64Transitional—Australian mariners

64 Transitional—Australian mariners

(1) Where, under the Seamen’s War Pensions and Allowances Act 1940: (a) a pension has been granted to a person as an Australian mariner before the commencing date in respect of the incapacity of the person; (b) a gratuity under Schedule 5 to that Act has been paid, or has become payable, to a person as an Australian mariner before the commencing date; (c) a lump sum payment has been made, or has become payable, under subsection 23(3) of that Act to a person as an Australian mariner before the commencing date; or (d) a pension has been granted before the commencing date, in respect of the death of a person, to a dependant of the person, on the basis that the person had been an Australian mariner; then, for all purposes of the Seamen’s War Pensions and Allowances Act 1940 on and after the commencing date, that person shall be taken to be and have been an Australian mariner. (2) Subject to subsection (3) of this section, subsection 15(1) of the Seamen’s War Pensions and Allowances Act 1940 as amended by this Act does not apply to a determination of the degree of incapacity of an Australian mariner made by the Commission or a Pensions Committee before 1 November 1986. (3) Where, on or after the commencing date and before 1 November 1986, the Commission or a Pensions Committee is making a determination of the degree of incapacity of an Australian mariner as a direct result of having sustained a war injury: (a) in the case of a pilot—while on pilot duty; or (b) in every other case—in the course of employment as an Australian mariner; it shall make its determination having regard to the material before it and, if it is of the opinion that the material before it is sufficient to enable it to do so, it may make its decision according to the provisions of the Guide to the Assessment of Rates of Veterans’ Pensions as from time to time approved and in force under section 29 of the Veterans’ Entitlements Act. (4) Where, on or after the commencing day and before 1 November 1986, the Commission or a Pensions Committee makes a decision determining the degree of incapacity of an Australian mariner as a direct result of having sustained a war injury of a kind referred to in subsection (3) according to the provisions of the Guide to the Assessment of Rates of Veterans’ Pensions as approved and in force under section 29 of the Veterans’ Entitlements Act, it shall state in the decision that the degree of incapacity was determined in accordance with the provisions of that Guide. (5) Where, on or after the commencing date and before 1 November 1986, the Commission or a Pensions Committee makes a decision determining the degree of incapacity of an Australian mariner as a direct result of having sustained a war injury of a kind referred to in subsection (3) and states in the decision that the degree of incapacity was determined according to the provisions of the Guide to the Assessment of Rates of Veterans’ Pensions as approved and in force under section 29 of the Veterans’ Entitlements Act: (a) the Board shall, if it reviews that determination; or (b) the Administrative Appeals Tribunal shall, if it reviews a decision of the Board affirming or setting aside that determination; make its decision on the review with respect to that degree of incapacity according to the provisions of that Guide. (6) Where: (a) the Board reviews a decision of the Commission or a Pensions Committee made on or after 1 November 1986 determining the degree of incapacity of an Australian mariner as a direct result of having sustained a war injury of a kind referred to in subsection (3); or (b) the Administrative Appeals Tribunal reviews a decision of the Board affirming such a decision of the Commission or a Pensions Committee or a decision of the Board made in substitution for such a decision of the Commission or a Pensions Committee that has been set aside by the Board; the Board or the Administrative Appeals Tribunal, as the case may be, shall make its decision on the review with respect to that degree of incapacity according to the provisions of the Guide to the Assessment of Rates of Veterans’ Pensions as approved and in force under section 29 of the Veterans’ Entitlements Act.