Veterans’ Entitlements (Partner Service Pension — Retention of Eligibility) Determination 2019

The instrument introduces and relies on several defined concepts drawn from its own text and cross-referenced provisions of the Veterans’ Entitlements Act 1986. The term “former partner of a veteran” is defined in section 5 as a person to whom paragraph 38(1AA)(a), (b) or (c) of the Act applies. This captures both married and non-married former partners. The note to section 5 confirms that expressions used in the instrument have the same meaning as in the Act, including the definition of “partner service pension” in paragraph (c) of the definition of “service pension” in subsection 5Q(1) of the Act, the definition of “veteran” in subsection 5C(1) of the Act, and the meaning of “Commission” and “Military Rehabilitation and Compensation Commission” in subsection 5Q(1) of the Act. Related provisions in other veterans’ legislation, such as the definition of “de facto partner” in the Acts Interpretation Act 1901, inform the scope of non-married former partners where the Act adopts that meaning.

The central temporal concept is the “first separate residence day”, defined in subsection 6(2) as the first day on which the former partner of a veteran does not reside in the same residence as the veteran. This day serves as the reference point for assessing both the existence of the veteran’s psychological or other mental health incapacity and the prior state of the domestic environment.

The mental health incapacity must be caused by one of the five specific service-related matters listed in paragraphs 6(2)(a) to (e). Paragraph (a) covers war-caused injury or disease where the Commission has determined pension entitlement. Paragraph (b) covers defence-caused injury or disease for members of the Forces or Peacekeeping Force where the Commission has determined pension entitlement. Paragraph (c) covers service injury or service disease under the Military Rehabilitation and Compensation Act 2004 where the Military Rehabilitation and Compensation Commission has accepted liability. Paragraph (d) covers diseases or disorders mentioned in subsection 85(2) of the Act for which treatment eligibility exists. Paragraph (e) covers conditions subject to a determination under paragraph 88A(1)(a) of the Act.

The second substantive concept in subsection 6(3) is the Commission’s satisfaction that the domestic environment was unsafe or abusive for the former partner or any child of the former partner because of the veteran’s behaviour before the first separate residence day. This requires an assessment of causation linking the veteran’s behaviour to the unsafe or abusive character of the shared residence.

The instrument also incorporates the repeal of the prior determination and the transitional rule in section 8, which continues the application of the Veterans’ Entitlements (Partner Service Pension , Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 to qualifying non-illness separated spouses as if the repeal had not occurred.

The instrument directly affects former partners of veterans who meet the criteria in section 6. These are persons falling within paragraph 38(1AA)(a), (b) or (c) of the Veterans’ Entitlements Act 1986, encompassing both married former partners and non-married former partners. The transitional provision in section 8 extends protection to non-illness separated spouses who were already covered by the repealed 2009 determination immediately before 20 September 2019.

The instrument also affects veterans who have a psychological or other mental health incapacity on the first separate residence day caused by one of the matters in paragraphs 6(2)(a) to (e). This includes veterans entitled to pensions for war-caused or defence-caused conditions, veterans with accepted service injuries or diseases under the Military Rehabilitation and Compensation Act 2004, veterans eligible for treatment under subsection 85(2) of the Act, and veterans subject to determinations under paragraph 88A(1)(a) of the Act.

Children of the former partner are affected where the Commission must consider whether the domestic environment was unsafe or abusive for them because of the veteran’s behaviour. The Commission itself is affected in its role of assessing satisfaction under subsection 6(3) and determining ongoing eligibility for partner service pension payments.

Practising lawyers, accountants and compliance professionals advising on veterans’ entitlements will encounter clients in these categories when reviewing pension eligibility after separation. Journalists and researchers examining the scope of partner service pension retention will focus on the intersection between the listed service-related mental health conditions and the prior domestic environment assessment.

The instrument confers a right on qualifying former partners to retain eligibility for the partner service pension where the circumstances in section 6 are satisfied. This right operates despite separation exceeding 12 months. The right is conditional on the veteran having the required psychological or other mental health incapacity on the first separate residence day and on the Commission being satisfied about the prior unsafe or abusive domestic environment.

The Commission holds the function of determining whether the satisfaction requirement in subsection 6(3) is met. This involves evaluating evidence that the domestic environment was unsafe or abusive for the former partner or any child because of the veteran’s behaviour before the first separate residence day. The Commission also verifies that the veteran’s incapacity falls within one of the five categories in subsection 6(2).

No express duties are imposed on former partners by the instrument itself. However, the practical exercise of the right to retain eligibility requires the former partner to engage with the Commission’s assessment process under the Veterans’ Entitlements Act 1986. This includes providing information and evidence relevant to the first separate residence day, the veteran’s service-related mental health condition, and the character of the prior domestic environment.

Veterans have no direct duties under the instrument, but their existing determinations of pension entitlement or treatment eligibility under the Act or the Military Rehabilitation and Compensation Act 2004 form part of the factual basis for the former partner’s claim. Children of the former partner have an interest in the Commission’s assessment where the unsafe or abusive environment affected them, although they hold no independent rights under the instrument.

The instrument contains no provisions creating penalties or offences. Enforcement occurs through the ordinary mechanisms for assessing and paying partner service pension under the Veterans’ Entitlements Act 1986. The Commission determines whether the specified circumstances in section 6 exist when considering an application for partner service pension or a review of eligibility following separation.

Where the Commission is not satisfied that the requirements of subsections 6(2) and (3) are met, the former partner does not retain eligibility under this instrument and the general rules of the Act regarding separation apply. Decisions of the Commission on these matters are subject to the review processes available under the Veterans’ Entitlements Act 1986, including internal review and external merits review.

The transitional provision in section 8 ensures that enforcement of the repealed 2009 determination continues for protected non-illness separated spouses. This maintains continuity of pension payments for those individuals without requiring fresh assessment under the new criteria.

The instrument operates as a subordinate instrument under subsection 38(2AD) of the Veterans’ Entitlements Act 1986 and directly modifies the application of section 38 of that Act in relation to partner service pension eligibility after separation. It incorporates by reference the definitions and concepts in the Act, including the meaning of “former partner” in subsection 38(1AA), “partner service pension” in subsection 5Q(1), “veteran” in subsection 5C(1), and the treatment provisions in sections 85 and 88A.

The instrument interacts with the Military Rehabilitation and Compensation Act 2004 through paragraph 6(2)(c), which requires acceptance of liability for a service injury or service disease by the Military Rehabilitation and Compensation Commission. This creates a cross-scheme linkage where determinations under the Military Rehabilitation and Compensation Act 2004 can support retention of eligibility under the Veterans’ Entitlements Act 1986.

The note to section 5 confirms that expressions in the instrument have the same meaning as in the Veterans’ Entitlements Act 1986, which in turn adopts the definition of “de facto partner” from the Acts Interpretation Act 1901 for non-married relationships. This ensures consistent interpretation of non-married former partners across related legislation.

The repeal in section 7 and the transitional rule in section 8 interact with the prior Veterans’ Entitlements (Partner Service Pension , Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 by preserving its effect for existing recipients while introducing new criteria focused on service-related mental health incapacity and prior domestic environment safety.

The principal recent change is the making of this instrument on 20 September 2019, which repealed the Veterans’ Entitlements (Partner Service Pension , Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 and introduced new specified circumstances in section 6. The new circumstances require both a service-related psychological or mental health incapacity on the first separate residence day and Commission satisfaction that the prior domestic environment was unsafe or abusive because of the veteran’s behaviour.

The transitional provision in section 8 provides that the repealed determination continues to apply to any non-illness separated spouse to whom it applied immediately before commencement. This preserves the prior framework for those individuals while shifting new cases to the criteria in subsections 6(2) and (3).

The instrument updates the list of qualifying incapacities to include explicit reference to service injuries and diseases under the Military Rehabilitation and Compensation Act 2004, diseases or disorders under subsection 85(2) of the Veterans’ Entitlements Act 1986, and conditions under paragraph 88A(1)(a) of that Act. It also introduces the requirement for the Commission to be satisfied about the unsafe or abusive nature of the domestic environment before separation.

The instrument and the related retrieval context do not name or reference any court challenges or specific controversies. No cases are identified in the source text. As a determination made under subsection 38(2AD) of the Veterans’ Entitlements Act 1986, any dispute would typically arise from a Commission decision on whether the circumstances in section 6 are satisfied, rather than from a direct challenge to the validity of the instrument itself.

Potential areas of contention in applying the instrument include the precise identification of the first separate residence day, the causal link between the veteran’s behaviour and the unsafe or abusive character of the domestic environment, and the sufficiency of evidence that the veteran’s psychological or mental health incapacity falls within one of the five categories in subsection 6(2). The Commission’s satisfaction under subsection 6(3) involves an evaluative judgment that may be tested through the review mechanisms of the Veterans’ Entitlements Act 1986.

The transitional provision in section 8 may give rise to questions about the boundary between cases still governed by the repealed determination and those assessed under the new criteria, particularly where separation occurred around the commencement date of 20 September 2019.

One practical consideration is that the mental health incapacity must exist on the first separate residence day itself. Evidence must therefore establish the veteran’s condition as at that specific date, relying on prior Commission determinations for pension or treatment eligibility under the listed categories.

The requirement in subsection 6(3) that the domestic environment was unsafe or abusive before the first separate residence day means that events or behaviour after separation cannot be used to satisfy the test. Practitioners must focus evidence gathering on the period of cohabitation.

The transitional provision in section 8 means that some former partners remain subject to the criteria of the repealed Veterans’ Entitlements (Partner Service Pension , Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009. Advisers must confirm which instrument applies based on the date the determination first applied to the individual.

The definition of former partner in section 5 incorporates paragraphs 38(1AA)(a), (b) or (c) of the Veterans’ Entitlements Act 1986, which must be checked against the specific relationship facts, including any de facto status recognised under the Acts Interpretation Act 1901.

The five categories in subsection 6(2) are exhaustive. A mental health condition caused by a matter outside these categories will not satisfy the instrument even if the domestic environment was unsafe or abusive.

Compliance begins with confirming that the client is a former partner of a veteran within the meaning of paragraph 38(1AA)(a), (b) or (c) of the Veterans’ Entitlements Act 1986. The next step is to identify the first separate residence day and gather contemporaneous evidence of the veteran’s psychological or other mental health condition on that day.

Evidence should include copies of any Commission determinations granting pension entitlement for war-caused or defence-caused conditions, Military Rehabilitation and Compensation Commission decisions accepting liability for service injuries or diseases, or documentation of eligibility for treatment under subsection 85(2) or paragraph 88A(1)(a) of the Act. Where the condition is not already the subject of a formal determination, additional medical evidence linking the incapacity to one of the listed causes may be required.

For the requirement in subsection 6(3), the former partner must provide material that enables the Commission to be satisfied that the domestic environment was unsafe or abusive for the former partner or any child because of the veteran’s behaviour before the first separate residence day. This may include medical reports, witness statements, police records or other contemporaneous documentation of the living conditions.

Applications for partner service pension or requests for review of eligibility should expressly refer to this determination and address each element of section 6. Where the transitional provision applies, the application should note that the repealed 2009 determination continues to govern the matter.

Lawyers and compliance professionals should maintain records of the evidence submitted and any Commission correspondence. Ongoing compliance requires monitoring whether the former partner continues to meet the eligibility criteria under the Act, as the retention right under this instrument is tied to the specified circumstances being present at the relevant time. Where separation occurs after 20 September 2019, the new criteria apply unless the transitional rule protects the individual under the prior determination.