DATE OF ISSUE: 7 FEBRUARY 1991
1990 AMENDMENTS TO COMPENSATION AND SERVICE PENSION ELIGIBILITY MATTERS UNDER THE VEA.
INTRODUCTION.
The purpose of this instruction is to advise of changes to Compensation matters which have been introduced by the Veterans' Affairs Legislation Amendment Act 1990. The changes to "allotted for duty", operational service, and Schedule 2 also affect eligibility for Service Pension.
2.A separate Departmental Instruction (No. B 02/91) has been prepared for Income Support matters.
3.The date of commencement for the following changes is the date of Royal Assent, 8 January 1991, unless otherwise mentioned.
ALLOTMENT.
Interpretation, Part I, Section 5.
4.In two recent Federal Court cases (Doessel and Davis), the Court construed the phrase "allotted for duty" as being equivalent to "posted for duty". This interpretation would have lead to the unintended consequence of enabling a person who served in an operational area, but who was not specifically allotted for "operational service" for the purposes of the VEA, to qualify as having had operational service, even though that service was not at a time when the area in which the service was undertaken involved any special additional hazard or increased risk or danger of injury from containing or combating an armed aggressor.
5.To specifically counter the result of applying the Federal Court interpretation of the allotment provisions, the amendments to Section 5 are to ensure that references to "allotted for duty" in the Act have the special meaning which was initially intended. The amendments provide that allotment will be by written instrument, that it can be retrospective or otherwise and that it is issued by the Defence Force for use by the Repatriation Commission in determining a person's eligibility for entitlements under the VEA.
6.To strengthen this amendment, Schedule 2 has also been amended by revising the dates of the operational areas for items 6,7,9 and the insertion of an Item 10.
7.These changes mean that applications lodged after 8 November 1990 will be determined in accordance with revised provisions of the Act. Any outstanding applications made prior to 8 November 1990 will be determined in accordance with the legislation as it existed as interpreted by the Federal Court.
Operational Service, Section 6.
8.Amendments have been made to Section 6 so as to achieve the following:
-ensure that service rendered as part of the Naval Forces in the complement of sea going vessel during the Malayan campaign is not operational service for the purposes of the Act. Commencement is to be immediately after the commencement of Section 5 of the Veterans' Affairs Legislation Amendment Act 1987, that is 22 May 1986.
-amend sub-paragraph 6(1)(e)(ii) to ensure consistency in the language used and to ensure that "allotted for duty" has the special meaning intended by the Act. Commencement is to be immediately after the commencement of the VEA, that is 22 May 1986.
-amend paragraph 6(1)(e) to again remove any doubt about the meaning of and intention of the allotment provisions. The removal of the reference to the period "while the person was so rendering continuous full-time service" and replacing it with a reference to "during the period in which the person was so allotted for duty", will in combination with other amendments ensure that "allotted for duty" has the special meaning intended. Commencement is to be immediately after the commencement of the VEA, that is 22 May 1986.
9.Although the legislation specifies an effective date of 22 May 1986 a savings provision has been included to ensure that all applications lodged prior to 8 November 1990 will have the old rules applied to them. Therefore, any service pension or disability pension application or appeal lodged prior to 8 November 1990 will be processed in respect of basic eligibility on the Federal Court's interpretation of "allotted for duty", on the Schedule 2 dates prior to this amendment and on the Naval exclusion not being inserted. Under the savings provision any person whose claim pre 8 November 1990 for operational service on this basis has been or is accepted, will be regarded as having operational service for the periods so accepted in respect of any future claim.
Interpretation, Part IV, Section 68.
10.This amendment to subsection 68(1) of the Act, defines "hazardous service" as having the same meaning as in subsection 120(7) of the Act. It is one of a series of three amendments to remove the three year minimum service requirement for "hazardous service".
Application of Part IV to members of the Forces, Section 69.
11.This amendment extends the application of Part IV of the Act to a person who has rendered hazardous service as a member of the Defence Force. It also is part of the amendments to remove the three year qualifying period for "hazardous service".
EXTREME DISABLEMENT ADJUSTMENT.
Eligibility for war widow's pension.
12.The amendments to Section 13 (VEA) and Section 17A (SWPAA) extend automatic eligibility for war widow's pension and related benefits, including treatment and pensions for dependants, to the widows and dependants of deceased veterans and mariners who were receiving or entitled to receive the Extreme Disablement Adjustment (EDA) prior to their death. Payment of such benefits is also available to widows and dependants of veterans and mariners who have been granted EDA after their death. This change is effective from the date of introduction of EDA, 22 December 1988.
Eligibility for pension under Part IV, Section 70.
13.The automatic grant of war widows' pension is to be made in respect of members of the Defence Force or Peacekeeping Forces who, immediately before the member's death, were entitled to receive EDA. Such a pension would be taken to have commenced on or after 22 December 1988.
14.The amendment ensures that these provisions also apply to members of the Forces who have rendered hazardous service.
Interpretation, Part VII, Section 116.
15.The provision of benefits under the Veterans' Children Education Scheme, Section 116 of the Act, is to be made to children of widows who are automatically entitled to grant of pension on the ground that their husbands were receiving pension for Extreme Disablement Adjustment at the time of death. The date of effect is that for other EDA amendments, 22 December 1988.
INCREASED RATES OF PENSIONS AND ALLOWANCES.
Increased rates of pension in certain case.
16.Section 27 has been amended to provide for increases in the amounts payable in respect of items 7 to 15 inclusive in the table contained in subsection 27(1) of the VEA. Payment takes effect from 20 September 1990. Details of the new rates are at Attachment A.
Clothing Allowance, Attendant Allowance and Recreation Transport Allowance.
17.The rates for these allowances paid under the VEA and the SWPAA have been increased with effect from 20 September 1990. Details of the new rates are at Attachment A.
Automatic indexation
18.As from September 1991, the rates of these allowances, and items 7 to 15 of Section 27, will be indexed annually. The indexing will be based on the Consumer Price Index for the 12 months ending in the previous June.
VETERANS' REVIEW BOARD AND ADMINISTRATIVE APPEALS TRIBUNAL.
Procedure of Veterans' Review Board, Section 148.
19.The newly inserted subsections 148(3A) to (3E) provide that, where an application for review is made to the Veterans' Review Board and is not finalised within 2 years of the date of application, the Principal Member, if not satisfied that the applicant is diligently pursuing the application, will dismiss the application.
20.Before a matter can be dismissed the applicant is given the opportunity to provide a written statement explaining whether or not he or she is ready to proceed. If no such response is received from the applicant within 28 days the matter will be dismissed by the Principal Member.
21.If a reply is received and the Pricipal Member considers the explanation for not being ready to proceed is reasonable the Principal Member is required to notify the applicant and the Commission accordingly. If a reply is received and the Principal Member considers that the explanation for not being ready to proceed is not reasonable, the application will be dismissed by the Principal Member who must notify the applicant and Commission accordingly. A 3 monthly review of all applications, where an explanation has been provided, will be conducted.
22.These changes have been made in the attempt to streamline the review process. Provisions for the review of decisions made under these new subsections by the AAT are contained in new Section 155A.
OTHER BENEFITS.
Funeral Benefits, Section 99.
23.This amendment is essentially a technical drafting amendment which clarifies the meaning of Section 99 of the Act by omitting the reference to "person" and substituting "veteran".
OPERATIONAL AREAS - Schedule 2 (VEA).
24.This amendment inserts revised commencing and closing dates against a number of the operational areas listed inSchedule 2. The items affected are:
-Item 6, Borneo, to now read 8 December 1962 to 30 September 1967;
-Item 7, South Malaya, to now read 7 July 1965 to and including 30 September 1967;
-Item 9, for operational service in respect of service in Namibia with the United Nations Transition Assistance Group, to now contain a closing date of 10 April 1990; and
-Insertion of an Item 10 with a commencing date of 2 August 1990 for the extension of Repatriation benefits to members of the Australian Defence Force serving with the United Nations in the Middle East. In addition geographical boundaries of the operational area have been described.
25.Other dates in Schedule 2 will be amended in the future. Advice on these changes is being awaited from the Department of Defence.
PETER HAWKER
NATIONAL PROGRAM DIRECTOR
BENEFITS
ATTACHMENT A.
INCREASED RATES OF PENSIONS AND ALLOWANCES.
New Rate — Old Rate
($ per f/n)
Section 27 payments:
- Item 7, one leg amputated above, and — 112.50 — 104.40
one leg amputated below, the knee
- Item 8, two legs amputated below — 75.90 — 70.40
the knee
- Item 9, one arm amputated and — 65.20 — 60.50
blinded in one eye
- Item 10, one leg amputated and — 65.20 — 60.50
blinded in one eye
- Item 11, one leg amputated above — 32.60 — 30.20
the knee
- Item 12, one leg amputated below — 17.10 — 15.90
the knee
- Item 13, one arm amputated above — 32.60 — 30.20
the elbow
- Item 14, one arm amputated below — 17.10 — 15.90
the elbow
- Item 15, blinded in one eye — 25.20 — 23.40
Clothing Allowance:
- Higher Rate — 7.20 — 6.70
- Middle Rate — 4.60 — 4.30
- Lower Rate — 3.30 — 3.10
Attendant Allowance:
- Higher Rate — 168.60 — 156.40
- Lower Rate — 84.30 — 78.20
Recreation Transport Allowance:
- Higher Rate — 44.80 — 41.60
- Lower Rate — 22.40 — 20.80