
(i) the non‑illness separated spouse of a person who is receiving an age or invalidity service pension; or
(ii) the non‑illness separated spouse of a person who is eligible for a seniors health card under subsection (1); or
(iii) a widow or widower of a veteran; and
(b) the person is eligible for a partner service pension; and
(c) the person has reached:
(i) if the person is not a veteran—pension age; or
(ii) if the person is a veteran—the age that would be the pension age for that person if he or she were not a veteran; and
(d) the person is an Australian resident; and
(f) the person is not receiving a service pension; and
(fa) the person is not receiving a veteran payment; and
(g) the person is not receiving a social security pension or benefit; and
(h) the person satisfies the seniors health card income test; and
(i) the person is not eligible for a seniors health card under subsection (1) or (1A).
Note 1: For non‑illness separated spouse, widow and widower see subsection 5E(1).
Note 2: For veteran see subsection 5C(1).
Note 3: For pension age see section 5QB.
Note 4: For Australian resident see section 5G.
Note 5: For seniors health card income test see section 118ZZA.
(4) A person is not eligible for a seniors health card at a particular test time if:
(a) the person has failed to comply with section 118ZJA in respect of the reference tax year; or
(b) where the person has made an estimate of taxable income for the reference tax year and the estimate was accepted—the person did not give the Commission a copy of a notice of assessment of the person’s taxable income for that tax year within 12 months after the end of that tax year.
Note: If a person is eligible for a seniors health card, the Commission must not determine that the person is entitled to the card if the person fails to comply with a request in subsection 128A(3) or (3A) (about provision of tax file numbers).
(5) In subsection (4):
taxable income, test time and reference tax year have the same meanings as in the Seniors Health Card Income Test Calculator.
Subdivision B—Entitlement
118W Entitlement to a seniors health card
Even though a person is eligible for a seniors health card, it is only if the person is the holder of a seniors health card that benefits and concessions of various kinds relating to the person’s health may be made available to the person by the Commonwealth.
Note 1: If there is a determination in force that a person is entitled to a seniors health card, the person is the holder of a seniors health card. For holder of a seniors health card see section 5PB.
Note 2: A person who is the holder of a seniors health card generally has access to concessional pharmaceutical benefits under the National Health Act 1953.
118X Social Security cardholder not entitled
If a person is the holder of a seniors health card within the meaning of the Social Security Act, the person is not entitled to a seniors health card under this Act.
Subdivision C—Modifications of provisions in this Division
118XA Modifications if person’s rate of service pension or income support supplement is nil on 1 January 2017
(1) This section applies in relation to a person if:
(a) immediately before 1 January 2017, the person was receiving a service pension or income support supplement; and
(b) the Commission is satisfied that the rate of that pension or supplement is nil on 1 January 2017 because of the operation of the amendments made by Part 1 of Schedule 3 to the Social Services Legislation Amendment (Fair and Sustainable Pensions) Act 2015.
Seniors health card income test does not apply
(2) In determining whether the person is eligible for a seniors health card at any time on or after 1 January 2017, paragraphs 118V(1)(h), (1A)(f), (2)(h) and (3)(h) do not apply to the person.
Entitlement to seniors health card
(3) If the person is eligible for a seniors health card under this Part on 1 January 2017 and section 118X does not prevent the person from being entitled to a seniors health card, the Commission must make a determination under section 118ZG that the person is entitled to a seniors health card.
Note: The person does not need to make a claim for the card.
118XB Other modifications because of social security law
If section 1061ZJA of the Social Security Act 1991 applies in relation to a person, then, in determining whether the person is eligible for a seniors health card under this Part at any time on or after 1 January 2017, paragraphs 118V(1)(h), (1A)(f), (2)(h) and (3)(h) do not apply to the person.
Division 2—Claim for seniors health card
118Y Need for a claim
(1) A person who wants to be granted a seniors health card must make a proper claim.
Note: For proper claim see section 118ZA (form), section 118ZB (manner of lodgment) and section 118ZC (residence/presence in Australia).
(2) However, subsection (1) does not apply to a person if, because of subsection 118XA(3), the Commission made a determination under section 118ZG that the person is entitled to a seniors health card and the determination is in force.
118Z Who can claim?
(1) Subject to subsection (2), a claim must be made by:
(a) the person who wants to be granted a seniors health card; or
(b) with the approval of the person—another person on the person’s behalf.
(2) If the person is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.
118ZA Making a claim
(1) To be a proper claim, the claim must be:
(a) made in writing; and
(b) in accordance with a form approved by the Commission; and
(c) accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim; and
(d) lodged at an office of the Department in Australia in accordance with section 5T.
(2) A claim lodged in accordance with section 5T is taken to have been made on a day determined under that section.
118ZC Claimant must be an Australian resident and in Australia
A claim is not a proper claim unless the person making the claim, or on whose behalf the claim is being made, is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: For Australian resident see section 5G.
118ZD Claim may be withdrawn
(1) A claimant for a seniors health card or a person on behalf of a claimant may withdraw a claim that has not been determined.
(2) A claim that is withdrawn is taken to have not been made.
(3) A withdrawal may be made either orally or by document lodged at an office of the Department in Australia in accordance with section 5T.
(4) A withdrawal made by lodging a document in accordance with section 5T is taken to have been so made on a day determined under that section.
Oral withdrawal of a claim
(5) An oral withdrawal of a claim must be made to a person in an office of the Department in Australia.
Acknowledgment of oral withdrawal of a claim
(6) As soon as practicable after receiving an oral withdrawal of a claim, the Secretary must give the claimant an acknowledgment notice in writing stating that:
(a) an oral withdrawal of the claim was made; and
(b) the claimant, or a person on behalf of the claimant, may, within 28 days from the day the acknowledgment notice is given, request the Secretary to treat the withdrawal as if it had not been made.
Reactivating the withdrawn claim
(7) If, within 28 days from the day on which the Secretary gave the acknowledgment notice, a claimant, or a person on behalf of a claimant, requests the Secretary to treat the oral withdrawal of the claim as if it had not been made, the oral withdrawal is taken not to have been made.
Note: A request made under paragraph (6)(b) has the effect of reactivating the claim. In particular, the commencement day of the claim stays the same.
Division 3—Investigation of claim
118ZE Secretary to investigate claim and submit it to Commission
(1) If a person makes a proper claim for a seniors health card, the Secretary must investigate the matters to which the claim relates.
(2) When the investigation is completed, the Secretary must submit the claim to the Commission for consideration and determination.
(3) When the claim is submitted to the Commission it must be accompanied by:
(a) any evidence supplied by the claimant in support of the claim; and
(b) any documents or other evidence obtained by the Department in the course of the investigation that are relevant to the claim; and
(c) any other documents or other evidence under the control of the Department that are relevant to the claim.
Division 4—Consideration and determination of claim
118ZF Duties of Commission in relation to claim
Determination of claim
(1) When the claim is submitted to the Commission, the Commission must consider all matters that are, in the Commission’s opinion, relevant to the claim and must then determine the claim.
(2) In considering the claim, the Commission must:
(a) satisfy itself with respect to; or
(b) determine;
(as the case requires) all matters relevant to the determination of the claim.
(3) Without limiting subsection (1), the Commission, in considering the claim, must consider:
(a) the evidence submitted with the claim under section 118ZE; and
(b) any further evidence subsequently submitted to the Commission in relation to the claim.
Record of determination and reasons
(4) When the Commission determines the claim it must make a written record of its determination.
(5) The Commission must also make a statement in writing about the determination that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the Commission’s determination.
Notification of determination
(6) As soon as practicable after the Commission determines a claim under subsection (1), the Commission must give the person who made the claim:
(a) a copy of the record of the Commission’s determination; and
(b) subject to subsection (7), a copy of the statement about the determination referred to in subsection (5); and
(c) particulars of the right of the person who made the claim to have the determination reviewed by the Commission.
(7) If the statement referred to in paragraph (6)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who made the claim, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
Note: A claimant may apply to the Commission for review of a determination made under this section (see section 118ZS).
118ZG Entitlement determination
Subject to section 118X and subsection 128A(2A), the Commission is to determine that a person is entitled to a seniors health card if the Commission is satisfied that the person is eligible for the card.
118ZH Date of effect of determination
A determination under section 118ZG takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Division 5—Cardholder’s obligations
118ZI Secretary may require notice of the happening of event or a change in circumstances
(1) The Secretary may give a person who is the holder of a seniors health card a notice that requires the person to inform the Department, or an officer specified in the notice, if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
Note: For holder of a seniors health card see section 5PB.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect whether the person is eligible for the card.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) subject to subsection (3A), must specify how the person is to give the information to the Department or specified officer; and
(d) must specify the period within which the person is to give the information to the Department or specified officer.
(3A) A document lodged as a consequence of a notice issued under subsection (1) that requires a person to inform the Department in writing of the occurrence, or likely occurrence, of a specified event or change of circumstances:
(a) is to be lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been lodged on a day determined under that section.
(4) The period specified under paragraph (3)(d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not fail to comply with a notice under subsection (1).
Penalty: Imprisonment for 6 months.
(5A) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5B) Subsection (5) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5B). See subsection 13.3(3) of the Criminal Code.
(5C) Subsection (5) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5C). See subsection 13.3(3) of the Criminal Code.
(6) A person must not, in purported compliance with a notice under subsection (1), knowingly furnish information that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
(8) In this section, officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.
118ZJ Secretary may require particular information relevant to eligibility for seniors health card
(1) The Secretary may give a person who is the holder of a seniors health card a notice that requires the person to give the Department, or an officer specified in the notice, a statement in writing about a matter that might affect whether the person is eligible for the card.
Note: For holder of a seniors health card see section 5PB.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) subject to subsection (3A), must specify how the statement is to be given to the Department or specified officer; and
(d) must specify the period within which the person is to give the statement to the Department or specified officer.
(3) The period specified under paragraph (2)(d) must end at least 14 days after the day on which the notice is given.
(3A) A document lodged as a consequence of a notice issued under subsection (1) that requires a person to give the Department a statement about a matter of a kind specified in that subsection:
(a) is to be lodged at an office of the Department in Australia in accordance with section 5T; and
(b) is taken to have been lodged on a day determined under that section.
(4) A statement given in response to a notice under subsection (1) must be in accordance with a form approved by the Commission.
(5) A person must not fail to comply with a notice under subsection (1).
Penalty: Imprisonment for 6 months.
(5A) An offence under subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5B) Subsection (5) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5B). See subsection 13.3(3) of the Criminal Code.
(5C) Subsection (5) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5C). See subsection 13.3(3) of the Criminal Code.
(6) A person must not, in purported compliance with a notice under subsection (1), knowingly furnish information that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
(8) In this section, officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.
118ZJA When copy of notice of assessment of taxable income to be given to Department
(1) If a person who is the holder of a seniors health card receives a notice of assessment or amended assessment of his or her taxable income for a particular tax year, the person must, if requested by the Secretary to do so, give a copy of the notice to the Department within 3 months after the day on which the notice was received.
(2) In this section:
taxable income has the same meaning as in the Seniors Health Card Income Test Calculator.
Division 6—Continuation, variation and termination
118ZK Continuing effect of determination
A determination that a person is entitled to a seniors health card continues in effect until:
(a) the person ceases to be entitled to the card under section 118ZL or 118ZM; or
(b) a further determination under section 118ZN or 118ZO or subsection 128A(2B) has taken effect.
118ZL Person ceases to be entitled to card automatically—recipient complying with section 118ZI notification obligations
If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZI; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person ceases to be eligible for the card; and
(f) a determination is not made that the person ceases to be entitled to the card before the end of the notification period;
the person continues to be entitled to the card until the end of the notification period and the person then ceases to be entitled to the card.
Note: For holder of a seniors health card see section 5PB.
118ZM Person ceases to be entitled to card automatically—recipient not complying with section 118ZI notification obligations
If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZI; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (the notification period); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances the person ceases to be eligible for the card;
the person ceases to be entitled to the card immediately after the day on which the event or change in circumstances occurs.
Note: For holder of a seniors health card see section 5PB.
118ZN Determination that a person ceases to be entitled to a seniors health card
(1) If the Commission is satisfied that a person is, or was, the holder of a seniors health card when the person is not, or was not, eligible for the card, the Commission is to determine that the person ceases to be entitled to the card.
Note 1: For holder of a seniors health card see section 5PB.
Note 2: A determination under this section is not necessary in a case where an automatic loss of eligibility is produced by section 118ZL or 118ZM.
Note 3: For the date of effect of a determination under this section see section 118ZR.
(2) A determination under subsection (1) must be in writing.
118ZO Person may cease to be entitled to a seniors health card for failure to comply with section 118ZJ notice
(1) If:
(a) a person who is the holder of a seniors health card is given a notice under section 118ZJ; and
(b) the person does not comply with the requirements set out in the notice;
the Commission may determine that the person ceases to be entitled to the card.
Note 1: For holder of a seniors health card see section 5PB.
Note 2: This section will not apply in a case where section 118ZN applies.
Note 3: For the date of effect of a determination under this section see section 118ZR.
(2) A determination under subsection (1) must be in writing.
118ZP Resumption of entitlement
(1) If the Commission:
(a) determines that a person ceases to be entitled to a seniors health card under section 118ZN or 118ZO; and
(b) reconsiders that decision; and
(c) becomes satisfied that because of that decision:
(i) the person was not entitled to a seniors health card when in fact the person was eligible for the card; or
(ii) the person is not entitled to a seniors health card when in fact the person is eligible for the card;
the Commission is to determine that the person was or is entitled to the card.
(2) The reconsideration referred to in paragraph (1)(b) might be a reconsideration on a claim under section 118ZS for review or a reconsideration on the Commission’s own initiative.
(3) A determination under subsection (1) must be in writing.
Note: For the date of effect of a determination under this section see section 118ZQ.
118ZQ Date of effect of favourable determination
A determination under section 118ZP takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
118ZR Date of effect of adverse determination
(1) The day on which a determination under section 118ZN or 118ZO or subsection 128A(2B) (the adverse determination) takes effect is worked out in accordance with this section.
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4) and (5), the day specified under paragraph (2)(b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person’s entitlement to a seniors health card is affected by the adverse determination and the person has contravened a provision of this Act (other than subsection 118ZI(5), 118ZJ(5) or 128(4)); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made.
False statement or misrepresentation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the person became the holder of a seniors health card when in fact the person was not eligible for the card;
the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made.
Division 7—Review of decisions
118ZS Review of certain decisions
(1) A claimant who is dissatisfied with a decision of the Commission in relation to a claim for a seniors health card may request the Commission to review the decision.
(2) A person who is dissatisfied with a decision of the Commission that the person ceases to be entitled to a seniors health card may request the Commission to review the decision.
118ZT Application for review
(1) A request for review of a decision under section 118ZS must:
(a) be made within 3 months after the person seeking review was notified of the decision; and
(b) set out the grounds on which the request is made; and
(c) be in writing; and
(d) be lodged at an office of the Department in Australia in accordance with section 5T.
(1A) A request lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(2) If a request for review of a decision is made in accordance with subsection (1), the Commission must review the decision.
(3) If the Commission has delegated its powers under this section to the person who made the decision under review, that person must not review the decision.
118ZU Commission’s powers where request for review
(1) If the Commission reviews a decision under this Division, the Commission must affirm the decision or set it aside.
(2) If the Commission sets the decision aside it must, subject to subsection (3), substitute a new decision in accordance with this Act.
(3) If the decision set aside is a decision that a person ceases to be entitled to a seniors health card, the Commission need not substitute another decision.
Note: For the Commission’s evidence gathering powers see section 118ZY.
118ZV Date of effect of certain review decisions
(1) If the Commission sets aside a decision and substitutes for it a decision that a person is entitled to a seniors health card, the substituted decision takes effect from a date specified by the Commission.
(2) The date specified by the Commission must not be earlier than the date from which, had the Commission determined that the person is entitled to a seniors health card, such a determination could have taken effect.
118ZW Commission must make written record of review decision and reasons
(1) When the Commission reviews a decision under this Division it must make a written record of its decision upon review.
(2) The written record must include a statement that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the Commission’s decision.
118ZX Person who requested review to be notified of decision
(1) When the Commission affirms or sets aside a decision under this Division it must give the person who requested the review of the decision:
(a) a copy of the Commission’s decision; and
(b) subject to subsection (2), a copy of the statement about the decision referred to in subsection 118ZW(1); and
(c) if the person has a right to apply to the Administrative Appeals Tribunal for a review of the Commission’s decision—a statement giving the person particulars of that right.
(2) If the statement referred to in paragraph (1)(b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who requested review, be prejudicial to his or her physical or mental health or well‑being;
the copy given to the person is not to contain that matter.
118ZY Powers of Commission to gather evidence
(1) The Commission or the Commission’s delegate may, in reviewing a decision under this Division:
(a) take evidence on oath or affirmation for the purposes of the review; and
(b) adjourn a hearing of the review from time to time.
(2) The presiding member of the Commission or the Commission’s delegate may, for the purposes of the review:
(a) summon a person to appear at a hearing of the review to give evidence and to produce such documents (if any) as are referred to in the summons; and
(b) require a person appearing at a hearing of the review for the purpose of giving evidence either to take an oath or to make an affirmation; and
(c) administer an oath or affirmation to a person so appearing.
(3) The person who applied for the review under this Division is a competent and compellable witness upon the hearing of the review.
(4) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
(5) The Commission’s power under paragraph (1)(a) to take evidence on oath or affirmation:
(a) may be exercised on behalf of the Commission by:
(i) the presiding member or the Commission’s delegate; or
(ii) by another person (whether a member or not) authorised by the presiding member or the Commission’s delegate; and
(b) may be exercised within or outside Australia; and
(c) must be exercised subject to any limitations specified by the Commission.
(6) Where a person is authorised under subparagraph (5)(a)(ii) to take evidence for the purposes of a review, the person has:
(a) all the powers of the Commission under subsection (1); and
(b) all the powers of the presiding member under subsection (2);
for the purposes of taking that evidence.
(7) In this section:
Commission’s delegate means a person to whom the Commission has delegated its powers under section 118ZT and who is conducting the review in question.
118ZZ Withdrawal of request for review
(1) A person who requests a review under section 118ZS may withdraw the request at any time before it is determined by the Commission.
(2) To withdraw the request, the person must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia in accordance with section 5T.
(3) Subject to section 118ZT, a person who withdraws a request for review may subsequently make another request for review of the same decision.
Note: Section 118ZT provides that a person who wants to request a review of a decision must do so within 3 months after the person has received notice of the decision.
Division 8—Seniors Health Card Income Test Calculator
118ZZA Seniors Health Card Income Test Calculator
The Seniors Health Card Income Test Calculator at the end of this section is to be used in working out whether a person satisfies the seniors health card income test for the purposes of this Act.
Seniors Health Card Income Test Calculator
Satisfying the seniors health card income test
118ZZA‑1 This is how to work out whether a person satisfies the seniors health card income test at a particular time (the test time).
Method statement
Step 1. Work out the amount of the person’s adjusted taxable income for the reference tax year.
Step 1A. If, at the test time, the person, or the person’s partner (if any), has at least one long‑term financial asset (see point 118ZZA‑12), work out the person’s deemed income amount under:
(a) if, at the test time, the person is not a member of a couple—point 118ZZA‑10A; or
(b) if, at the test time, the person is a member of a couple—point 118ZZA‑10B.
Step 1B. Work out the sum of the amounts at step 1 and step 1A (if any).
Step 2. Work out the person’s seniors health card income limit using point 118ZZA‑11.
Step 3. Work out whether the amount at step 1B exceeds the seniors health card income limit.
Step 4. If the amount at step 1B is less than the person’s seniors health card income limit, the person satisfies the seniors health card income test.
Step 5. If the amount at step 1B is equal to or exceeds the person’s seniors health card income limit, the person does not satisfy the seniors health card income test.
Reference tax year
118ZZA‑2(1) In the ordinary case, a person’s reference tax year is:
(a) if the person has received a notice of assessment of his or her taxable income for the tax year immediately preceding the tax year in which the test time occurred—that immediately preceding tax year; or
(b) otherwise—the tax year immediately preceding the tax year applicable under paragraph (a).
(2) However, if the person has informed the Secretary in writing that the person wishes to have his or her entitlement to a seniors health card determined by reference to his or her adjusted taxable income for the tax year in which the test time occurred (the current tax year), the person’s reference tax year is the current tax year.
Adjusted taxable income
118ZZA‑3 For the purposes of this Division, a person’s adjusted taxable income for a particular tax year is the sum of the following amounts (income components):
(a) the person’s taxable income for that year, disregarding the person’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for that year;
(b) the person’s fringe benefits value for that year;
(c) the person’s target foreign income for that year;
(d) the person’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year;
(e) the person’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year.
Note 1: For taxable income see point 118ZZA‑4.
Note 2: For fringe benefits value see point 118ZZA‑5.
Note 3: For target foreign income see point 118ZZA‑6.
Taxable income
118ZZA‑4(1) In this Division:
taxable income has the same meaning as in the Income Tax Assessment Act 1997.
(2) For the purposes of this Division, a person’s taxable income for a particular tax year is:
(a) the person’s assessed taxable income for that year; or
(b) if the person does not have an assessed taxable income for that year—the person’s accepted estimate of taxable income for that year.
(3) For the purposes of this Division, a person’s assessed taxable income for a particular tax year at a particular time is the most recent of:
(a) if, at that time, the Commissioner of Taxation has made an assessment or an amended assessment of that taxable income—that taxable income according to the assessment or amended assessment; or
(b) if, at that time, a tribunal has amended an assessment or an amended assessment made by the Commissioner—that taxable income according to the amendment made by the tribunal; or
(c) if, at that time, a court has amended an assessment or an amended assessment made by the Commissioner or an amended assessment made by a tribunal—that taxable income according to the amendment made by the court.
Fringe benefits value
118ZZA‑5(1) For the purposes of this Division, a person’s fringe benefits value for a particular tax year is the person’s accepted estimate of the amount by which the total of the assessable fringe benefits received or to be received by the person in the tax year exceeds $1,000.
(2) In this point:
assessable fringe benefit has the meaning given by subsection 10A(2) of the Social Security Act 1991.
(3) The value of an assessable fringe benefit is to be worked out in accordance with Part 3.12A of the Social Security Act 1991 except that references in that Part to the Minister and to the Secretary are to be taken to be references to the Minister for Veterans’ Affairs and to the Secretary of the Department of Veterans’ Affairs, respectively.
Target foreign income
118ZZA‑6(1) In this Division:
foreign income, in relation to a person, means:
(a) an income amount earned, derived or received by the person from a source outside Australia for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance from a source outside Australia; or
(c) a periodical benefit by way of gift or allowance from a source outside Australia.
target foreign income means foreign income that is not:
(a) taxable income; or
(b) received in the form of a fringe benefit.
(2) For the purposes of this Division, a person’s target foreign income for a particular tax year is the person’s accepted estimate of the amount of that income for that year.
Total net investment loss
118ZZA‑7 For the purposes of this Division, a person’s total net investment loss for a particular tax year is the person’s accepted estimate of the amount of that loss for that year.
Accepted estimate
118ZZA‑8 For the purposes of this Division, a person’s accepted estimate of an income component for a particular tax year is that income component according to the most recent notice given by the person to the Secretary under point 118ZZA‑9 and accepted by the Commission for the purposes of this Part.
Notice estimating income component
118ZZA‑9(1) A person may give the Secretary a notice, in a form approved by the Commission, setting out the person’s estimate of an income component of the person for a tax year.
(2) The notice is to contain, or be accompanied by, such information as is required by the form to be contained in it or to accompany it, as the case may be.
(3) The Commission is to accept a notice only if the Commission is satisfied that the estimate is reasonable.
Adjusted taxable income of members of couples
118ZZA‑10 If a person is a member of a couple, add the couple’s adjusted taxable incomes for the reference tax year and divide by 2 to work out the amount of the person’s adjusted taxable income for the reference tax year.
Deemed income amount
118ZZA‑10A This is how to work out the person’s deemed income amount under this point:
Method statement
Step 1. Work out the total value of all of the person’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 2. Work out under section 46D the amount of ordinary income the person would be taken to receive per year on his or her financial assets:
(a) on the assumption that the only financial assets of the person were the financial assets referred to in step 1; and
(b) on the assumption that the total value of the person’s financial assets were the amount at step 1.
Step 3. The result at step 2 is the person’s deemed income amount.
118ZZA‑10B This is how to work out the person’s deemed income amount under this point:
Method statement
Step 1. Work out the total value of all of the person’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 2. If, at the test time, the person’s partner has reached the minimum age mentioned in section 301‑10 of the Income Tax Assessment Act 1997, work out the total value of all of the person’s partner’s long‑term financial assets (see point 118ZZA‑12) at the test time.
Step 3. Work out under section 46E the amount of ordinary income the couple would be taken to receive per year on their financial assets:
(a) on the assumption that the only financial assets of the person and the person’s partner were the financial assets referred to in steps 1 and 2; and
(b) on the assumption that the total value of the couple’s financial assets were the sum of the amounts at steps 1 and 2.
Step 4. Divide the amount at step 3 by 2: the result is the person’s deemed income amount.
Seniors health card income limit
118ZZA‑11 A person’s seniors health card income limit is worked out using the Seniors Health Card Income Limit Table. Work out which family situation in the table applies to the person. The person’s seniors health card income limit is the corresponding amount in column 3 plus an additional corresponding amount in column 4 for each dependent child of the person.
| Seniors Health Card Income Limit Table |
| Column 1 Item | Column 2 Person’s family situation | Column 3 Amount per year | Column 4 Additional dependent child Amount per year |
| 1 | Not member of couple | $50,000 | $639.60 |
| 2 | Partnered | $40,000 | $639.60 |
| 3 | Member of illness separated couple | $50,000 | $639.60 |
| 4 |