13Eligibility for pensions by way of compensation to veterans and their dependants

#### 13 Eligibility for pensions by way of compensation to veterans and their dependants (1) Where: (a) the death of a veteran was war‑caused; or (b) a veteran is incapacitated from a war‑caused injury or a war‑caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or (d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran; in accordance with this Act. (2) Where: (a) a veteran has died; (b) the death of the veteran was not war‑caused; and (c) the veteran was, immediately before the veteran’s death: (i) a veteran to whom subsection 22(4) or section 23, 24 or 25 applied; or (ii) a veteran to whom section 22 applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27; the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act. (2A) If: (a) a veteran has died; and (b) the veteran’s death was not war‑caused; and (c) the veteran was a prisoner of war at a time before 1 July 2004 when the veteran was on operational service; the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act. (2B) The date of commencement of a pension payable under subsection (2A) is not to be earlier than 1 January 1993. (3) Where a pension in respect of the incapacity of a veteran from war‑caused injury or war‑caused disease, or both, is granted, after the death of the veteran, as from a date before the death of the veteran, subsection (2) applies as if the veteran had been in receipt of that pension immediately before the veteran died. (4) Where: (a) a veteran who has rendered operational service has died; (b) the death of the veteran was not war‑caused; (c) the veteran is survived by a child of the veteran; and (d) the Commission is satisfied that the child is not being maintained by a parent, adoptive parent or step‑parent of the child; the Commonwealth is, subject to subsection (7) of this section and to the other provisions of this Act, liable to pay pension to that child. (5) The Commonwealth is not liable to pay a pension under subsection (1) to a veteran who is a veteran by reason only that he or she has rendered operational service as described in item 3 of the table in subsection 6A(1) or as described in subsection 6C(2) unless the veteran is residing in, and is physically present in, Australia or an external Territory at the time when he or she makes a claim for the grant of the pension in accordance with section 14 or, if the veteran has made 2 or more such claims, at the time when he or she made the first of those claims. (6) Where the death of a person who is, or was, a member of the Defence Force, or the incapacity of such a person from injury or disease: (a) resulted from an occurrence that happened, or a disease that was contracted, on or after 31 July 1962: (i) as a result of action of hostile forces; or (ii) while the person was engaged in warlike operations against hostile forces; being an occurrence that happened, or a disease that was contracted, outside Australia while the person was rendering continuous full‑time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area; or (b) has arisen out of or is attributable to: (i) action by hostile forces; or (ii) the engagement of the person in warlike operations against hostile forces; on or after 31 July 1962 outside Australia while the person was rendering continuous full‑time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area; the Commonwealth is, subject to subsection (7) of this section and to the other provisions of this Act, liable to pay: (c) in the case of the death of the person—pensions to the dependants of the person; or (d) in the case of the incapacity of the person—pension to the person; in accordance with this Act, and this Act, other than subsections (1) to (5), inclusive, of this section, applies to and in relation to the person as if the person were a veteran and the death of the person were war‑caused, the injury suffered by the person were a war‑caused injury or the disease contracted by the person were a war‑caused disease, as the case may be. Subsection (6) ceases to apply (6A) The Commonwealth is not liable, under subsection (6), to pay a pension in respect of a person’s death, or the incapacity of a person, if: (a) either: (i) the occurrence resulting in the death or incapacity happened on or after the MRCA commencement date; or (ii) the disease was contracted on or after the MRCA commencement date; and (b) either: (i) the occurrence or disease relates to service rendered by the person on or after that date; or (ii) the occurrence or disease relates to service rendered by the person before, and on or after, that date (whether the service spans the commencement date or is rendered during separate periods before and on or after that date). (7) The Commonwealth is not liable to pay a pension: (a) to a dependant of a veteran, being a child of the veteran, under subsection (1), (2) or (2A); (b) to a child of a veteran under subsection (4); or (c) to a dependant of a person, being a child of the person, under subsection (6); if the dependant has attained the age of 16 years and payments, by way of a living allowance, are being made in respect of the child: (d) by way of youth allowance; or (e) under the scheme known as the Assistance for Isolated Children Scheme; or (f) under the scheme known as the ABSTUDY scheme; or (g) under the scheme known as the Post‑Graduate Awards Scheme; or (h) under the Veterans’ Children Education Scheme. (7A) The Commonwealth is liable to pay a pension to a reinstated pensioner. (8) Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) re‑marries, marries or enters into a de facto relationship after the death of the veteran and after the commencement of this Act: (a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board, the Administrative Review Tribunal or the former Administrative Appeals Tribunal, as the case may be, to grant the pension: (i) was made before the commencement of this Act; or (ii) was or is made after the commencement of this Act upon consideration or re‑consideration of a claim for that pension that was duly made (whether before or after the commencement of this Act) before the re‑marriage, marriage or entry into the de facto relationship occurred; and (b) a decision granting a pension to the dependant under this section made after the commencement of this Act by the Commission, the Board, the Administrative Review Tribunal or the former Administrative Appeals Tribunal after that re‑marriage, marriage or entry into the de facto relationship occurred (including a decision granting such a pension as from a date before that re‑marriage, marriage or entry into the de facto relationship occurred) is void and of no effect unless the decision was made upon consideration or re‑consideration of a claim for that pension made as described in subparagraph (a)(ii). > Note: For the meaning of reinstated pensioner see section 11AA. (8A) Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) has re‑married or married after the death of the veteran but on or before 28 May 1984: (a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the former Administrative Appeals Tribunal, as the case may be, to grant the pension was made before the commencement of section 7 of the Veterans’ Affairs Legislation Amendment Act 1988; and (b) a decision granting a pension to the dependant under this section made after the commencement referred to in paragraph (a) by the Commission, the Board or the former Administrative Appeals Tribunal (including a decision granting such a pension as from a date before that commencement) is void and of no effect. > Note: For the meaning of reinstated pensioner see section 11AA. (8B) If: (a) a male dependant of a deceased veteran (not being a child of the veteran) has re‑married or married after the death of the veteran; and (b) the re‑marriage or marriage occurred before 22 January 1991; the Commonwealth is not liable to pay a pension to that dependant under this section. (9) Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow or widower of a deceased veteran, the Commonwealth is not liable to pay another pension to the person under this Part as the widow or widower of another deceased veteran or under Part IV as the widow or widower of a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1). (10) Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a veteran, would, but for this subsection, become eligible to receive a pension under this Part or Part IV as the child of another deceased person, being a veteran, or a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), the Commonwealth is liable to pay a pension to the person under this Part or Part IV as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this subsection referred to as the relevant deceased person) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then: (a) if the relevant deceased person is a veteran—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or (b) in any other case—the Commonwealth is not liable to pay a pension to the person under this Part. (11) In this section (other than in subsections (7A), (8), (8A), (8B), (9) and (10)), a reference to a veteran shall be read as a reference to a person (including a deceased person) who is, because of section 7, taken to have rendered eligible war service.