Part Part VI - Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 - Transitional provisions relating to consequential amendments | Zoe
Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986
Part VITransitional provisions relating to consequential amendments
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An Act to make certain transitional provisions and consequential amendments related to the enactment of the Veterans’ Entitlements Act 1986
Part I—Preliminary
1 Short title
This Act may be cited as the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986.
2 Commencement
(1) Subject to subsection (2), this Act shall come into operation on a day to be fixed by Proclamation.
(2) Section 61 shall come into operation on the day on which this Act receives the Royal Assent.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Board means the Veterans’ Review Board established by section 107VB of the Repatriation Act 1920 and continued in existence by section 134 of the Veterans’ Entitlements Act.
commencing date means the day fixed by Proclamation under subsection 2(1).
Repatriation Act means the Repatriation Act 1920.
repealed Act means an Act repealed by subsection 3(1) of the Veterans’ Entitlements Act or the provisions of an Act repealed by subsection 3(2) of that Act.
Veterans’ Entitlements Act means the Veterans’ Entitlements Act 1986.
(2) In this Act, a reference to a particular section included in Division 1 or Division 5 of Part III of the Repatriation Act shall, unless the contrary intention appears, be read as including a reference to that section in its application by virtue of:
(a) Division 5A, 5B, 5C, 5D, 6, 7, 8 or 9 of Part III of the Repatriation Act;
(b) the Interim Forces Benefits Act 1947;
(c) the Repatriation (Far East Strategic Reserve) Act 1956; or
(d) the Repatriation (Special Overseas Service) Act 1962.
(3) In this Act, a reference to a particular regulation included in the Repatriation Regulations shall be read as including a reference to that regulation in its application:
(a) by virtue of Part XII, XIII or XIV of the Repatriation Regulations; or
(b) by virtue of the Interim Forces Benefits Regulations, the Repatriation (Far East Strategic Reserve) Regulations or the Repatriation (Special Overseas Service) Regulations.
(4) Unless the contrary intention appears, expressions that are defined for the purposes of the Veterans’ Entitlements Act have, when used in this Act, the same respective meanings as they have in the Veterans’ Entitlements Act.
(5) In this Act, a reference to the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act shall be read as including a reference to the repeals effected by subsection 3(2) and Part VI of Schedule 1 of that Act.
Part II—Existing pensions and allowances and provision for treatment
4 Existing pensions, other than service pensions
(1) In this section, unless the contrary intention appears:
(a) pension means pension other than service pension;
(b) a reference to a member of the Forces (including a deceased member of the Forces) shall be read as a reference to a member of the Forces within the meaning of:
(i) Division 1, 6, 7, 8 or 9 of Part III of the Repatriation Act;
(ii) the Repatriation (Far East Strategic Reserve) Act 1956; or
(iii) the Repatriation (Special Overseas Service) Act 1962;
and as including a reference to:
(iv) a member of the Interim Forces within the meaning of the Interim Forces Benefits Act 1947; and
(v) a person the incapacity or death of whom is deemed, by section 7A of the Repatriation (Special Overseas Service) Act 1962, to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces;
(c) a reference to a dependant of a member of the Forces (including a deceased member of the Forces) shall be read as a reference to a person who is, within the meaning of the Division or Act specified in paragraph (b) that is applicable to that member, a dependant of that member, including, but without limiting the generality of the foregoing, a person to whom a pension was, immediately before the commencing date, payable under section 44 of the Repatriation Act; and
(d) widow has the same meaning as in section 5E of the Veterans’ Entitlements Act.
(2) Where a person who was a member of the Forces was, immediately before the commencing date, in receipt of a pension under a repealed Act in respect of incapacity from an injury suffered, or disease contracted, by the person, the Veterans’ Entitlements Act applies to and in relation to the person as if:
(a) that pension had been granted to the person under Part II of the Veterans’ Entitlements Act;
(b) that person had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) of the definition of veteran in subsection 5C(1) of that Act; and
(c) that injury had been determined, under the Veterans’ Entitlements Act, to be a war‑caused injury, or that disease had been so determined to be a war‑caused disease, as the case may be.
(3) Where a person who was a dependant of a deceased member of the Forces, being a person who was the widow or a child of that member of the Forces, was, immediately before the commencing date, in receipt of a pension under a repealed Act in respect of the death of that member of the Forces, the Veterans’ Entitlements Act applies to and in relation to the person as if:
(a) that pension had been granted to the person under Part II of the Veterans’ Entitlements Act;
(b) the person had been determined, under the Veterans’ Entitlements Act, to be a dependant of a deceased veteran; and
(c) the death of that member of the Forces had been determined, under the Veterans’ Entitlements Act, to be war‑caused.
(4) Where a person who was a member of the Forces, or a member of a Peacekeeping Force, as defined by section 107J of the Repatriation Act was, immediately before the commencing date, in receipt of a pension under that Act in respect of an injury suffered, or disease contracted, by the person, the Veterans’ Entitlements Act applies to and in relation to the person as if:
(a) that pension had been granted to the person under Part IV of the Veterans’ Entitlements Act;
(b) that person had been determined, under the Veterans’ Entitlements Act, to be a member of the Forces, or a member of a Peacekeeping Force, as the case may be, as defined by subsection 68(1) of that Act; and
(c) that injury had been determined, under the Veterans’ Entitlements Act, to be a defence‑caused injury or that disease had been so determined to be a defence‑caused disease, as the case may be.
(5) Where a person who was a dependant of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, as defined by section 107J of the Repatriation Act, being a person who was the widow or a child of that deceased member, was, immediately before the commencing date, in receipt of a pension under that Act in respect of the death of that member, the Veterans’ Entitlements Act applies to and in relation to that person as if:
(a) that pension had been granted to the person under Part IV of the Veterans’ Entitlements Act;
(b) that person had been determined, under the Veterans’ Entitlements Act, to be a dependant of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, as the case may be; and
(c) the death of that member of the Forces, or of that member of a Peacekeeping Force, as the case may be, had been determined, under the Veterans’ Entitlements Act, to be defence‑caused.
(6) Subject to section 6 of this Act, where a person was, immediately before the commencing date, in receipt of a pension under a repealed Act by virtue of the operation of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension continues to be payable to the person under and in accordance with the provisions of the repealed Acts as if those Acts had not been repealed by the Veterans’ Entitlements Act and the amendments and repeals referred to in that subsection had not been made, and, without limiting the generality of the foregoing but subject to subsections (7) and (8) of this section, action by way of:
(a) reviewing a decision with respect to that pension whether made before, on or after the commencing date;
(b) re-assessing the rate of that pension; or
(c) suspending or cancelling that pension;
may be taken in accordance with the provisions of the repealed Acts as if they had not been repealed and the amendments and repeals previously referred to had not been made.
(7) Where a pension is payable by virtue of subsection (6), the rate at which it is payable is, subject to subsections (7A) and (8), the rate at which it was payable immediately before the commencing date.
(7A) Where a pension is payable by virtue of subsection (6) and, immediately before the commencing date, the pension was payable at a rate that had been reduced, but had not been reduced to nil, in consequence of the operation of section 107R of the Repatriation Act, the rate at which that pension is payable is:
(a) subject to paragraph (b) of this subsection, the rate at which, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension would have been payable but for the operation of section 107R of the Repatriation Act; or
(b) if that section did not then apply to the rate of that pension, the rate at which, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension was payable;
reduced to the extent (if any) required from time to time by reason of the operation of section 107R of the Repatriation Act.
(8) Subsections (7) and (7A), and paragraph (8B)(b), do not apply to a pension the rate of which was, immediately before the commencing date, fixed by reference to the provisions of the Social Security Act 1947.
(8A) Subsection (8B) applies to a pension that had been granted to a person as a dependant of a member of the Forces or of a member of a Peacekeeping Force before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985 if, immediately before the commencing date, the dependant would have been in receipt of that pension but for the fact that the rate of that pension had been reduced to nil, whether before or after the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, in consequence of the operation of section 107R of the Repatriation Act.
(8B) Where this subsection applies to a pension, then, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act:
(a) that pension continues to be payable under and in accordance with the provisions of the Repatriation Act as if the amendments and repeals referred to in subsection 66(2) of the Repatriation Legislation Amendment Act 1985 had not been made;
(b) the rate at which the pension is so payable shall not exceed:
(i) except where subparagraph (ii) applies—the rate at which that pension was payable immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985; or
(ii) if, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, the rate of that pension had been reduced (including reduced to nil) by reason of the operation of section 107R of the Repatriation Act - the rate at which that pension would, immediately before the commencement of that subsection, have been payable but for the operation of section 107R of the Repatriation Act;
reduced to the extent (if any) required from time to time by reason of the operation of section 107R of the Repatriation Act; and
(c) without limiting the generality of the foregoing, action by way of:
(i) reviewing a decision with respect to that pension whether made before, on or after the commencing date;
(ii) reassessing the rate of that pension; or
(iii) suspending or cancelling that pension;
may be taken in accordance with the provision of the Repatriation Act as if they had not been repealed and the amendments and repeals referred to in subsection 66(2) of the Repatriation Legislation Amendment Act 1985 had not been made.
(8C) The Veterans’ Review Board continued in existence by section 134 of the Veterans’ Entitlements Act 1986 continues, notwithstanding the repeals effected by section 3 of that Act, to have, in relation to decisions made under the repealed Acts with respect to pensions to which subsection (6) or (8B) of this section applies, all the powers, and may exercise the jurisdiction, conferred on it by the repealed Acts.
(9) Where:
(a) a pension had been granted to a person under a repealed Act from a date before 1 November 1978 in respect of incapacity caused by pulmonary tuberculosis; and
(b) that pension continues to be payable to the person on and after the commencing date as if it had been granted under the Veterans’ Entitlements Act;
the rate of that pension shall not be less than the general rate.
(10) Where:
(a) a veteran dies on or after the commencing date;
(b) the widow of the veteran does not become eligible, by reason of the death of the veteran, to receive a pension under Part II of the Veterans’ Entitlements Act; and
(c) the widow continues, after the death of a veteran, to be paid a pension by virtue of subsection (6) of this section as the widow of the veteran;
the widow shall, forthwith after she re‑marries or marries, notify the Secretary, in writing, that she has married or re‑married and the date of the marriage or re‑marriage.
Penalty: $1,000 or imprisonment for 6 months, or both.
(11) Where, before the commencing date:
(a) a claim had been made by a member of the Forces for a pension under a repealed Act; and
(b) a decision had been made under the repealed Act in respect of the claim:
(i) granting a pension to the member in respect of incapacity from an injury or disease, but assessing the rate of that pension at a nil rate; or
(ii) determining, expressly or by necessary implication, that the member was eligible to be granted a pension in respect of incapacity from an injury or a disease, or both, but refusing to grant a pension to the member on the ground that the extent of the incapacity of the member from that injury or disease, or both, was insufficient to justify the grant of a pension;
the Veterans’ Entitlements Act applies to and in relation to that member as if that injury had been determined under that Act to be a war-caused injury or that disease had been so determined to be a war-caused disease, as the case requires.
(12) Subsection (11) applies to a member of the Forces, or a member of a Peacekeeping Force, as defined by section 107J of the Repatriation Act as if:
(a) a reference in that subsection to a member of the Forces were read as a reference to a member of the Forces, or a member of a Peacekeeping Force, as so defined;
(b) a reference in that subsection to a war‑caused injury were read as a reference to a defence‑caused injury; and
(c) a reference in that subsection to a war‑caused disease were read as a reference to a defence‑caused disease.
5 Pensions—re‑marriage or marriage of widow
(1) Where:
(a) a person, being the widow of a deceased member of the Forces, has re‑married or married after 28 May 1984 and before the commencing date; and
(b) the person was, immediately before her re‑marriage or marriage, in receipt of a pension under a repealed Act as a dependant of the member;
notwithstanding the provisions of the repealed Act, the pension, and any domestic allowance payable to her under regulation 176D of the Repatriation Regulations, shall be deemed not to have ceased to be payable to her by reason of her re‑marriage or marriage and, subject to subsection (2) of this section:
(c) instalments of that pension, and that allowance (if payable), shall be paid to her under the Veterans’ Entitlements Act, but in accordance with the provisions of the repealed Act and of the Repatriation Regulations (if applicable), in respect of the period commencing on the date of her re‑marriage or marriage and ending on the date immediately preceding the commencing date; and
(b) subsection 4(3) of this Act applies to and in relation to that pension as if it had not ceased to be payable to her upon her re‑marriage or marriage.
(2) Where instalments of pension become payable to a person by reason of the application of subsection (1);
(a) if the person has been paid a gratuity before the commencing date under section 40A of the Repatriation Act, an amount equal to the amount of that gratuity shall be deducted from the instalments of pension that so become payable;
(b) if the person has not been paid a gratuity under section 40A of the Repatriation Act—that gratuity shall be deemed not to be payable to the person;
(ba) if the person was, immediately before the commencement of this paragraph, in receipt of a pension under a repealed Act by virtue of subsection 4(6) of this Act—that pension ceases to be payable to the person on the commencement of this paragraph; and
(c) subsection 205(3) of the Veterans’ Entitlements Act applies as if the pension that is to be deemed by subsection (1) of this section not to have ceased to be payable were a new pension that became payable to the person under the Veterans’ Entitlements Act upon the commencing date in respect of the period commencing on the date of the marriage or re‑marriage and ending immediately before the commencing date.
(3) Where:
(a) a person, being the widow of a deceased member of the Forces, makes a claim for a pension as a dependant of the member, or for a gratuity under section 40A of the Repatriation Act, within 12 months after her re‑marriage or marriage; and
(b) a pension would have been granted to her if her claim had been determined before her marriage or re‑marriage;
the person shall be deemed, for the purposes of subsection (1) of this section, to have been in receipt of that pension immediately before her re‑marriage or marriage.
(4) In this section;
(a) member of the Forces means;
(i) a member of the Forces within the meaning of section 4; or
(ii) a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1) of the Veterans’ Entitlements Act;
(b) pension means pension (other than service pension) payable under a repealed Act in respect of the death of a member of the Forces; and
(c) widow has the same meaning as it has in the Veterans’ Entitlements Act.
6 Commutation of certain pensions
(1) This section applies to a person to whom a pension to which subsection 4(7) applies continues to be payable by virtue of subsection 4(6)
(2) Within the period of 6 months commencing on and including the commencing date, a person to whom this section applies may elect to commute to a lump sum payment calculated in accordance with this section payments of that pension payable after the last pension pay‑day in that period.
(3) Where a pension ceases to be payable by virtue of subsection 4(6) to a person to whom this section applies on or before the last pension pay‑day in the period referred to in subsection (2), any election made by the person under subsection (2) is void and of no effect.
(4) Where a person to whom this section applies makes an election under subsection (2) (not being an election that is void by reason of subsection (3)):
(a) the pension payable to the person by virtue of subsection 4(6) shall, by force of this section, be cancelled immediately after the last pension pay‑day in the period referred to in subsection (2); and
(b) there is payable to the person a single lump sum payment equal to the aggregate of 78 fortnightly instalments of that pension at the rate at which instalments were payable immediately before the pension is so cancelled.
(5) An election under subsection (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be made by forwarding the election to, or delivering the election at, an office of the Department in Australia; and
(c) may be made by the pensioner or by any other person who would, if the election were a claim for a pension for the pensioner as the dependant of a veteran, be entitled under section 16 of the Veterans’ Entitlements Act, to make the election on behalf of the pensioner.
7 Assessment of rate of pension
(1) Where, after the commencing date:
(a) approval is given by the Commission, the Board, or the Administrative Appeals Tribunal for payment of a pension, or for payment of a pension at a higher or lower rate, to be made from a date before the commencing date; or
(b) the Commission, the Board or the Administrative Appeals Tribunal is reviewing the rate at which a pension was payable before the commencing date;
the rate at which that pension may be paid at any time before the commencing date shall be assessed by reference to the rate or maximum rate in the repealed Acts as in force at that time that corresponds with the appropriate rate in the Veterans’ Entitlements Act. but otherwise in accordance with the provisions of the Veterans’ Entitlements Act and the principles applicable under that Act.
(2) Subsection (3) applies to a pension to which Part II of the Veterans’ Entitlements Act applies by virtue of subsection 4(2) or 4(4) of this Act.
(3) The Commission, the Board or the Administrative Appeals Tribunal shall not, in the course of re‑assessing the rate at which a pension to which this subsection applies, determine, as the degree of incapacity of the person to whom that pension is payable, a percentage that is less than the percentage of the maximum general rate of pension constituted by the rate at which that pension was, immediately before the commencing date, paid unless the Commission, the Board or the Administrative Appeals Tribunal as the case may be, is satisfied:
(a) that the incapacity of that person has decreased since the rate of that pension was previously assessed or last assessed; or
(b) that the previous assessment or last assessment would not have been made but for a false statement or misrepresentation of a person.
8 Existing service pensions
(1) Where a person who was a member of the Forces was, immediately before the commencing date, in receipt of a service pension under a repealed Act, the Veterans’ Entitlements Act applies to and in relation to the person as if:
(a) that service pension had been granted to the person under Part III of the Veterans’ Entitlements Act; and
(b) that person had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) or (b) of the definition of veteran in subsection 5C(1).
(2) Where a person was, immediately before the commencing date, in receipt of a service pension under a repealed Act by reason that the person was the partner or non-illness separated wife of a member of the Forces or the widow of a deceased member of the Forces, the Veterans’ Entitlements Act applies to and in relation to the person as if:
(a) that service pension were a wife service pension that had been granted to the person under Part III of the Veterans’ Entitlements Act; and
(b) that member of the Forces had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) or (b) of the definition of veteran in subsection 5C(1).
(3) Where a person was, immediately before the commencing date, in receipt of a service pension under section 85AA of the Repatriation Act (including that section in its application by virtue of Division 5A, 5B, 5C, 5D, 6, 7, 8 or 9 of Part III of that Act or of subsection 7(2) of the Repatriation (Special Overseas Service) Act 1962), the Veterans’ Entitlements Act applies to and in relation to the person as if that service pension were a carer service pension that had been granted to the person under Part III of the Veterans’ Entitlements Act.
(4) In this section, unless the contrary intention appears:
(a) a reference to a member of the Forces (including a deceased member of the Forces) shall be read as a reference to a member of the Forces within the meaning of:
(i) Division 5, 6, 7, 8 or 9 of Part III of the Repatriation Act; or
(ii) the Repatriation (Special Overseas Service) Act 1962;
and as including a reference to a person who was:
(iii) a member of the Forces of a Commonwealth country within the meaning of Division 5A of Part III of the Repatriation Act;
(iv) a member of the Forces of an allied country within the meaning of Division 5B of Part III of the Repatriation Act;
(v) an Australian mariner who has served in a theatre of war within the meaning of Division 5C of Part III of the Repatriation Act;
(vi) a Commonwealth mariner, or an allied mariner, within the meaning of Division 5D of Part III of the Repatriation Act; or
(vii) a person to whom Division 6, 7, 8 or 9 of Part III extends by virtue of section 102, 107, 107D or 107G, as the case requires, of the Repatriation Act;
(b) partner, non-illness separated wife and widow have the same meanings as in section 5E of the Veterans’ Entitlements Act; and
10 Restrictions on dual pensions
(1) Where a service pension, a pension under Part IV of the Social Security Act 1947 or a social security widow’s pension, that was being paid immediately before the commencement of section 9 of the Repatriation Act 1973 continued, by virtue of subsection 9(2) of the Repatriation Act 1973 to be payable immediately before the commencing date, that pension continues, subject to this section, to be payable on and after that date but, unless that pension is payable by reason that the pensioner was suffering from pulmonary tuberculosis, the rate of that pension shall not, at any time, exceed the rate at which it was being paid immediately before the day on which the Social Services Act 1973 received the Royal Assent.
(2) Where a service pension continues to be payable by virtue of subsection (1), the Veterans’ Entitlements Act, other than sections 36C, 37C, 38C and 39C of that Act, applies, subject to this section, as if it were a service pension granted under that Act.
(3) Where:
(a) a person is entitled to receive a service pension under the Veterans’ Entitlements Act; and
(b) a pension under Part IV of the Social Security Act 1947 or a social security widow's pension is payable to the person by virtue of subsection (1) of this section;
the pension referred to in paragraph (b), ceases to be payable to the person upon the person ceasing to be entitled to receive that service pension.
(4) Where:
(a) a person is entitled to receive an age, disability support, wife or carer payment under the Social Security Act 1991; and
(b) a service pension is payable to the person under the Veterans’ Entitlements Act by virtue of subsection (1) of this section;
that service pension ceases to be payable to the person upon the person ceasing to be entitled to receive the pension referred to in paragraph (a).
(5) Where a provision of the Social Security Act 1991 contains a reference to income in relation to a person, then, in the application of that provision to a person to whom a service pension continues to be payable by virtue of subsection (1), that pension shall, notwithstanding anything to the contrary contained in that Act, be taken to be income of the person.
(6) Where a provision of the Veterans’ Entitlements Act contains a reference to income in relation to a person, then, in the application of that provision to a person to whom a pension under Part IV of the Social Security Act 1947 or a social security widow’s pension continues to be payable by virtue of subsection (1), that pension shall, notwithstanding anything to the contrary contained in the Veterans’ Entitlements Act, be taken to be income of the person.
(7) In this section:
social security widow’s pension means a pension payable to a woman who had been dependent upon, or living with, a man before the man's death, under:
(a) Part IV of the Social Security Act 1947 as in force before 2 July 1987; or
(b) Part V of the Social Security Act 1947 as in force between 2 July 1987 and 28 February 1989 (inclusive); or
(c) Part VI or Schedule 1B of the Social Security Act 1947 as in force between 1 March 1989 and 30 June 1991 (inclusive); or
(d) Part 2.7 (widowed person allowance) or Part 2.8 (widow B pension) as in force on and after 1 July 1991.
11 Patients in mental hospitals
(1) Subject to subsection (2), where a person who was, on 31 October 1980, a mental hospital patient for the purposes of section 94B of the Repatriation Act as in force at any time before 1 November 1980 ceases, on or after the commencing date, to be a mental hospital patient (otherwise than by reason of death), the person is entitled, in respect of each day in the prescribed period in respect of which a part of the person’s service pension was suspended under that section, to payment of that part of that pension that was so suspended.
(2) Subsection (1) does not apply to a person who has ceased, on or after 1 November 1980 and before the commencing date, to be a mental hospital patient.
(3) In subsection (1), the prescribed period in relation to a mental hospital patient means:
(a) where the period commencing on, and including, the day on which he or she commenced to be an inmate of a mental hospital and ending on, but not including 31 October 1980, was less than 84 days—that period; or
(b) in any other case—the period consisting of the last 84 days of the period commencing on, and including, the day on which he or she commenced to be such an inmate and ending on, but not including, 31 October 1980.
(4) Where a person had commenced to be an inmate of a mental hospital on 2 or more occasions before 1 November 1980, subsection (3) applies in relation to the person as if a reference to the day on which he or she commenced to be such an inmate were a reference to the day on which he or she last commenced to be such an inmate.
(5) For the purposes of this section, where a mental hospital patient has been absent from the mental hospital for a continuous period of 4 weeks or more, the patient shall be deemed to have ceased to be a mental hospital patient at the expiration of the period of 4 weeks commencing on the commencement of that absence.
13 Persons deemed to be in receipt of pensions, &c.
(1) Where, before the commencing date, a person had been granted:
(a) a pension of a kind referred to in subsection 4(2), (3), (4), (5) or (6); or
(b) a service pension (including remote area allowance and rent assistance) of a kind referred to in subsection 8(1), (2) or (3);
but the person had not been paid any instalments of that pension or service pension before that date or that pension or service pension was suspended immediately before that date, the person shall be deemed to have been in receipt of that pension or service pension immediately before that date for the purpose of the application of that subsection to and in relation to the person.
(2) Where the pension or service pension referred to in subsection (1) was suspended immediately before the commencing date, the decision to suspend the pension or service pension has effect on and after that date as if it had been made under subsection 31(6) or section 56E, as the case requires, of the Veterans’ Entitlements Act.
(3) Where, before the commencing date, a person had been granted an allowance of a kind described in column 1 of the Table in section 15, but the person had not been paid any instalments of that allowance before that date, or the allowance was not payable immediately before that date by reason of the operation of subregulation 180(4) or (5) or 180AAA(3) of the Repatriation Regulations, subregulation 62(4) or (5) of the Repatriation (Far East Strategic Reserve) Regulations or subregulation 62(4) or (5) of the Repatriation (Special Overseas Service) Regulations, the person shall be deemed to have been in receipt of that allowance immediately before that date for the purpose of the application of that section to and in relation to the person.
14 Eligibility for treatment under repealed Acts may continue
(1) An approval given by the Commission before the commencing date under a repealed Act for the provision of any treatment for a person, being an approval that had not been revoked before that date, continues in force on and after that date as if it were an approval given under Part V of the Veterans’ Entitlements Act.
(2) The date from which a person is eligible to be provided with treatment under Part V of the Veterans’ Entitlements Act may be a date before the commencing date, but a person shall not be provided with any treatment both under that Act and under a repealed Act.
(3) The power of the Commission under Part V of the Veterans’ Entitlements Act to approve treatment after the treatment has been provided extends to approving treatment that was provided before the commencing date, being treatment that had not been duly provided under a repealed Act.
(4) For the purpose of the application of the Veterans’ Entitlements Act in accordance with subsections (1), (2) and (3) of this section:
(a) an application to be provided with treatment made under a repealed Act and not determined before the commencing date shall be determined on or after that date as if it had been made under the Veterans’ Entitlements Act; and
(b) any determination made, or other act or thing done, by the Commission before the commencing date that affected, or was capable of affecting, the eligibility or right of a person to be provided with treatment under a repealed Act has effect, on and after that date, as if made or done under the Veterans’ Entitlements Act for the purpose of determining the eligibility or right of that person to be provided with treatment under Part V of the Veterans’ Entitlements Act.
(5) Subject to subsection (6), where a person, being:
(a) the widowed mother or the widowed step‑mother of an member of the Forces who died before the commencing date and was neither legally married nor a member of a couple immediately before death; or
(b) a person who is in receipt of a pension that continues to be payable by virtue of subsection 4(6), being a pension that became payable to the person by reason that the person was a child of a deceased member of the Forces;
was, by virtue of a determination or decision in force under a prescribed regulation immediately before that date, eligible to be provided with medical treatment under the Repatriation Regulations, the person is eligible to be provided with treatment under Part V of the Veterans’ Entitlements Act, on and after the commencing date, for any injury suffered, or disease contracted, by the person as if:
(a) the member of the Forces had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) of the definition of veteran in subsection 5C(1) of that Act;
(b) the person was a dependant of that veteran for the purposes of subsection 86(1) of the Veterans’ Entitlements Act; and
(c) a determination under that Act were in force determining that the death of that veteran was war‑caused.
(6) A widowed mother, or a widowed step‑mother, of a member of the Forces who has re‑married after the death of the member (whether before, on or after the commencing date), is not eligible to be provided with treatment under Part V of the Veterans’ Entitlements Act by virtue of subsection (5) of this section at any time after her re‑marriage or marriage.
(7) For the purpose of subsection (5), each of the following regulations is a prescribed regulation:
(a) regulation 73 of the Repatriation Regulations;
(b) regulation 38 of the Repatriation (Far East Strategic Reserve) Regulations; and
(c) regulation 38 of the Repatriation (Special Overseas Service) Regulations.
(8) In subsections (5) and (6):
child, in relation to a deceased member of the Forces, includes a person who, after the termination of the pension granted to the person under a repealed Act as the child of a member of the Forces has been granted a further pension under subsection 39(4) or 46A(1) of the Repatriation Act.
widowed mother, in relation to a deceased member of the Forces means a widowed person:
(a) who is the mother of the member; or
(b) if the member was born out of wedlock—who is the woman by whom the member was brought up;
being a person who became a widow prior to, or within 3 years after, the death of the member, and includes the unmarried mother of the member by whom the member was brought up.
widowed step‑mother, in relation to a deceased member of the Forces, means a widowed step‑mother of the member who became a widow prior to, or within 3 years after, the death of the member.
(9) Where a person who was a member of the Forces was, immediately before the commencing date, eligible to be provided with medical treatment for venereal disease contracted during war service, by virtue of a determination or decision in force under a prescribed regulation, the person is eligible to be provided with treatment under Part V of the Veterans’ Entitlements Act for that disease from and including the commencing date as if:
(a) a determination under that Act were in force determining that venereal disease was a war‑caused disease from which the person was suffering; and
(b) the person had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) of the definition of veteran in subsection 5C(1) of that Act.
(10) For the purposes of subsection (9), each of the following regulations is a prescribed regulation:
(a) regulation 65 of the Repatriation Regulations; and
(b) regulation 6 of the Interim Forces Benefits Regulations.
(11) Where:
(a) a person was, immediately before 25 November 1976, a service pensioner eligible to be provided with treatment under regulation 66 of the Repatriation Regulations;
(b) the person ceased, on that date, to be a service pensioner by reason only that the person was, on that date, a prescribed person within the meaning of section 123AB of the Repatriation Act; and
(c) the person has been such a prescribed person continuously from that date to and including the date immediately preceding the commencing date;
Part V of the Veterans’ Entitlements Act applies to the person as if the person were eligible to be provided with treatment under subsection 85(5) of that Act until the person ceases to be a prescribed person for the purposes of that Part or the rate of the person’s income exceeds the annual rate of the person’s income on 25 November 1976, whichever first occurs.
15 Existing allowances
(1) Where a person was, immediately before the commencing date, in receipt of an allowance of a kind described in column 1 of the following table, that allowance continues to be payable to the person, on and after that date, under the provisions of the Veterans’ Entitlements Act specified in column 2 of that table opposite to the description in column 1 as if it had been granted by the Commission under that last‑mentioned provision, but subject to the provisions of the Veterans’ Entitlements Act:
Column 1Description of allowance
Column 2Provision of Veterans’ Entitlements Act
Clothing allowance under:(a) regulation 180A of Repatriation Regulations;(b) regulation 63 of Repatriation (Far East Strategic Reserve) Regulations; or(c) regulation 63 of Repatriation (Special Overseas Service) Regulations.
Section 97
Attendant allowance under:(a) Schedule 2 to the Repatriation Act; or(b) Schedule 5 to the Repatriation Act.
Section 98
Decoration allowance under:(a) regulation 180 of Repatriation Regulations;(b) regulation 62 of Repatriation (Far East Strategic Reserve) Regulations; or(c) regulation 62 of Repatriation (Special Overseas Service) Regulations.
Section 102
Victoria Cross allowance under:(a) regulation 180AA of Repatriation Regulations;(b) regulation 62A of Repatriation (Far East Strategic Reserve) Regulations; or(c) regulation 62A of Repatriation (Special Overseas Service) Regulations.
Section 103
Recreation transport allowance under:(a) regulation 104A of Repatriation Regulations;(b) regulations 51 and 52 of Repatriation (Far East Strategic Reserve) Regulations; or(c) regulations 51 and 52 of Repatriation (Special Overseas Service) Regulations.
Section 104
Temporary incapacity allowance under regulation 72A of Repatriation Regulations.
Section 107
Loss of earnings allowance under regulation 71 of Repatriation Regulations.
Section 108
(2) An allowance that continues to be payable by virtue of subsection (1) is payable at the rate at which it was paid immediately before the commencing date until that rate is varied under the Veterans’ Entitlements Act.
(3) Nothing in subsection (2) shall be taken to prevent the rate at which an allowance is payable being varied as from a date before the date on which the decision to vary the rate is made, being a date not earlier than the commencing date.
(4) For the purpose of applying subsection (1) in respect of clothing allowance or recreation transport allowance, a decision of a Deputy Commissioner shall have effect, on and after the commencing date, as if it were a decision of the Commission.
16 Allowances and other benefits
(1) Subject to this section, the provisions of Part VI of the Veterans’ Entitlements Act extend to the grant of an allowance or other benefit under that Part in respect of a period before the commencing date or of an event that occurred before the commencing date.
(2) An allowance or other benefit shall not be granted under Part VI of the Veterans’ Entitlements Act in respect of a period before the commencing date or in respect of an event that occurred before the commencing date if, before the commencing date, a corresponding allowance or benefit had been granted under a repealed Act in respect of that period or event.
(3) Subject to subsection (2) of this section, section 100 of the Veterans’ Entitlements Act extends to a person who is the widowed mother or the widowed step-mother of an unmarried member of the Forces, being a member who died before the commencing date, as if she were a dependant of a deceased veteran.
(4) Subsection (3) does not apply to a widowed mother, or a widowed step‑mother, of a member of the Forces who has re‑married, whether before, on or after the commencing date, at any time after her re‑marriage.
(5) Where, immediately before the commencing date:
(a) a person was a pensioner as defined by regulation 179A of the Repatriation Regulations; or
(b) a person was a person in receipt of an age or invalid pension or a wife’s pension or a widow’s pension within the meaning of subregulation 179A(5) of the Repatriation Regulations;
for the purposes of that regulation by reason only of the operation of subsection 25(2) or (3) of the Repatriation Acts Amendment Act (No. 2) 1985, the person shall be deemed to be a service pensioner or to be in receipt of an age pension, an invalid pension, a wife’s pension or a widow’s pension, as the case may be, for the purposes of section 101 of the Veterans’ Entitlements Act on and after the commencing date until the person ceases to be a prescribed person for the purposes of Part V of the Veterans’ Entitlements Act or the annual rate of the person’s income exceeds the annual rate of the person’s income on 25 November 1976, whichever first occurs.
(6) Paragraph 132(11)(c) of the Veterans’ Entitlements Act does not apply to or in relation to travelling expenses in respect of travel that was completed before the commencing date.
(7) Section 112 of the Veterans’ Entitlements Act does not apply to or in relation to an application for:
(a) temporary incapacity allowance or loss of earnings allowance in respect of a period before the commencing date; or
(b) travelling expenses in respect of travel that was completed before the commencing date.
(8) Section 113 of the Veterans’ Entitlements Act does not apply to or in relation to the funeral of a person that occurred before the commencing date.
(9) Upon the approval of the Vehicle Assistance Scheme under section 105 of the Veterans’ Entitlements Act, a motor vehicle made available, before the approval of that Scheme, to a veteran who is eligible to participate in that Scheme, being a vehicle that was made available to the veteran under the Scheme known as the gift car scheme and that was in the possession of the veteran immediately before that approval was given, shall be deemed to have been made available to the veteran under the Vehicle Assistance Scheme.
(10) Subject to this section, on and after the commencing date, an allowance or other pecuniary benefit paid or payable under a repealed Act in respect of a period ending before that date may be reviewed, having regard to information received by the Commission either before, on or after that date, as if it had been granted under Part VI of the Veterans’ Entitlements Act.
(10A) Subsection (10) does not authorise the making of a request under section 115 of the Veterans’ Entitlements Act in respect of a decision of the Commission made before the commencing date.
(11) Where, after the commencing date:
(a) an allowance or other pecuniary benefit is granted under Part VI of the Veterans’ Entitlements Act in respect of a period before the commencing date or of an event that occurred before that date; or
(b) the amount or rate of an allowance or other pecuniary benefit in respect of such a period or event is being determined or reviewed;
the amount or rate of that benefit or allowance in respect of any time before the commencing date shall be determined by reference to the relevant provisions of the repealed Acts as in force at that time, but otherwise in accordance with the provisions of the Veterans’ Entitlements Act.
Part III—Claims, applications and reviews
17 Pending Claims
(1) Where:
(a) a claim for a pension, not being a service pension;
(b) an application for such a pension or for an increase in the rate of such a pension;
(c) a claim for a service pension (including remote area allowance and rent assistance); or
(d) an application for an allowance or other benefit of a kind to which Division 2 of Part VI of the Veterans’ Entitlements Act applies;
had been received at an address of the Department before the commencing date but had not been determined before that date, the claim or application shall be dealt with and determined under the Veterans’ Entitlements Act as if it had been made under that Act.
(2) For the purposes of the application of subsection (1) in relation to a claim or application:
(a) a claim that was in accordance with a form approved by the Commission for the purposes of subsection 25(1) of the Repatriation Act shall be deemed to be in accordance with a form approved by the Commission for the purposes of subsection 14(3) of the Veterans’ Entitlements Act;
(b) an application that was in accordance with a form approved by the Commission for the purposes of subsection 26(3) of the Repatriation Act shall be deemed to be in accordance with a form approved by the Commission for the purposes of subsection 15 (3) of the Veterans’ Entitlements Act;
(c) a claim that was in accordance with a form approved by the Commission for the purposes of section 88 of the Repatriation Act shall be deemed to be in accordance with a form approved by the Commission for the purposes of subsection 43(1) of the Veterans’ Entitlements Act;
(d) an application that was duly made for the purposes of whichever of the prescribed regulations was applicable shall be deemed to be in accordance with a form approved by the Commission for the purposes of subsection 111(2) of the Veterans’ Entitlements Act; and
(e) an approval given, investigation carried out, decision made or act or thing done for the purposes of, or in connection with, the claim or application before the commencing date shall, by force of this section, have the force and effect, on and after that date, for the purposes of consideration and determination of the claim or application under the Veterans’ Entitlements Act, that it would have if that Act had been in operation when it was given, carried out, made or done and it had been given, carried out, made or done under, and for the purposes of consideration and determination of the claim or application under, that Act.
(3) Subsection (1) does not apply to a claim or application that had been received at an address of the Department before the commencing date but was, before that date, deemed, by force of subsection 29A(4) or (5) of the Repatriation Act, to have been refused.
(4) Where a claim or application to which subsection (1) applies is granted, payment of the pension, service pension, allowance or other benefit to which it relates may be approved from a date determined in accordance with the relevant provisions of the Veterans’ Entitlements Act, including a date before the commencing date.
(5) For the purpose of paragraph (2)(d):
(a) the Repatriation Regulations;
(b) the Interim Forces Benefits Regulations;
(c) the Repatriation (Far East Strategic Reserve) Regulations; and
(d) the Repatriation (Special Overseas Service) Regulations;
are each prescribed regulations.
18 Pending reviews by Commission
(1) Where, before the commencing date:
(a) the Commission had commenced to review a decision:
(i) granting a pension (not being a service pension) or assessing the rate of such a pension; or
(ii) with respect to a claim for such a pension or an application for such a pension or for an increase in the rate of such a pension;
(b) a request to review a decision of the Commission had been made under section 90C of the Repatriation Act; or
(c) the Commission had, otherwise than by reason of such a request, commenced to review a decision granting a service pension or assessing the rate of a service pension;
but the Commission had not made its decision in respect of the review, the Commission may complete the review and make its decision in respect of the review as if it had been instituted under Part II, III or IV, as the case requires, of the Veterans’ Entitlements Act.
(2) For the purposes of the application of subsection (1) in relation to a review, any investigation carried out, decision made or act or thing done, for the purposes of, or in connection with, the review before the commencing date shall, by force of this section, have the force and effect, on and after that date for the purposes of completion and determination of the review, that it would have if the Veterans’ Entitlements Act had been in operation when it was carried out, made or done, and it had been carried out, made or done under and for the purposes of a review under Part II, III or IV, as the case requires, of that Act.
(3) The decision of the Commission upon a review to which subsection (1) applies shall be such decision as the Commission considers to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans’ Entitlements Act and of this Act.
19 Pending applications to the Board or the Tribunal
(1) An application made, or deemed to be made to the Board under section 107VC of the Repatriation Act that had not been determined under that Act before the commencing date shall, on and after that date, be treated as if it were an application that had been made to the Board under section 135 of the Veterans’ Entitlements Act, and shall be heard and determined by the Board accordingly.
(2) An application made to the Administrative Appeals Tribunal under section 107VZW of the Repatriation Act that had not been determined by that Tribunal before the commencing date shall, on and after that date, be treated as if it were an application that had been made to that Tribunal under section 175 of the Veterans’ Entitlements Act, and shall be heard and determined by that Tribunal accordingly.
(3) For the purposes of the application of subsection (1) or (2) in relation to an application for a review of a decision, any approval given, investigation carried out, report prepared, decision made or act or thing done before the commencing date for the purposes of, or in connection with, that application to, or the review of that decision by, the Board or the Administrative Appeals Tribunal, as the case may be, shall, by force of this section, have the force and effect, on and after that date, for the purposes of consideration and determination of that decision by the Board or that Tribunal that it would have if it had been given, carried out, prepared, made or done under the Veterans’ Entitlements Act for the purposes of, or in connection with, that application to, or the review of that decision by, the Board or that Tribunal under that Act.
(4) The decision of the Board or of the Administrative Appeals Tribunal upon an application to which subsection (1) or (2) applies shall be such decision as the Board, or the Tribunal, considers to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans’ Entitlements Act and of this Act.
20 Reviews of certain decisions made under repealed Acts
(1) Where, but for the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, a person would have had, on or after the commencing date, a right to make application under section 107VC of the Repatriation Act for a review of a decision of the Commission made before that date, application may, subject to subsections (3), (4), (6) and (7) of this section, be made to the Board under section 135 of the Veterans’ Entitlements Act for a review of that decision.
(2) Where, but for the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, a person would have had, on or after the commencing date, a right to make application under section 90C of the Repatriation Act for a review of a decision of the Commission made before that date, application may be made to the Commission under Division 19 of Part III of the Veterans’ Entitlements Act for a review of that decision.
(3) Subject to subsections (4) and (6), an application under subsection (1) for a review of a decision of the Commission may be made within 12 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2) of the Veterans’ Entitlements Act, but not otherwise.
(4) An application under subsection (1) for a review of a decision of the Commission (including a decision of a Repatriation Board deemed by section 50 of the Repatriation Legislation Amendment Act 1984 to be a decision of the Commission), being a decision made before 1 January 1985:
(a) assessing a rate of pension or an increased rate of pension;
(b) refusing to grant a pension on the ground that the extent of the incapacity of the applicant is insufficient to justify the grant of a pension;
(c) refusing to increase the rate of a pension; or
(d) reducing the rate of a pension;
may be made on a day not later than the day that occurs 3 months after the day on which a copy of that decision was served on the applicant, but not otherwise.
(5) Subsection (2) does not apply to a decision of a Repatriation Board if an appeal to the Commission against that decision had been instituted before 1 January 1985.
(6) An application under subsection (1) for a review of a decision of the Commission (being a decision made on or after 1 January 1985 that is of a kind referred to in paragraph (4)(a), (b), (c) or (d)) may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34(2) of the Veterans’ Entitlements Act, but not otherwise.
(6A) An application under subsection (2) for a review of a decision of the Commission may be made within the period of 3 months after service on the person to whom the decision relates of notice of the decision or within the period of 3 months after the date of commencement of this subsection, whichever last expires, but not otherwise.
(7) Subsection (1) does not apply to a decision of the Commission if an application for a review of that decision has been made to the Board before the commencing date and that application has not been withdrawn and has not been otherwise disposed of.
(8) Subsections 135(4) and (5) of the Veterans’ Entitlements Act do not apply to or in relation to an application to which subsection (1) of this section applies.
(9) Where, but for the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, a person would have had, on or after the commencing date, a right to make application under section 107VZW of the Repatriation Act for a review of a decision of the Commission or of the Board made before that date, application may, subject to section 29 of the Administrative Appeals Tribunal Act 1975 in its application in accordance with subsection 176(4) of the Veterans’ Entitlements Act, be made to the Administrative Appeals Tribunal under section 175 of the Veterans’ Entitlements Act for a review of that decision by that Tribunal, and the application shall be heard and determined by that Tribunal accordingly.
(10) Subsection (9) does not apply to a decision of the Commission or the Board if an application for a review of that decision had been made to the Administrative Appeals Tribunal before the commencing date and that application has not been withdrawn and has not been otherwise disposed of.
(10A) Where, on or after 6 June 1985 and before the commencing date, the Board has:
(a) affirmed a decision of the Commission not to grant a claim for a pension (not being a service pension); or
(b) made, in substitution for a decision of the Commission, a decision not to grant a claim for a pension;
by reason that the Board was reasonably satisfied as set out in subsection 107VG(7) of the Repatriation Act, application may, notwithstanding the provisions of section 29 of the Administrative Appeals Tribunal Act 1975 in its application in accordance with paragraph 176(4)(a) of the Veterans’ Entitlements Act, be made to the Administrative Appeals Tribunal, under section 175 of the Veterans’ Entitlements Act, for a review of that decision of the Board by the Tribunal within the period of 3 months commencing on, and including, the commencing date, and the application shall be heard and determined by that Tribunal accordingly.
(10B) Subsection (10A) does not apply to a decision of the Board if an application for a review of that decision has been duly made to the Administrative Appeals Tribunal before the commencing date and that application has not been withdrawn.
(11) A power conferred by the Veterans’ Entitlements Act on the Commission:
(a) to review a decision;
(b) to cancel or suspend a pension; or
(c) to increase or decrease the rate of a pension;
extends to reviewing the decision, suspending the pension or increasing or reducing the rate of the pension in respect of a period before the commencing date or cancelling the pension on a date before the commencing date as if that Act had been in force throughout that period or on that date, as the case may be.
(12) In exercising a power referred to in subsection (11), the Commission:
(a) may have regard to information received by the Commission, the Board or the Administrative Appeals Tribunal before the commencing date under a repealed Act and to information received by the Commission on or after that date under the Veterans’ Entitlements Act; and
(b) shall make such decision as it considers to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans’ Entitlements Act and of this Act.
21 Retrospective operation of decisions
(1) Where a decision is made by the Commission, the Board or the Administrative Appeals Tribunal under the Veterans’ Entitlements Act, other than a decision referred to in subsection (1A), granting a pension, increasing or reducing the rate of a pension or granting an allowance or another pecuniary benefit, a date, which may be a date before the commencing date, may be fixed, in accordance with the relevant provisions of the Veterans’ Entitlements Act, as the date as from which payment of the pension, payment of the pension at the increased or reduced rate or payment of the allowance or other benefit is approved.
(1A) Where:
(a) a decision is made by the Commission, the Board or the Administrative Appeals Tribunal (in this subsection called the determining body) under the Veterans’ Entitlements Act to grant a pension, to increase or reduce the rate of a pension or to grant an allowance or other pecuniary benefit; and
(b) the determining body, would not have had power to make that decision but for the operation of a provision of this Act whether that provision conferred power on the determining body directly or indirectly;
then a date, which may be a date before the commencement date, may, subject to subsection (3), be fixed as the date from which payment of a pension at a reduced or increased rate or payment of an allowance or other benefit is approved.
(2) For the purpose of the application of subsection (1):
(a) any decision of the Board to which section 107VY of the Repatriation Act applied immediately before the commencing date; and
(b) any decision of the Administrative Appeals Tribunal to which section107VZZ of the Repatriation Act so applied;
shall continue to be binding on the parties to the proceedings for the remainder of the period for which it was binding under that section.
(3) The date which may be fixed under subsection (1A) in relation to a decision referred to in that subsection is:
(a) where the initiating action in relation to the decision was the making of an application as mentioned in paragraph (h) of the definition of 'initiating action' in subsection (5)—the date of that initiating action; or
(aa) where the decision is made on review of a decision made on or after 1 January 1985 by the Commission about the rate at which pension is payable to a person, where the Repatriation Review Tribunal had previously, on application under section 107VC of the Repatriation Act 1920 as in force before 1 January 1985, granted the person’s claim for pension—a date that is not earlier than the operative date set by the Repatriation Review Tribunal in relation to the grant of the claim for pension; or
(ab) where the decision is made on review of a decision made on or after 1 January 1985 by the Commission about the rate at which pension is payable to a person, where the Repatriation Review Tribunal had referred the matter to the Commission under section 107VJ of the Repatriation Act 1920 as in force before 1 January 1985—a date that is not earlier than the date of that reference; or
(b) in any other case-a date that is not earlier than 3 months before the date of the initiating action in relation to the decision.
(4) For the purposes of the application of the Veterans’ Entitlements Act pursuant to this section, section 19 of that Act has effect as if the reference, in the definition of 'assessment period' in subsection 19(9) of that Act, to the period starting on the application day were a reference to the period starting on the date of the initiating action in relation to the decision concerned.
(5) In this section:
initiating action, in relation to a decision mentioned in subsection (1A), means whichever of the following events and actions operated, whether of its own force or because of another provision, to confer power to make the decision on the person or body that made it or, where 2 or more of the following events and actions so operated, the later or latest of those events or actions:
(a) the making of a claim or application to which subsection 51(1) or (2) of the 1984 Act applied;
(b) the institution of an appeal to which section 52 of the 1984 Act applied;
(c) the making of an application to which subsection 55(1) of the 1984 Act applied, or of an application permitted to be made by subsection 55(2) of the 1984 Act;
(d) the submission of further evidence with respect to a claim as mentioned in section 107VM of the Repatriation Act 1920 as in force immediately before 1 January 1985, being a claim to which subsection 57(1) of the 1984 Act applied;
(e) the making of an application permitted to be made by subsection 57(2) of the 1984 Act;
(f) the directing of a review to which subsection 58(1) of the 1984 Act applied;
(g) the reference of an assessment back to the Commission under section 107VH of the Repatriation Act 1920 as in force on or after 1 January 1985 which resulted in:
(i) a review referred to in subsection 18(1) of this Act;
(ii) an application referred to in subsection 19(1) or (2) of this Act; or
(iii) an application made under subsection 20(1) or (9) of this Act;
(h) the making of a claim or application under the Repatriation Act 1920 as in force on or after 1 January 1985.
the 1984 Act means the Repatriation Legislation Amendment Act 1984.
22 Reasons for decisions
(1) Section 34 of the Veterans’ Entitlements Act extends to a decision made by the Commission before the commencing date under a repealed Act, being a decision of a kind similar to a kind of decision to which that section applies.
(2) Sections 57D and 57E of the Veterans’ Entitlements Act extend to a decision made by the Commission before the commencing date under a repealed Act, being a decision of a kind similar to a kind of decision to which that section applies.
(3) Section 140 of the Veterans’ Entitlements Act extends to a decision made by the Board before the commencing date under a repealed Act, being a decision of a kind similar to a kind of decision to which that section applies.
(4) For the purposes of the Veterans’ Entitlements Act and of this Act:
(a) any reasons for a decision in respect of a pension other than a service pension duly given and served by the Commission in accordance with a provision of a repealed Act shall have effect on and after the commencing date as if given and served under section 34 of the Veterans’ Entitlements Act;
(b) any reasons for a decision in respect of a service pension duly given and served by the Commission in accordance with a provision of a repealed Act shall have effect on and after the commencing date as if given and served under section 57E of the Veterans’ Entitlements Act; and
(c) any reasons for a decision of the Board duly given and served in accordance with a provision of a repealed Act shall have effect on and after the commencing date as if given and served under section 140 of the Veterans’ Entitlements Act.
Part IV—Miscellaneous transitional provisions
23 Child of a person
(1) Where:
(a) a person who was, immediately before the commencing date, in receipt of a benefit under Part IVAAA of the Social Security Act 1947 as then in force was, immediately before that date, a child, within the meaning of subsection 83(1) of the Repatriation Act as then in force, of a member of the Forces, being a member who was in receipt of a service pension;
(b) the person has not ceased to receive that benefit (otherwise than by virtue of subsection 150(2) of the Social Security Act 1947); and
(c) the member has not ceased to receive a service pension;
the definition of child in subsection 5F of the Veterans’ Entitlements Act shall, for the purpose of applying Part III of that Act to and in relation to that person and member, be read as if paragraph (f) were omitted from that definition.
(2) In subsection (1):
member of the Forces means a member of the Forces within the meaning of Division 5 of Part III of the Repatriation Act (as in force immediately before 11 November 1982 and including that Division as extended by another Division of that Part or by another Act), and includes a member of the Forces of a Commonwealth country within the meaning of Division 5A of that Part, a member of the Forces of an allied country within the meaning of Division 5B of that Part, an Australian mariner within the meaning of Division 5C of that Part and a Commonwealth mariner or allied mariner within the meaning of Division 5D of that Part.
service pension means:
(a) in relation to any time before the commencing date—a pension under Division 5 of Part III of the Repatriation Act (including that Division as extended by another Division of that Act or by another Act); or
(b) in relation to any other time—a service pension under Part III of the Veterans’ Entitlements Act.
(3) Where:
(a) a person who was, immediately before the commencing date, in receipt of a benefit under Part IVAAA of the Social Security Act 1947 as then in force, being a benefit granted in pursuance of a claim lodged before 11 November 1982, was, immediately before that date, a child of another person within the meaning of section 123AB of the Repatriation Act as then in force; and
(b) the person has not ceased to receive that benefit (otherwise than by virtue of subsection 150(2) of the Social Security Act 1947);
the definition of child in subsection 5F(1) of the Veterans’ Entitlements Act shall, for the purpose of applying Division 15 of Part III of that Act to and in relation to that person and that other person, be read as if paragraph (f) were omitted from that definition.
(4) Where a person living outside Australia is a child of a person who is in receipt of, or is a claimant for, a pension under Part III of the Veterans’ Entitlements Act, then, notwithstanding the provisions of subsection 5F(4) of that Act, the person shall be treated as the child of that person for the purposes of that Part if, immediately before 5 September 1985, the child was treated, for the purposes of Division 5 of Part III of the Repatriation Act as then in force, as a child of that person.
24 Certain persons deemed to be domiciled in Australia
A person who, before the commencement of the Repatriation Act 1952, had satisfied the Commission that the person was resident in Australia or a Territory of the Commonwealth within the period of 12 months immediately preceding the person’s appointment, enlistment or enrolment in the naval, military or air forces, or a service auxiliary of any of those forces, of a part of the Dominions of the Crown other than the Commonwealth, shall, for the purposes of subsection 6(2) of the Veterans’ Entitlements Act, be deemed to have been domiciled in Australia immediately before the person’s appointment, enlistment or enrolment in those forces.
25 Reduction in rate of pension
(1) Subject to subsection (2), where a person was, immediately before the commencing date, in receipt of a pension (not being a service pension) under a repealed Act the rate of which was reduced in accordance with subsection 24(1), 101(1), 107C(6) or 107Q(3) of the Repatriation Act, the amount of that deduction shall not be increased on or after the commencing date, by reason of the application of section 26 of the Veterans’ Entitlements Act to and in relation to that pension.
(2) Where:
(a) a person is in receipt of a pension to which subsection (1) applies; and
(b) the amount of the periodical payments received by the person under a law of a foreign country or of a State has been increased, or a lump‑sum payment has been so received, since the amount of that reduction was calculated or last calculated;
the amount of the reduction shall be re‑calculated in accordance with the provisions of section 26 of the Veterans’ Entitlements Act and, if the amount of the reduction as so re‑calculated exceeds the amount of the reduction immediately before the commencing date, that pension shall be reduced by the amount of the reduction as so re‑calculated and subsection (1) of this section ceases to apply to the pension but, in any other case, subsection (1) continues to apply to the pension.
(3) Where a pension is granted to a person under Part II or IV of the Veterans’ Entitlements Act and payment of the pension from a date before the commencing date is approved, the person shall be deemed to have been in receipt of that pension immediately before the commencing date for the purposes of subsection (1).
26 Summons
Where a summons had been issued before the commencing date requiring a person to appear and give evidence, or produce documents, on or after that date:
(a) if the summons was issued under section 29B of the Repatriation Act—section 32 of the Veterans’ Entitlements Act;
(b) if the summons was issued under section 107VV of the Repatriation Act, in its application in accordance with section 90C of that Act—section 60 of the Veterans’ Entitlements Act; or
(c) if the summons was issued under section 107VV of the Repatriation Act otherwise than in its application in accordance with section 90C of that Act—section 151 of the Veterans’ Entitlements Act;
applies to and in relation to the summons as if it had been issued under that section of the Veterans’ Entitlements Act.
27 Guide to Assessment of Rates of Veterans’ Pensions
(1) Subject to subsection (2) of this section, subsections 22(4) and 29(4) of the Veterans’ Entitlements Act do not apply to a determination of the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, made by the Commission before 1 November 1986.
(2) Where, on or after the commencing date and before 1 November 1986, the Commission is making a determination of the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, 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 approved Guide to the Assessment of Rates of Veterans’ Pensions.
(2A) Where, on or after the commencing date and before 1 November 1986, the Commission makes a decision determining the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions, it shall state in that decision that the degree of incapacity was determined according to the provisions of that Guide. Back to Top.
(2B) Subject to subsection (2C) of this section, subsections 22(4) and 29 (4) of the Veterans’ Entitlements Act do not apply to a determination with respect to the degree of incapacity of a veteran from war‑caused injury or war‑caused disease or both:
(a) made by the Board upon a review of a decision of the Commission made by the Commission before 1 November 1986; or
(b) made by the Administrative Appeals Tribunal upon a review of a decision of the Board affirming or setting aside such a decision of the Commission.
(2C) Where, on or after the commencing date and before 1 November 1986, the Commission makes a decision determining the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, and states in the decision that the degree of incapacity was determined according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions:
(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.
(3) In subsections (1), (2), (2A), (2B) and (2C):
(a) a reference to a veteran shall be read as including a reference to a member of the Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1) of the Veterans’ Entitlements Act; and
(b) a reference to a war‑caused injury shall be read as including a reference to a defence‑caused injury and a reference to a war‑caused disease shall be read as including a reference to a defence‑caused disease.
28 Savings—child living outside Australia
Where:
(a) a person was in receipt of, or was a claimant for, a service pension under Division 5 of Part III of the Repatriation Act on 4 September 1985;
(b) the person:
(i) has received that pension continuously since 5 September 1985; or
(ii) has been granted a service pension in pursuance of that claim under that Division or under Part III of the Veterans’ Entitlements Act and has been in receipt of that pension continuously since it was so granted, as the case may be;
(c) a child of that person is living outside Australia; and
(d) that child was, on 4 September 1985, treated for the purposes of Division 5 of Part III of the Repatriation Act as then in force, as a child of that person;
subsection 5F(4) of the Veterans’ Entitlements Act does not apply to or in relation to that child.
29 Calculation of value of property
Where, on 14 March 1985, a person was absent from the principal home of the person, any absence of the person from that home before that date shall be disregarded for the purpose of applying subsection 5L(7) of the Veterans’ Entitlements Act to and in relation to that person.
30 Pension loan scheme
(1) For the purpose of the application of Subdivision E of Division 14 of Part III of the Veterans’ Entitlements Act to and in relation to a person, a request lodged by the person, in accordance with subsection 5(2) of the Social Security Act 1947 (in its application for the purposes of the Repatriation Act) after 14 March 1985 and before 14 June 1985, shall be deemed to have been lodged on 14 March 1985.
(2) Subdivision E of Division 14 of Part III of the Veterans’ Entitlements Act extends to a request lodged by a person, in accordance with subsection 5(2) of the Social Security Act 1947 (in its application for the purposes of the Repatriation Act) on or after 14 March 1985 and before the commencing date as if:
(a) the Veterans’ Entitlements Act had come into operation on 14 March 1985;
(b) the request had been duly lodged under that Subdivision of that Act; and
(c) any decision of the Commission that it was satisfied as referred to in paragraph 52ZB(1)(d) of that Act given before the commencing date had been given under that paragraph;
but a debt created before the commencing date is not recoverable under section 5 of the Social Security Act 1947 (as so applied) and also under that Subdivision of the Veterans’ Entitlements Act.
(3) A charge lodged for registration under section 5 of the Social Security Act 1947 (in its application for the purposes of the Repatriation Act) before the commencing date has effect on and after that date as if it were a charge under section 52ZF of the Veterans’ Entitlements Act.
31 Deprivation of income or property
(1) Where, immediately before the commencing date, an amount is deemed to be income of a person in respect of a deprivation of income, that amount shall, subject to subsection (2), continue to be deemed to be income of the person for the purposes of the application of Part III of the Veterans’ Entitlements Act to and in relation to that person.
(2) Where, immediately before the commencing date, section 6 of the Social Security Act 1947, in its application for the purposes of the Repatriation Act, applied to and in relation to an amount that was deemed to be income of a person in respect of a deprivation of income that took place on or after 1 June 1984, Division 10 of Part III of the Veterans’ Entitlements Act applies to and in relation to that deprivation.
(3) Where, immediately before the commencing date, an amount was required to be included in the value of the property of a person in relation to a disposal of property by the person or the person’s spouse that took place on or after 1 June 1984, that amount shall, subject to Subdivision B of Division 14 of Part III of the Veterans’ Entitlements Act, continue to be included in the value of the property of the person.
32A Payments by way of compensation or damages
(1) Where:
(a) a member of the Forces or a member of a Peacekeeping Force is in receipt of a pension under Part IV of the Veterans’ Entitlements Act;
(b) a pension continues to be payable to a dependant of the member in accordance with the repealed Acts in pursuance of subsection 4(6) or (8B) of this Act; and
(c) the rate of a pension that so continues to be payable is required to be reduced (including reduced to nil) by virtue of section 107R of the Repatriation Act in relation to compensation that is payable in respect of injury to the member;
section 74 of the Veterans’ Entitlements Act applies to and in relation to the pension payable to the member as if the rate, or sum of the rates, per fortnight at which compensation is payable in respect of the injury for the purposes of that section were the amount per fortnight ascertained in accordance with the formula:
A – B,
where:
A is the amount that is, or the sum of the amounts that are, paid per fortnight, for the purposes of section 107R of the Repatriation Act, by way of compensation in respect of the injury; and
B is:
(d) the amount per fortnight by which the rate per fortnight of the pension payable to a dependant of the member has been reduced in pursuance of section 107R of the Repatriation Act; or
(e) if pensions payable to 2 or more dependants of the member have been so reduced - the sum of the amounts per fortnight by which the rates of those pensions have been so reduced.
(2) Where:
(a) a dependant of a member of the Forces or of a member of a Peacekeeping Force, being a dependant in receipt of a pension in accordance with the repealed Acts in pursuance of subsection 4(6) of this Act, elects to commute payments of that pension in accordance with section 6 of this Act;
(b) immediately before the pension that is to be commuted is cancelled by force of paragraph 6(4)(a), that pension was payable at a rate that had been reduced by virtue of section 107R of the Repatriation Act in relation to compensation that was paid or is payable in respect of injury to that member; and
(c) upon the cancellation of that pension, a pension continues to be payable under Part IV of the Veterans’ Entitlements Act to that member or a pension continues to be payable to another dependant of that member in pursuance of subsection 4(6) or (8B);
the rate of a pension referred to in paragraph (c) shall be assessed, in relation to the compensation that was paid or is payable in respect of that injury to that member, as if instalments of the pension referred to in paragraph (b) continued to be paid to the dependant on each of the 78 pension pay-days next following the cancellation of that pension.
33 Requests to institute proceedings, &c.
(1) Where a person had been requested, under subsection 107S(1) of the Repatriation Act to institute proceedings or fresh proceedings, or properly to prosecute proceedings, before the commencing date and the proceedings to which the request related had not been completed before that date, section 75 of the Veterans’ Entitlements Act applies to and in relation to that person and to and in relation to the proceedings to which that request related, on and after that date, as if that request had been made by notice under subsection 75(1) of the Veterans’ Entitlements Act.
(2) For the purpose of the application of section 75 of the Veterans’ Entitlements Act in accordance with subsection (1) of this section, any act or thing done under section 107S of the Repatriation Act in pursuance of the request under that section shall be treated, on and after the commencing date, as if it had been done under section 75 of the Veterans’ Entitlements Act.
34 Payment of damages to Commonwealth
(1) Where the requirements of a notice given to a person under subsection 107T(1) or (2) of the Repatriation Act had not been complied with before the commencing date, section 76 of the Veterans’ Entitlements Act applies, on and after that date but subject to subsection (2) of this section, as if the notice were a notice given to the person by the Commission under that section.
(2) The amount payable to the Commonwealth in pursuance of a notice to which subsection (1) applies shall not exceed the amount specified in that notice.
35 Deductions of overpayments of pension
Where an amount was, immediately before the commencing date, recoverable from a person under section 107U of the Repatriation Act, that amount may, on and after that date, be recovered from the person under section 79 of the Veterans’ Entitlements Act, but the amount shall not be recovered both under section 107U of the Repatriation Act and under section 79 of the Veterans’ Entitlements Act.
36 Establishment of hospitals, &c.
A hospital or other institution established, or deemed to have been established, by the Commission under section 120D of the Repatriation Act and maintained by the Commission immediately before the commencing date shall, on and after that date, be deemed to have been established under section 89 of the Veterans’ Entitlements Act and that section applies in relation to it accordingly.
37 Recovery of cost of medical treatment
(1) Subject to subsection (3) of this section, section 93 of the Veterans’ Entitlements Act extends to and in relation to:
(a) a person who:
(i) was provided with prescribed medical treatment within the meaning of section 120E of the Repatriation Act before the commencing date; and
(ii) recovered or received compensation from another person before that date or recovers or receives compensation from another person on or after that date; and
(b) a person who became liable before, or becomes liable on or after, the commencing date, to pay compensation to a person who was provided with treatment referred to in subparagraph (a)(i) of this section before the commencing date;
as if that medical treatment were treatment that had been provided to the person under Part V of the Veterans’ Entitlements Act and any compensation so recovered or received before the commencing date had been so recovered or received on that date.
(2) For the purpose of applying section 93 of the Veterans’ Entitlements Act in accordance with subsection (1) of this section, a notice under subsection 120E(3) or (4) of the Repatriation Act that was served before the commencing date shall have effect on and after that date as if it were a notice under subsection 93(3) or (4), as the case may be, of the Veterans’ Entitlements Act.
(3) The cost of treatment provided before the commencing date is not recoverable under a repealed Act and also under section 93 of the Veterans’ Entitlements Act in its application in accordance with subsection (1) of this section.
(4) The repeals effected by subsection 3(1) of the Veterans’ Entitlements Act do not affect the liability, on and after the commencing date, of a person under subsection 124(1A) of the Repatriation Act, to pay reasonable charges in respect of treatment provided for the person under the Repatriation Regulations where, before the commencing date, the person had been notified as provided in regulation 70A of those Regulations.
38 Notification of event or change of circumstances
Where an event or change of circumstances of a kind described in subsection 124(4) or (5) of the Veterans’ Entitlements Act occurred before the commencing date:
(a) if the last day on which the person in receipt of a service pension, a wife’s service pension, a carer’s service pension or rent assistance could have notified the occurrence of that event or change of circumstances as required by the provisions of the Repatriation Act or of a notice under that Act is a day on or after the commencing date—the provisions of those subsections extend to that event or change of circumstances; or
(b) if that last day was a day before the commencing date—section 98AAA of the Repatriation Act continues, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, to apply to that event or change of circumstances.
39 Deduction of tax from service pensions
Where a request made by a person for the purposes of subsection 52(2) of the Repatriation Act before the commencing date had not been revoked before that date, the request shall, by force of this section, have effect on and after that date as if it had been made under, and for the purposes of, section 58H of the Veterans’ Entitlements Act.
40 Payment of service pension
Where a decision of the Commission made under section 93 of the Repatriation Act was applicable in relation to a service pension payable to a person immediately before the commencing date, that decision has effect, by force of this section, on and after that date to and in relation to the service pension payable to the person in accordance with section 8 of this Act as if the decision were an approval under section 122 of the Veterans’ Entitlements Act given by the Commission on the commencing date.
41 Advances on account of loss of earnings allowance
Where the Commission has, under regulation 71 of the Repatriation Regulations, authorised the payment of an advance to a person on account of loss of earnings allowance in respect of a period ending on or after the commencing date:
(a) so much of the amount of that advance as equals the amount of loss of earnings allowance payable to the person under that regulation in respect of the part of that period that ended on the day immediately preceding the commencing date shall be treated as having been paid as loss of earnings allowance in respect of that part of that period; and
(b) the balance of that amount shall be treated as an advance authorised by the Commission under section 109 of the Veterans’ Entitlements Act in respect of the part of that period commencing on the commencing date.
42 Application of section 120 of Veterans’ Entitlements Act to decisions of Commission
(1) Subject to subsection (3), section 120 of the Veterans’ Entitlements Act applies to and in relation to the consideration and determination by the Commission of a claim for a pension on or after the commencing date, whether the claim was received at an office of the Department before, on or after that date.
(2) Subject to subsection (3), section 120 of the Veterans’ Entitlements Act applies to and in relation to every determination or decision made by the Commission under the Veterans’ Entitlements Act, including a determination or decision so made by reason of the application of that Act as provided in this Act.
(3) Where, on or after the commencing date, the Commission is considering and determining a claim for a pension (not being a service pension) that was received at an office of the Department in Australia before 15 May 1985:
(a) section 120 of the Veterans’ Entitlements Act does not apply to or in relation to its consideration and determination of the claim; and
(b) the Commission shall, subject to subsection (4) of this section, grant the claim unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for granting the claim.
(4) In applying paragraph (3)(b) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
43 Application of sections 120 and 139 of Veterans’ Entitlements Act to reviews by the Board
(1) Subject to subsection (2), where the Board reviews, on or after the commencing date, a decision or determination of the Commission made before that date, section 139 of the Veterans’ Entitlements Act applies to and in relation to the review, and, for the purpose of its application in relation to the review, the Commission shall be deemed to have the powers and discretions conferred on it by the Veterans’ Entitlements Act in its application by virtue of the provisions of this Act.
(2) Where, on or after the commencing date, the Board reviews, upon an application that was made to it before 15 May 1985, a decision of the Commission with respect to a claim for a pension, the Commission shall be deemed to have the powers and discretions conferred on it by:
(a) the provisions of the Veterans’ Entitlements Act, other than section 120 of that Act; and
(b) the provisions of subsections 42(3) and (4) of this Act.
44 Application of section 120 of Veterans’ Entitlements Act to reviews by Administrative Appeals Tribunal
(1) Subject to subsection (2), where the Administrative Appeals Tribunal reviews, on or after the commencing date, a decision made under a repealed Act, the person who made the decision shall be deemed, for the purposes of section 43 of the Administrative Appeals Tribunal Act 1975, to have the powers and discretions conferred on that person by the Veterans’ Entitlements Act in its application by virtue of this Act.
(2) Where, on or after the commencing date, the Administrative Appeals Tribunal, upon application made by the Commission, reviews a decision given by the Board before 15 May 1985, being a decision granting a claim for a pension, the person who made the decision shall be deemed, for the purposes of section 43 of the Administrative Appeals Tribunal Act 1975, to have the powers and discretions conferred on the Commission by:
(a) the provisions of the Veterans’ Entitlements Act, other than section 120 of that Act; and
(b) the provisions of subsection 42(3) of this Act.
45 Notice to be given of certain events affecting pensions
(1) Where a person was, immediately before the commencing date, required by section 40AA of the Repatriation Act to notify the Secretary of the occurrence of an event in respect of another person, that section continues, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, to apply to and in relation to those persons until a notice is served on that first—mentioned person under section 54 or section 127 of the Veterans’ Entitlements Act.
(2) Section 96 of the Repatriation Act continues, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, to apply to and in relation to a person who was in receipt of a service pension under Division 5 of Part III of the Repatriation Act immediately before the commencing date until a notice is served on that person under section 54 or section 127 of the Veterans’ Entitlements Act.
(3) Sections 56, 56A and 56B and subsections 124(4) and (5) of the Veterans’ Entitlements Act apply to a person who is in receipt of a pension under Part II, III or IV of that Act under that Act, until a notice is served on the person under section 54 or 54 or section 127 of that Act:
(a) as if a reference in those subsections to the notification of the occurrence of an event or change of circumstances in accordance with a notice under section 54 or subsection 127(1) of that Act were read as a reference to the notification of the occurrence of an event or change of circumstances in accordance with the provisions of section 40AA or 96, or of subsection 98A (8), (9) or (10), of the Repatriation Act, whichever is applicable by virtue of subsections (1), (2), (4) and (5) of this section; and
(b) a reference in sections 56, 56A and 56B and in subsection 124(4) and (5) of the Veterans’ Entitlements Act to the time within which such a notification is to be made shall be read as a reference to the time within which notification of the occurrence of the event or change of circumstances is required to be made by whichever of the provisions referred to in paragraph (a) of this subsection is so applicable.
(4) Subsections 98A(8), (9) and (10) of the Repatriation Act apply, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, to and in relation to a person who was in receipt of an allowance under section 98A of the Repatriation Act immediately before the commencing date, and to and in relation to the husband or wife of such a person, until a notice is served on that person under section 54 or section 127 of the Veterans’ Entitlements Act.
(5) After the commencement of this section:
(a) section 96 of the Repatriation Act applies by virtue of subsection (2) of this section; and
(b) subsections 98A(8), (9) and (10) of the Repatriation Act apply by virtue of subsection (4) of this section;
as if a reference in that section or those subsections to an allowance under section 98A of the Repatriation Act were read as a reference to a service pension, the rate of which has been increased by an amount for rent assistance under Part III of the Veterans’ Entitlements Act.
46 Savings—children under Soldiers’ Children Education Scheme
Where a person who had attained the age of 25 years was, immediately before the commencing date, receiving benefits under the Soldiers’ Children Education Scheme prepared by the Commission under regulation 88 of the Repatriation Regulations:
(a) Part VII of the Veterans’ Entitlements Act applies to the person as if the person had not attained the age of 25 years; and
(b) while the person is in receipt of benefits under the Veterans’ Children Education Scheme, as the eligible child of a veteran or the eligible child of a member of the Forces or of a member of a Peacekeeping Force, within the meaning of that Part, Part V of the Veterans’ Entitlements Act applies to and in relation to the person as if the person had not attained the age of 25 years.
46A Payment of pension, &c., on death of person
Where:
(a) before the commencement date, an amount of pension, allowance or other benefit under a repealed Act, or under the regulations in force under a repealed Act:
(i) had accrued and was unpaid on the death of the person to whom that pension, allowance or other benefit was payable; or
(ii) would have been payable to a deceased claimant in respect of a period before his or her death if the claimant had not died; and
(b) the Commission had not paid that amount to the legal personal representative of the deceased person or to any other person before the commencing date, sections 123 to 123E (inclusive) of the Veterans’ Entitlements Act extends to and in relation to that amount as if it were an amount of pension, allowance or other pecuniary benefit payable under the Veterans’ Entitlements Act.
47 Furnishing of information
(1) Section 127 of the Veterans’ Entitlements Act extends to a matter that might affect, or have affected, the payment of a pension, allowance or other pecuniary benefit, or the provision of treatment, under a repealed Act in respect of a time before the commencing date as if references in that section to the Veterans’ Entitlements Act included references to the repealed Act.
(2) For the purpose of the application of section 127 of the Veterans’ Entitlements Act, a notice given to a person under section 121 of the Repatriation Act before the commencing date, being a notice requiring the furnishing of information within a period ending on or after that date, shall be treated as if it had been given under section 127 of the Veterans’ Entitlements Act.
(3) Subject to subsection (4), section 128 of the Veterans’ Entitlements Act extends to information, documents or evidence in relation to a matter that might affect or might have affected:
(a) the grant or payment of a pension, allowance or other pecuniary benefit under a repealed Act; or
(b) the provision of medical treatment under a repealed Act;
as if the reference to the Veterans’ Entitlements Act, or to Part V of that Act, included a reference to the repealed Act.
(4) Section 128 of the Veterans’ Entitlements Act, in its application by virtue of subsection (3), does not authorise the service of a notice in respect of a matter on a person if a notice had been given to the person in respect of the matter under section 121A of the Repatriation Act.
(5) For the purpose of the application of section 128 of the Veterans’ Entitlements Act, a notice given to a person under section 121A of the Repatriation Act before the commencing date, being a notice requiring the furnishing of information or the production of documents, within a period ending on or after that date, or requiring the person to appear on a date on or after that date to give evidence and produce documents shall be treated as if it had been given under section 128 of the Veterans’ Entitlements Act.
(6) Notwithstanding anything in section 127 or 128 of the Veterans’ Entitlements Act:
(a) the penalty for an offence against subsection 127(4) or (5) of the Veterans’ Entitlements Act in respect of a notice to which subsection (2) of this section applies is a fine not exceeding $500; and
(b) the penalty for an offence against subsection 128(4) of the Veterans’ Entitlements Act in respect of a notice to which subsection (5) of this section applies is a fine not exceeding $1,000 or imprisonment for 6 months, or both.
48 Membership of Board
(1) The members of the Board appointed under subsection 107VZC(1) of the Repatriation Act and holding office immediately before the commencing date shall, subject to the Veterans’ Entitlements Act, continue to hold office as members of the Board, but otherwise in accordance with their respective periods of appointment, as if they had been appointed under subsection 158(1) of the Veterans’ Entitlements Act.
(2) An appointment of a person made under subsection 107VZF(1) of the Repatriation Act to act as a member of the Board, being an appointment that had not been terminated by the Minister or by reason of the person’s resignation, before the commencing date, continues in force, subject to the Veterans’ Entitlements Act, on and after that date as if it had been made under subsection 161(1) of the Veterans’ Entitlements Act.
(3) Where a person who held office as a member of the Board immediately before the commencing date in pursuance of an appointment made under the Repatriation Act was, on the occasion of his or her appointment, or on any occasion of his or her re‑appointment, as a member of the Board, a person selected from lists submitted in accordance with a request made under subsection 107VZC(3) of the Repatriation Act, the person shall, during the balance of the period of that appointment, be deemed to be a Services member within the meaning of Part IX of the Veterans’ Entitlements Act.
49 Leave of Absence
Where the Minister had, under section 107VZG of the Repatriation Act, granted leave of absence to a full‑time member of the Board for a period ending on or after the commencing date, that grant of leave of absence has effect, on and after that date, as if it were a grant of leave of absence made by the Minister under section 162 of the Veterans’ Entitlements Act.
50 Membership of Commission
(1) The members of the Commission appointed under subsection 8(1) of the Repatriation Act and holding office immediately before the commencing date shall, subject to the Veterans’ Entitlements Act, continue to hold office as members of the Commission, but otherwise in accordance with their respective periods of appointment, as if they had been appointed under subsection 182(2) of the Veterans’ Entitlements Act.
(2) The member of the Commission who held office as Chairman of the Commission immediately before the commencing date shall, subject to the Veterans’ Entitlements Act, hold office as President of the Commission, but otherwise in accordance with his or her period of appointment as Chairman, as if the member had been appointed President of the Commission under subsection 183(1) of the Veterans’ Entitlements Act.
(3) The member of the Commission who held office as Deputy Chairman of the Commission immediately before the commencing date shall, subject to the Veterans’ Entitlements Act, hold office as Deputy President of the Commission, but otherwise in accordance with his or her period of appointment as Deputy Chairman, as if the member had been appointed Deputy President of the Commission under subsection 183(1) of the Veterans’ Entitlements Act.
(4) Where the person who held office under the Public Service Act 1922 as Secretary to the Department also held, immediately before the commencing date, the offices of a commissioner and Chairman of the Commission, subsection (2) of this section does not prevent the person continuing to hold the office of Secretary to the Department but section 184 of the Veterans’ Entitlements Act applies to and in relation to the person while he or she continues to hold both of those offices.
(5) Where a person who held office as a commissioner immediately before the commencing date was, when appointed to be a commissioner, selected from a list submitted in accordance with subsection 8(2) of the Repatriation Act, the person shall be deemed, for the purposes of subsection 182(4) of the Veterans’ Entitlements Act, to be a person whose name was, when the person was appointed to be a commissioner, on a list submitted in accordance with a request made under subsection 182(3) of the Veterans’ Entitlements Act.
51 Leave of Absence
Where the Minister had, under section 17AA of the Repatriation Act, granted leave of absence to a commissioner or an acting commissioner for a period ending on or after the commencing date, that grant of leave of absence has effect, on and after that date, as if it were a grant of leave of absence made by the Minister under section 186 of the Veterans’ Entitlements Act.
52 Acting members of the Commission
(1) An appointment of a person made under subsection 8C(1) of the Repatriation Act to act in the office of a commissioner, being an appointment that had not been terminated by the Minister or by reason of the person’s resignation before the commencing date, continues in force, subject to the Veterans’ Entitlements Act, on and after that date as if it had been made under section 191 of the Veterans’ Entitlements Act.
(2) An appointment of a person made under section 8B of the Repatriation Act to act in the office of Chairman of the Commission and also in the office under the Public Service Act 1922 of Secretary to the Department, being an appointment that had not been terminated by the Governor‑General or by reason of the person’s resignation before the commencing date, continues in force, subject to the Veterans’ Entitlements Act, on and after that date as if it were an appointment made under section 193 of the Veterans’ Entitlements Act, to act in the office of President of the Commission and also in the office, under the Public Service Act 1922, of Secretary to the Department.
53 Trusts
The repeals effected by subsection 3(1) of the Veterans’ Entitlements Act do not affect the powers or duties of the Commission as a trustee of a trust accepted by the Commission under section 114A of the Repatriation Act but, on and after the commencing date, section 201 of the Veterans’ Entitlements Act applies to and in relation to the trust as if the Commission had accepted the trust under that section.
54 Trusts in respect of pensions and allowances
(1) Where, immediately before the commencing date:
(a) payment of a pension or allowance under a repealed Act was being made to a person other than the pensioner by virtue of an authorisation under regulation 9 of the Repatriation Regulations;
(b) a person was exercising the powers of trustee in respect of a pension or allowance payable under a repealed Act by virtue of an appointment under that regulation; or
(c) the Commission was exercising the powers of trustee in respect of a pension or allowance payable under a repealed Act by virtue of having assumed the office of trustee under that regulation otherwise than under that regulation in its application by virtue of subsection 3 (2), (3), (4) or (5) of the Repatriation Amendment Act 1982;
on and after that date, payment of that pension or allowance shall continue to be made to that person, and that person or the Commission shall continue to exercise the powers of trustee in respect of that pension or allowance, as the case may be, as if the authorisation, appointment or assumption of office had been effected under section 202 of the Veterans’ Entitlements Act, and all moneys and investments held by the person or Commission as trustee immediately before the commencing date shall continue to be held by that person or the Commission as trustee and to be so held upon the trusts set out in section 202 of the Veterans’ Entitlements Act.
(3) In this section, a reference to regulation 9 of the Repatriation Regulations shall be read as including:
(a) a reference to that regulation in its application by virtue of subsection 3(3) of this Act;
(b) a reference to regulation 8 of the Repatriation (Far East Strategic Reserve) Regulations; and
(c) a reference to regulation 8 of the Repatriation (Special Overseas Service) Regulations.
55 Recovery of overpayments
(1) Subject to subsection (3) of this section, section 205 of the Veterans’ Entitlements Act extends to and in relation to:
(a) a false statement or representation that was made;
(b) an omission that occurred;
(c) an amount that was paid; or
(d) a payment that became an unauthorised payment;
before the commencing date and, for the purpose of its application accordingly:
(e) references in that section to the Veterans’ Entitlements Act shall be read as including references to the repealed Acts; and
(f) references in that section to the Regulations shall be read as including references to regulations under a repealed Act.
(2) Subject to subsection (3) of this section, section 205AA of the Veterans’ Entitlements Act extends to and in relation to a pension, benefit or allowance that:
(a) became payable; or
(b) became payable at an increased rate;
before the commencing date and, for the purposes of its application accordingly, references in that section to the Veterans’ Entitlements Act shall be read as including references to the repealed Acts.
(3) This section does not authorise the recovery of an amount under the Veterans’ Entitlements Act and also under a repealed Act.
56 Arrangements with other countries
The repeals effected by subsection 3(1) of the Veterans’ Entitlements Act do not affect the continued operation, on and after the commencing date, of any arrangements with the Government of another country entered into in pursuance of the Repatriation Act and in force immediately before the commencing date, and any such arrangements have effect according to their tenor, but only to the extent to which they are not inconsistent with the provisions of the Veterans’ Entitlements Act, on and after that date as if they were arrangements entered into under section 203 of the Veterans’ Entitlements Act, but may be varied or terminated by further arrangements entered into under that section.
57 Pension payable to person suffering from mental incapacity
Notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act, subsections 3(2), (3), (4), (5), (6) and (8) of the Repatriation Amendment Act 1982 continue to apply to and in relation to moneys or investments held by the Commission to which those subsections applied immediately before the commencing date.
58 Local Committees
(1) Subject to this section, sections 110, 110A and 115 of the Repatriation Act, and Part X of the Repatriation Regulations continue in force, notwithstanding the repeals effected to subsection 3(1) of the Veterans’ Entitlements Act, in relation to a Local Committee established under section 110 of the Repatriation Act that was in existence immediately before the commencing date.
(2) A Local Committee to which subsection (1) applies does not, on or after the commencing date, have power to raise funds for the district for which it was established.
(3) The power to make regulations under the Veterans’ Entitlements Act extends to making regulations, not inconsistent with sections 110, 110A and 115 of the Repatriation Act, amending Part X of the Repatriation Regulations in their application by virtue of subsection (1) of this section and, where any such regulations are made, Part X of the Repatriation Regulations has effect as so amended.
(4) Subsection (1) ceases to apply in relation to a Local Committee when the Committee ceases to have any funds under its control and the books and accounts of the Committee relating to those funds have been audited as required by section 115 of the Repatriation Act.
(5) In subsection (3), the reference to the amendment of Part X of the Repatriation Regulations shall be read as including a reference to:
(a) the repeal of a regulation included in that Part, either with or without the substitution of another regulation in its place;
(b) the omission of a part of a regulation included in that Part, either with or without the substitution of another provision in its place; and
(c) the insertion of a new provision in that Part.
58A Appropriation
The Consolidated Revenue Fund is appropriated to the extent necessary for payments under this Act.
Part V—Consequential amendments of Acts and Regulations
59 Amendments of Acts
The Acts specified in the Schedule are amended as set out in that Schedule.
60 Income Tax Regulations
(1) Regulation 54A of the Income Tax Regulations is amended by omitting subparagraphs (b)(i) to (vi) (inclusive) of the definition of prescribed non‑resident in subregulation (1) and substituting the following subparagraphs:
“(i) the Veterans’ Entitlements Act 1986;
(ii) subsection 4(6) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986;
(iii) the Social Security Act 1947; or
(iv) the Tuberculosis Act 1948;”.
(2) The amendment of the Income Tax Regulations effected by subsection (1) does not prevent the amendment or repeal, by regulations, of regulation 54A of the Income Tax Regulations as amended by subsection (1).
(3) The amendment of the Income Tax Regulations effected by subsection (1) applies in relation to the year of income commencing on 1 July 1986, and all subsequent years of income.
(4) The Income Tax Regulations apply in relation to the year of income that commenced on 1 July 1985 as if the amendment referred to in subsection (3) had not been made but, in the definition of prescribed non‑resident in subregulation 54A(1), the following subparagraphs were inserted after subparagraph (b)(iv):
“(iva) the Veterans’ Entitlements Act 1986;
(ivb) subsection 4(6) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986;”.
Part VI—Transitional provisions relating to consequential amendments
61 Appropriation—transitional
For the purpose of the operation, on and after the commencing date, of section 199 of the Veterans’ Entitlements Act:
(a) instruments may be made under subsection 32(1) of the Audit Act 1901;
(b) certificates may be given under subsection 32(2) of that Act; and
(c) warrants may be issued under subsection 32(3) of that Act;
on or after the day on which this Act receives the Royal Assent as if the Veterans Entitlements Act had come into operation on that last‑mentioned day.
62 Income Tax (Rates) Act
(1) The amendment of the Income Tax (Rates) Act 1982 effected by the Schedule applies in relation to the year of income commencing on 1 July 1986, and all subsequent years of income.
(2) The Income Tax (Rates) Act 1982 applies in relation to the year of income and commenced on 1 July 1985 as if the amendment referred to in subsection (1) of this section had not been made but, in the definition of prescribed non‑resident in subsection 3(1), the following subparagraphs were inserted after subparagraph (b)(iv):
“(iva) the Veterans’ Entitlements Act 1986;
(ivb) subsection 4(6) of the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986;”.
63 Savings—Compensation (Commonwealth Government Employees Act)
Section 119A of the Compensation (Commonwealth Government Employees) Act 1971, as amended by this Act, applies to and in relation to an amount that became recoverable under subsection (1) of that section before the commencing date as if:
(a) the references in paragraph (2)(a) to the Veterans’ Entitlements Act 1986 included references to the Repatriation Act 1920;
(b) the reference in paragraph (2)(c) to Part IV of the Veterans’ Entitlements Act 1986 included a reference to “Division 10 of Part III of the Repatriation Act 1920”; and
(c) the reference in paragraph (2)(d) to section 74 of the Veterans’ Entitlements Act 1986 included a reference to section 107R of the Repatriation Act 1920.
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.
65 Pensions‑re‑marriage or marriage of widow
(1) Where:
(a) a person, being the widow of a deceased Australian mariner, has re‑married or married after 28 May 1984 and before the commencing date; and
(b) the person was, immediately before her re‑marriage or marriage, in receipt of a pension under the Seamen’s War Pensions and Allowances Act 1940 as a dependant of the mariner;
notwithstanding the provisions of that Act, the pension, and any domestic allowance payable to her under regulation 37 of the Seamen’s War Pensions and Pensions—re‑marriage or marriage of widow to her by reason of her re‑marriage or marriage, and, subject to subsection (2) of this section, instalments of that pension, and of that allowance (if payable), shall be paid to her:
(a) under the Seamen’s War Pensions and Allowances Act 1940 and under the Seamen’s War Pensions and Allowances Regulations (if applicable), as in force before the commencing date, in respect of the period commencing on the date of her re‑marriage or marriage and ending on the date immediately before the commencing date; and
(b) under the Seamen’s War Pensions and Allowances Act 1940, as amended by this Act, and under the Seamen’s War Pensions and Allowances Regulations (if applicable), on and after the commencing date.
(2) Where instalments of pension become payable to a person by reason of the application of subsection (1):
(a) if the person has been paid a gratuity before the commencing date under section 28A of the Seamen’s War Pensions and Allowances Act 1940—an amount equal to the amount of that gratuity shall be deducted from the instalments of pension that so become payable;
(b) if the person has not been paid a gratuity under section 28A of the Seamen’s War Pensions and Allowances Act 1940—that gratuity shall be deemed not to be payable to the person; and
(c) subsection 55A(2) of the Seamen’s War Pensions and Allowances Act 1940 applies as if the pension that is to be deemed by subsection (1) not to have ceased to be payable were a new pension that became payable to the person under that Act upon the commencing date in respect of the period commencing on the date of the marriage or re‑marriage and ending immediately before the commencing date.
(3) Where:
(a) a person, being the widow of a deceased Australian mariner, makes a claim for a pension as a dependant of the mariner, or for a gratuity under section 28A of the Seamen’s War Pensions and Allowances Act 1940, within 12 months after her re‑marriage or marriage; and
(b) a pension would have been granted to her if her claim had been determined before her marriage or re‑marriage;
the person shall be deemed, for the purposes of subsection (1) of this section, to have been in receipt of that pension immediately before her re‑marriage or marriage.
(4) In this section:
(a) Australian mariner has the same meaning as it has in the Seamen’s War Pensions and Allowances Act 1940; and
(b) widow has the same meaning as it has in the Seamen’s War Pensions and Allowances Act 1940, and includes a de facto wife within the meaning of that Act.