C65/1997 BUDGET AMENDMENT LEGISLATION 1997 - COMPENSATION BENEFITS

Purpose

This instruction provides information on changes to compensation benefits made by the Veterans' Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 which received Royal Assent on 3 November 1997.

Operational Service

Significant changes to operational service provisions include:

• re-structuring of section 6 of the VEA containing operational service provisions;
• introduction of definitions of warlike and non-warlike (including hazardous & peacekeeping) service into the VEA; and
• inclusion of more overseas deployments under the VEA.

Tobacco related disease

Schedule 1, Part 3 of the Amendment Act deals with the Budget initiative to limit compensation for conditions related to tobacco use after 31 December 1997.  This will be the subject of a separate Instruction.

Yugoslavia end date

The period for the operational area of the former Yugoslavia set out in Item 13 of Schedule 2 to the VEA has been amended to “The period from and including 12 January 1992 to and including 24 January 1997”.

Schedule 2

Item 8

A minor amendment has been made to the description of the operational area in Vietnam; Item 8 of Schedule 2 of the VEA.

Originally, the operational area included all waters 100 nautical miles from the coast.  This was incorrectly converted to 161 kilometers.  In 1987 an amendment corrected only the first occurrence of “161 kilometers”. This amendment corrects the second occurrence to read “185.2 kilometers”

This correction is effective from 5 June 1987 being the date of Royal Assent for Veterans' Affairs Legislation Amendment Act 1987 (the first correction).

Changed Structure

Section 6 of the VEA has been repealed and replaced with a table providing a general outline of sections 6A to 6F which deal with operational service in smaller logical elements.  The provisions have been re-written and re-structured to improve readability.

The rewritten provisions involve no change in policy to previously legislated operational service.  The additional areas and periods of operational service that were announced in the Budget have been included in the new layout.

The new sections are:

•    s.6A    Operational service - world wars
•    s.6B    Operational service - Australian mariners
•    s.6C    Operational service - post World War 2 service in operational areas
•    s.6D    Operational service - other post World War 2 service
•    s.6E    Operational service - Korean demilitarised zone and Vietnam
•    s.6F    Operational service - warlike and non-warlike service.

Operational area is defined in subsection 5B(1) and that refers to Schedule 2 of the VEA which sets out the details of all operational areas.

Section 6A

Section 6A preserves all the existing entitlements relating to service in World War 2.

Subsections 6A(3) and 6A(4) work together to end, from specified cut-off dates, operational service by members of the Defence Force for World War 2 service after the cut-off dates set out in a table in the new subsection 6A(4).

New eligibility:

BCOF

The Budget undertaking to provide uniform compensation coverage for all members of the British Commonwealth Occupation Force (BCOF) in Japan is fulfilled by Item 3 of the table in new subsection 6A(4).

If a veteran served with BCOF, all of that period of service is operational service until 1 July 1951, or the day on which the member arrived back in Australia on the completion of his or her service in that Force, whichever is the earlier.

Section 6B

The new section 6B deals with operational service by Australian mariners.  This section only covers the operational service by Australian mariners during World War 2 previously covered by the repealed section 6.

Section 6C

The new section 6C deals with operational service after World War 2 in operational areas.  This section only covers the operational service in operational areas previously covered by the repealed section 6.

Section 6D

The new section 6D deals with other operational service after World War 2.  It preserves one existing eligible period and introduces some of the newly eligible areas of operational service.

New eligibility:

Singapore,

NE Thailand

(incl Ubon),

FESR.

The areas and periods of operational service included in section 6D cover a member of the Defence Force or a member of a unit of the Defence Force that was assigned for operational service in:

• Singapore for the period 29 June 1950 to 31 August 1957 inclusive - a new area;
• Japan from 28 April 1952 to 19 April 1956 inclusive, which preserves the previous coverage of repealed paragraph 6(1)(s) for personnel serving in Japan in support of operations in Korea; and
• North East Thailand (including Ubon) for the period 31 May 1962 to 31 August 1968 - new areas,

and a member of the Defence Force or a unit of the Defence Force that was attached to the Far East Strategic Reserve at any time from 2 July 1955 to 27 May 1963 inclusive, which now includes Australian Naval Forces.

However, eligibility will only exist if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under the VEA.

An instrument for Australian ships attached to FESR has been signed. A copy is attached.  Claims under this provision may now be finalised.

Instruments for the other areas are being prepared.  Further advice concerning finalisation of claims for these other areas will be provided as they are signed.

Deemed allotment

Vietnam Logistic Support

The new sub-section 6D(3) provides ships attached to FESR with eligibility from the last port of call in Australia until the first port of call on return.

This created an anomaly for people affected by the deemed allotment instrument signed on 22 May 1986 by Kim Beasley, the then Minister for Defence which provides eligibility only while in the operational area.

A new instrument deeming allotment for the Vietnam Logistic Support Group from port-to-port is being prepared for Hon Bronwyn Bishop MP, Minister for Defence Industry, Science and Personnel.  Further information will be provided as soon as the instrument is signed.

Section 6E

The new section 6E deals with operational service in the Korean demilitarised zone and in Vietnam.  This section covers only newly recognised service.

New eligibility:

Korea post 1956

and

Vietnam 1962

Personnel covered under section 6D are members of the Defence Force who were assigned for service and rendered continuous full-time service:

• in the demilitarised zone between North and South Korea after 18 April 1956; or
• on HMAS Vampire or Quickmatch in Vietnam from 25 January 1962 to 29 January 1962 inclusive.  Note: Both HMAS Vampire or Quickmatch were attached to the Far East Strategic Reserve immediately before and after this period in Vietnam.

Section 6F

Warlike & non-warlike service

The new section 6F deals with warlike service or non-warlike service both of which are operational service.

Definitions for these new terms are included in subsection 5C(1), which state that warlike / non-warlike service means service of in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike / non-warlike.

Attached for information are the criteria used by the Defence Forces for classifying deployments.  Non-warlike service includes, but is not restricted to, hazardous or peacekeeping service as defined under section 68.  It does not include ordinary peacetime service.

Future Deployments

It is expected that non-warlike service will replace hazardous service and peacekeeping service for members of the Defence Forces in future.

The capacity to make further determinations of hazardous service has been retained in the event that it may be appropriate to use it instead of non-warlike for some future Defence activity which would not warrant a non-warlike declaration (possibly some activity within Australia).

Peacekeeping service determinations will still be necessary for non-Defence Force personnel.

New section 6F allows the Minister for Defence to immediately ensure that particular service will be operational service by determining that the service is either warlike service or non-warlike service. Consequently, there will be no need to amend the VEA or its schedules to provide repatriation compensation for future deployments of the Australian Defence Force.

New eligibility:

Vietnam

1973-1975

The first declaration of warlike service that will invoke the provisions of section 6F is now being prepared in respect of service in Vietnam from 12 January to 1973 to 29 April 1975 inclusive.

Further advice will be provided on finalisation of any claims held when this declaration is signed by the Minister for Defence.

Qualifying Service

With the exception of service in Vietnam from 12 January 1973 to 29 April 1975 inclusive, none of the newly eligible areas or periods of service constitute qualifying service.

Qualifying service is established by an addition to paragraph 7A(1)(a) which now includes:

“  (iv) rendered warlike service; or  ”.

Warlike service is defined in subsection 5C(1).

New eligibility:

United Nations Peacekeeping

Schedule 3 to the VEA now includes United Nations sponsored activity in Peacekeeping Forces:

• United Nations Commission on Korea (UNCOK) from 1 January 1949;
• United Nations India-Pakistan Observation Mission (UNIPOM) from 20 September 1965;
• United Nations Interim Force in Lebanon (UNFIL) from 23 March 1978; and
• United Nations Border Relief Operation in Cambodia (UNBRO) from 1 February 1989.

Attached for information is a new complete listing of Peacekeeping Forces.

Effective Dates

If a claim or application for review was lodged before 13 May 1997, based on the newly legislated service, a decision to grant can be effective from 13 May 1997 - the night of the Budget announcement.

If a claim or application for review was lodged after 13 May 1997, the 3-month backdating provisions of section 20 of the VEA apply.  That is, subsection 20(3) provides that nothing in section 20 empowers the Commission to approve payment of a pension from a date before the person became eligible to be granted the pension.  In the case of these extensions of operational service, a person cannot be eligible to be granted a pension before the commencement date, 13 May 1997.

CCPS

All new periods of service have already be included in the Compensation Claims Processing System (CCPS).

Processing Impact

Any claims or applications for review that have been held pending the passage of the legislation can now be finalised in respect of service:

• in BCOF from 3 January 1949 to 30 June 1951;
• in the demilitarised zone between North and South Korea after 18 April 1956;
• on HMAS Vampire or Quickmatch in Vietnam from 25 January 1962 to 29 January 1962 inclusive;
• with United Nations Commission on Korea (UNCOK) from 1 January 1949;
• with United Nations India-Pakistan Observation Mission (UNIPOM) from 20 September 1965;
• with United Nations Interim Force in Lebanon (UNFIL) from 23 March 1978;
• with United Nations Border Relief Operation in Cambodia (UNBRO) from 1 February 1989; and
• as a member of the Defence Force or of a unit of the Defence Force that was attached to the Far East Strategic Reserve at any time from 2 July 1955 to 27 May 1963 inclusive.

Claims in respect of all other newly included areas and periods of service are subject to separate determinations and must continue to be held until these have been signed.

Enquiries

Perry Phillips

Disability (Compensation & Research) Section

National Office

Phone (02) 6289-6483