National Security (War Injuries Compensation) Regulations (Cth)

STATUTORY RULES.

1942. No. 9.

 

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939–1940.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939–1940.

Dated this eighth day of January, 1942.

(SGD.) GOWRIE

Governor-General.

By His Excellency’s Command,

for and on behalf of the Minister of State for Defence Co-ordination.

 

NATIONAL SECURITY (WAR INJURIES COMPENSATION) REGULATIONS.

Part I.—Preliminary.

Short title.

1. These Regulations may be cited as the National Security (War Injuries Compensation) Regulations.

Administration.

2. These Regulations shall be administered by the Treasurer.

Parts.

3. These Regulations are divided into Parts as follows:—

Part I.—Preliminary.

Part II.—Administration.

Part III.—Pensions in Respect of Death or Incapacity.

Part IV.—Investigation of Claims and Payment of Pensions.

Part V.—Miscellaneous.

Definitions.

4. In these Regulations, unless the contrary intention appears—

“Australia” includes the Territories of the Commonwealth;

“Board” means a Repatriation Board appointed under the Australian Soldiers’ Repatriation Act 1920–1941;

“child” means a dependant under the age of sixteen years who is—

(a) a son or daughter born to an eligible person of a marriage which took place before the relevant date;

(b) a step-son, step-daughter, adopted son or adopted daughter who became dependent on him before the relevant date; or

 

* Notified in the Commonwealth Gazette on    , 1942.

8080.—20/5.1.1942.—Price 1s.

(c) an ex-nuptial son or ex-nuptial daughter of an eligible person born before, or within nine months after, the relevant date;

“claim” means claim for pension under these Regulations;

“Commissioner” means a member of the Commission, and includes an Acting Commissioner;

“death”, in relation to any person, means death which is directly attributable to his having sustained a war injury;

“de facto wife”, in relation to an eligible person, means a woman who, though not legally married to him, has been wholly or substantially maintained by and has lived with the eligible person as his wife on a permanent and bona fide domestic basis continuously or up till the date of his death from a date not less than six months prior to the relevant date and who, at the relevant date—

(a) had in her charge a child of the eligible person;

(b) was over forty years of age; or

(c) was incapable of supporting herself by reason of her mental or physical incapacity of long standing;

“dependant” means the wife, husband or child of an eligible person who at the time of his death or the commencement of his incapacity (as the case may be) was dependent upon his earnings or, in the case of a person specified in paragraph (a) or (c) of the definition of “child”, who would, but for the death or incapacity, be so dependent;

“dependent” means wholly or substantially dependent;

“Deputy Commissioner” means a Deputy Commissioner of Repatriation appointed under the Australian Soldiers’ Repatriation Act 1920–1941;

“eligible person” means—

(a) a gainfully occupied person who has sustained a war injury; or

(b) a person who has attained the age of sixteen years and who—

(i) before attaining that age, has sustained a war injury; or

(ii) after attaining that age and before attaining the age of twenty-four years, has sustained a war injury at a time when he was a person receiving full time instruction at a university, college, school or other educational establishment or at a time when he was a person who for no remuneration or for nominal remuneration was undergoing training for any trade, business, profession, office, employment or vocation, but does not include any person who is an Asiatic (unless he is a British subject) or who is an aboriginal native of Australia, Africa, the Islands of the Pacific or New Zealand;

“family unit” means—

(a) in the case of the death of an eligible person—such of the dependants of the eligible person, including the de facto wife or separated widow, as are living together; or

(b) in the case of the incapacity of an eligible person—the eligible person and such of his dependants, including a de facto wife, as are living with him;

“gainfully occupied person” means a person who is engaged in any trade, business, profession, office, employment or vocation and is dependent thereon for a livelihood, or a person who, though temporarily unemployed, is normally so engaged and dependent;

“husband” does not include a man whose marriage to an eligible person takes place after the relevant date;

“incapacity”, in relation to any person, means incapacity which is directly attributable to his having sustained a war injury;

“income” means any moneys, valuable consideration or profits earned, derived or received by any person for his own use or benefit by any means from any source whatever, whether in or out of Australia, and shall be deemed to include personal earnings, but does not include any payment or benefit—

(a) by way of benefit from any Friendly Society registered under any Act or State Act;

(b) during illness, infirmity, or old age from any trade union, Provident Society or other Society or Association;

(c) by way of gift or allowance from the husband, wife (whenever the wife was married to that person), father, mother or child (whenever the child was born to, or became dependent upon, that person) of that person;

(d) by way of endowment under the Child Endowment Act 1941; or

(e) by way of sustenance or food relief granted under any law of a State or Territory of the Commonwealth relating to the relief of unemployment, or any wages received for work performed under any scheme of emergency or intermittent relief work provided under any law of a State or Territory of the Commonwealth, to the extent to which such wages are received in lieu of sustenance or food relief, except in cases where, for the purpose of determining the eligibility of any person to receive such assistance or wages, any pension paid under these Regulations is excluded from income;

“pension” means a pension under these Regulations;

“Registrar” means a Registrar of Civilians’ War Pensions appointed or deemed to have been appointed under these Regulations;

“relevant date”, in relation to an eligible person, means the date on which the eligible person sustained the war injury to which his death or incapacity is directly attributable;

“Schedule” means Schedule to these Regulations;

“separated wife” means the wife of an eligible person who is living apart from him either in pursuance of a decree, judgment, order or deed of separation or by reason of her having been deserted by the eligible person or in circumstances which, in the opinion of the Commission, are analogous thereto, and “separated widow” means the widow of an eligible person who was so living apart from him immediately prior to his death;

“Special Magistrate” means a Special Magistrate appointed or deemed to have been appointed under these Regulations;

“the Commission” means the Repatriation Commission appointed under the Australian Soldiers’ Repatriation Act 1920–1941;

“the enemy” means the forces, or any part thereof, of a State at war with His Majesty during the present war;

“trustee” means a trustee appointed under these Regulations;

“war injury” means a personal injury—

(a) caused by—

(i) the discharge of any missile, liquid or gas;

(ii) the use of any weapon, explosive or other noxious thing; or

(iii) the doing of any other injurious act, either by the enemy or in combating the enemy or in relation to any expected or suspected attack by the enemy or any expected attack upon the enemy; or

(b) caused by the action of any enemy aircraft or any aircraft in the service of His Majesty or of any Ally of His Majesty during the present war or by the impact of, or of any part of, or of anything dropped from, any such aircraft;

“wife” and “widow” do not include a woman whose marriage to an eligible person takes place after the relevant date, or, except as otherwise expressly provided in these Regulations, a separated wife or separated widow.

(2.) Where any provision of these Regulations is expressed to be dependent upon the opinion of the Commission or a Board, the reference to the opinion of the Board shall be construed as applying to the opinion of the Board only where the Commission has not formed an opinion on the matter.

Extension of Regulations to Territories.

5.—(1.) These Regulations shall extend to every Territory of the Commonwealth.

(2.) For the purposes of these Regulations, the Australian Capital Territory shall be deemed to be part of the State of New South Wales, and the Northern Territory shall be deemed to be part of the State of South Australia.

 

Part II.—Administration.

Powers and duties of Commission.

6. The Commission may exercise such powers, and shall perform such duties, as are conferred upon it by these Regulations.

Delegation.

7.—(1.) The Commission may, in relation to any matters or class of matters, or in relation to any particular State or Territory of the Commonwealth, by writing under its seal, delegate all or any of its powers and functions under these Regulations (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the State or Territory of the Commonwealth, specified in the instrument of delegation.

(2.) Where under these Regulations the exercise of any power or function by the Commission is dependent upon the opinion, belief or state of mind of the Commission in relation to any matter, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of that delegate.

(3.) A delegation under this regulation shall be revocable at will, and no delegation shall prevent the exercise of any power or function under these Regulations by the Commission.

Powers and duties of Boards.

8. For the purposes of these Regulations, the duties of a Board shall be—

(a) to determine in case of the death or incapacity of an eligible person in respect of which a claim for pension is made—

(i) whether the death or incapacity is directly attributable to a war injury sustained by the eligible person;

(ii) whether that war injury was in any substantial measure due to the eligible person’s own serious negligence or serious misconduct;

(iii) whether, in the case of the death of an eligible person, that death was in any substantial manner due to or hastened by his own serious negligence or serious misconduct; and

(iv) in the case of the incapacity of the eligible person, the nature and degree of the incapacity;

(b) to determine the extent (if any) to which persons alleged to be or to have been dependent upon an eligible person are or were so dependent;

(c) to assess, from time to time, the rates of pensions of eligible persons and their dependants, and to determine the dates of commencement and cessation of those pensions;

(d) to determine, in such cases as the Board thinks fit—

(i) that payment of a pension be suspended and the date of the suspension; or

(ii) that payment of a pension which has been suspended be recommenced and the date of recommencement;

(e) to determine such other questions as are necessary to be determined in relation to the grant or refusal of pensions; and

(f) such other duties as are specified in these Regulations.

Determinations and assessments by Commission.

9. Notwithstanding anything contained in the last preceding regulation, the Commission may, in such cases as it thinks fit, make any determination or assessment specified in that regulation, and may, at any time, direct that any particular case or class of cases be referred to it for determination or assessment.

Appeal to Commission.

10. Any person affected by any determination or assessment of a Board may, within twenty-eight days after he has been notified of the determination or assessment, or such further time as the Commission, in special circumstances, allows, appeal to the Commission and the Commission may affirm, vary or annul the determination or assessment.

Review by Commission.

11. Wherever it appears to the Commission that sufficient reason exists for reviewing any determination or assessment, it may review and may affirm, vary or annul the determination or assessment.

Special Magistrates and Registrars.

12.—(1.) The Governor-General may appoint such Special Magistrates and such Registrars of Civilians War Pensions as are necessary for the purposes of these Regulations, who shall have such powers, duties and functions as are specified in these Regulations.

(2.) The persons for the time being holding the offices of Special Magistrate under the Invalid and Old-age Pensions Act 1908–1941 or the Australian Soldiers’ Repatriation Act 1920–1941 and of Registrar of Pensions under the Invalid and Old-age Pensions Act 1908–1941 or Registrar of War Pensions under the Australian Soldiers’ Repatriation Act 1920–1941, shall be deemed to have been appointed Special Magistrates and Registrars respectively, for the purposes of these Regulations.

Inquiries.

13.—(1.) For the purposes of any inquiry which the Commission, a Board, a Special Magistrate or a Registrar has power to make under these Regulations—

(a) the Chairman of the Commission;

(b) the Chairman of a Board;

(c) any person thereto authorized in writing by a person specified in either of the two last preceding paragraphs;

(d) a Special Magistrate; or

(e) a Registrar,

may summon any person to appear before the Commission, Board, Special Magistrate or Registrar (as the case may be) and require that person to answer questions and to produce documents and, for any such purpose, may administer oaths and take affirmations.

(2.) A person who has been lawfully summoned to appear before the Commission, a Board, a Special Magistrate or a Registrar, shall not fail to appear, and a person who appears, whether summoned or not, shall not—

(a) refuse to be sworn or make an affirmation as a witness;

(b) fail to answer any question which he is lawfully required to answer; or

(c) fail to produce any documents which he is lawfully required to produce.

Officers to observe secrecy.

14.—(1.) A person performing duties under these Regulations—

(a) shall not directly or indirectly, except in the performance of his duties under these Regulations, and either while he has, or after he ceases to have, any duties, powers or

functions under these Regulations, make a record of, or divulge or communicate to any person, any information acquired by him in the performance or exercise of such duties, powers or functions, respecting the affairs of any other person;

(b) shall, if the Treasurer so directs, before entering upon his duties or exercising any powers or functions under these Regulations, make before a Justice of the Peace or a Commissioner for Declarations a declaration in accordance with the form approved by the Treasurer; and

(c) shall not be required to produce in court any claim or determination of a claim or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties, or the exercise of his powers or functions, except where it is necessary to do so for the purpose of carrying into effect the provisions of these Regulations.

(2.) Notwithstanding anything contained in the last preceding sub-regulation, any person specified therein may, if the Treasurer certifies that it is necessary in the public interest that any information acquired by him in the performance or exercise of his duties, powers or functions under these Regulations should be divulged, divulge that information to such person as the Treasurer directs.

(3.) Any person to whom information is divulged under the last preceding sub-regulation, and any person or employee under his control, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under paragraphs (a) and (c) of sub-regulation (1.) of this regulation as if he were a person performing duties under these Regulations, and had acquired the information in the performance of those duties.

Officers of Commission.

15. The officers of the Commission shall perform such duties under these Regulations as the Treasurer or the Commission directs.

Part III.—Pensions in Respect of Death or Incapacity.

Grant of pensions.

16. Where any eligible person dies or becomes incapacitated, and the death or incapacity is directly attributable to his having sustained in Australia a war injury, the Commonwealth shall, subject to these Regulations, pay to him, or to his dependants, or to both, pensions in accordance with these Regulations.

Claim for pensions.

17.—(1.) A claim for pension under these Regulations shall be in accordance with a form approved by the Commission and shall be forwarded to the Commission or to the Deputy Commissioner for the State in which the person making the claim resides, within one month after the date of injury or death, or within one month after the disability due to the injury becomes manifest, whichever is the later date.

(2.) Unless the Commission otherwise directs, a pension shall not be granted in respect of a claim which is not made and delivered in accordance with the last preceding sub-regulation.

(3.) Unless the Commission in exceptional circumstances otherwise directs, a pension in respect of the death or incapacity of an eligible

person shall not be paid in respect of any period prior to the period of one month immediately preceding the date on which the claim for the pension is made.

Limitation on grant of pensions where due to negligence or misconduct.

18. A pension in respect of the death or incapacity of an eligible person shall not be granted if, in the opinion of the Commission or a Board—

(a) in the case of death—the eligible person in any substantial measure contributed to or hastened his death by his own serious negligence or serious misconduct; or

(b) in the case of incapacity—the war injury to which the incapacity of the eligible person is attributable was in any substantial measure due to his own serious negligence or serious misconduct.

Pensions not payable to persons to whom certain other pensions or compensation payable.

19. A pension shall not be granted or payable in respect of the death or incapacity of any person if a pension is payable, in respect of that death or incapacity, under the Australian Soldiers’ Repatriation Act 1920–1941 or the Seamen’s War Pensions and Allowances Act 1940, or compensation is so payable under the Naval Defence Act 1910–1934, the Defence Act 1903–1941, the Air Force Act 1923–1939, or the National Security (Civil Defence Volunteers’ Compensation) Regulations.

Enemy aliens.

20. A pension under these Regulations shall not be paid to any eligible person who was, at the time when he sustained the war injury, an enemy alien, or to any dependant, de facto wife, separated wife or separated widow of any such eligible person in respect of the death or incapacity of that eligible person.

Incapacity must be due to war injury.

21. A pension shall not be granted in respect of the incapacity of an eligible person unless a duly qualified medical officer or practitioner nominated by the Commission or a Board certifies that the incapacity is directly attributable to a war injury sustained by him.

Degree of incapacity.

22.—(1.) For the purposes of these Regulations, the degree of incapacity of an eligible person shall be assessed by reference to that degree which the eligible person’s incapacitated condition bears to the condition of a normal and healthy person of the same age and sex without taking into account—

(a) the earning capacity of the eligible person in his incapacitated condition in his own or any other specific trade or calling; or

(b) the effect of any individual factors or extraneous circumstances.

(2.) Total incapacity shall be expressed as one hundred degrees of incapacity and any lesser degree shall be expressed by way of percentage.

Pension after death of incapacitated eligible person.

23. Where an eligible person has suffered a war injury involving, as a direct result, some appreciable degree of incapacity, and he subsequently dies from a cause or causes other than that injury, a dependant, de facto wife or separated widow of the eligible person shall, subject to these Regulations, be entitled to receive or to continue to receive, as the case may be, such pension (if any) as—

(a) was being paid;

(b) was payable; or

(c) would, but for the fact that a claim had not been lodged or that a claim lodged had not been determined, have been payable,

under these Regulations to that dependant, de facto wife or separated widow, immediately prior to the death of the eligible person.

Rates of pension on death or total incapacity.

24.—(1.) The rate of pension payable—

(a) to the widow or widower of an eligible person in the case of his or her death—shall not exceed the maximum rate of invalid pension payable under the Invalid and Old-age Pensions Act 1908–1941;

(b) to an eligible person in the case of his total incapacity—shall not exceed the maximum rate of invalid pension payable under the Invalid and Old-age Pensions Act 1908–1941;

(c) to or in respect of the wife or husband of an eligible person in the case of his or her total incapacity—shall not exceed thirty-six shillings per fortnight; and

(d) to or in respect of each child of an eligible person—shall not exceed—

(i) in the case of the death of the eligible person—

(1) where the eligible person leaves a widow, widower, separated widow or de facto wife who is entitled to a pension and who has the custody of the children—Twenty shillings per fortnight for the first child and Fifteen shillings per fortnight for each subsequent child;

(2) in any other case—Twenty-five shillings per fortnight for each child; or

(ii) in the case of the total incapacity of the eligible person—Twenty shillings per fortnight for the first child and Fifteen shillings per fortnight for each subsequent child.

Pension to de facto wife.

25. The Commission may, in its discretion, in the case of the death or total incapacity of an eligible person to which regulation 16 of these Regulations applies, grant to his de facto wife a pension at a rate not exceeding the maximum rate of pension prescribed by the last preceding regulation in respect of the widow or wife of an eligible person in a similar case:

Provided that if a pension is also payable to the widow, wife, separated widow or separated wife, the pension granted to the de facto wife shall not in any case be at such a rate that the sum of those pensions would exceed the maximum rate specified in these Regulations in respect of the widow or wife, as the case may be.

Pension to separated wife or separated widow.

26.—(1.) The Commission may, in its discretion, in the case of the death or total incapacity of an eligible person to which regulation 16 of these Regulations applies, grant a pension to his separated widow or separated wife if she satisfies the Commission that the eligible person, in the case of a separated wife is, or, in the case of a separated

 

widow, was, immediately prior to his death or incapacity, contributing, or liable to contribute, to her support, or that the separation was caused through the mental instability of the eligible person which was directly attributable to a war injury.

(2.) The rate of any pension payable by reason of the last preceding sub-regulation shall be in the discretion of the Commission but shall not exceed—

(a) where the separated wife or separated widow is eligible for pension by reason of her having satisfied the Commission that the eligible person is or was contributing or liable to contribute to her support—the amount which the eligible person was contributing, or the amount which he was liable to contribute, whichever is the greater, to her support immediately prior to the separation or the commencement of his incapacity (whichever is the later date), in the case of a separated wife, or immediately prior to his death, in the case of a separated widow; or

(b) in any case—the rate to which she would have been entitled but for the separation.

Rates of pension in respect of partial incapacity.

27.—(1.) Subject to these Regulations, the rates of pension payable in respect of a partial incapacity of an eligible person shall, in respect of the degree of incapacity specified in column 1 of the Schedule, be such percentage of the rates specified in these Regulations in respect of total incapacity as is specified in column 2 of the Schedule opposite that degree of incapacity.

(2.) Notwithstanding anything contained in these Regulations a pension shall not be payable in respect of the partial incapacity of an eligible person where the degree of partial incapacity is less than ten per centum.

Restriction on double pensions.

28. Notwithstanding anything contained in these Regulations, a person shall not in any case be entitled to pension at a rate exceeding the maximum rate to which he is entitled by reason of his being any one of the following, namely:—

(a) an eligible person; or

(b) the widow, widower, wife, husband, child, de facto wife, separated wife or separated widow of any one eligible person.

Limit of pension and income of eligible person.

29. Where—

(a) the only person entitled to pension is an eligible person, a widow or widower, a separated widow, or a de facto wife; or

(b) the pensions of an eligible person and his separated wife are to be assessed separately,

pension shall not be granted to the pensioner at such a rate as will make the income of the pensioner together with pension exceed per annum the total amount per annum which may be received by a pensioner (not being a permanently blind person), by way of income and pension, under the Invalid and Old-age Pensions Act 1908–1941.

Limit of pension and income of family unit.

30.—(1.) Where a family unit is constituted of—

(a) an eligible person, and wife, husband, or de facto wife; or

(b) such persons and children,

pension shall not be granted at such rates as will make the income of the family unit together with pension exceed per annum the amount of pension which could be paid per annum to members of the family unit in the case of total incapacity of the eligible person if they had no other income, and Sixty-five pounds per annum.

(2.) Where a family unit is constituted of—

(a) an eligible person and children;

(b) a widow, or widower, and children;

(c) a separated wife or separated widow, or a de facto wife, and children; or

(d) children only,

pension shall not be granted at such rates as will make the income of the family unit together with pension exceed per annum—

(i) in the case of incapacity—the total amount of pension which could be paid per annum to members of the family unit in the case of total incapacity of the eligible person if they had no other income, and Thirty-two pounds ten shillings per annum; and

(ii) in the case of death—the total amount of pension which could be paid per annum to members of the family unit in respect of the death of the eligible person if they had no other income, and Thirty-two pounds ten shillings per annum.

Assessment of income of eligible person and spouse in certain cases.

31.—(1.) For the purposes of regulations 29 and 30 of these Regulations, where, in relation to regulation 29, the eligible person is married, or where, in relation to regulation 30, the spouse, if any, of the eligible person is not a member of the family unit, the income of the eligible person, apart from such pension, shall be deemed to be half the total income of the eligible person and his spouse, as the case may be:

Provided that the foregoing provisions of this regulation shall not apply in any case where the Commission is of opinion that, for any special reason, they should not apply and gives a direction in writing accordingly.

(2.) Notwithstanding anything contained in these Regulations, in the computation of income for the purposes of the assessment of the rate of pension payable to an eligible person, any pension payable under the Invalid and Old-age Pensions Act 1908–1941 or under the provisions of the Australian Soldiers’ Repatriation Act 1920–1941 relating to service pensions to the spouse of the eligible person shall not be included as income.

(3.) Notwithstanding anything contained in the Invalid and Old-age Pensions Act 1908–1941 or the provisions of the Australian Soldiers’ Repatriation Act 1920–1941 relating to service pensions, in the computation of income for the purposes of the assessment of the rate of pension payable under that law or those provisions to the spouse of an eligible person, a pension payable to the eligible person under these Regulations shall not be included as income.

Reduction of pension where pensioner has accumulated property.

32.—(1.) Where a pensioner or an applicant for a pension (not being a child) has accumulated property exceeding Fifty pounds in value, the amount of the pension which would, but for this sub-regulation, be payable to that person shall be reduced by ninepence per fortnight for every complete Ten pounds by which the net capital value of the accumulated property exceeds Fifty pounds.

(2.) Where the members of a family unit (not being children) specified in sub-regulation (1.) of regulation 30 of these Regulations have accumulated property exceeding One hundred pounds in value, the amount of the pension which would, but for this sub-regulation, be payable to the members of that family unit shall be reduced by ninepence per fortnight for every complete Ten pounds by which the net capital value of the accumulated property exceeds One hundred pounds.

Net capital value of accumulated property.

33.—(1.) For the purpose of the calculation of the amount of a pension which may be granted under these Regulations, the net capital value of accumulated property shall be assessed in the following manner:—

(a) All real and personal property owned by any person shall be deemed to be his accumulated property;

(b) From the capital value of such accumulated property there shall be deducted the capital value of a home in which the pensioner permanently resides, and all charges and encumbrances lawfully and properly existing on the property other than the home, and the residue remaining shall be deemed to be the net capital value of all accumulated property;

(c) In the case of husband and wife (including a wife married after the relevant date), except where they are living apart pursuant to any decree, judgment, order or deed of separation, the net capital value of the accumulated property of each shall be deemed to be half the total net capital value of the accumulated property of both:

Provided that the foregoing provisions of this paragraph shall not apply in any case where the Commission is of opinion that, for any special reason, they should not apply and gives a direction in writing accordingly;

(d) Where any person sells his home on terms and purchases another home, also on terms, the amount of the balance due by that person from time to time on the last-mentioned home may be deducted from the amount due to that person in respect of the sale of the first-mentioned home.

(e) Notwithstanding anything contained in these Regulations, where any claimant or pensioner, or the husband or wife of a claimant or pensioner, possesses property which is subject to any incumbrance and which, in the opinion of the Commission, cannot be realized except at a considerable loss, the Commission may, in assessing the net capital value of his accumulated property, disregard the value of the interest of that person in the property.

(2.) Pension shall not be payable in any case—

(a) to a person (not being a child) who is specified in regulation 29 or sub-regulation (2.) of regulation 30 of these Regulations and the net capital value of whose accumulated property exceeds Four hundred pounds; or

(b) to any member of a family unit specified in sub-regulation (1.) of regulation 30 of these Regulations where the net capital value of the property of the family unit (not including the property of any child) exceeds Eight hundred pounds.

Disposal of property.

34. If, in the opinion of the Commission, a pensioner or an applicant for a pension has directly or indirectly deprived himself of property or income in order to qualify for or obtain a pension or in order to obtain a pension at a higher rate than that for which he would have been otherwise eligible, the value of the property or the amount of the income of which the pensioner or applicant has deprived himself shall be deemed to be the property or the income of the pensioner or applicant.

Acquisition of property or income to be notified by pensioner.

35.—(1.) Whenever any pensioner acquires property, or earns, derives or receives income the receipt of which affects the amount of pension payable to him under these Regulations, he shall, within thirty days after the acquisition or receipt thereof, forward notice in writing of the fact to the Commission or to the Deputy Commissioner of the State or Territory in which he resides.

(2.) Any pensioner who sells or vacates a home owned by him and in which he has been permanently residing shall forthwith give notice in writing of the fact to the Commission or to the Deputy Commissioner of the State or Territory in which he resides.

(3.) Whenever any pensioner marries or re-marries he shall forthwith give notice in writing of the fact to the Commission or to the Deputy Commissioner of the State or Territory in which he resides.

(4.) Any person convicted of an offence arising out of a contravention of this regulation may, in addition to any punishment, be ordered by the court by which he was convicted to refund any amount of pension received by him in excess of the amount to which he would have been entitled had notice been given in accordance with this regulation and shall be ineligible to receive a pension during such period, not exceeding two years, as the Commission determines.

(5.) The Commission may sue for and recover in any court of competent jurisdiction any amount which any person is liable to refund under the last preceding sub-regulation.

Pensioner to furnish information when required.

36.—(1.) Whenever required by the Commission or a Board a pensioner shall forward to the Commission or Board, as the case may be, a statement in accordance with the form approved by the Commission relating to his income and accumulated property.

(2.) Where a pensioner fails to comply with any requirement made by the Commission or a Board under the last preceding sub-regulation, the Commission or Board may cancel the pension.

Cancellation or variation of pension.

37. If upon investigation the Commission or a Board is satisfied that a pension should be cancelled or that the rate of pension is greater or less than it should be, the Commission or Board may cancel the pension or reduce or increase the rate of pension accordingly:

Provided that the Commission or a Board shall not vary the rate of any pension where the amount of the variation which, but for this proviso, would be made is less than one shilling per fortnight.

Payment of pensions.

38. In such cases as the Commission thinks proper, the pensions payable to—

(a) an eligible person and to any dependant of that person; or

(b) the widow and any child, or widower and any child, of an eligible person,

may be paid in one sum for the benefit of the pensioners to such person and for such period as the Commission, from time to time, determines and that person shall apply the sum so paid in such manner as the Commission determines.

Pensions for limited periods in certain cases.

39. A pension payable to a dependent being a child shall cease upon his attaining the age of sixteen years.

Pensions to female dependants to cease on marriage or re-marriage.

40. A pension payable to any female dependant, de facto wife or separated widow of an eligible person shall not be continued after her marriage or re-marriage:

Provided that the marriage of a de facto wife of an eligible person to that eligible person shall not be deemed to be marriage or remarriage for the purposes of this regulation.

Notification of marriage or divorce.

41.—(1.) Any female dependant, de facto wife, separated wife or separated widow of an eligible person to whom a pension is payable who marries or obtains a decree nisi in divorce, or against whom a decree nisi is obtained, shall forthwith give written notice of that fact to the Commission or to the Deputy Commissioner of the State or Territory in which she resides.

(2.) Any person convicted of an offence arising out of a contravention of this regulation may be ordered by the court by which she is convicted to repay to the Commonwealth any moneys received in consequence of the failure to comply with the provisions of this regulation.

Rejection of claims and termination of pensions of dependants.

42. The Commission may reject any claim for a pension by, or terminate any pension granted to, a dependant, de facto wife, separated wife or separated widow of an eligible person if it is satisfied that the grant or continuance of the errant of the pension would be undesirable.

Suspension of pension during imprisonment.

43.—(1.) If any person in receipt of a pension is convicted of an offence and sentenced to any term of imprisonment, the Commission or a Board may, in respect of the time during which that person is serving the term of imprisonment or in respect of any portion of that time, suspend the pension or cancel any instalment thereof.

(2.) The Commission or a Board may, if it thinks fit, in lieu of suspending a pension or cancelling any instalment thereof under the last preceding sub-regulation, order that, during the term of imprisonment or any portion thereof, the whole or any portion of the pension shall be paid to such person as the Commission or Board determines and the pension shall thereupon be payable accordingly during that term or portion.

Periodical examination of pensioner.

44.—(1.) The Commission or a Board or any person authorized by the Commission or a Board to make requirements under this regulation may, from time to time, require any person receiving a pension to submit himself for medical examination by a duly qualified medical officer or practitioner nominated by the Commission, a Board or a person so authorized.

 

(2.) The right to payment of instalments of pension of any person refusing or failing to submit himself to medical examination as and when required in accordance with this regulation, or in any way obstructing the examination, shall be suspended until the examination has taken place without any obstruction.

Pension granted on re-application.

45.—Where a claim for pension has been made under these Regulations and has been rejected and, upon a subsequent application, a pension is granted to the claimant, the pension shall not be payable in respect of any period prior to the period of three months immediately preceding the date of the application upon which the pension is granted.

Re-grant of cancelled or relinquished pension.

46.—(1.) Where a pension has been cancelled and the person concerned, upon an application for reinstatement of his pension, is again granted a pension, payment of the pension so granted shall not be made in respect of any period prior to the period of three months immediately preceding the date on which the application for reinstatement was made.

(2.) Where a pension has been voluntarily relinquished, either wholly or in part, and the person concerned applies for the reinstatement of the pension or part thereof so relinquished, the pension or part thereof shall, subject to these Regulations, be reinstated, but the reinstatement shall not operate in respect of any period prior to the period of three months immediately preceding the date on which the application for reinstatement was made.

Conditions of grant to be fulfilled.

47. Where under these Regulations a pension may be granted to, for, or in respect of, a person only if some condition or requirement is fulfilled or complied with, a grant so made shall, unless the Commission otherwise determines, cease to have effect if and when that condition or requirement ceases to be fulfilled or complied with.

Administration of pensions, &c.

48.—(1.) Where the Commission or a Deputy Commissioner considers it desirable to do so in the interests of the person to, for, or in respect of whom any pension is payable under these Regulations, the Commission or Deputy Commissioner may administer that pension in such manner as appears to it or him to be in the best interests of that person, or may appoint a trustee of that pension and pay the pension to him, and a receipt given by the trustee for any amount of pension shall be a good and sufficient discharge to the Commission in respect of that amount.

(2.) Subject to any directions of the Commission or a Deputy Commissioner, a trustee so appointed shall collect the pension, and shall hold, or may apply, it in such manner as he sees fit for the benefit of the person to, for, or in respect of whom the pension is payable.

Commission may review pensions, &c.

49.—(l.) If it appears to the Commission that by reason of any misstatement or mistake of fact, or of any change in circumstances or for any other reason whatsoever, it is expedient so to do, the Commission may at any time review any grant or assessment of pension, or any determination in relation to a pension, made under these Regulations, and may vary or cancel that grant, assessment or determination, and either make or refrain from making a new grant, assessment or determination:

Provided that no such pension shall be increased to a rate or amount exceeding the rate or amount authorized by these Regulations.

(2.) Where any person in receipt of or entitled to receive any pension under these Regulations refuses or fails to attend at the time and place fixed by the Commission for any review, or impedes or hinders the review, the Commission may cancel the pension.

(3.) On the cancellation under the last preceding sub-regulation of a pension of an eligible person, any pensions payable to his dependants, de facto wife or separated wife shall not be continued for more than twelve months from the date fixed for the review:

Provided that if the Commission is satisfied that the incapacity of the eligible person in respect of which a pension has been granted is of a permanent nature, it may continue any pension, or any part thereof, to a dependant, de facto wife or separated wife for such period as it thinks proper.

Pension payable only to bona fide resident of Australia.

50. Subject to these Regulations, a pension shall be payable only to a bona fide resident of Australia.

Extension of Regulations to certain persons.

51. The provisions of these Regulations shall extend to and in relation to every eligible person being a British subject and normally resident in Australia who—

(a) while absent from Australia for the purposes of any trade, business, profession, office, employment or vocation dies or becomes incapacitated, and whose death or incapacity is directly attributable to his having sustained a war injury; or

(b) while employed under the High Commissioner Act 1909–1940 dies or becomes incapacitated, and whose death or incapacity is directly attributable to his having sustained a war injury:

Provided that, at the option of an eligible person to whom paragraph (b) of this regulation applies, he shall in lieu of the benefits provided by these Regulations be entitled to the benefits provided by a scheme made under the Imperial Act known as the Personal Injuries (Emergency Provisions) Act 1939, and for that purpose the provisions of that scheme shall be deemed, with such exceptions, modifications and adaptations as the Treasurer by order published in the Gazette specifies, to be incorporated in these Regulations.

Part V.—Investigation of Claims and Payment of Pensions.

Declarations by claimants.

52.—(1.) Where the form of any claim approved by the Commission, or any other document relating to a claim for, or a review of, a pension includes a declaration as to the correctness of the information set forth in the claim or document, the declaration may be made before such person as the Commission specifies.

(2.) Where a claim is made on behalf of a person under the age of sixteen years, the declaration may be made by any person over the age of sixteen years who has a knowledge of the information set forth in the claim.

Investigation of claims and reviews.

53. A Deputy Commissioner—

(a) upon receipt of any claim; or

(b) whenever it is necessary or expedient to review a grant of pension,

shall arrange for the claim or the case, as the case may be, to be investigated by a Registrar, a Special Magistrate, or an officer of the Commission, who shall ascertain from the claimant, pensioner, or any other person, such information as may be necessary to enable the Commission or a Board to determine such of the questions specified in regulation 8 of these Regulations as have a bearing on the claim or case, and shall forward the claim or case, together with a written record of the information so obtained, to the Deputy Commissioner.

Payment of pension.

54.—(1.) Pensions granted under these Regulations shall be payable by fortnightly instalments which may be paid in advance.

(2.) The fortnights in respect of which instalments of pension are payable shall commence on such day as the Commission determines.

(3.) The amount of any instalment in respect of a period of less than a fortnight shall be an amount which bears the same proportion to a fortnightly instalment as that lesser period bears to a fortnight.

Due date of instalments.

55. The due date of each instalment shall be the first day of the fortnight for which the instalment is payable:

Provided that where the due date is a public holiday payment may be made on such other day as the Commission directs.

Issue of pension certificate and identification card.

56. Where a pension is to be paid in fortnightly instalments, the Deputy Commissioner shall forward to the postmaster or other officer who has to pay the instalments, a pension certificate and identification card, each in a form approved by the Commission, and the postmaster or other officer shall retain the identification card and deliver the certificate to the pensioner or trustee, as the case may be:

Provided that, in the case of a pensioner or trustee not residing in Australia, the Commission may make such arrangements for the payment of instalments as it deems practicable.

Possession of identification card authority to pay instalments.

57.—(1.) Subject to these Regulations, the possession by a postmaster or other officer of an identification card shall be sufficient authority for the payment by him of the instalments of pension described therein to the pensioner or trustee, or the holder of an order under regulation 59 of these Regulations, as the case may be, on the production of the pension certificate by the pensioner, trustee or holder.

(2.) The postmaster or other officer shall not make a payment of any such instalment until he has made a note in relation to the payment on the pension certificate.

(3.) The Commission may give any instruction to the postmaster or other officer to withhold the payment of any instalment or concerning the method of payment and accounting, and the postmaster or other officer shall comply with any such instruction accordingly.

Receipt by pensioner or trustee.

58.—(1.) Where the pensioner or trustee applies personally for a payment by instalment of pension he shall give a receipt for each instalment in accordance with the form approved by the Commission.

(2.) The postmaster or other officer may refuse to pay any instalment of pension if he is not satisfied that the person presenting the receipt is the pensioner or trustee, as the case may be.

Payment to other person.

59. Payment may be made to a person other than the pensioner or trustee if that person is the holder of an order, in accordance with the form approved by the Commission, from the pensioner or trustee and makes a declaration that he is not receiving the whole or any portion of

the instalment on his own behalf or on behalf of any other person or any firm, business or partnership in repayment of any advance or loan to the pensioner, or by way of, or in consequence of, any sale, assignment, charge, execution or insolvency, or in payment of any debt whether due or about to become due from the pensioner.

Payment of instalment to female dependant.

60. Subject to regulation 62 of these Regulations, a postmaster or other officer shall not pay any instalment of a pension granted to any single or widowed female dependant, or any de facto wife or separated widow, of a civil defence volunteer unless, at the time of making the payment, there is presented to the postmaster or other officer a declaration, in accordance with the form approved by the Commission, by the female dependant, de facto wife or separated widow or, where a trustee has been appointed to receive payments on her behalf, by that trustee, that, on the due date of the instalment, the female dependant, de facto wife or separated widow had not married or re-married.

Payment of instalment to trustee.

61. Subject to regulation 62 of these Regulations, a postmaster or other officer shall not pay any instalment of a pension payable to a trustee unless there is presented to the postmaster or other officer, at the time of making the payment, a declaration by the trustee, in accordance with the form approved by the Commission, that the person on whose behalf the pension is payable is alive.

Special provisions as to declarations.

62. Where the Commission is of opinion that it would be impracticable or seriously inconvenient to obtain the declarations required by the last two preceding regulations on each and every occasion when an instalment is being paid, it may approve of such declarations being obtained at such intervals as it determines not exceeding twelve months.

Payment of undrawn instalment of pension of deceased pensioner.

63. An undrawn instalment of a pension due at the date of a pensioner’s decease, if applied for within six months after the decease, may be paid to such person as, in the opinion of the Commission or a Deputy Commissioner, has a legal or equitable claim thereto:

Provided that payment to any person who is not a legal representative of the deceased shall not be authorized until the Commission or the Deputy Commissioner is satisfied that application will not be made for probate of will or letters of administration.

Death of pensioner.

64.—(1.) Whenever the death of any person is reported to any officer of the Commonwealth or a State or a Territory of the Commonwealth who is charged with the duty of registering deaths, he may inquire whether the deceased was a pensioner under these Regulations, and the person reporting the death shall, to the best of his knowledge, state whether the deceased was such a pensioner or not.

(2.) If the deceased was a pensioner, the officer may notify the Commission or a Deputy Commissioner of this fact and of the death.

Power of Deputy Commissioner to require information.

65.—(1.) A person shall, if so required by a Deputy Commissioner or a Registrar by notice in writing, furnish to the officer specified in the notice, within the time specified in the notice—

(a) a confidential report of the facts within his knowledge relating to any matter specified in the notice; and

(b) written answers to any questions specified in the notice,

concerning any claimant or pensioner or any person in respect of whom a pension under these Regulations has been claimed or granted.

(2.) No action or proceeding, civil or criminal, except an action or proceeding pursuant to these Regulations, shall lie against any person in respect of any report or answer furnished by him in pursuance of this regulation.

Signature to forms.

66.—(1.) Every form in connexion with a claim for, or a review of, a pension under these Regulations, which is required to be signed by any person, shall be signed by that person with his personal signature.

(2.) Where a person who is unable to sign his name in writing makes a mark as his signature to a form, the mark shall be deemed to be his personal signature if it is identifiable as such and is made in the presence of a witness who signs the form as a witness.

(3.) A person shall not make the signature of any other person on any form.

(4.) Nothing in this regulation shall affect the liability of any person to be proceeded against under any other law but he shall not be liable to be punished twice in respect of the same offence.

Signatures in blank.

67. A person shall not sign his name on any form in connexion with a claim for, or review of, a pension under these Regulations as a signature to that form unless the form has been filled in so as to be ready for use without further addition.

Part VI.—Miscellaneous.

Payments to be made from moneys appropriated.

68. Pensions granted in pursuance of these Regulations shall be payable out of moneys from time to time appropriated by the Parliament for the purpose.

Pensions, &c, to be inalienable.

69.—(1.) Any pension payable under these Regulations shall be absolutely inalienable whether by way of or in consequence of sale, assignment, charge, execution, insolvency or otherwise howsoever.

(2.) A person shall not advance money or goods, or offer or promise to advance money or goods, to any person in receipt of any pension or having a claim to receive any pension, or to any person on his behalf, on the security (whether sole or collateral) of his pension or of any instalment thereof, and shall not purport to accept any transfer or assignment of, or to create any charge on, any pension or any instalment thereof.

(3.) A person shall not obtain an advance of money or goods upon the security of, or purport to transfer or assign, or create any charge on, his pension, or any instalment thereof.

Relief of employers, &c., from liability.

70. There shall not be payable, whether to the person injured or to any other person, in respect of any war injury, any such compensation or damages as, but for the provisions of this regulation—

(a) would be payable under any law of the Commonwealth, or a State or Territory of the Commonwealth, relating to compensation to workmen or employees (including employees of the Commonwealth) for injuries suffered in the course of their employment; or

(b) would, whether by virtue of any law of the Commonwealth, or a State or Territory of the Commonwealth, by virtue of any contract, or at common law, be payable by any person on the ground that the injury in question was attributable to some negligence, nuisance or breach of duty for which the person by whom the compensation or damages would be payable is responsible.

(2.) The failure to give a notice or make a claim or commence proceedings within the time required by any law of the Commonwealth or a State or Territory of the Commonwealth shall not be a bar to the maintenance of proceedings in respect of any personal injury, if—

(a) within that time an application for a pension has been duly made in respect of the injury;

(b) the court or authority before which the proceedings are brought is satisfied that the application was made in the reasonable belief that the injury was such that a pension could be paid;

(c) the Commission certifies that the application was refused or that a pension granted in pursuance of the application was cancelled, on the ground that the injury was not such an injury; and

(d) the proceedings are commenced within one month after the date of the certificate of the Commission.

Payments in excess may be recovered.

71. Where it is found that any pension or instalment of a pension which is not payable has been paid, the amount so paid may be recovered at any time from the person to whom it was paid or his legal representative as a debt due to the Crown.

Offences.

72.—(1.) A person shall not—

(a) make, either orally or in writing, a false or misleading statement, in connexion with, or in support of, any claim, either for himself or for any other person;

(b) obtain any pension or any instalment thereof which is not payable;

(c) obtain payment of any pension or any instalment thereof by means of any false or misleading statement; or

(d) make or present to the Commission or a Board, or any member thereof, or to any officer doing duty in relation to these Regulations, any statement or document which is false in any particular.

(2.) Any person convicted of an offence arising out of a contravention of this regulation may, in addition to the penalty imposed for the offence, be ordered by the Court by which he is convicted to repay to the Commonwealth any amount paid by way of pension in consequence of the act in respect of which he was convicted.

(3.) In any proceedings for any such offence the burden of proving the truth of the statement in respect of which proceedings have been instituted, or the genuineness of the document presented, shall rest upon the person accused.

Indemnity to certain persons.

73. Nothing contained in any law of a State or Territory of the Commonwealth shall prohibit any person from furnishing any information, or making any books, documents or papers available, to the Commission or a Board, or any member thereof, or to any officer doing duty under these Regulations, for the purposes of these Regulations.

THE SCHEDULE.

 

Reg. 27.

Rates of Pension in Respect of Partial Incapacity.

Column 1.	Column 2.
Degree of Incapacity.	Percentage of Rate prescribed for Total Incapacity payable in respect of the Partial Incapacity.
Not less than 90 per centum..........................................................	90
Less than 90 per centum but not less than 80 per centum	80
Less than 80 per centum but not less than 70 per centum	70
Less than 70 per centum but not less than 60 per centum	60
Less than 60 per centum but not less than 50 per centum	50
Less than 50 per centum but not less than 40 per centum	40
Less than 40 per centum but not less than 30 per centum	30
Less than 30 per centum but not less than 20 per centum	20
Less than 20 per centum but not less than 10 per centum	The same percentage as the degree of incapacity.

 

By Authority: L. F. Johnston Commonwealth Government Printer, Canberra.