C21/2010 Lowering of the age of domicile of choice from 21 to 18 years for British Commonwealth and Allied (BCAL) veterans

Amends DI No.

N/A

Replaces DI No.

N/A

Purpose

To advise staff that the Veterans' Entitlements Act 1986 (VEA) has been amended to correct an anomaly that had affected a small number of British Commonwealth  and Allied (BCAL) veterans who had been unable to establish domicile of choice due to their age at enlistment. This change means that affected individuals will be able to access benefits under the VEA the same as if they had been serving as part of the Australian forces.

Effective Date

This amendment applies to all claims made on and from 1 July 2010.

Background

Prior to 1 July 2010, BCAL veterans were only provided the same VEA access as Australian veterans if they had served during a period of hostilities in a war or warlike operation in which Australian forces were engaged and they had Australian domicile immediately prior to enlistment. The provision was intended to cover primarily those Australians who were travelling or studying overseas at the time World War Two broke out and who could not return to Australia to enlist in the Australian armed services. In the absence of the legal concept of Australian citizenship until 1949, the domicile provision was adopted as a means of determining whether a BCAL veteran could be regarded as an Australian at the time of enlistment.

Persons who were under 21 years of age at the time of their enlistment in a BCAL force could not establish a domicile of choice, as the common law rules that applied at that time meant that a person could not assume a domicile of choice before the age of 21 years. Since the enactment of the Domicile Act 1982 the age at which a person can assume domicile of choice was lowered from 21 to 18 years, however, this change was not retrospective.

As one of its 2007 election commitments, the Government undertook to revisit the unimplemented recommendations of the 2003 Review of Veterans' Entitlements (the 2003 Clarke Review) which were not acted upon by the previous government. One of these recommendations related to the domicile requirements for BCAL veterans.

On 11 May 2010, the then Minister for Veterans' Affairs announced that following the review of unimplemented recommendations of the Clarke Review, the Government had accepted this recommendation.

The necessary amendment to the VEA received Royal Assent on 29 June 2010.

This change to the VEA will mean that the age of domicile of choice will be lowered from 21 to 18 years for British Commonwealth and Allied (BCAL) veterans who enlisted between the ages of 18 and 21 and who would have had Australia as their domicile had they been legally able to choose. Other common law domicile tests continue to apply.

Who will be affected by this change?

This measure will affect a small number of BCAL veterans who had previously not been able to access VEA compensatory benefits because they were between 18 and 21, and were thus automatically determined to be domiciled in the same country as their father, or mother if their father was deceased.

All other aspects of the domicile rules still need to be met, such as integration into Australian soci — ety and intention to reside and length of residency in Australia.

Contact

Further queries relating to this Departmental Instruction should be directed to Martin Page on x16309.