Federal Register of Legislation - Australian Government

Primary content

2012 No. R2 Determinations/Veterans' Entitlements as made
This instrument ensures that a pensioner under the Veterans' Entitlements Act 1986 (VEA) does not receive an advance under the VEA if the person has already received one, whether under the VEA or another Commonwealth Act or under a Commonwealth scheme. An advance is a financial amount paid to beneficiaries under various Commonwealth Acts and schemes as compensation for increased living costs due to the price on carbon.
Administered by: Veterans' Affairs
Registered 12 Apr 2012
Tabling HistoryDate
Tabled HR08-May-2012
Tabled Senate10-May-2012

EXPLANATORY STATEMENT

 

Veterans’ Entitlements (Clean Energy Advance – Multiple Entitlement Exclusion) Determination 2012

The Veterans’ Entitlements (Clean Energy Advance – Multiple Entitlement Exclusion) Determination 2012 is made under section 65A of the Veterans’ Entitlements Act 1986 (the Act).

Background

The Clean Energy (Household Assistance Amendment) Act 2011 (the Household Assistance Act) makes amendments to, among other Acts, the Veterans’ Entitlements Act 1986 that includes financial assistance for increases in the cost of living arising from the introduction of a carbon price on 1 July 2012.  The initial assistance will generally be delivered in a lump sum clean energy advance before commencement of the carbon pricing scheme.  Ongoing, permanent clean energy supplements will be paid from the end of the clean energy advance lump sum period as a distinct component of the person’s rate of pension under the Act. 

 

Generally, the clean energy advance provisions in the Household Assistance Act apply from 14 May 2012, with most payments to be made over the period 14 May to 30 June 2012.   Section 65A of the Act enables the Repatriation Commission to determine, by legislative instrument, the circumstances in which people will not qualify for clean energy bonus under the Act if they have already been paid, or are qualified for, a clean energy bonus under another Act or scheme. 

Purpose

The operation of the Determination is to ensure that clean energy bonuses are only paid to people who ought to receive them.  The Determination sets out the circumstances in which people are not able to receive a clean energy advance or clean energy supplement under the Act if they have already received a clean energy advance or supplement under other legislation, such as the Social Security Act 1991, or under an administrative scheme such as ABSTUDY. 

 

For example, without the Determination, a person who switches from a payment under the Act to a payment under the Social Security Act 1991 could be qualified for a further clean energy advance that would cover the same clean energy advance period.  This may result in the person receiving much greater assistance than is necessary to meet their increased costs of living.  A person in this situation may still qualify for a top‑up payment under the Veterans’ Entitlements (Clean Energy Advance – Top‑up Payment) Determination 2012

 

Similarly, a person who receives a clean energy advance because they are receiving an ABSTUDY payment (which is a payment under an administrative scheme and not a legislative payment) and who switches to the Veterans’ Children Education Scheme during the clean energy advance period, would qualify for a new clean energy advance.  This may result in the person receiving much greater assistance than is necessary.  It would be more appropriate to provide this person with a top‑up payment rather than a further clean energy advance.

 

Additionally, there are some people who may receive welfare payments under more than one Act and, if they receive a clean energy supplement under more than one Act, they may receive much greater assistance than is necessary. 

The Determination is a legislative instrument.

Explanation of provisions

Section 1 states the name of the Determination.

Section 2 states that the Determination commences on 14 May 2012.  This date corresponds with the commencement of the provisions of the Act under which the Determination is made.

Section 3 contains the interpretation provisions.

Section 4 sets out the circumstances in which a person will not be eligible for a clean energy advance payment despite any provision in the Act. 

Subsection 4(1) provides that a person will not be eligible for a clean energy advance under the Act if the advance would be for service pension, seniors supplement or war widow(er) pension (a payment) and:

  • the person has previously been paid a clean energy advance under the Act in relation to service pension, seniors supplement or war widow(er) pension; or
  • the person is eligible or qualified for an advance for more than one payment and the Commission determines for which payment the advance is to be made and it is not the payment for which the person seeks the advance in which case the person is not eligible for an advance.  The intention is to prevent a double payment of an advance where a person is eligible or qualified for more than one advance.

·         the person has previously been paid, or is eligible or qualified for a clean energy advance under:

(i) the Social Security Act 1991;

[A person here would include the recipient of a partner service pension (service pension) that was previously known as a wife’s service pension which had been continued in force by section 10 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 and who received the Widow B Pension under the Social Security Act 1991.  The intention is that this person is not eligible for an advance for the service pension under the Act unless the Repatriation Commission is satisfied the person is reasonably unlikely to be paid an advance for the widow B pension under the Social Security Act 1991 by reason of a multiple entitlement exclusion.]

(ii) the Military Rehabilitation and Compensation Act 2004 (MRCA) in relation to a MRCA wholly dependent partner payment, which is compensation payable under Division 2 of Part 2 of Chapter 5 of the MRCA; or

(iii) ABSTUDY (education scheme for indigenous secondary and tertiary students and for apprentices); or

(iv) the Military Rehabilitation and Compensation Act Education and Training Scheme; or

(v) the Veterans’ Children Education Scheme;

unless, where the person is eligible or qualified for an advance under an Act or scheme mentioned in paragraphs (i)-(v) above (i.e. has not been paid an advance), the Repatriation Commission forms the opinion that there is no reasonable likelihood of the person being paid an advance under those Acts or schemes because of a multiple entitlement exclusion in which case the person is not ineligible for an advance under section 4.

The note to paragraph 4(1)(c) states it is the intention to avoid a situation where a multiple entitlement exclusion under, say, X Act, says no advance for a person under X Act if person is eligible for advance under Y Act but the multiple entitlement exclusion for Y Act says no advance for a person under Y Act if person is eligible for advance under X Act.  In such a situation the person is not ineligible for an advance under the Veterans’ Entitlements Act 1986 if the Repatriation Commission decides there is no reasonable likelihood of the person being paid an advance under another Act or scheme due to a multiple entitlement exclusion for that Act or scheme.

Subsection 4(2) provides that a person will not be eligible for a clean energy advance under the Act if the advance would be for disability pension and:

·         the person has previously been paid a clean energy advance under the Act in relation to disability pension; or

·         the person has previously been paid, or is eligible or qualified for, a clean energy advance under:

(i) the MRCA in relation to a permanent impairment payment under the MRCA; or

(ii) the MRCA in relation to a Special Rate Disability Pension under the MRCA;

unless, where the person is eligible or qualified for an advance under the MRCA for the compensation mentioned in paragraphs (i)-(ii) above (i.e. has not been paid an advance), the Repatriation Commission forms the opinion that there is no reasonable likelihood of the person being paid an advance under the MRCA in respect of the compensation because of a multiple entitlement exclusion for the MRCA in which case the person is not ineligible for an advance under section 4.

      The note to paragraph 4(2)(b) states it is the intention to avoid a situation where a multiple entitlement exclusion under the MRCA says no advance for a person under the MRCA if the person is eligible for an advance under the Veterans’ Entitlements Act 1986 (VEA) but the multiple entitlement exclusion for the VEA says no advance for a person under the VEA if the person is eligible for an advance under the MRCA.  In such a situation the person is not ineligible for an advance under the Veterans’ Entitlements Act 1986 if the Repatriation Commission decides there is no reasonable likelihood of the person being paid an advance under the MRCA due to a multiple entitlement exclusion for the MRCA.

Subsection 4(3) confirms that a person who is excluded from receiving a clean energy advance as a result of the Determination may still be eligible for a top‑up payment under the Veterans’ Entitlements (Clean Energy Advance – Top‑up Payments) Determination 2012 .

Section 5 sets out the circumstances in which a person will not be eligible for a clean energy supplement under the Act despite any provision in the Act. 

Subsection 5(1) provides that a person will not be eligible to have a clean energy supplement for disability pension under the Act used to calculate their rate of disability pension if the person is also in receipt of:

  • if disability pension is paid to the person at the general rate (maximum rate per fortnight in subsection 22(3) of the Act) - a permanent impairment payment under MRCA; or

·         a Special Rate Disability Pension under MRCA;

where the payment or pension under the MRCA includes a component of clean energy supplement covering the same instalment period for the person’s disability pension.

Subsection 5(2) provides that a person will not be eligible to have a clean energy supplement for a clean energy underlying payment that is war widow (er) pension under the Act if the person is also in receipt of a wholly dependent partner payment under the MRCA and the payment under the MRCA includes a component of clean energy supplement covering the same instalment period for the person’s war widower(er) pension.

Subsection 5(3) provides that a person will not be eligible to have a clean energy supplement for a seniors supplement used to calculate the person’s rate of seniors supplement on a day if the person is also in receipt of a war widow(er) pension under the Act or a wholly dependent partner payment under the MRCA that includes a component of clean energy supplement covering the same instalment period for the person’s seniors supplement.

Consultation

 

In relation to the carbon price proposal generally:

 

The Government established a working group of community sector leaders to help advise the Government on an assistance package for Australian households, under a carbon pricing mechanism. This Household Assistance Working Group, a sub-group advising the Multi Party Climate Change Committee, helped to inform the Government's policy-making process.

 

Members of the working group came from non-government organisations that represent those people the Government wanted to ensure received adequate assistance, especially people in low-income households.  The Government also consulted with State and Territory Governments on aspects of household assistance to ensure it connects with and complements programs and activities already in place across the country.

 

The Department of Veterans’ Affairs ensured that key ex-service organisations were kept informed of policy developments in relation to the carbon price proposal through the ESO Round Table.  The ESO Round Table (Ex Service Organisation Round Table) is the main forum for dialogue between the Military Rehabilitation Compensation Commission, the Repatriation Commission, the Department of Veterans’ Affairs and the leadership of the ESO and Defence communities

 

In relation to the attached legislative instrument:

 

The Department of Veterans’ Affairs consulted the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).  FaHCSIA prepared a similar legislative instrument and is the leader among Commonwealth Government agencies in this exercise.  Consultation was by way of e-mail, phone and meetings.

The Department of Veterans’ Affairs also consulted the ESO Round Table.  Consultation was by way of a meeting.

Documents incorporated by reference

 

No.

 

Human rights implications

 

The attached legislative Instrument does engage an applicable right or freedom.  It relates to the right to social security.  The right to social security requires, among other things, the right to a minimum essential level of benefits for all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

 

The price on carbon is expected to increase the costs of living.  In particular, the costs of electricity and food.  The Government has taken steps to ensure that financially vulnerable members of the community are reasonably financially compensated for increased living costs due to the price on carbon. 

 

This compensation is intended to enable people with limited means to continue to have adequate access to essential services and would be in accordance with Australia’s social security obligations under the International Covenant on Economic, Social and Cultural Rights.

 

The UN Committee on Economic Social and Cultural Rights has stated that qualifying conditions for benefits must be reasonable, proportionate and transparent.

 

The attached legislative instrument appears to satisfy these criteria.  It ensures that people do not receive double-entitlements where only one entitlement is intended.  There is no scope for the exercise of a discretion under the instrument, the conditions are prescriptive.

 

Conclusion

 

The legislative instrument in question is compatible with human rights because it does not reduce the right to social security but merely ensures the right is exercised appropriately and not used to “double-dip” and the conditions the instrument imposes on the relevant entitlement in this regard are considered fair and reasonable in the policy context.

Repatriation Commission

Rule-Maker

 

Regulatory Impact Analysis

The Determination does not require a Regulatory Impact Statement or a Business Cost Calculator Figure.  The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.