Veterans’ Entitlements (Special Disability

Trust ─ Trust Deed, Reporting and Audit Requirements) Determination 2023

Dated                           5 September 2023       

The Seal of the Repatriation Commission was affixed hereto in the presence of:

Part 1    Preliminary

1  Name

                   This instrument is the Veterans’ Entitlements (Special Disability Trust ─ Trust Deed, Reporting and Audit Requirements) Determination 2023.

2  Commencement

This instrument commences on the day after registration.

3  Authority

This instrument is made under the following provisions of the Veterans’ Entitlements Act 1986:

                     (a)  subsection 52ZZZWC(2);

                     (b)  subsection 52ZZZWF(4);

                     (c)  subsection 52ZZZWG(7).

4  Interpretation

Note:   Terms used in this instrument have the same meaning as they do in the Veterans’ Entitlements Act 1986. For example, the following terms are defined in that Act:

·         immediate family member;

·         principal beneficiary;

·         Social Security Act;

·         special disability trust.

                   In this instrument:

Act means the Veterans’ Entitlements Act 1986.

Auditing and Assurance Standards Board means the Australian non-corporate government entity responsible for developing, issuing and maintaining standards relating to auditing and assurance.

Australian Auditing Standards means the standards issued by the Auditing and Assurance Standards Board as existing on the day this instrument commences.

Note:   The Australian Auditing Standards could in 2023 be viewed online on the Auditing and Assurance Standards Board website (auasb.gov.au).

Department means the Department of Veterans’ Affairs.

model trust deed means the document named Model Trust Deed for Special Disability Trusts:

                     (a)  published by the department responsible for administering the Social Security Act; and

                     (b)  as existing on the day this instrument commences.

Note:   The Model Trust Deed for Special Disability Trust could in 2023 be viewed online on the Department of Social Services website (dss.gov.au).

relevant financial year, for a reporting requirement for a trust, means the financial year in relation to which the trustees are required to give financial statements about the trust under subsection 52ZZZWF(1) of the Act.

5  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Part 2    Trust deed requirements

6  Form of trust deed

                   For paragraph 52ZZZWC(2)(a) of the Act, the form of the trust deed required for a special disability trust is the model trust deed, in writing.

7  Provisions which must be included in trust deed and form of provisions

             (1)  For paragraph 52ZZZWC(2)(b) of the Act, the trust deed must include provisions dealing with each of the matters mentioned in column 2 of the table in subsection (2).

             (2)  For paragraph 52ZZZWC(2)(c) of the Act, the provision in the trust deed dealing with a matter mentioned in column 2 for an item of the following table must be in the form of the clause of the model trust deed mentioned in column 3 for that item.

8  Provisions that cannot be included in trust deed

                   For paragraph 52ZZZWC(2)(d) of the Act, the following provisions cannot be included in the trust deed:

                     (a)  a provision that is inconsistent with a clause of the model trust deed mentioned in the table in subsection 7(2);

                     (b)  a provision that has the effect of overriding a clause of the model trust deed mentioned in that table.

Part 3    Reporting requirements

9  Qualifications of persons preparing financial statements

                   For paragraph 52ZZZWF(2)(a) of the Act, the financial statements about a trust must be prepared by a person who:

                     (a)  is either or both of the following:

                              (i)  a member of CPA Australia, Chartered Accountants Australia and New Zealand, or   Institute of Public Accountants;

                             (ii)  if a trustee corporation is a trustee of the trust – an employee of the trustee corporation engaged by the corporation as an accountant or financial planner; and

                     (b)  is not an immediate family member of any of the following:

                              (i)  the principal beneficiary of the trust;

                             (ii)  a residuary beneficiary of the trust;

                            (iii)  a trustee of the trust.

10  Information that must be included in financial statements

(1)         For subsection 52ZZZWF(3) of the Act, the financial statements for a trust must include information of the kind specified in subsections (2) to (5).

(2)      The financial statements must include:

                     (a)  a profit and loss statement for the trust for the relevant financial year; and

                     (b)  a balance sheet for the trust with applicable notes for the relevant financial year; and

                     (c)  notes that disclose:

(i)         the basis on which the financial statements were prepared, including whether they comply with the requirements of the Act and the trust deed; and

(ii)        the material accounting policies applied in the financial statements and the nature and extent of any changes in those accounting policies, including the reasons why applying the new accounting policy provides more relevant and reliable information; and

                     (d)  if the trust has depreciating assets - a depreciation schedule for each class of trust assets held by the trust for the relevant financial year.

(3)      The financial statements must give a true and correct view in all material particulars of the trust’s financial position and performance as at 30 June of the relevant financial year.

             (4)  The financial statements must include a statement to the effect that, for the relevant financial year:

                     (a)  all amounts paid out of the trust (other than amounts paid for reasonable administration expenses and taxation) were paid:

                              (i)  to meet reasonable care and accommodation needs of the principal beneficiary; or

                             (ii)  for other purposes, ancillary to meeting the reasonable care and accommodation needs of the principal beneficiary, that are necessary or desirable to facilitate the meeting of those needs; or

                            (iii)  for other purposes that are primarily for the benefit of the principal beneficiary; and

                     (b)  no amount was paid out of the trust:

                              (i)  for purposes other than those mentioned in subparagraphs (a)(i), (ii) or (iii); or

                             (ii)  for services provided to the principal beneficiary by an immediate family member of the principal beneficiary.   

             (5)  The financial statements about the trust must be accompanied by a statutory declaration made by all trustees of the trust to the effect that all information given in the accordance with section 52ZZZWF of this Act and this Part is true and correct in all material particulars.     

11  Income tax returns

             (1)  For subsection 52ZZZWF(3) of the Act, subject to subsection (2), the financial statement about a trust must include a certified copy of the trust’s income tax return, completed and lodged in accordance with the Income Tax Assessment Act 1936 for the relevant financial year.

             (2)  If section 95AB of the Income Tax Assessment Act 1936 applies to the trust’s income, a certified copy of the trust’s income tax return is not required.

12  Audit period

                   For section 52ZZZWG of the Act, the audit of the trust must relate to the period specified by the person requesting the audit under subsection 52ZZZWG (3) of the Act, being a period of 1 to 5 financial years in the period of 5 financial years ending on the 30 June last preceding the request.

13  Qualifications of persons preparing audit

                   For paragraph 52ZZZWG(5)(a) of the Act, the audit of the trust must be prepared by a person who:

                     (a)  is a member of:

                              (i)  CPA Australia; or

                             (ii)  Chartered Accountants Australia and New Zealand; or

                            (iii)  the Institute of Public Accountants; and

                     (b)  is not the person who prepared, or is preparing, any of the financial statements about the trust for the period to which the audit relates; and

                     (c)  is not an immediate family member of any of the following:

                              (i)  the principal beneficiary of the trust;

                             (ii)  a residuary beneficiary of the trust;

                            (iii)  a trustee of the trust.

14  Information that must be included in audit

             (1)  For subsection 52ZZZWG(6) of the Act, the audit of the trust must include information of the following kind:

                     (a)  a statement to the effect that the trust’s financial statements give a true and fair view of the trust’s financial position and performance as at 30 June of each financial year to which the audit relates;

                     (b)  if the person requesting the audit under subsection 52ZZZWG(3) of the Act requests the audit for the purpose of determining whether the trust has met the requirements of all of the provisions of the trust deed — a statement indicating whether the trust has met the requirements of all of the provisions of the trust deed;

                     (c)  if the person requesting the audit under subsection 52ZZZWG(3) of the Act requests the audit for the purpose of determining whether the trust has met the requirements of specified provisions of the trust deed — a statement indicating whether the trust has met the requirements of those specified provisions of the trust deed.

             (2)  Information mentioned in subsection (1) must comply with the relevant Australian Auditing Standards.

Schedule 1—Repeals

Veterans’ Entitlements (Special Disability Trust ─ Trust Deed, Reporting and Audit Requirements) Determination 2013

1  The whole of the instrument

Repeal the instrument.