Commonwealth of Australia Explanatory Memoranda

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VETERANS' AFFAIRS AND OTHER LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2010


2010





               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA





                          HOUSE OF REPRESENTATIVES






              VETERANS' AFFAIRS AND OTHER LEGISLATION AMENDMENT
                     (MISCELLANEOUS MEASURES) BILL 2010







                           EXPLANATORY MEMORANDUM









       (Circulated by authority of the Minister for Veterans' Affairs,
                      The Honourable Warren Snowdon MP)




                              Table of Contents





Outline and Financial Impact
.............................................................        ii

        1. Short Title
           .................................................................
           .........................    iii
        2. Commencement
           .................................................................
           ................       iii
        3. Schedule(s)
           .................................................................
           .......................      iii

Schedule 1 - Amendments

Part 1 -  Australian participants in British nuclear tests
..............................      1

Part 2 -  Payments for State Emergency Services
................................................     4

Part 3 -  Claims for travel expenses
.................................................................     6

Part 4 -  Giving of notices or other documents
.........................................      9

Part 5 -  Aggravation etc. of war-caused or defence-caused injury or
disease  .. 12

Part 6 -  Dependants of veterans who were prisoners of war
.......................      15

Part 7 -  Statements of Principles
.........................................................     17

Part 8 - Other amendments
...............................................................     21







              VETERANS' AFFAIRS AND OTHER LEGISLATION AMENDMENT


                     (MISCELLANEOUS MEASURES) BILL 2010


OUTLINE AND FINANCIAL IMPACT


Outline

The Bill will give effect to a number of minor measures and amendments that
correct or clarify existing legislation.  The minor measures and other
amendments in the Bill will:

    . extend nuclear test participant eligibility to certain Australian
      Protective Service officers for the period 20 October 1984 to 30 June
      1988;

    . enable Defence Service Homes Insurance to pay a State Emergency
      Service levy to the New South Wales State Government;

    . extend from three months to 12 months, the period within which claims
      for certain travel expenses may be lodged;

    . make provision for the serving of notices under both the Veterans'
      Entitlements Act 1986 and the Military Rehabilitation and Compensation
      Act 2004;

    . make it clear that a war-caused or defence-caused injury or disease
      remains compensable under the Veterans' Entitlements Act 1986 even if
      the injury or disease has been aggravated, or materially contributed
      to, by Defence service under the Military Rehabilitation and
      Compensation Act 2004;

    . enable the Specialist Medical Review Council to review both versions
      of the Statements of Principles applicable to the same injury, disease
      or death;

    . clarify that the Specialist Medical Review Council may review a
      decision of the Repatriation Medical Authority to not amend a
      Statement of Principles;

    . correct the Veterans' Entitlements Act 1986 to enable the payment of a
      pension to the dependant of a veteran who had been a prisoner of war
      during operational service under the Veterans' Entitlements Act 1986,
      where the veteran died on or after the commencement of the Military
      Rehabilitation and Compensation Act 2004;

    . ensure that certain lump sum payments of compensation under the
      Military Rehabilitation and Compensation Act 2004 must be paid into a
      bank account maintained by the compensation recipient;

    . enable a Victoria Cross or decoration allowance recipient to receive a
      Victoria Cross allowance or a decoration allowance under the Veterans'
      Entitlements Act 1986 and a Victoria Cross or a decoration allowance
      or annuity from a foreign country; and

    . correct errors to remove redundant provisions, clarify a formatting
      error and correct cross references.


Financial Impact

The amendments have a negligible financial impact.

              Veterans' Affairs And Other Legislation Amendment
                     (Miscellaneous Measures) Bill 2010




 Short Title           Clause 1 sets out how the Act is to be cited.




 Commencement    Clause 2 provides a table that sets out the commencement
   dates of the
                 various items of Schedule 1 to the Act.





Schedules   Clause 3 provides that each Act that is specified in a Schedule
                 to this Act is amended or repealed as set out in the
                 applicable items in the Schedule concerned, and any other
                 item in a Schedule to this Act has effect according to its
                 terms.





This explanatory memorandum uses the following abbreviations:

'Australian Participants in British Nuclear Tests (Treatment) Act' means
the Australian Participants in British Nuclear Tests (Treatment) Act 2006;

'Defence Service Homes Act' means the Defence Service Homes Act 1918;

'Military Rehabilitation and Compensation Act' means the Military
Rehabilitation and Compensation Act 2004;

'Social Security Act' means the Social Security Act 1991;

'Veterans' Entitlements Act' means the Veterans' Entitlements Act 1986.






Schedule 1 - Amendments

Part 1 - Australian participants in British nuclear tests

Amendments of the Australian Participants in British Nuclear Tests
(Treatment) Act 2006

Overview


Amendments to the Australian Participants in British Nuclear Tests
(Treatment) Act will extend nuclear test participant eligibility to certain
Australian Protective Service officers for the period 20 October 1984 to 30
June 1988 inclusive.


Background

The Australian Participants in British Nuclear Tests (Treatment) Act
provides treatment and testing, for cancer (malignant neoplasia) for
eligible nuclear test participants.  The dates of eligibility for the
purposes of being a nuclear test participant are based on the periods of
testing in each of the locations and the period afterwards during which
contamination may still have been present.

The Veterans' Affairs Legislation Amendment (International Agreements and
Other Measures) Act 2008 extended the nuclear test participant eligibility
dates for members of the Commonwealth Police, now Australian Federal
Police, who were responsible for patrolling the exclusion zone at Maralinga
throughout the testing period and who continued patrolling the area until
2001.

The extension of the period of eligibility was supported on the basis that
scientific evidence has shown that contamination exposure at Maralinga
continued until 1988, after which a program of radiation safety advice and
regular radiation monitoring commenced.

On that basis, nuclear test participant eligibility was extended to those
members of the Commonwealth or Australian Federal Police who were at
Maralinga during the period from 1 May 1965 to 30 June 1988.

During that same period Australian Protective Service (APS) officers were
also involved in patrolling Maralinga.  For most of that time the APS
officers were part of either the Commonwealth or Australian Federal Police
and are therefore covered under the amendments to the Act made by the
Veterans' Affairs Legislation Amendment (International Agreements and Other
Measures) Act 2008.
However, for the period from 20 October 1984 to 30 June 1988, the APS were
not part of the Australian Federal Police and were not covered by the
Australian Federal Police Act 1979.  On 20 October 1984, protective service
officers were transferred from the Australian Federal Police to the then
Department of Local Government and Administrative Services.  From 25
September 1987, APS officers were covered by the Australian Protective
Service Act 1987.

The effect of those changes meant that for the period 20 October 1984 to
30 June 1988, APS officers were not included in the definition in
subsection 5(3A) of a "nuclear test participant" for the purposes of the
Australian Participants in British Nuclear Tests (Treatment) Act.

Explanation of the changes

The amendments made by this Part amend the definition of "nuclear test
participant" in subsection 5(3A) of the Australian Participants in British
Nuclear Tests (Treatment) Act to include a person who was a protective
service officer or a special protective service officer within the meaning
of the Australian Protective Service Act 1987 or who was located within a
Department of the Commonwealth.

Furthermore, protective service officers or special protective service
officers who claim within 6 months of the commencement of the amendments
and who are subsequently determined to be a 'nuclear test participant' will
be able to be reimbursed for cancer treatment costs and travel expenses
incurred on or after
19 June 2006 and prior to the commencement of the amendments.

Explanation of the items

Items 1 and 2 make technical amendments to paragraph 5(3A)(b) and
subparagraph 5(3A)(b)(ii).

Item 3  inserts two new subparagraphs at the end of paragraph 5(3A)(b).
Subsection 5(3A) defines certain persons who may be regarded as a "nuclear
test participant" for the purposes of the Act.

New subparagraph 5(3A)(b)(iii) amends the definition of "nuclear test
participant" by including a protective service officer, or a special
protective service officer, within the meaning of the Australian Protective
Service Act 1987 who was at any time during the period from the beginning
of 1 May 1965 to the end of 30 June 1988 present in the Maralinga nuclear
test area.

New subparagraph 5(3A)(b)(iv) amends the definition of "nuclear test
participant" by including a protective service officer, or a special
protective service officer, in a Department of the Commonwealth who was at
any time during the period from the beginning of 1 May 1965 to the end of
30 June 1988 present in the Maralinga nuclear test area.
Item 4 is a transitional provision to provide for the reimbursement of
certain cancer treatment costs to the officers referred to in subparagraphs
5(3A)(b)(iii) or (iv).  Subitem 4(1) provides that:

    . if a person makes a claim within 6 months of the commencement of this
      item; and
    . the Repatriation Commission determines that the person is an eligible
      person because of new subparagraph 5(3A)(b)(iii) or (iv);

the Repatriation Commission may approve, under subsection 13(1) of the
Australian Participants in British Nuclear Tests (Treatment) Act, treatment
for cancer for a person that was provided before the commencement of this
item but on or after
19 June 2006.

Subitem 4(2) makes it clear that subitem 4(1) has effect despite subsection
13(2) of the Australian Participants in British Nuclear Tests (Treatment)
Act. Subsection 13(2) would otherwise limit the reimbursement of treatment
costs to those costs incurred in the three months prior to the claim.

Item 5 is a second transitional provision to provide for the reimbursement
of certain travelling expenses associated with cancer treatment for the
newly eligible group.  Item 5 applies to travel for treatment undertaken
before the commencement of this item, but on or after 19 June 2006 by a
person who makes a claim under the Australian Participants in British
Nuclear Tests (Treatment) Act within 6 months of the commencement of this
item and who the Repatriation Commission determines to be an eligible
person under the Australian Participants in British Nuclear Tests
(Treatment) Act because of new subparagraph 5(3A)(b)(iii) or (iv).  The
item also applies to travel undertaken by a person who accompanied, as an
attendant (carer), an eligible person described above.

Subitem 5(2) provides that if a claim for travelling expenses is made under
the Australian Participants in British Nuclear Tests (Treatment) Act by a
person eligible because of new subparagraph 5(3A)(b)(iii) or (iv) within 6
months after the commencement of this item, the Repatriation Commission may
approve or authorise the travel for the purposes of section 19 of the
Australian Participants in British Nuclear Tests (Treatment) Act.
Subsection 21(2) of the Australian Participants in British Nuclear Tests
(Treatment) Act is disregarded for the purposes of this item.  Under normal
circumstances, subsection 21(2) would restrict claims for travelling
expenses to claims made within 12 months of the travel having been
undertaken.  The item also enables the Repatriation Commission to determine
a claim for travelling expenses in relation to travel for an attendant
accompanying an eligible person.

 Commencement


Clause 2 provides that items 1 to 5 commence on the day the Act receives
Royal Assent.
Part 2 - Payments for State Emergency Services

Amendments of the Defence Service Homes Act 1918

Overview


These amendments will enable Defence Service Homes Insurance to pay a State
Emergency Service levy to the New South Wales State Government.  The levy
will be collected from Defence Service Homes Insurance policyholders.

Background

The Defence Service Homes (DSH) Insurance Scheme is provided for under the
Defence Service Homes Act.  The DSH Insurance Scheme exists to serve
members of Australia's veteran and defence community, war widows and war
widowers and dependants through the provision of home insurance services.

In 2008 the NSW Government introduced a levy to be paid by insurance
companies and local government councils to contribute to the costs of State
Emergency Service expenditure.  The State Emergency Service refers to the
volunteer organisation authorised by the New South Wales State Emergency
Service Act 1989.  The levy will be collected from policy holders and then
paid to the NSW Government by DSH Insurance.  Under section 38G of the DSH
Act, Defence Service Homes Insurance pays a similar Fire Services Levy to
the NSW and Victorian Fire Brigades.  The new State Emergency Services levy
commenced on 1 July 2009.

As section 114 of the Constitution prevents States imposing taxes on the
Commonwealth without the consent of Parliament, these amendments provide
legislative authority for DSH Insurance to pay the new State Emergency
Services levy to the New South Wales Government, but does not subject the
Commonwealth to State law.

Explanation of the items

Item 6 inserts a new section 38GA after section 38G of the Defence Service
Homes Act.  New subsection 38GA(1) provides that the Commonwealth may make
payments to the State or a State authority, where under a law of a State, a
person carrying on in that State, the business of insuring against the risk
of loss of, or damage to, property is liable to make payments to the State
or a State authority to assist in meeting the cost of the State Emergency
Service of the State.

New subsection 38GA(2) limits the amount of the payment under section 38GA
to no more than the amount that the Commonwealth would be liable to pay
under the law of the State, if that law applied to the Commonwealth.
Item 7 amends subparagraph 40(4)(a)(ii) of the Defence Service Homes Act by
inserting a reference to new section 38GA after the reference to "section
38G".  Section 40 of the Defence Service Homes Act provides for the Defence
Service Homes Insurance Account.  By including a reference to new section
38GA in subparagraph 40(4)(a)(ii), the Commonwealth may pay the New South
Wales State Emergency Service levy from funds held in the Defence Service
Homes Insurance Account.

 Commencement


Clause 2 provides that items 6 and 7 commence on the day the Act receives
Royal Assent.

Part 3 - Claims for travel expenses

Amendments of the Veterans' Entitlements Act 1986

Overview


These amendments will extend, from three months to 12 months, the period
within which claims for certain travel expenses may be lodged.  The
amendments will also enable the Repatriation Commission to further extend
this period in exceptional circumstances.


Background

Under the Veterans' Entitlements Act, an eligible person may be paid
travelling expenses incurred in obtaining treatment.  The time limit for
claiming travel expenses for treatment is 12 months.  This period can be
further extended if the Repatriation Commission considers there are
exceptional circumstances.  Section 110 and subsection 112(3) provide for
travel expenses for treatment.

Under the Veterans' Entitlements Act, travel expenses are also paid for a
person, and where necessary an attendant (carer), in the following
circumstances:

    . to meet with the Repatriation Commission or a delegate of the
      Repatriation Commission in relation to a claim or review - subsections
      132(1),(2) and (9);
    . to attend a medical examination or investigation in relation to a
      claim or review - subsections 132(1) and (2);
    . to give evidence or produce documents in relation to a claim or review
      - subsections 132(3) and (4);
    . to attend a hearing by the Veterans' Review Board in relation to a
      review - subsections 132(5), (6) and (9);
    . to attend before the Administrative Review Tribunal in relation to a
      review - subsections 132(7) and (8);
    . to obtain documentary medical evidence for a review by the Veterans'
      Review Board - section 170B;
    . to obtain documentary medical evidence to be submitted to the
      Specialist Medical Review Council - section 196ZO.

Under the existing arrangements, the time limit for submitting a claim for
travel expenses in the above circumstances is three months and there are no
exceptional circumstance provisions available to extend this period.

Explanation of the changes

These amendments extend the time limit for the lodgement of a claim for non-
treatment related travel expenses from three months to 12 months.  This
will align the time limit with that available for travel expenses for
obtaining treatment.

The amendments also introduce to each of the non-treatment travel
categories, a further extension to the 12 month time limit for exceptional
circumstances, as currently exists for travel expenses for obtaining
treatment.

Explanation of the items

Item 8 repeals paragraph 132(11)(e) and substitutes a new paragraph.
Section 132 provides for travel expenses for a variety of non-treatment
related purposes including:

    . to attend, at the request of the Repatriation Commission or the
      Repatriation Commission's delegate, a discussion in relation to the
      claim or review,
    . to attend a medical appointment related to the claim or review; and
    . to give evidence or produce documents to the Repatriation Commission.



New subparagraph 132(11)(e)(i) provides that a claim for travel expenses
under section 132 must be made within 12 months of the completion of the
travel.  New subparagraph 132(11)(e)(ii) provides that, in relation to a
claim for travel under section 132, if the Repatriation Commission thinks
that there are exceptional circumstances that justify extending the time
period for claiming for such travel, then the time period is extended for
such further period as the Repatriation Commission allows.

Item 9 repeals paragraph 170B(5)(b) and substitutes a new paragraph.
Section 170B provides for travel expenses within Australia for a Veterans'
Review Board applicant, and where necessary an attendant (carer), to be
paid travel expenses for travel undertaken to obtain relevant documentary
medical evidence for the review.

New subparagraph 170B(5)(b)(i) provides that a claim for travel expenses
under section 170B must be made within 12 months of the completion of the
travel.  New subparagraph 170B(5)(b)(ii) provides that, in relation to a
claim for travel under section 170B, if the Repatriation Commission thinks
that there are exceptional circumstances that justify extending the time
period for claiming for such travel, then the time period is extended for
such further period as the Repatriation Commission allows.

Item 10 repeals paragraph 196ZO(5)(b) and substitutes a new paragraph.
Section 196ZO provides for travel expenses within Australia for an
applicant, and where necessary an attendant, to be paid travel expenses for
travel undertaken to obtain relevant documentary medical evidence that was
submitted the Specialist Medical Review Council.

New subparagraph 196ZO(5)(b)(i) provides that a claim for travel expenses
under section 196ZO must be made within 12 months of the completion of the
travel.  New subparagraph 196ZO(5)(b)(ii) provides that, in relation to a
claim for travel under section 196ZO, if the Repatriation Commission thinks
that there are exceptional circumstances that justify extending the time
period for claiming for such travel, then the time period is extended for
such further period as the Repatriation Commission allows.

Item 11 is an application provision that makes it clear that the amendments
made by items 8 to 10 of Part 3 of Schedule 1, apply only in relation to
travel that is completed on or after the commencement of those items.  This
rule applies regardless of whether the travel commenced before, on or after
that commencement date.

 Commencement


Clause 2 provides that items 8 to 11 commence on the day the Act receives
Royal Assent.
Part 4 - Giving of notices or other documents

Overview


The amendments provide for the serving of notices or other documents under
the Veterans' Entitlements Act and the Military Rehabilitation and
Compensation Act.


Background

A Federal Court decision highlighted the absence of provisions within the
Veterans' Entitlements Act and the Military Rehabilitation and Compensation
Act that set out the requirements for the service of written notices or
other documents under each of the Acts.

The court found that there were no provisions in the Veterans' Entitlements
Act that specified how a person was to be served with a written notice.  As
a consequence section 28A of the Acts Interpretation Act 1901 was
applicable in the circumstances of the case.

Section 28A of the Acts Interpretation Act 1901 provides that a document
may be served on a person by sending it by prepaid post to the person's
residential address last known to the person who was serving the document.

Explanation of the changes

The amendments to the Veterans' Entitlements Act and the Military
Rehabilitation and Compensation Act will enable a number of entities under
each Act, to specify in writing, the manner in which a notice or other
document may be given to a person.

In relation to the Veterans' Entitlements Act, the new provisions will be
applicable only where the existing provisions do not specify the manner of
serving notices or other documents.  The new provisions will apply to all
serving of notices and other documents under the Military Rehabilitation
and Compensation Act.

The new provisions will apply to notices or other documents issued by the
relevant Commission, the Department or an officer of the Department or
Commission, the person's Service Chief or certain statutory bodies under
the Veterans' Entitlements Act or the Military Rehabilitation and
Compensation Act.












Explanation of the items

Amendments of the Military Rehabilitation and Compensation Act 2004

Item 12 inserts new section 408A.  New subsection 408A(1) is applicable to
any provision of the Military Rehabilitation and Compensation Act that
requires a notice or other document to be given to a person by the:

    . Military Rehabilitation and Compensation Commission; or
    . Veterans' Review Board; or
    . person's Service Chief.

Subsection 408A(1) requires that the notice or other document must be given
in accordance with section 28A of the Acts Interpretation Act 1901 or in a
manner approved in writing by the relevant body or relevant person being
either the:

    . Military Rehabilitation and Compensation Commission; or
    . Principal Member of the Veterans' Review Board; or
    . person's Service Chief.

Subsection 408A(2) provides that the section will not limit the Electronic
Transactions Act 1999.  The effect of subsection 408A(2) is that section
408A will not override any of the provisions of the Electronic Transactions
Act 1999 and will not impact on any of the existing exemptions for the
Military Rehabilitation and Compensation Act that are provided in the
Electronic Transactions Regulations 2000.

Amendments of the Veterans' Entitlements Act 1986

Item 13 inserts new section 129A.  New subsection 129A(1) is applicable to
any provision of the Veterans' Entitlements Act that requires a notice or
other document to be given to a person by the:

    . the Secretary, the Department of Veterans' Affairs, an officer of the
      Department or the Repatriation Commission; or
    . Veterans' Review Board; or
    . Repatriation Medical Authority; or
    . Specialist Medical Review Council;

where the provision does not specify how the notice or other document is to
be given.

Subsection 129A(1) requires that the notice or other document must be given
in accordance with section 28A of the Acts Interpretation Act 1901 or in a
manner approved in writing by the relevant body or relevant person being
either the:

    . Repatriation Commission; or
    . Principal Member of the Veterans' Review Board; or
    . Chairperson of the Repatriation Medical Authority; or
    . Convenor of the Specialist Medical Review Council.

Subsection 129A(2) provides that the section will not limit the Electronic
Transactions Act 1999.  The effect of subsection 129A(2) is that section
129A will not override any of the provisions of the Electronic Transactions
Act 1999 and will not impact on any of the existing exemptions for the
Veterans' Entitlements Act that are provided in the Electronic Transactions
Regulations 2000.

Item 14 is an application provision which provides that the amendments made
by the items in Part 4 will be applicable to notices or other documents
given on or after the commencement of the amendments.

 Commencement


Clause 2 provides that items 12 to 14 commence on the day the Act receives
Royal Assent.
Part 5 - Aggravation etc. of war-caused or defence-caused injury or disease

Amendments of the Veterans' Entitlements Act 1986

Overview


These amendments make it clear that a war-caused or defence-caused injury
or disease remains compensable under the Veterans' Entitlements Act even if
the injury or disease has been aggravated, or materially contributed to, by
Defence service under the Military Rehabilitation and Compensation Act.


Background

The Veterans' Entitlements Act provides compensation for war-caused or
defence-caused injuries or diseases incurred during service covered by the
Veterans' Entitlements Act.  Broadly, the Veterans' Entitlements Act
applies to overseas service during wars and conflicts, including certain
peacekeeping service, prior to 1 July 2004.  It also provides compensation
for defence-caused injuries for certain persons who served in the Defence
Force between 7 December 1972 and 6 April 1994.

The Military Rehabilitation and Compensation Act came into effect on 1 July
2004.  The Military Rehabilitation and Compensation Act applies to all
permanent and reserve members of the Australian Defence Force, cadets and
cadet instructors for defence service rendered on and after 1 July 2004.
The Military Rehabilitation and Compensation Act provides treatment,
rehabilitation and compensation for those who suffer an injury or contract
a disease as a result of service rendered on or after 1 July 2004. The
legislation also provides compensation to dependants of those who die or
who have been severely injured as a result of service rendered on or after
1 July 2004.

From 1 July 2004, the Military Rehabilitation and Compensation Act replaced
the military compensation arrangements derived from the Veterans'
Entitlements Act , the Safety, Rehabilitation and Compensation Act 1988,
the Military Compensation Act 1994 and the Defence Act 1903 for all
eligible persons.  Existing entitlements under these Acts relating to
service before 1 July 2004 are not affected.

With the commencement of the Military Rehabilitation and Compensation Act
on
1 July 2004, it was intended that, where a person is incapacitated by a war-
caused or defence-caused injury or disease, and is entitled to compensation
for that incapacity under the Veterans' Entitlements Act, and that initial
war-caused or defence-caused injury or disease is aggravated, or materially
contributed to, by service that occurs on or after the commencement of the
Military Rehabilitation and Compensation Act, then a pension is payable
under the Veterans' Entitlements Act for the initial war-caused or defence-
caused injury or disease and the person may choose whether any additional
compensation payable, due to aggravation or material contribution, is paid
under either the Veterans' Entitlements Act or the Military Rehabilitation
and Compensation Act.

To achieve this intention, new section 9A and 70A were inserted into the
Veterans' Entitlements Act 1986 by the Military Rehabilitation and
Compensation (Consequential and Transitional Provisions) Act 2004.
However, the existing provisions have proven to be ambiguous and have been
interpreted by some in such a way as to prevent an initial war or defence-
caused injury or disease from being accepted under the Veterans'
Entitlements Act where that injury or disease has subsequently been
aggravated, or materially contributed to, by service on or after
1 July 2004.

Explanation of the changes

The amendments to sections 9A and 70A of the Veterans' Entitlements Act
make it clear that compensation remains payable under the Veterans'
Entitlements Act for the original war-caused or defence-caused component of
an injury or disease that is subsequently aggravated or materially
contributed to by Defence service on or after
1 July 2004.  The member has the option of electing to make a claim under
the Veterans' Entitlements Act or the Military Rehabilitation and
Compensation Act for the component of the injury or disease that has been
aggravated or materially contributed to by service on or after 1 July 2004.


Explanation of the items

Item 15 amends subsection 9A(2) by omitting the words "An injury or disease
of a veteran that has been aggravated, or materially contributed to, by
service is taken not be war-caused if".  These words are replaced with the
following words "If an injury or disease of a veteran has been aggravated,
or materially contributed to, by service, the aggravation or material
contribution is taken not to be war-caused if".

This amendment makes it clear that it is only the component of the injury
or disease that has been aggravated, or materially contributed to, by
service rendered on or after 1 July 2004 that may, under certain
circumstances, be considered to be not a war-caused injury or disease.  The
member may choose whether to claim the aggravation or material contribution
component of the incapacity under either the Veterans' Entitlements Act or
the Military Rehabilitation and Compensation Act.  Liability for an initial
war-caused injury or disease is retained under the Veterans' Entitlements
Act.

Item 16 makes a technical amendment by inserting "MRCA" after the words
"after the".  The provision refers to the "commencement date" but for
clarity and consistency with related provisions, should refer to the "MRCA
commencement date".

Items 17 and 18 insert a new note after note 1 at the end of subsection
9A(2).  New note 2 makes it clear that compensation remains payable under
the Veterans' Entitlements Act for the original war-caused injury or the
original war-caused disease.





Item 19 amends subsection 70A(2) by omitting the words "An injury or
disease of a member of the Forces, or any other member or former member of
the Defence Force, that has been aggravated, or materially contributed to,
by service is taken not be defence-caused if".  These words are replaced
with the following words "If an injury or disease of a member of the
Forces, or any other member or former member of the Defence Force, has been
aggravated, or materially contributed to, by service, the aggravation or
material contribution is taken not to be defence-caused if".

This amendment makes it clear that it is only the component of the injury
or disease that has been aggravated, or materially contributed to, by
service rendered on or after 1 July 2004 that may, under certain
circumstances, be considered to be not a defence-caused injury or disease.
The member may choose whether to claim the aggravation or material
contribution component of the incapacity under either the Veterans'
Entitlements Act or the Military Rehabilitation and Compensation Act.
Liability for an initial defence-caused injury or disease is retained under
the Veterans' Entitlements Act.

Item 20 inserts a new note 1A after note 1 at the end of subsection 70A(2).
 New note 1A makes it clear that compensation remains payable under the
Veterans' Entitlements Act for the original defence-caused injury or the
original defence-caused disease.


 Commencement


 Clause 2 provides that items 15 to 20 commence on the day the Act receives
   Royal Assent.
Part 6 - Dependants of veterans who were prisoners of war

Amendments of the Veterans' Entitlements Act 1986

Overview

These amendments correct a flaw in the Veterans' Entitlements Act that
prevented the payment of a pension to the dependant of a veteran who had
been a prisoner of war, where the veteran died on or after 1 July 2004, the
commencement date of the Military Rehabilitation and Compensation Act.

Background

Under section 13(2A) of the Veterans' Entitlements Act, the Commission is,
upon the death of a veteran who had been a prisoner of war during a period
of operational service, liable to pay a pension to a dependant of the
veteran.  In these situations, the dependant is generally the widow of the
veteran and the pension is a war widow pension payable under paragraph
30(1) of the Veterans' Entitlements Act.  Furthermore, where the Department
has sufficient information about the widow's circumstances, the pension is
payable automatically, without the need for a claim.

The Military Rehabilitation and Compensation (Consequential and
transitional Provisions) Act 2004, amended the Veterans' Entitlements Act
with the intention of preventing a pension being payable to the dependant
of a deceased veteran who had been a prisoner of war during a period of
operational service that occurs on or after
1 July 2004, the date of commencement of the Military Rehabilitation and
Compensation Act.  Dependants of persons with service under the Military
Rehabilitation and Compensation Act are to receive compensation under that
Act.

The amendment did not achieve the policy intention as it inadvertently
provided that the Commission is not liable to pay a pension to a dependant
of a veteran who was a prisoner of war in respect of the veteran's death,
if the death occurred on or after the commencement of the Military
Rehabilitation and Compensation Act.

This effectively prevented the payment of a war widow pension in respect of
any deceased veteran who had been a prisoner of war during a period of
operational service under the Veterans' Entitlements Act (pre-1 July 2004)
and who died after
1 July 2004.

The provision was also misguided in its reference to the date of death of
the veteran who had been a prisoner of war.  Under section 13(2A) of the
Veterans' Entitlements Act, the veteran's death does not need to be related
to service for the veteran's dependant to be eligible for a pension.  The
reference should have been to the timing of the veteran's status as a
prisoner of war.
A pension is intended to be payable under the Veterans' Entitlements Act to
the dependant of a deceased veteran, if the veteran's status as a prisoner
of war is the result of operational service prior to the commencement of
the Military Rehabilitation and Compensation Act.  If a deceased person's
prisoner of war status is the result of operational service after the
commencement of the Military Rehabilitation and Compensation Act, the
person's dependant will be eligible for compensation under that Act.

Explanation of the items

 Item 21 amends paragraph 13(2A)(c) of the Veterans' Entitlements Act by
   inserting after the word "time" the following phrase "before 1 July
   2004".  This amendment makes the pension entitlement for a dependant
   reliant upon the timing of the deceased veteran's prisoner of war status
   and gives effect to the original intention of the provision.


 Item 22 repeals subsection 13(2AA).  The amendment made by item 21 means
   that subsection 13(2AA) is no longer necessary as the date of the
   veteran's death is not germane to the issue of pension liability.

 Commencement


 Clause 2 provides that items 21 and 22 commence on the day the Act
   receives Royal Assent.
   Part 7 - Statements of Principles

Amendments of the Veterans' Entitlements Act 1986

Overview


These amendments to the Veterans' Entitlements Act clarify the review
rights of the Specialist Medical Review Council in relation to a decision
by the Repatriation Medical Authority to not amend a Statement of
Principles.

The amendments will also provide for the Specialist Medical Review Council
to be able to review both versions of the Statements of Principles that are
applicable to the same injury, disease or death in the circumstances where
it has been asked to review some or all of the contents of one of those
Statement of Principles.

Background

The Repatriation Medical Authority is a body of eminent medical-scientific
experts who determine, on the basis of sound medical-scientific evidence,
Statements of Principles in respect of injury, disease or death that can be
linked to operational service rendered by veterans, peacekeeping service
rendered by members of the Peacekeeping Forces, or hazardous service
rendered by members of the Forces.

The Statement of Principles list the factors that must, as a minimum, be
present, and must be related to service, for a causal relationship to be
established between an injury or illness and service.  Statement of
Principles are used in determining liability for injuries and diseases
under both the Veterans' Entitlements Act and the Military Rehabilitation
and Compensation Act.

Under the Statement of Principles regime, two Statements are determined for
each condition.  This is because different types of service attract
different standards of proof for determining claims.  One Statement sets
out the factors that must as a minimum exist and which of those factors
must be related to service before it can be said that a reasonable
hypothesis has been raised connecting the injury or disease with service.
This Statement is used when determining claims for warlike, non-warlike and
operational service.  A second Statement sets out the factors that must
exist and which of those factors must be related to service before it can
be said that, on the balance of probabilities, an injury or disease is
connected with service.  This Statement is used when determining claims for
other eligible service.

The Specialist Medical Review Council is an independent statutory body
whose functions include reviewing the contents of Statements of Principles
or a decision of the Repatriation Medical Authority not to determine such a
Statement.  The Specialist Medical Review Council reviews all the
information that was available before the Repatriation Medical Authority in
relation to the making or not of a statement of principles for an injury or
disease.



When requesting a review by the Specialist Medical Review Council of a
Statement of Principles, many applicants request that both Statements of
Principles be reviewed.  However, in some circumstances, the applicant
requests that only one of the Statements of Principles be reviewed.  This
can result in the Statements of Principles for a condition being unaligned
and is administratively cumbersome to remedy.

The provisions of the Veterans' Entitlements Act that are relevant to the
role of the Specialist Medical Review Council, do not expressly support the
ability of the Specialist Medical Review Council to review a decision by
the RMA to not amend a Statement of Principles following a review by the
RMA.

However this contradicts those provisions of Part XIA that are relevant to
the RMA which clearly provide for the RMA to issue a statement in the
circumstances where a decision has been made not to amend a Statement of
Principles following an investigation.

Explanation of the changes

The following amendments will allow the Specialist Medical Review Council
to review both Statements of Principles that relate to a particular
condition if an applicant has requested a review of only one of the
Statement of Principles.

The other amendments will provide that  the Specialist Medical Review
Council may review a decision of the Repatriation Medical Authority to not
amend a Statement of Principles and will also correct a couple of minor
drafting errors that were included in the original legislation.

Explanation of the items

Item 23 amends section 196J.  Section 196J provides that the Repatriation
Medical Authority must notify either the Repatriation Commission or the
Military Rehabilitation and Compensation Commission within 14 days of a
decision not to make or not to review a Statement of Principles.

Subsection 196J(1) is amended by including a reference to a decision "or
not to amend" a Statement of Principles.

Items 24 and 25 amend section 196K.  Section 196K is applicable in the
circumstances where the Specialist Medical Review Council is conducting a
review of a Statement of Principles or a decision by the Repatriation
Medical Authority not to determine a Statement of Principles in respect of
a particular kind of injury, disease or death or a decision by the
Repatriation Medical Authority not to carry out an investigation in respect
of a particular kind of injury, disease or death.

Under the section the Repatriation Medical Authority is required to provide
the Specialist Medical Review Council with all of the information it had
when it made the relevant decision.



Item 24 inserts new paragraph 196K(ba) which provides that a decision of
the Repatriation Medical Authority not to amend a Statement of Principles
in respect of a particular kind of injury, disease or death is one which is
reviewable by the Specialist Medical Review Council and will require the
Repatriation Medical Authority to provide all of the relevant information
it had when it made that decision to the Specialist Medical Review Council.

Item 25 amends paragraph 196K(e) to include a reference to a decision of
the Repatriation Medical Authority "not to amend" a Statement of
Principles.

Items 26 to 30 amend section 196W.  Section 196W sets out the functions of
the Specialist Medical Review Council.

Item 26 inserts new paragraph 196W(2)(ba) which provides that the
Specialist Medical Review Council must review a decision of the
Repatriation Medical Authority not to amend a Statement of Principles in
respect of a particular kind of injury, disease or death if a request has
been made under section 196Y.

Item 27 amends paragraph 196W(2)(d) to include a reference to a decision of
the Repatriation Medical Authority "not to amend" a Statement of
Principles.

Item 28 inserts new subsection 196W(3A).  New subsection 196W(3A) will be
applicable in the circumstances where the Specialist Medical Review Council
has been asked to review some or all of the contents of a Statement of
Principles.

The new subsection provides that Specialist Medical Review Council must
also review the other Statement of Principles that is in force and is
applicable to the same kind of injury, disease or death,

Items 29 and 30 are consequential amendments that relate to the insertion
of new subsection 196W(3A) and replace references in paragraphs 196W(4)(a)
and (c) and paragraphs 196W(5)(a) and (b) to the review of "the Statement
of Principles" with references to the review of "either or both of the
Statements of Principles".

Item 31 amends paragraph 196Y(1)(e) to include a reference to a decision of
the Repatriation Medical Authority "not to amend" a Statement of
Principles.

Items 32 to 35 amend section 196ZB.  Section 196ZB provides that the
Specialist Medical Review Council must publish a notice in the Gazette as
soon as possible after it has been asked under section 196Y to conduct a
review.

The notice is to specify the date on which the Specialist Medical Review
Council will hold its first meeting for the purposes of the review; and the
date by which all submissions must have been received by the Council.





Item 32 amends paragraph 196ZB(1)(a) to remove a reference to a review of a
decision of the Repatriation Medical Authority "to make" a Statement of
Principles.  The reference is redundant as section 196Y does not provide
for such a request to be made.

New paragraph 196ZB(1)(aa) includes a reference to a review by the
Specialist Medical Review Council of "a decision of the Repatriation
Medical Authority not to amend a Statement of Principles".

Items 33 and 34 amend paragraph 196ZB(1)(a).  The paragraph is amended  to
include a reference to a review of a decision of the Repatriation Medical
Authority "not to amend" a Statement of Principles.

Paragraph 196ZB(1)(a) is also amended for the purposes of clarification to
include a reference to the Statement of Principles having been made "in
respect of a particular kind of injury, disease or death".

Item 35 amends paragraph 196ZB(1)(b) to remove the redundant reference to
"a review of" some or all of the contents of a Statement of Principles.
The reference is redundant as the review by the Specialist Medical Review
Council is previously referred to in subsection 196ZB(1).

Item 36 is an application provision.

Subclause 36(1) is applicable to the amendments made by Items 23, 24, 25,
26, 27, 31 and 33.  It provides that the amendments made by those items
will be applicable to decisions made on or after the commencement of the
amendments not to amend a Statement of Principles.

Subclause 36(2) is applicable to the amendments made by Items 28, 29 and
30.  It provides that the amendments made by those items will be applicable
in relation to requests for review made on or after the commencement of
those items.

Commencement


Clause 2  provides that items 23 to 36 commence on the day the Act receives
Royal Assent.


Part 8 - Other amendments

Overview


 The amendments in this Part make minor and technical amendments to the
   Military Rehabilitation and Compensation Act and clarify arrangements for
   the payment of certain lump sum compensation under the Military
   Rehabilitation and Compensation Act.


 The amendments will also enable Victoria Cross and decoration allowance
   recipients to receive a Victoria Cross or decoration allowance or annuity
   under both the Veterans' Entitlements Act and from a foreign country.


 Explanation of the changes


 Items 42 to 44 will protect the inalienable status of certain lump sum
   compensation payments under the Military Rehabilitation and Compensation
   Act and the interests of compensation recipients.  New provisions will
   enable the Military Rehabilitation and Compensation Commission to
   specify, by legislative instrument, the circumstances under which a
   person's compensation must be paid into an account with a bank, or a
   foreign corporation that takes money on deposit, that is maintained by
   the compensation recipient.  This account may be an account that is
   maintained by the compensation recipient jointly or in common with
   another person.


 It is intended that the legislative instrument will refer to the following
   types of lump sum compensation payable under the Military Rehabilitation
   and Compensation Act:


 . lump sum permanent impairment compensation, including interest, payable
   under subsections 79(1) and (2);
 . lump sum permanent impairment compensation payable under section 80;
 . lump sum incapacity compensation payments payable under section 138;
 . lump sum compensation for wholly dependent partners payable under
   subsection 234(1)(a) or subparagraph 234(1)(b)(i);
 . [lump sum] compensation payments for wholly dependent partners under
   section 242, the amount of which is specified under section 243;
 . [lump sum] compensation for certain eligible young persons under section
   251, the amount of which is specified under section 252;
 . [lump sum] compensation for certain eligible young persons under section
   255, the amount of which is specified under section 256;
 . [lump sum] compensation for other dependants under section 262, the
   amount of which is specified under section 263; and
 . [lump sum] funeral compensation under section 266, where the compensation
   is payable to the dependant of the deceased member.










 Items 45 to 48 modify the rules relating to the payment of Victoria Cross
   allowance under section 103 and the payment of decoration allowance under
   section 102 of the Veterans' Entitlements Act.  Upon commencement of
   these amendments, a Victoria Cross or decoration allowance recipient will
   be able to receive Victoria Cross allowance or decoration allowance under
   the Veterans' Entitlements Act and a Victoria Cross or decoration
   allowance or annuity from a foreign country.


 Under the existing legislation, a person is not eligible for a Victoria
   Cross or decoration allowance under the Veterans' Entitlements Act if the
   person is entitled to be paid, a Victoria Cross or decoration allowance
   or annuity by a foreign country.  In relation to the similar United
   Kingdom Victoria Cross allowance, the existing policy disadvantages
   veterans as it denies them access to the Veterans' Entitlements Act
   allowance if the veteran is also entitled to, but not necessarily
   receiving, the United Kingdom allowance.


 The Veterans' Entitlements Act Victoria Cross allowance is greater than
   the United Kingdom Victoria Cross allowance.  The amendments will also
   exclude the foreign allowance or annuity from the veterans' entitlements
   and social security income tests.  The foreign allowance or annuity will
   be treated as income for the purposes of the financial hardship rules
   under the Veterans' Entitlements Act.


Explanation of the items


 Amendments of the Military Rehabilitation and Compensation Act 2004

Items 37 and 38  repeal paragraph (a) of the note at the end of subsection
234(1) and subsection 234(6).

Early drafts of the Military Rehabilitation and Compensation Bill 2004
provided for a higher lump sum death benefit for deaths accepted as related
to warlike service than for deaths related to non-warlike or peacetime
service.  However, following a recommendation from the Foreign Affairs
Defence and Trade Legislation Committee, this distinction was removed from
the Bill and the lump sum benefit is paid at the higher rate for all
compensable deaths.  Paragraph (a) of the note to subsection 234(1) and
subsection 234(6), which were provisions associated with the subsequently
abolished differential treatment of compensable deaths, were inadvertently
left in the Military Rehabilitation and Compensation Act.

Item 39 repeals paragraph 339(3)(b) of the Military Rehabilitation and
Compensation Act and substitutes a new paragraph.

The original subsection 339(3) was intended to be identical in effect and
operation to subsection 120B(3) of the Veterans' Entitlements Act. However,
the text of the final clause was incorrectly indented, making it appear to
apply only to paragraph 339(3)(b), whereas in the Veterans' Entitlements
Act, the final clause applies to both paragraph 120B(3)(a) and 120B(3)(b)
of that Act.

The new paragraph clarifies the effect of the subsection, making it clear
that it operates in the same way as subsection 120B(3) of the Veterans'
Entitlements Act, namely, that both the material before the decision-maker
and the Statement of Principles or determination of the Commission must
uphold the contention that the injury, disease or death of the person is,
on the balance of probabilities, connected with the person's service.

Items 40 and 41 amend subparagraphs 417(c)(i) and 420(4)(b)(i) of the
Military Rehabilitation and Compensation Act respectively to correct
incorrect references.  The provisions refer to "Subdivision C of Division 2
of Part 4 of Chapter 4 (compensation where superannuation received)", but
should refer to "Subdivision D of Division 2 of Part 4 of Chapter 4".

Items 42 and 43 amend section 430 of the Military Rehabilitation and
Compensation Act to enable the Military Rehabilitation and Compensation
Commission to specify, by legislative instrument, the circumstances under
which a compensation payment must be made to the credit of an account with
a bank or a foreign corporation that takes money on deposit, and that
account must be maintained by the compensation recipient.

Item 42 adds a sentence to the end of subsection 430(1) to make it clear
that subsection 430(1) is subject to new subsection 430(3A).

Item 43 inserts new subsections 430(3A), (3B) and (3C) after subsection
430(3).

New subsection 430(3A) means that if the circumstances specified under new
subsection 430(3C) exist in relation to a person, the person's compensation
must be paid to the credit of an account with a bank, or a foreign
corporation that takes money on deposit.  This includes a bank or foreign
corporation in a foreign country.

New subsection 430(3B) states that the account referred to in new
subsection 430(3A) must be nominated by the compensation recipient.  The
account must be maintained by the compensation recipient and may be an
account maintained by the compensation recipient jointly or in common with
another person.

New subsection 430(3C) provides that the Military Rehabilitation and
Compensation Commission may make a legislative instrument that specifies
the circumstances under which new subsection 430(3A) will apply
necessitating the payment of the person's compensation to the credit of an
account with a bank, or a foreign corporation that takes money on deposit.


Item 44 is an application provision.  This clause makes it clear that the
amendment made by item 43 applies only in relation to amounts that are
payable on or after the commencement of item 43.







Amendment of the Social Security Act 1991

Item 45 inserts new subparagraph 8(8)(y)(via) after subparagraph
8(8)(y)(vi) of the Social Security Act.  Subsection 8(8) of the Social
Security Act lists amounts that are exempt income for the purposes of the
social security income test.  By virtue of new subparagraph 8(8)(y)(via), a
Victoria Cross or decoration allowance or annuity paid by a foreign country
will be exempt income for the purposes of the social security income test.

Amendments of the Veterans' Entitlements Act 1986

Item 46 inserts new paragraph 5H(8)(faa) before paragraph 5H(8)(fa) of the
Veterans' Entitlements Act.  Subsection 5H(8) of the Veterans' Entitlements
Act lists amounts that are exempt income for the purposes of the veterans'
entitlements income test.  By virtue of new subparagraph 5H(8)(faa), a
Victoria Cross or decoration allowance or annuity paid by a foreign country
will be exempt income for the purposes of the veterans' entitlements income
test.

Item 47 inserts a new paragraph after paragraph 52Z(3A)(e) of the Veterans'
Entitlements Act.  New paragraph 52Z(3A)(f) requires that a Victoria Cross
or decoration allowance or annuity paid by a foreign country is to be
counted as income in the application of the financial hardship rules.

Item 48 repeals subsections 102(3) and 103(3).  Subsections 102(3) and
103(3) respectively provided that a decorations allowance and a Victoria
Cross allowance under the Veterans' Entitlements Act are not payable to a
veteran for any period in respect of which the veteran is entitled to be
paid, by a foreign country, an allowance or annuity in respect of that
decoration.  The repeal of these subsections will enable a veteran to
receive Victoria Cross or decoration allowance under the Veterans'
Entitlements Act and a Victoria Cross or decoration allowance or annuity
from a foreign country.

 Commencement


Clause 2 provides that:

    . items 37 to 41 commence on the day this Act receives Royal Assent;
    . items 42 to 44 commence on the day after this Act receives Royal
      Assent,; and
    . items 45 to 48 commence on the day this Act receives Royal Assent.

 


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