B35/1995 VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT (NO.1) 1995 - INCOME SUPPORT MATTERS

DATE OF ISSUE:  15 MAY 1995

VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT (No.1) 1995 - INCOME SUPPORT MATTERS

The purpose of this Departmental Instruction (DI) is to advise of the legislative amendments contained in the Veterans' Affairs Legislation Amendment Act (No1) 1995 (VALA No.1, 1995) relating to income support matters.

Background

2.The VALA No.1, 1995 (also previously known as VALA 3 1994) is primarily an income support Act.  In addition to an item concerning the Disposal of Anzac Hostel, the Act contains four legislative amendments to income support items in the Veterans' Entitlements Act 1986.  There are also two amendments of a minor and technical nature.  One relates to deletion of references to the Seamen's War Pensions and Allowances Act 1940,. and the other relates to renumbering of a set of sections (36JA, 37JA, 38JA and 39JA).  VALA No.1 was given Royal Assent on 12 April 1995.

3.The income support items contained in VALA No.1 1995 and their relevant effective dates are as follows

Amendment	Section	Date of Effect	DI
Recipient Obligations - Authority for the Repatriation Commission to suspend or cancel service pension or income support supplement if the pensioner fails to comply with a notice under a new section 54AA.	Schedule 2 Part 1	12 April 1995 Royal Assent	This DI
Tax File Numbers - Clarification that the Secretary can only request (not compel) a person to provide a tax file number (TFN) and authority for the Secretary to request a person who is eligible for a pension (and who doesn't have a TFN) to apply to the Commissioner for Taxation to obtain a TFN.	Schedule 2 Part 2	12 April 1995 Royal Assent	This DI
Documents as Evidence - Provision for written statements, signed by the Secretary or an officer of the Department, that detail the amount of pension paid and the dates on which payments were made, to be accepted by the courts as prima facie evidence that the payments were made on the dates given.	Schedule 2 Part 3	12 April 1995 Royal Assent	This DI

RECIPIENT OBLIGATIONS IN RESPECT OF A S54AA NOTICE

Background

4.At present the Repatriation Commission has the power to reduce, cancel or suspend service pension or income support supplement if the claimant or pensioner has failed to comply with a notice issued under section 54 or 54A.  In addition, criminal penalties also exist under subsections 54(6) and 54A(6) should a pensioner fail to comply with the notice.

5.Section 54 allows the Repatriation Commission to impose obligations on the claimant or pensioner requiring the person to advise the Department of the happening of an event or occurrence specified in the notice.  One example is the requirement to advise of a change of address.

6.A section 54 notice may also be given to a person receiving fringe benefits in accordance with Division 12 of Part IIIB of the Act.

7.A section 54A notice can be issued requesting the claimant or the pensioner to complete details concerning a matter relevant to the payment of pension on a departmental form.  One example of a form issued with a section 54A notice is a review form asking for income and asset details.

8.In addition to the notices mentioned above, a notice under section 128 also means that other obligations can be imposed on pensioners.  Under section 128,  the Secretary can issue a notice requiring a person to provide specific information or documentation, or to appear before an officer to answer questions.  The information requested must be relevant to the payment of pension under the Act and may be such things as confirmation of bank details or taxation returns.

9.Unlike the section 54 and 54A notices, the only penalty that can be imposed for failure to comply with a section 128 notice is a criminal one in accordance with subsection 128(4).  In other words, the Repatriation Commission cannot currently suspend or cancel service pension or income support supplement where the pensioner or claimant has failed to comply with a section 128 notice.

Amendment

10.The item 1 amendment to the VEA introduces a new section 54AA, (which duplicates section 128) and which will allow the Repatriation Commission to request information from a service pensioner, income support supplement claimant or a fringe benefit recipient, on matters relevant to the payment of pension or the provision of the benefits.  This has the advantage of locating all recipient obligations for service pension or income support supplement in one area of the Act (sections 54 to 54AA).

11.A new subsection 54AA(1), allows the Secretary to issue a notice to a person receiving service pension, income support supplement or fringe benefits asking for specific information from the person, production of documents or that the person appear before a Departmental officer to answer questions.  The request must be relevant to the payment of pension or the provision of benefits.  A brief description of the new subsections is detailed below.

12.New subsection 54AA(2) extends the operation of the above section to also include a third person to whom the whole or part of the pension is being paid for the benefit of the pensioner.

13.New subsection 54AA(3) is equivalent to subsection (1) and allows the Secretary to issue a notice to service pension and income support claimants.

14.New subsection 54AA(4) sets out the formal requirements for issuing a valid notice under section 54AA.  These refer to the fact that it must be in writing and may be given personally or by post. They also detail when or how the person should provide the information or when or where they should appear before the Departmental officer.

15.New subsection 54AA(5) extends subsection (4) to give the person a period of at least 14 days from the date it was given, in which to comply with the notice.

16.New subsection 54AA(6) sets out that the Secretary may require the person to give the information or answers under an oath or affirmation  and provides for the methods for this to occur.

17.New subsections 54AA(7) and (8) set out the criminal penalties for failure to comply with the notice or by knowingly providing false or misleading information.

18.Item 2 amends section 56EA of the VEA to include a reference to the new section 54AA.  This will allow the Repatriation Commission to suspend or cancel a person's service pension or income support supplement for failure to comply with a section 54AA notice.

19.Item 3 amends section 56(H) of the VEA to include a reference to new subsection 54AA(7).  This refers to the effective date of cancellation or suspension of the service pension or income support supplement.

TAX FILE NUMBERS

Background

20.Section 128A of the VEA sets out the requirements for certain persons to provide, when requested by the Secretary, a written statement of the person's tax file number, or the tax file number of the person's partner or non illness separated spouse.  The Act specifies that if a person does not comply with the requirement, then any pension or allowance the person is eligible to receive is not payable.

21.This legislation was tested in the AAT in a case concerning the Department of Social Security.  The Department of Social Security subsequently amended their legislation .

22.Following these events, the Privacy Commissioner expressed concerns that the Social Security Act did not make it clear that the provision of a TFN was purely voluntary, the responsibility for providing it lay with the  individual and  that the Social Security payment was conditional on satisfying the TFN requirements.

23.The change to the VEA was necessary as the VEA contains similar provisions to the Social Security Act relating to the provision of TFNs.  It will allow the Secretary to request persons eligible for a pension or allowance (but who do not have a TFN), to apply for a TFN from the Tax Commissioner and to give the Secretary a written statement of their TFN after the Tax Commission has issued it.  The change will also address the Privacy Commissioner's concerns relating to the voluntary quotation of TFNs and make it clear that the Secretary may request, but not compel, persons to provide their TFN.

Amendment

24.The changes replace subsections 128A(2), (2A), (3) and (3A) with new subsections 128A(2), (3) and (3A).

25.New subsection 128A(2) provides that a pension or allowance is not payable to a person if he or she fails to comply with a request of the Secretary to provide or obtain a TFN.

26.New subsection 128A(3) states that the Secretary may request a person to provide a written statement of his or her TFN, or may request that the person apply to the Commissioner of Taxation for a TFN.  This provision only applies if the person is in Australia.

27.New subsection 128A(3A) concerns a request for a person to provide the tax file number of his or her partner or non illness separated spouse.  Once again, this provision only applies if the person's partner is in Australia.

28.Items 5 to 10 in the new legislation make the necessary consequential amendments to the remaining subsections of section 128A.

DOCUMENTS AS EVIDENCE

Background

29.Recent cases considered for prosecution action have highlighted an administrative deficiency in the Department's preparation of the statement of pensions.  The statement of pension is necessary to demonstrate that the person received pension to which he or she was not entitled.  Currently the Department must spend a great deal of time preparing detailed itemised lists of payments made to the person each fortnight.  This is because this is the only prima facie form of evidence accepted by the courts as a statement of moneys paid to the person.

30.The proposed amendments will enable a written statement of amounts of pension paid and the dates on which the payments were made, to be expressed as a total of pension payments - not a list of fortnightly amounts,  to be accepted by the courts as prima facie evidence.

Amendment

Item 11 inserts new sections 210 and 210A in the VEA.

31.New subsection 210(1) allows the courts to take judicial notice of a signature by the Secretary or an officer of the Department which is attached to an official document. Following on from this, subsection 210(2) relates to the courts taking judicial notice that a person is or was the Secretary, or is or was an officer of the Department.

32.New subsection 210A(1) provides that where a document has been signed by a person described in subsection (1), the document is to be accepted as prima facie evidence of the facts contained in it.

33.New subsection 210A(2) provides that a written statement, signed by the person described in (1), which states that a person is or was receiving a pension, allowance or other benefit under this Act on a certain date at a certain rate, is prima facie evidence of the details provided.

CESSATION DATE FOR CAMBODIA AS AN OPERATIONAL AREA

Background

34.On 9 October 1991, Cabinet agreed to deploy Australian Defence Force (ADF) personnel in Cambodia as part of an United Nations contingent in the region.

35.The VEA was amended to provide that Cambodia was an operational area on or after 20 October 1991.  This was the date that the ADF personnel were first deployed in the area.

36.The Department of Defence has advised that operational service ceased on 7 October 1993.  Service in Cambodia after this date is considered as hazardous service and will provide equivalent benefits to peacekeeping benefits under the VEA.

Amendment

36.Item 12 amends column 2 of item 12 of Schedule 2 to the VEA to insert the cessation date for service in Cambodia as an operational area.  This date is 7 October 1993.

GOSP AMENDMENTS

37.Amendments to the relevant sections of the General Orders Service Pension will be included in the next available release of the General.

ENQUIRIES

38.If you have any enquiries in relation to this Instruction, please contact Colette Woodford on telephone 06-289 6440.

NEIL BAYLES

ASSISTANT SECRETARY

INCOME SUPPORT BRANCH