Veterans' Entitlements Amendment Act 1991 (Cth)
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| Short title | |
| Commencement | |
| Repeal of section 5 and substitution of new sections: | |
| Index of definitions | |
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| Eligibility related definitions | |
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| General definitions | |
| Determinations having interpretative effect | |
TABLE OF PROVISIONS—
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| Need for a claim | |
| Who can claim? | |
| Form of claim | |
| Lodgment of claim | |
| Withdrawal of claim | |
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| Secretary to investigate claim and submit it to Commission | |
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| Duties of Commission in relation to claim | |
| Determination of qualifying service to be proof of qualifying service | |
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| Eligibility for age service pension | |
| Age service pension may not be payable in some circumstances | |
| Age service pension generally not payable before claim | |
| Restrictions on dual pensions | |
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| Need for a claim | |
| Who can claim? | |
| Form of claim | |
| Lodgment of claim | |
| Claimant must be Australian resident and in Australia | |
| Withdrawal of claim | |
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| Secretary to investigate claim and submit it to Commission | |
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| Duties of Commission in relation to claim | |
| Date of effect of determination | |
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| How to work out the rate of a veteran’s age service pension | |
TABLE OF PROVISIONS—
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| Death of recipient |
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| Eligibility for invalidity service pension |
| Invalidity service pension may not be payable in some circumstances |
| Invalidity service pension generally not payable before claim |
| Restrictions on dual pensions |
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| Need for a claim |
| Who can claim? |
| Form of claim |
| Lodgment of claim |
| Claimant must be Australian resident and in Australia |
| Withdrawal of claim |
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| Secretary to investigate claim and submit it to Commission |
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| Duties of Commission in relation to claim |
| Date of effect of determination |
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| How to work out the rate of a veteran’s invalidity service pension |
| Eligibility for payments under this Subdivision |
| Continued payment of partner’s pension |
| Lump sum payable in some circumstances |
| Adjustment of person’s invalidity service pension rate |
| Effect of death of person entitled to payments under this Subdivision |
| Matters affecting payment of benefits under this Subdivision |
TABLE OF PROVISIONS—
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| Bereavement payments on death of dependent child |
| Continued payment of child-related amounts |
| Lump sum payable in some circumstances |
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| Death of recipient |
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| Eligibility for wife service pension |
| Wife service pension may not be payable in some circumstances |
| Wife service pension generally not payable before claim |
| Restrictions on dual pensions |
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| Need for a claim |
| Who can claim? |
| Form of claim |
| Lodgment of claim |
| Claimant must be Australian resident and in Australia |
| Withdrawal of claim |
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| Secretary to investigate claim and submit it to Commission |
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| Duties of Commission in relation to claim |
| Date of effect of determination |
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| How to work out the rate of a woman’s wife service pension |
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| Eligibility for payments under this Subdivision |
| Continued payment of partner’s pension |
| Lump sum payable in some circumstances |
| Effect of death of person entitled to payments under this Subdivision |
| Matters affecting payment of benefits under this Subdivision |
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| Bereavement payments on death of dependent child |
| Continued payment of child-related amounts |
| Lump sum payable in some circumstances |
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| Death of recipient |
TABLE OF PROVISIONS—
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| Eligibility for carer service pension |
| Carer service pension may not be payable in some circumstances |
| Carer service pension generally not payable before claim |
| Restrictions on dual pensions |
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| Need for a claim |
| Who can claim? |
| Form of claim |
| Lodgment of claim |
| Claimant must be Australian resident and in Australia |
| Withdrawal of claim |
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| Secretary to investigate claim and submit it to Commission |
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| Duties of Commission in relation to claim |
| Date of effect of determination |
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| How to work out the rate of a person’s carer service pension |
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| Continuation of carer service pension for bereavement period where person cared for dies |
| Continued carer service pension rate |
| Eligibility for payments under this Subdivision |
| Continued payment of partner’s pension |
| Lump sum payable in some circumstances |
| Adjustment of person’s carer service pension rate |
| Effect of death of person entitled to payments under this Subdivision |
| Matters affecting payment of benefits under this Subdivision |
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| Bereavement payments on death of dependent child |
| Continued payment of child-related amounts |
| Lump sum payable in some circumstances |
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| Death of recipient |
TABLE OF PROVISIONS—
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SERVICE PENSION RATE CALCULATOR WHERE THERE ARE NO DEPENDENT CHILDREN |
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Subdivision C —Service pension rate calculator where there are dependent children 42. Rate of age, invalidity, wife and carer service pension (dependent child or children)
SERVICE PENSION RATE CALCULATOR WHERE THERE ARE DEPENDENT CHILDREN |
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Subdivision D—Service pension rate calculator for blinded veterans 43. Rate of age and invalidity service pension (blinded veterans)
SERVICE PENSION RATE CALCULATOR FOR BLINDED VETERANS |
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TABLE OF PROVISIONS—
Section
Subdivision E —Service pension rate calculator for widows and non-illness separated wives 44. Rate of wife service pension for widows and non-illness separated wives
SERVICE PENSION RATE CALCULATOR FOR WIDOWS AND NON-ILLNESS SEPARATED WIVES |
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Subdivision F —Service pension rate calculator for “frozen rate” widows 45. Rate of age, invalidity and carer service pensions (war widow)
SERVICE PENSION RATE CALCULATOR FOR “FROZEN RATE” WIDOWS |
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46. | Structure of Division |
46a. | Certain capital amounts not covered by other Subdivisions taken to be received over 12 months |
46b. | Investments made before 1 January 1988 with friendly societies or where no immediate return |
46c. | Investments made before 1 January 1988 not with friendly societies or where return is not deferred |
46d. | Investments made after 1 January 1988 |
46e. | Actual return not be treated as income |
46f. | Rate of return where it can only be approximated |
46g. | Reduction of rate of return for investment costs |
46h. | Conversion of investment to accruing return investment |
46j. | Investments made before 9 September 1988 |
46k. | Special provisions about certain investments made before 9 September 1988 |
46l. | Investments made after 9 September 1988 |
46m. | Actual return not to be treated as income |
46n. | Product rate of return |
46p. | Determination of entitlement of person holding a market-linked investment |
46q. | Reduction of rate of return for investment costs |
46r. | Conversion of investments to market-linked investments |
TABLE OF PROVISIONS—
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| Superannuation benefits received before pension age |
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| Immediate annuities |
| Superannuation pensions |
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| Application of Division |
| Conversion of foreign currency amounts |
| Base exchange rate |
| Re-assessed exchange rate |
| Applicability of re-assessed exchange rate |
| Rounding off exchange rates |
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| Disposal of ordinary income |
| Amount of disposition |
| Disposal of ordinary income—not a member of a couple |
| Disposal of ordinary income—members of couples |
| Treatment of transactions that constitute both a disposal of ordinary income and a disposal of assets |
| Dispositions more than 5 years old to be disregarded |
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| Earnings credit account balance may be set off against ordinary income from remunerative work |
| Earnings credit account |
| Earnings credit account balance |
EARNINGS CREDIT ACCOUNT BALANCE CALCULATOR |
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| General effect of Division |
| Reduction in rate of payments under this Part if recipient or partner also receiving payments under NEIS |
| Rate reduction under this Division |
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| Apportionment of capitalised maintenance income |
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TABLE OF PROVISIONS—
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| Certain assets to be disregarded in calculating the value of a person’s assets |
| Value of annuities |
| Value of annuity—change of relevant number |
| Effect of charge or encumbrance on value of assets |
| Loans |
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| Amount of disposition |
| Disposal of assets—not a member of a couple |
| Disposal of assets—members of couples |
| Dispositions more than 5 years old to be disregarded |
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| Retirement village resident |
| Basis for different treatment |
| Entry contribution |
| Extra allowable amount |
| Renegotiation of retirement village agreement |
| People who are not members of a couple |
| Members of couples |
| Members of illness separated couple (both in retirement village or villages) |
| Members of illness separated couple (partner not in retirement village and partner property owner) |
| Members of illness separated couple (partner not in retirement village and partner not property owner) |
| Members of ordinary couple with different principal homes (both in retirement villages) |
| Members of ordinary couple with different principal homes (partner not in retirement village and partner property owner) |
| Members of ordinary couple with different principal homes (partner not in retirement village and partner not property owner) |
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| Access to financial hardship rules |
| Application of financial hardship rules |
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| Eligibility for participation in pension loans scheme |
| Effect of participation in pension loans scheme—pension rate |
| Effect of participation in pension loans scheme—creation of debt |
| Need for a request to participate |
| Additional requirement where person’s assets valued at less than $100,000 |
| Existence of debt results in charge over assets |
| Debt not to be recovered until after death |
| Enforcement of charge |
| Person ceases to participate in pension loans scheme if value of assets falls below $100,000 |
| Automatic termination of participation in pension loans scheme |
| Registration of charge |
| Manner of enforcement of charge |
TABLE OF PROVISIONS—
Section |
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| Fringe benefits and treatment at Departmental expense for certain service pensioners |
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| Eligibility for fringe benefits |
| Fringe benefits ordinary income test |
| Fringe benefits assets test |
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| Eligibility for treatment at Departmental expense |
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| Secretary may require notification of an event or change of circumstances |
| Secretary may require recipient to give particular information relevant to the payment of pension |
| Document served with a section 54 notice |
| Interpretation |
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| Service pension may be suspended or forfeited when pensioner in gaol |
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| Automatic termination—recipient complying with section 54 notification obligations |
| Automatic termination—recipient not complying with section 54 notification obligations |
| Automatic rate reduction—recipient not complying with section 54 notification obligations |
| Rate increase determination |
| Rate reduction determination |
| Cancellation and suspension determination |
| Resumption of payment after suspension |
| Date of effect of favourable determination |
| Date of effect of adverse determination |
| Pension may be cancelled at pensioner’s request |
| Pension may be cancelled or suspended if Secretary loses contact with pensioner |
| Commission may end suspension |
TABLE OF PROVISIONS—
Section |
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| Claimants and service pensioners may seek review of certain decisions |
| Application for review |
| Commission’s powers where request for review |
| Date of effect of certain review decisions |
| Commission must make written record of review decision and reasons |
| Person who requested review to be notified of decision |
| Powers of Commission to gather evidence |
| Withdrawal of request for review |
| Commission may reimburse certain expenses |
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| Payment by instalments |
| Calculation of amount of fortnightly instalment |
| Effect on instalments of back-dating claim |
| Manner of payment |
| Agents |
| Pension payday falling on public holiday etc. |
| Payment into bank account etc. |
| Service pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at pensioner’s request |
| Payments to Commissioner of Taxation—section 218 Income Tax Assessment Act |
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| Age, invalidity and wife service pensions generally portable |
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[
The Parliament of Australia enacts:
2. This Act commences on 1 July 1991.
Section S of the Principal Act is repealed and the following sections are substituted:
“5. Each expression listed in the Index below is defined, for the purposes of this Act, in the provision listed in the Index opposite that expression.
Note: the Index does not contain every defined expression used in the Act. It contains every defined expression used in Part III and some defined expressions used elsewhere.
account |
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accruing return investment |
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acting Commissioner |
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Acting Deputy President |
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Acting President |
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actual market exchange rate |
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actual value |
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additional amounts for dependent children |
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adopted child |
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allied country |
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allied mariner |
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allied veteran |
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allotted for duty |
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amount of rent paid or payable |
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annual rate of return |
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approved deposit fund |
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approved Guide to the Assessment of Rates of Veterans’ Pensions |
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approved respite care |
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approved Treatment Principles |
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assessable growth component |
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assessable period |
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asset |
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Australia |
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Australian mariner |
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Australian resident |
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benevolent home |
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bereavement lump sum period |
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bereavement notification day |
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bereavement period |
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bereavement rate continuation period |
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blinded in an eye |
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Board |
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board |
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building society |
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campaign medal |
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capitalised maintenance income |
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cash maintenance |
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child |
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child support |
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Commission |
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commissioner |
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Commonwealth country |
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Commonwealth veteran |
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compulsorily preserved |
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continuous full-time service |
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couple |
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credit union |
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decision |
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deductible amount |
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defence force established by a Commonwealth country |
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defence force established by an allied country |
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deferred annuity |
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dependent child |
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dependent child add-on |
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Deputy President |
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determination of entitlement |
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disability pension |
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disease |
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dispose |
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dispose of income |
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domestic payment |
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earned, derived or received |
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eligible civilian |
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eligible investment |
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eligible war service |
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employed child |
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enemy |
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exempt assets |
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first available bereavement adjustment payday |
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fishing vessel |
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foreign exchange period |
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friendly society |
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general rate |
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government-in-exile |
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Government rent |
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guardian allowance |
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home equity conversion agreement |
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illness separated couple |
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immediate annuity |
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incapacity from a war-caused injury, a war-caused disease |
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incapacity from a defence-caused injury, a defence-caused disease |
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incentive allowance |
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income |
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income amount |
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income from personal exertion |
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income support pension |
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Income Tax Assessment Act |
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injury |
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in-kind housing maintenance |
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ineligible property owner |
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investment product |
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interest that gives reasonable security of tenure |
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joint ownership |
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maintained child |
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maintenance |
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maintenance agreement |
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maintenance income |
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market-linked investment |
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member of a couple |
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member of a unit of the Defence Force |
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member of the Defence Force |
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member of the Interim Forces |
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non-assessable purchase price |
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non-illness separated wife |
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operational area |
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ordinary income |
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organisation representing veterans |
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parent |
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partner |
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partnered |
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partnered (partner getting benefit) |
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partnered (partner getting neither pension nor benefit) |
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partnered (partner getting pension) |
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partnered (partner getting pension or benefit) |
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pension age |
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pension payday |
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pension increase child |
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pension period |
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pension year |
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period of hostilities |
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physically present in remote area |
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PLS assets |
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port |
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prescribed educational scheme |
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prescribed student child |
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President |
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principal home |
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property owner |
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public unit trust |
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purchase price |
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qualifying service |
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receiving full-time education at a school, college or university |
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relevant number |
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remote area |
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remunerative work |
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rent |
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residing in a nursing home |
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residual capital value |
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respite care couple |
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respite period |
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retirement village |
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return |
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rolled-over amount |
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roll-over immediate annuity |
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roll-over purchase price |
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Secretary |
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service pension |
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service pensioner |
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Social Security Act |
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social security benefit |
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social security pension |
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special maintenance income |
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special mission |
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statutory rate of return |
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student child |
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superannuation benefit |
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superannuation fund |
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superannuation pension |
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unit of the Defence Force |
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unrealisable asset |
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value |
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veteran |
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war to which this Act applies |
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war widow |
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widow |
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widower |
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World War 1 |
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World War 2 |
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“5a. In this Act, unless the contrary intention appears:
“5B. (1) In this Act, unless the contrary intention appears:
(a) World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or
(b) World War 2 from its commencement on 3 September 1939 to 3 September 1945 (both included); or
(c) the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or
(d) the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or
(e) the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included);
(a) the war that commenced on 4 August 1914; and
(b) any other war in which the Crown became engaged after 4 August 1914 and before 11 November 1918;
(a) the war that commenced on 3 September 1939; and
(b) any other war in which the Crown became engaged after 3 September 1939 and before 3 September 1945.
“(2) A reference in this Act to a person, or a unit of the Defence Force, that was
(a) that was so allotted for duty under administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which the unit formed a part; or
(b) that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an area described in item 4 or 8 in Schedule 2 during the period specified in that item.
“(3) For the purposes of this Act:
(a) World War 1 is taken to have ended on 1 September 1921; and
(b) World War 2 is taken to have ended on 28 April 1952.
Note 1: 1 September 1921 is the date fixed by Proclamation under the
Termination of the Present War (Definition) Act 1919.
Note 2: 28 April 1952 is the date on which the Treaty of Peace with Japan came into force.
“5c. (1) In this Act, unless the contrary intention appears:
(a) that was, at the relevant time, at war with the enemy; or
(b) the forces of which were, at the relevant time, engaged in an operational area against forces against which the forces of the Commonwealth were engaged in that area;
and includes:
(c) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and
(d) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of such a country;
(a) was during the period of World War 2 from its commencement to and including 29 October 1945:
(i) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship that was engaged in trading; or
(ii) a master, officer, seaman or apprentice employed in a lighthouse tender or pilot ship; or
(iii) employed as a pilot; or
(iv) a master, officer, seaman or apprentice employed in seagoing service on a ship (being a hospital ship, troop
transport, supply ship, tug, cable ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel) that was operated by, or on behalf of, a foreign country; and
(b) was at any time during the course of that employment during the period referred to in paragraph (a) on a ship that was:
(i) operating from a port in Australia or from a port in a Commonwealth country or an allied country; or
(ii) engaged in trading with Australia or with a Commonwealth country or an allied country; or
(iii) engaged in providing assistance or support to the Defence Force, or to the forces, or any part of the forces, of a Commonwealth country or an allied country; or
(iv) engaged in providing assistance or support to Australia or to a Commonwealth country or an allied country;
but does not include:
(c) an Australian mariner; or
(d) a person who has, at any time, been employed by a foreign country that was, at that time, at war with Australia; or
(e) a person who has, at any time, been employed:
(i) on a ship that operated to, or was operating from, a port in a country that was, at that time, at war with Australia; or
(ii) on a ship that was engaged in trading with a country that was, at that time, at war with Australia; or
(iii) on a ship that was engaged in providing assistance or support to the enemy or to a country that was, at that time, at war with Australia;
(a) who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b) who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c) in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d) in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia;
(a) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a
ship registered in Australia that was engaged in trading between a port in a State or Territory and any other port; or
(b) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship registered outside Australia who was, or whose dependants were, resident in Australia for at least 12 months immediately before he or she entered into the agreement or indenture; or
(c) a master, officer, seaman or apprentice employed on a lighthouse tender, or pilot ship of the Commonwealth or of a State; or
(d) a pilot employed or licensed by Australia or a State or by an authority constituted by or under a law of the Commonwealth or of a State; or
(e) a master, officer, seaman or apprentice employed in sea-going service on a ship owned in Australia and operating from an Australian port, being a hospital ship, troop transport, supply ship, tug, cabled ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel; or
(f) a member or employee of the Commonwealth Salvage Board engaged in sea-going service under the direction of that Board; or
(g) a master, officer, seaman or apprentice employed in sea-going service on a ship registered in New Zealand who the Commission is satisfied was engaged in Australia and is not entitled to compensation under a law of a Commonwealth country providing for the payment of pensions and other payments to seamen who suffered death or disablement as a result of World War 2;
(a) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and
(b) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of a part of such a country;
‘Commonwealth veteran’ means a person who rendered continuous full-time service as a member of:
(a) the naval, military or air forces; or
(b) the nursing or auxiliary services; or
the women’s branch of the naval, military or air forces;
of a Commonwealth country during a period of hostilities;
(a) in relation to a member of the Defence Force:
(i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service; or
(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; or
(b) in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country—service in those forces of a kind similar to a kind a service referred to in subparagraph (a) (i), (ii) or (iii);
Note: see also subsection SR (1).
(a) the naval, military or air forces of the country; or
(b) the nursing and auxiliary services of the naval, military or air forces of the country; or
(c) the women’s branch of the naval, military or air forces of the country;
(a) the regular naval, military or air forces; and
(b) the nursing or auxiliary services of the regular naval, military or air forces; and
(c) the women’s branch of the regular naval, military or air forces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d) were formally appointed to, or enlisted in, those forces or services; and
(e) were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare;
Note: for extended meaning of this term in relation to a government-in-exile, see subsection (3).
(a) who was killed, or detained by the enemy, during World War 2; and
(b) who was, at the time the person was killed or first detained:
(i) a British subject; and
(ii) a resident, but not an indigenous inhabitant, of the Territory of Papua or the Territory of New Guinea; and
(c) who was not, at that time:
(i) rendering service as a member of the Defence Force; or
(ii) employed by the Commonwealth on a special mission outside Australia;
(a) in relation to World War 1 or World War 2—the naval, military or air forces, or any part of the naval, military or air forces, of a State at war with the Crown during that war; and
(b) in relation to service in, or a period of hostilities in respect of, an operational area—the naval, military or air forces against which the Naval, Military or Air Forces of the Commonwealth were engaged in that operational area; and
(c) persons assisting any of those forces;
(a) a member of the Defence Force; or
(b) another person who is:
(i) a member of the unit; or
(ii) attached to the unit; or
(iii) appointed for continuous full-time service with the unit;
Note: see also subsection 5r (1).
(a) enlisted or re-engaged in, or was appointed or re-appointed to, the Defence Force for continuous full-time service for a term of not more than 2 years; or
(b) was appointed for continuous full-time service with a unit of the Defence Force for a term of not more than 2 years;
on or after 1 July 1947 and before 1 July 1949;
(a) a person (including a deceased person):
(i) who is, because of section 7, taken to have rendered eligible war service; or
(ii) in respect of whom a pension is, or pensions are, payable under subsection 13 (6); and
(b) in Part III also includes a person who is:
(i) a Commonwealth veteran; or
(ii) an allied veteran; or
(iii) an Australian mariner; or
(iv) an allied mariner.
“(2) For the purposes of this Act, a member of the Army Medical Corps Nursing Service who:
(a) rendered service during World War 1, either within or outside Australia; and
(b) rendered the service as such a member in accordance with an acceptance or appointment by the Director-General of Medical Services for service outside Australia;
is taken to have been serving as a member of the Defence Force while rendering that service.
“(3) In relation to any period during which there was a government-in-exile in relation to an allied country,
(a) the regular naval, military or air forces; and
(b) the nursing or auxiliary services of the regular naval, military or air forces; and
(c) the women’s branch of the regular naval, military or air forces;
raised by that government-in-exile and operated by it with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d) were formally appointed to, or enlisted in, those forces or services; and
(e) were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare.
“5D. (1) In this Act, unless the contrary intention appears:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); and
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include the aggravation of such an ailment, disorder, defect or morbid condition;
(a) a disease; or
(b) the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease “(2) In this Act, unless the contrary intention appears:
(a) a reference to the
incapacity of a veteranfrom a war-caused injury ora war-caused disease ; or(b) a reference to the
incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68 (1)),from a defence-caused injury ora defence-caused disease ;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note: for ‘war-caused injury’ and ‘war-caused disease’ see section 9.
“(3) For the purposes of this Act, a person is taken to have been
(a) the person has lost the eye; or
(b) in the opinion of the Commission, the eyesight of the person in that eye is so defective that the person has no useful sight in that eye.
“5E. (1) In this Act, unless the contrary intention appears:
(a) who is legally married to a veteran but is living separately and apart from him on a permanent basis; and
(b) whose separation has not resulted in a direction under subsection 5r (3); and
(c) who is not receiving age or invalidity service pension;
Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.
(a) who was the partner of, or was legally married to:
(i) a veteran; or
(ii) a person who was a member of the Forces for the purposes of Part II; or
(iii) a person who was a member of the Forces for the purposes of Part IV;
immediately before the death of the veteran or person; and
(b) who is receiving:
(i) a pension payable under Part II or IV at a rate determined under or by reference to subsection 30 (1); or
(ii) a pension payable under the
Seamen’s War Pension and Allowances Act 1940 at a rate determined under or by reference to subsection 18 (2) of that Act; or(iii) a pension, or compensation of a periodical nature, payable under section 13 of the
Defence (Transitional Provisions) Act 1946 (other than an attendant’s allowance payable under that section); or(iv) a pension that:
(a) is payable under the law of a foreign country; and
(b) is, in the opinion of the Commission, similar in character to a pension or payment referred to in subparagraph (i), (ii) or (iii);
(a) a woman who was the partner of a man immediately before he died; or
(b) a woman who was legally married to a man, but living separately and apart from her on a permanent basis, immediately before he died.
(a) a man who was a partner of a woman immediately before she died; or
(b) a man who was legally married to a woman, but living separately and apart from her on a permanent basis, immediately before she died.
“(2) A person is a
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(b) all of the following conditions are met:
(i) the person is living with a person of the opposite sex (in this paragraph called the
‘partner’ );(ii) the person is not legally married to the partner;
(iii) the person and the partner are, in the Commission’s opinion (formed as mentioned in section 11a), in a marriage-like relationship;
(iv) the person and the partner are not within a prohibited relationship for the purposes of section 23b of the
Marriage Act 1961.
Note 1: for ‘living with a person’ see subsection (3).
Note 2: a prohibited relationship for the purposes of section 23B of the
Marriage Act 1961 is a relationship between a person and:
• an ancestor of the person; or
• a descendant of the person; or
• a brother or sister of the person (whether of the whole blood or the part-blood).
“(3) For the purposes of subparagraph (2) (b) (i), a person is to be treated as
(a) any temporary absence of one of those persons;
(b) an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
“(4) A person is not a
Note: subsection 5r (3) allows the Commission to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
Standard family situation categories “(5) For the purposes of this Act:
(a) a person is
partnered if the person is a member of a couple; and(b) a person is
partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person’s partner:(i) is not receiving a service pension; and
(ii) is not receiving a social security pension; and
(iii) is not receiving a social security benefit; and
(c) a person is
partnered (partner getting pension or benefit) if the person is a member of a couple and the person’s partner is receiving:(i) a service pension; or
(ii) a social security pension; or
(iii) a social security benefit; and
(d) a person is
partnered (partner getting pension) if the person is a member of a couple and the person’s partner is receiving:(i) a service pension; or
(ii) a social security pension; and
(e) a person is
partnered (partner getting benefit) if the person is a member of a couple and the person’s partner is receiving a social security benefit.Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance (see subsection 5q).
“5f. (1) In this Act, unless the contrary intention appears:
‘adopted child’ means a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children;
‘child’ means:
(a) a person who has not turned 16; or
(b) a person who:
(i) has turned 16 but has not turned 25; and
(ii) is receiving full-time education at a school, college or university;
but does not include such a person if the person is receiving:
(c) an invalid pension; or
(d) a wife pension; or
(e) a carer pension; or
(f) a sole parent pension; or
(g) a widow B pension; or
(h) a widowed person allowance; or
(i) a rehabilitation allowance; or
(j) a social security benefit;
under the Social Security Act.
Note: see also subsection (5) (receiving full-time education).
(a) the AUSTUDY Scheme; or
(b) the ABSTUDY Scheme, to the extent that it provides means-tested allowances; or
(c) the Assistance for Isolated Children Scheme; or
(d) the Veterans’ Children Education Scheme; or
(e) the Post-Graduate Awards Scheme;
(a) has turned 16 but who has not turned 25; and
(b) is receiving full-time education at a school, college or university;
Note: see also subsection (5) (receiving full-time education).
“(2) Subject to subsections (3) and (4), a child is a
“(3) A child who has not turned 16 cannot be a
dependent child if:
(a) the child is not receiving full-time education; and
(b) the child is receiving income from employment; and
(c) the rate of that income exceeds $100 per week.
“(4) For the purposes of this Act, a child is not a
(a) the child is an Australian resident; or
(b) the child:
(i) had been an Australian resident living with the person in Australia; and
(ii) is living with the person outside Australia.
Note: for ‘Australian resident’ see section 5G.
“(5) If:
(a) a person is under the age of 25 years; and
(b) the person ceases to receive full-time education at a school, college or university; and
(c) an unemployment benefit or a job search allowance is not payable to the person because of an education leavers waiting period;
the person is to be taken to be
“(6) A child is a
pension increase child of a person if:
(a) the person’s service pension rate includes a dependent child add-on for the child; or
(b) the person’s partner’s service pension rate or social security pension rate includes a dependent child add-on for the child.
“5g. (1) In this Act, unless the contrary intention appears,
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) a person who is, within the meaning of the
Migration Act 1958 , the holder of a valid permanent entry permit;(iii) a person who has been granted, or who is included in, a return endorsement, or a resident return visa, in force under that Act;
(iv) a person who:
(a) is, for the purposes of that Act, an exempt non-citizen; and
(b) is likely to remain permanently in Australia.
Note: ‘exempt non-citizen’ is defined in section 5 of the
Migration Act 1958 : it covers non-citizens who are diplomats, members of armed forces, ships’ crew members and others and. under section 7 of that Act, exempt non-citizens do not need an entry permit or entry visa to enter Australia.
“(2) For the purposes of this Act, a person (other than an indigenous inhabitant of the Territory of Papua or the Territory of New Guinea) resident in Papua New Guinea immediately before it became an independent sovereign State, is taken to be an Australian resident so long as the person continues to reside in Papua New Guinea.
“(3) If:
(a) a service pensioner is taken to be an Australian resident under subsection (2); and
(b) the pensioner’s partner was resident in Papua New Guinea after it became an independent sovereign State;
the partner is, for the purposes of Part III, also taken to be an Australian resident.
“(4) If:
(a) a service pensioner is taken to be an Australian resident under subsection (2); and
(b) the pensioner’s non-illness separated wife was resident in Papua New Guinea after it became an independent sovereign State;
the wife is, for the purposes of Part III, also taken to be an Australian resident.
“5h. (1) in this Act, unless the contrary intention appears:
Note: see also subsection (7).
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8);
Note 1: see also sections 46-46u (investment income).
Note 2: sections 46b to 46d provide that a person who has an accruing return investment or market-linked investment is to be taken to receive a particular rate of return on the investment as income.
Note 3: section 46e provides that any return actually received by a person from an investment to which sections 46b to 46d applies is to be treated as if it were not income of the person.
Note 4: where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 48-48e.
Note 5: amounts of maintenance income are not excluded amounts.
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not);
Note: for ‘maintenance income’ see subsection 5k (I).
“(2) A reference in this Act to an income amount
(a) an income amount earned, derived or received by any means; and
(b) an income amount earned, derived or received from any source (whether within or outside Australia).
“(3) A payment received by a person is a
(a) the person receives the payment on the disposal of an asset of the person; and
(b) the asset was used, immediately before the disposal, by the person or the person’s partner wholly or substantially for private or domestic purposes; and
(c) the asset was used by the person or the person’s partner wholly or substantially for those purposes for:
(i) a period of 12 months before the disposal; or
(ii) if the Commission considers it appropriate—a period of less than 12 months before the disposal.
“(4) If a person is not a member of a couple, an amount paid to or on behalf of the person under a home equity conversion agreement is an
“(5) If a person is a member of a couple, an amount paid to or on behalf of the person or the person’s partner under a home equity conversion agreement is an
“(6) For the purposes of this Act, the amount owed by a person under a home equity conversion agreement is the principal amount secured by the mortgage concerned and does not include:
(a) any amount representing mortgage fees; or
(b) any amount representing interest; or
(c) any similar liability whose repayment is also secured by the mortgage.
“(7) For the purposes of the definition of ‘home equity conversion agreement’ in subsection (1), an asset cannot be a person’s
“(8) The following amounts are not income for the purposes of this Act:
(a) a payment under this Part;
(b) a payment of an instalment of pension under Part II or IV;
(c) a payment of an instalment of a pension (other than a pension payable in respect of a child) payable because of subsection 4 (6) or (8b) of the
Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 ;(d) a payment of an instalment of a pension under the
Seamen’s War Pensions and Allowances Act 1940 ;(e) a payment (other than a payment referred to in paragraph (b), (c) or (d)) that is a payment in respect of incapacity or death resulting from employment in connection with a war or warlike operations in which the Crown has been engaged;
Note: however, a payment referred to in paragraph (b), (c), (d) or (e) is taken into account in calculating the amount of rent assistance a person is entitled to, and may reduce that amount—see Rent Assistance Module of relevant Rate Calculator.
(f) a payment by way of allowance (other than a loss of earnings allowance) under Part VI of this Act;
(g) a payment, by way of allowance, under regulation 37 of the Seamen’s War Pensions and Allowances Regulations;
(h) a payment under the Social Security Act;
(i) if the person has not reached pension age—any return on a compulsorily preserved superannuation benefit of the person;
(j) the value of emergency relief or like assistance;
(k) the value of any assistance that:
(i) is provided by an eligible organisation within the meaning of the
Homeless Persons Assistance Act 1974 ; and(ii) is assistance that consists of providing:
(a) accommodation or meals; or
(b) a ticket, voucher or token that may be exchanged for accommodation or meals;
(l) a payment under the
Handicapped Persons Assistance Act 1974 ;(m) a payment under Part III of the
Disability Services Act 1986 or
the value of any rehabilitation program (including any follow-up program) provided under that Part;
(n) a payment of domiciliary nursing care benefit under Part Vb of the
National Health Act 1953 ;(o) a payment under a Commonwealth law, one of whose objects is that of assisting people to purchase or build their own homes;
(p) a payment made to the person for or in respect of a child of the person;
(q) insurance or compensation payments made because of the loss of, or damage to, buildings, plant or personal effects;
(r) money from an investment that is:
(i) an investment of payments of the kind referred to in paragraph (q); and
(ii) an investment for:
(a) a period of not more than 12 months after the person receives the payments; or
(b) if the Commission thinks it appropriate—of 12 months or more after the person receives those payments;
(s) an amount paid:
(i) by the Federal Republic of Germany under the laws of that Republic; or
(ii) by a State of the Federal Republic of Germany under the laws of that State;
by way of compensation for a victim of National Socialist persecution;
(t) an amount paid by the Republic of Austria under the laws of that Republic by way of compensation to a victim of National Socialist persecution;
(u) if the person pays, or is liable to pay, rent—a payment by way of rent subsidy made by the Commonwealth, by a State or Territory or by an authority of the Commonwealth or of a State or Territory to or on behalf of the person who pays or who is liable to pay rent;
(v) a payment received by a trainee in full-time training under a program included in the programs known as the Labour Force Programs, to the extent that the payment includes one or more of the following amounts:
(i) an amount calculated by reference to a rate of unemployment benefit or job search allowance under the Social Security Act;
(ii) an amount known as the training component;
(iii) an amount by way of a living away from home allowance;
(w) a payment received by a trainee in part-time training under a program included in the programs known as the Labour Force Programs, if the trainee is also receiving:
(i) a service pension; or
(ii) an age pension; or
(iii) an invalid pension; or
(iv) a wife pension; or
(v) a carer pension; or
(vi) a sole parent pension; or
(vii) a sheltered employment allowance; or
(viii) a rehabilitation allowance;
(x) a payment received by the person under the scheme known as the New Enterprise Incentive Scheme;
(y) a benefit under a law of the Commonwealth that relates to the provision of:
(i) pharmaceutical, sickness or hospital benefits; or
(ii) medical or dental services;
(z) a payment that:
(i) is made by an organisation that is registered under a law referred to in paragraph (y); and
(ii) is made in respect of expenses incurred by a person for:
(a) hospital treatment; or
(b) medical treatment; or
(c) dental treatment;
(za) in the case of a member of:
(i) the Australian Naval Reserve; or
(ii) the Naval Emergency Reserve Forces; or
(iii) the Australian Army Reserve; or
(iv) the Australian Air Force Reserve; or
(v) the Air Force Emergency Force; or
(vi) the Regular Army Emergency Reserve;
the pay and allowances paid to the person as such a member (other than pay and allowances in respect of continuous full-time service) and, in the case of a member of a Force referred to in subparagraph (ii), (v) or (vi), any gratuity paid to the person by reason of a calling out for continuous service of that Force or of a part of that Force;
(zb) a payment to a veteran by way of:
(i) attendant allowance under section 98; or
(ii) recreation allowance under section 104; or
(iii) an allowance for the running and maintenance of a motor vehicle under the Vehicle Assistance Scheme referred to in section 105; or
(iv) decoration allowance under section 102; or
(v) Victoria Cross allowance under section 103; or
(vi) clothing allowance under section 97; or
(vii) a bereavement payment under Part III, or section 98a; or
(viii) a funeral benefit under Part VI; or
(ix) a bereavement payment under section 24b of the
Seamen’s War Pensions and Allowances Act 1940 ; or(x) a funeral benefit under the Seamen’s War Pensions and Allowances Regulations;
(zc) a payment to a mariner under the
Seamen’s War Pensions and Allowances Act 1940 of a kind similar to a kind of payment referred to in paragraph (zb);(zd) a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from the person’s father, mother, son, daughter, brother or sister;
(ze) the value of board or lodging received by the person;
(zf) a domestic payment;
(zg) a payment of an education supplement to a person who:
(i) is receiving an invalidity service pension; and
(ii) would, if the person were not receiving that pension, be eligible to receive payments under the AUSTUDY scheme.
Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.
“5j. (1) In this Act, unless the contrary intention appears:
(a) that produces:
(i) a fixed rate or quantifiable rate of return, whether or not that rate varies from time to time; or
(ii) a rate of return that may be reasonably approximated; and
(b) the value of which from time to time is unlikely to decrease as a result of market changes;
Note: a superannuation benefit may be taken to be an investment—see subsection (4).
(a) a service pension or a social security pension; or
(b) a social security benefit;
except any such period that occurs before a continuous period of at least 2 years during which the person did not receive such a pension or benefit;
Note: ‘social security pension’ includes a sheltered employment or rehabilitation allowance.
(a) money or property invested is paid or transferred by the investor directly or indirectly to a body corporate or into a trust fund;
(b) the assets that represent money or property invested (in this definition called the
‘investment assets’ ) are held otherwise than in the names of investors;(c) the investor does not, either alone or jointly with a relative or relatives of the investor, have effective control over the management of the investment assets;
(d) the investor has a legally enforceable right to share in any distribution of the income or profits derived from the investment assets;
(a) a society registered as a friendly society under a law in force in a State or Territory; or
(b) a society that had, before 13 December 1987, been approved for the purpose of the definition of ‘friendly society’ in subsection 115 (1) of the Social Security Act;
and, for the purpose of the definition of ‘market-linked investment’ in this subsection, includes:
(c) a society that has been approved for the purposes of the definition of ‘friendly society’ in subsection 115 (1) of the Social Security Act on or after 13 December 1987; and
(d) a society that is an approved friendly society for the purposes of the Social Security Act;
Note: for ‘presently payable’ see subsection (3).
(a) an investment in:
(i) an approved deposit fund; or
(ii) a deferred annuity; or
(iii) a public unit trust; or
(iv) an insurance bond; or
(b) an investment with a friendly society; or
(c) an eligible investment other than an investment referred to in paragraph (a) or (b); or
(d) a superannuation benefit vested in a person and held in a superannuation fund (unless a superannuation pension funded by that benefit is presently payable to the person);
other than an investment that is:
(e) an accruing return investment; or
(f) an investment consisting of the acquisition of real property, stock or shares;
(a) in relation to an immediate annuity other than a roll-over immediate annuity—has the same meaning as ‘undeducted purchase price’ has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act; or
(b) in relation to a roll-over immediate annuity—means the rollover purchase price; or
(c) in relation to a superannuation pension—has the same meaning as ‘undeducted purchase price’ has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
(a) except where paragraph (b) applies—was, in relation to the unit trust’s last year of income, a public unit trust for the purposes of Division 6b of Part III of the Income Tax Assessment Act; or
(b) where the first year of income of the unit trust has not yet finished—has, at some time since the trust was established, satisfied at least one of the paragraphs of subsection 102g (1) of the Income Tax Assessment Act;
(a) except where paragraph (b) applies—either the sum of the following amounts:
(i) the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;
(ii) the amount that is the upper limit under section 159sg of the Income Tax Assessment Act for the year of income in which the annuity was purchased;
or the purchase price of the annuity, whichever is less; or
(b) where:
(i) the roll-over immediate annuity, and another roll-over immediate annuity, have been purchased using the same rolled-over amount or rolled-over amounts in the name of the same person; and
(ii) the roll-over purchase price of the other roll-over immediate annuity has previously been worked out under paragraph (a) for the purposes of this Act;
the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;
of the definition of ‘superannuation fund’ in subsection 27a (1) of that Act;
“(2) Where the value or amount at a particular time of a market-linked investment included in an investment product is equal to or less than the value or amount of that market-linked investment 12 months previously, the
“(3) For the purposes of this Act, an annuity or superannuation pension is to be taken to be
“(4) For the purposes of the definition of ‘accruing return investment’ in subsection (1), a superannuation benefit vested in a person that is held in a superannuation fund is to be taken to be an
“(5) For the purposes of this Act, a person’s superannuation benefit is
(a) paragraph 23 (ja) of the Income Tax Assessment Act as in force at any time before 18 December 1987; or
(b) section 23fb of the Income Tax Assessment Act as in force at any time before 18 December 1987; or
(c) regulations made under section 7 or 8 of the
Occupational Superannuation Standards Act 1987 ; or(d) a provision of the trust deed or contract concerned that imposes restrictions corresponding to the restrictions imposed by a provision of the regulations made under section 7 or 8 of the
Occupational Superannuation Standards Act 1987.
“5k. (1) In this Act, unless the contrary intention appears:
(a) that is neither a periodic amount nor a benefit provided on a periodic basis; and
(b) the amount or value of which exceeds $1,500;
Note 1: see also section 51 (apportionment of capitalised maintenance income).
Note 2: if maintenance income is caught by paragraphs (a) and (b) of the definition, the whole amount or value of the maintenance income is capitalised maintenance income, not just the part of the maintenance income that exceeds the $1,500 limit.
Note: a ‘payment’ of an ‘amount’ would have to be a payment of money or the equivalent of a payment of money (e.g. a cheque, money order or electronic funds transfer (EFT)).
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property;
Note: see also subsections (4) and (5) and section 51a.
(a) a dependant of the adult; and
wholly or substantially dependent on the adult;
(a) child maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the maintenance of a maintained child of the person and is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child; or
(b) partner maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the person’s own maintenance and is received from the person’s partner or former partner; or
(c) direct child maintenance—that is, the amount of a payment or the value of a benefit that is received by a maintained child of the person for the child’s own maintenance and is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child;
Note: see also subsection (3) and section 51 (capitalised maintenance income).
(a) in-kind housing maintenance of the person; or
(b) in-kind maintenance of the person (other than in-kind housing maintenance or capitalised maintenance income) received from the person’s partner or former partner during the period of 6 months following the person’s separation from the partner or former partner; or
(c) maintenance income of the person provided in relation to expenses arising directly from a physical, intellectual or psychiatric disability, or a learning difficulty, of a maintained child of the person where the disability or difficulty is likely to be permanent or to last for an extended period.
Note: see also subsection 51a (1) (in-kind housing maintenance—value of substitute for former family home).
“(2) For the purposes of the definition of ‘maintenance income’ in subsection (1):
(a) a payment received under subsection 76 (1) of the
Child Support (Registration and Collection) Act 1988 in relation to a registered maintenance liability (within the meaning of that Act) is taken to bereceived from the person who is the payer (within the meaning of that Act) in relation to the liability; and(b) a reference to a
benefit received by a person includes a reference to a benefit received by the person because of a payment made to, or a benefit conferred on, another person (including a payment made or benefit conferred under a liability owed to the other person); and(c) a reference to a
payment or benefit received from a person includes a reference to a payment or benefit received:(i) directly or indirectly from the person; and
(ii) out of any assets of, under the control of, or held for the benefit of, the person; and
(iii) from the person under or as a result of a court order, a court registered or approved maintenance agreement or otherwise.
“(3) For the purposes of the definition of ‘in-kind housing maintenance’ in subsection (1),
(a) a benefit received because of the transfer or settlement of a right or interest in relation to the residence; and
(b) where there is a secured housing loan on the residence—a benefit received because of:
(i) the payment of interest, charges or other amounts under the loan; or
(ii) the repayment of amounts borrowed under the loan; and
(c) a benefit received because of the payment of rent (including Government rent), or a like payment, in relation to the residence.
“(4) For the purposes of paragraph (3) (b), there is a
(a) there is a loan that is secured by a mortgage or other interest in relation to the residence; and
(b) the sole or principal purpose of the loan is to enable the residence, or a right or interest in relation to the residence, to be acquired.
“5l. (1) In this Act, unless the contrary intention appears:
(a) has its ordinary meaning in Subdivision E of Division 14 (pension loans scheme); and
(b) has the meaning given by section 52e in the rest of the Act;
(a) that cannot readily be sold or realised; or
(b) that:
(i) the person does not wish to sell or realise; and
(ii) are not of a kind that the person could reasonably be expected to sell or realise;
Note: this definition is relevant only to the pension loans scheme (Division 14, Subdivision E).
Note: see also sections 52 (certain assets to be disregarded in calculating the value of a person’s assets), 52c (effect of charge or encumbrance on value of property) and 52k-52x (retirement villages).
“(2) A reference in this Act to the
“(3) A reference in this Act to the
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify the period within which the person is to give the information to the Department or specified officer.
“(5) The period specified under paragraph (4) (c) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
“(6) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
“(7) A person must not, in purporting to comply with a notice under subsection (1), knowingly give information that is false or misleading in a material particular.
Penalty: $2,000 or imprisonment for 12 months, or both.
“54a. (1) The Secretary may give a person:
(a) to whom a service pension is being paid; or
(b) whose claim or application for a service pension is under consideration by the Commission or the Administrative Appeals Tribunal; or
(c) who is receiving fringe benefits under Division 15;
a notice that requires the person to give the Department, or an officer specified in the notice, a statement about a matter that might affect:
(d) the payment to the person of the service pension; or
(e) the provision of fringe benefits under Division 15.
“(2) A person referred to in paragraph (1) (a) includes a person to whom the whole or a part of a service pension is being paid for the purpose of being applied for the benefit of a pensioner.
“(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify the period within which the person is to give the information to the Department or specified officer.
“(4) The period specified under paragraph (3) (c) must end at least 14 days after the day on which the notice is given.
“(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Commission.
“(6) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
“(7) A person must not, in purporting to comply with a notice under subsection (1), knowingly give information that is false or misleading in a material particular.
Penalty: $2,000 or imprisonment for 12 months, or both.
“54b. (1) A notice under subsection 54 (1) is taken to specify an event or change of circumstances if:
(a) the notice refers to a document that sets out the event or change of circumstances; and
(b) a copy of the document is given to the person with the notice.
“(2) If a notice specifies an event or change of circumstances by reference to a document under subsection (1), the notice may specify the period within which a person is to give the information to the Department or specified officer by reference to the period set out in the document for notification of the event or change of circumstances.
“54c. In this Division:
“55. (1) Subject to subsections (2) and (3), if a person who is receiving a service pension goes to gaol, the Commission may direct that a pension instalment or instalments that would otherwise be payable while the person is in gaol are to be forfeited or suspended.
Note 1: although the person is not receiving the pension while the instalments are suspended or forfeited, the person may be able to receive treatment at Departmental expense if a determination is in force under subsection 53d (3). 55 (1) or 85 (8).
Note 2: while the instalments are suspended or forfeited, the person is not entitled to fringe benefits because the person is not ‘receiving a service pension’ unless a determination is in force under subsection 53d (3), 55 (1) or 85 (8).
“(2) A direction under subsection (1) can only be given in relation to an instalment for a payday that occurs:
(a) after the first payday after the day on which the person goes to gaol; and
(b) before the last payday before the day on which the person is released from gaol.
Note: this subsection has the effect of putting short-term imprisonments (e.g. 14 days) outside the scope of this section.
“(3) Subsection (1) does not apply to so much of an instalment as has been redirected under a direction given under section 55a.
“(4) For the purposes of this section, a person is
Note: this section is not intended to apply to a pensioner who is in custody pending trial or sentencing.
“55a. (1) If:
(a) an instalment of a person’s service pension would, but for this section, be suspended or forfeited under section 55; and
(b) the person has a partner or a child;
the Commission may direct that the whole, or a specified part, of the instalment is to be paid to:
(c) the partner; or
(d) the child; or
(e) someone else approved by the Commission.
“(2) A payment made under paragraph (1) (e) is to be applied for the benefit of the partner or the child.
“(3) If a payment is made under subsection (1) to the partner or a child of the person who is in gaol, the payment is to be taken, for all the purposes of this Act, to be a payment made to the person in gaol.
Note: this subsection has the effect that the person is receiving the service pension on a payday if the instalment for that payday has been wholly or partly redirected under this section: the person may, for instance, be eligible for fringe benefits or for treatment at Departmental expense. This person is not eligible for another income support payment.
“55b. (1) This Subdivision applies to a person if:
(a) the person is receiving a service pension; and
(b) the person is an inmate of a benevolent home; and
(c) the person is not undergoing treatment in the home for pulmonary tuberculosis.
“(2) While a person to whom this Subdivision applies is an inmate of the benevolent home, the person’s pension is to be dealt with under:
(a) section 55c if the person is a male service pensioner and:
(i) the person is a member of a couple; and
(ii) the person’s pension rate includes a child add-on or child add-ons; or
(b) section 55d in any other case.
Note: for ‘child add-on’ see section 5q.
“55c. (1) If:
(a) a person to whom this Subdivision applies is male and partnered; and
(b) the person’s pension rate includes a child add-on or child add-ons;
this is how the person’s pension is to be dealt with while the person is an inmate of the benevolent home:
(c) so much of the person’s service pension as does not exceed the dependent child add-on (or the sum of the dependent child add-ons) is to be paid to the person’s partner: the balance (if any) is called the
child reduced balance ;(d) so much of the child reduced balance (if any) as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home: the balance (if any) is called the
contribution reduced balance ;(e) the contribution reduced balance (if any) is to be paid to the pensioner.
Note: for ‘pensioner contribution’ see section 55e.
“(2) Amounts paid under paragraph (1) (d) are to be used for the maintenance of the person in the benevolent home.
“55d. (1) If a person to whom this Subdivision applies is not a male, partnered pensioner whose pension rate includes a child add-on, this is how the person’s pension is to be dealt with while the person is an inmate of the benevolent home:
(a) so much of the person’s service pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home: the balance (if any) is called the
contribution reduced balance ;(b) the contribution reduced balance (if any) is to be paid to the pensioner.
“(2) Amounts paid under paragraph (1) (a) are to be used for the maintenance of the person in the benevolent home.
“55e. (1) For the purposes of this Subdivision, the
“(2) If the amount worked out under subsection (1) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
“56. (1) Where:
(a) a person who is receiving a service pension is given a notice under section 54; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the
‘notification period’ ); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be eligible for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
“(2) If the person ceases to be eligible for the pension under subsection (1), the pension is cancelled.
Note 1: if the person informs the Department within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 56d must be made in order to bring the rate reduction into effect.
Note 2: if a service pension ceases to be payable to a person under this section, the person’s eligibility for fringe benefits (including treatment at Departmental expense) also ceases.
“56a. (1) Where:
(a) a person who is receiving a service pension is given a notice under section 54; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the
‘notification period’ ); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be eligible for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
“(2) If the person ceases to be eligible for the pension under subsection (1), the pension is cancelled.
Note: if a service pension ceases to be payable to a person under this section, the person’s eligibility for fringe benefits (including treatment at Departmental expense) also ceases.
“56b. Where:
(a) a person who is receiving a service pension is given a notice under section 54; and
(b) the notice requires the person to inform the Department or a specified officer of the occurrence of an event or change in circumstances within a specified period (in this section called the
‘notification period’ ); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department or specified officer of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
“56c. (1) If the Commission is satisfied that the rate at which a service pension is being, or has been, paid is less than the rate provided for by this Act, the Commission may determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 56g.
“(2) A determination under subsection (1) must be in writing.
“56d. (1) If the Commission is satisfied that the rate at which service pension is being, or has been, paid is more than the rate provided for by this Act, the Commission may determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 56b.
Note 2: for the date of effect of a determination under this section, see section 56h.
“(2) A determination under subsection (1) must be in writing.
“56e. (1) If the Commission is satisfied that a service pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Commission may determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 56 or 56a.
Note 2: for the date of effect of a determination under this section, see section 56h.
Note 3: when a person’s pension is suspended under section 56e, the provision of fringe benefits (see Division 15) to the person is generally suspended too. However, the Commission may decide that the person can continue to receive medical treatment under section 53d or Part V (see subsection 85 (8)).
Note 4: when a person’s pension is cancelled under section 56e, the person’s fringe benefits (including treatment at Departmental expense) are also cancelled.
“(2) A determination under subsection (1) must be in writing.
“56f. If the Commission:
(a) suspends a person’s service pension under section 56f; and
later becomes satisfied that the pension is payable to the person; the Commission may end the suspension, by determination in writing.
Note: for the date of effect of a determination under this section, see section 56g.
“56g. (1) The day on which a determination under section 56c or 56f (in this section called the
“(2) If:
(a) the favourable determination is made following a person having advised the Department of a change of circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the first pension payday after the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Note: if the change of circumstances is a decrease in the rate of the person’s maintenance income, see subsection (3) of this section and also Division 13 (General provisions relating to the maintenance income test).
“(3) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day as is specified in the determination.
“56h. (1) The day on which a determination under section 56d or 56e (in this section called the
“(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
“(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
“(4) If the adverse determination is made because a person has contravened a provision of this Act (other than subsection 54 (6) or 128 (4)) the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation —suspension or cancellation “(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, any amount of a service pension has been paid to a person which should not have been paid;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
“(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which a service pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
“56j. (1) The Commission may cancel a person’s age service pension, invalidity service pension or wife service pension if the person requests the Commission to do so.
“(2) A request under subsection (1) must be in writing.
Note: if the Commission cancels a veteran’s age service pension or invalidity service pension and the veteran’s partner receives a wife service pension, the wife service pension will also be terminated (under section 56e). Similarly, if a person has been receiving carer service pension because of caring for the veteran, that carer service pension will also be terminated.
“56k. If the Commission is unable to make payments of age service pension, invalidity service pension or wife service pension to a service pensioner for a continuous period of 6 months, the Commission may cancel or suspend the service pension.
Note 1: an example where this section is intended to apply is where a person has closed his or her bank account and cannot be contacted to make new banking or other arrangements for payment of the person’s service pension.
Note 2: if the Commission cancels or suspends a veteran’s age service pension or invalidity service pension and the veteran’s partner receives a wife service pension, the wife service pension will also be terminated (under section 56f). Similarly, if a person has been receiving carer service pension because of caring for the veteran, that carer service pension will also be cancelled or suspended.
“56l. (1) If the Commission suspends a service pension under section 56k, it may end the suspension at any time.
“(2) The Commission may determine that the end of the suspension takes effect:
(a) from the date the suspension occurred; or
(b) such later date as the Commission thinks proper.
“57. (1) A claimant who is dissatisfied with a decision of the Commission:
(a) in relation to a claim for a qualifying service determination under section 35b; or
(b) in relation to a claim for a service pension; or
(c) in relation to a request under section 52y (financial hardship); may request the Commission to review the decision.
“(2) A service pensioner who is dissatisfied with a decision of the Commission:
(a) cancelling or suspending a service pension; or
(b) terminating the suspension of a service pension; or
(c) reducing or increasing the rate of a service pension; or
(d) refusing an application for an increase in the rate of a service pension; or
(e) in relation to a request under section 52y (financial hardship); may request the Commission to review the decision.
“57a. (1) A request for review of a decision under section 57 must:
(a) be made within 3 months after the person seeking review was notified of the decision; and
(b) set out the grounds on which the request is made; and
(c) be in writing.
“(2) If a request for review of a decision is made in accordance with subsection (1) the Commission must review the decision.
“(3) If the Commission has delegated its powers under this section to the person who made the decision under review, that person must not review the decision.
“57b. (1) If the Commission reviews a decision under this Division, the Commission must affirm the decision or set it aside.
“(2) If the Commission sets the decision aside it must, subject to subsection (3), substitute a new decision in accordance with this Act.
“(3) If the decision set aside is:
(a) a decision to cancel, suspend or reduce the rate of a service pension under section 56d or 56e; or
(b) a decision to increase the rate of a service pension under section 56c;
the Commission need not substitute another decision.
Note: for the Commission’s evidence-gathering powers see section 57f.
“57c. (1) If the Commission sets aside a decision and substitutes for it a decision:
(a) granting a claim for service pension; or
(b) increasing the rate of a service pension;
the substituted decision takes effect from a date specified by the Commission.
“(2) The date specified by the Commission under subsection (1) must not be earlier than the date from which the Commission could have granted the claim, or increased the rate, when the original decision was made.
“(3) If the Commission sets aside a decision to suspend a service pension, the Commission may end the suspension from a date specified by the Commission, which may be a date earlier than the date of the Commission’s decision to set aside the suspension.
“57d. (1) When the Commission reviews a decision under this Division it must make a written record of its decision upon review.
“(2) The written record must include a statement that:
(a) sets out the Commission’s findings on material questions of fact; and
(b) refers to the evidence or other material on which those findings are based; and
(c) provides reasons for the Commission’s decision.
“57e. (1) When the Commission affirms or sets aside a decision under this Division it must give the person who requested the review of the decision:
(a) a copy of the Commission’s decision; and
(b) subject to subsection (2), a copy of the statement about the decision referred to in subsection 57d (2); and
(c) if the person has a right to apply to the Administrative Appeals Tribunal for a review of the Commission’s decision—a statement giving the person particulars of that right.
“(2) If the statement referred to in paragraph (1) (b) contains any matter that, in the opinion of the Commission:
(a) is of a confidential nature; or
(b) might, if communicated to the person who requested review, be prejudicial to his or her physical or mental health or well-being;
the copy given to the person is not to contain that matter.
“57f. (1) The Commission or the Commission’s delegate may, in reviewing a decision under this Division:
(a) take evidence on oath or affirmation for the purposes of the review; and
(b) adjourn a hearing of the review from time to time.
“(2) The presiding member of the Commission or the Commission’s delegate may, for the purposes of the review:
(a) summon a person to appear at a hearing of the review to give evidence and to produce such documents (if any) as are referred to in the summons; and
(b) require a person appearing at a hearing of the review for the purpose of giving evidence either to take an oath or to make an affirmation; and
(c) administer an oath or affirmation to a person so appearing.
“(3) The person who applied for the review under this Division is a competent and compellable witness upon the hearing of the review.
“(4) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
“(5) The Commission’s power under paragraph (1) (a) to take evidence on oath or affirmation:
(a) may be exercised on behalf of the Commission by:
(i) the presiding member or the Commission’s delegate; or
(ii) by another person (whether a member or not) authorised by the presiding member or the Commission’s delegate; and
(b) may be exercised within or outside Australia; and
(c) must be exercised subject to any limitations specified by the Commission.
“(6) Where a person is authorised under subparagraph (5) (a) (ii) to take evidence for the purposes of a review, the person has:
(a) all the powers of the Commission under subsection (1); and
all the powers of the presiding member under subsection (2); for the purposes of taking that evidence.
“(7) In this section:
“57g. (1) A person who requests a review under section 57 may withdraw the request at any time before it is determined by the Commission.
“(2) To withdraw the request, the person must give written notice of withdrawal to the Secretary and the notice must be lodged at an office of the Department in Australia.
“(3) Subject to section 57a, a person who withdraws a request for review may subsequently make another request for review of the same decision.
Note: section 57a provides that a person who wants to request a review of a decision must do so within 3 months after the person has received notice of the decision.
“57h. (1) When the Commission, upon review of a decision under this Division:
(a) grants a claim for a qualifying service determination or a service pension; or
(b) sets aside a decision to cancel or suspend a service pension;
the Commission may pay to the person who requested the review an amount in respect of expenses incurred by the person in providing for the production of certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which he or she had received medical treatment.
“(2) Subsection (1) applies only in relation to certificates, reports or documents reasonably used for the purposes of the review.
“(3) The amount that may be paid under subsection (1) is to be calculated in accordance with the scale approved by the Commission for the purposes of subsection 19 (8).
“58. Subject to section 58l, a fortnightly instalment of service pension is payable to a person on each pension payday on which:
(a) the person is eligible for the pension; and
(b) the pension is payable to the person.
“58a. (1) The amount of a fortnightly instalment of service pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
“(2) If the amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
“(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
“(4) If, apart from this subsection, the amount of a fortnightly instalment of service pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
“58b. If:
(a) on a particular day (in this section called the
‘claim day’ ) a person makes a claim for a service pension in accordance with the form approved by the Commission; and(b) the Commission approves payment of the pension to the person from and including a day that occurs before the claim day (because of section 36b, 37b, 38b or 39b);
any instalment of service pension that would, but for this section, be payable to the person before the claim day is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: sections 36b, 37b, 38b and 39b deal with certain informal or incorrect claims.
“58c. A person’s service pension is, subject to sections 58d and 58l and sections 202 to 202b, to be paid:
(a) to that person; and
(b) in the manner determined by the Commission.
“58d. (1) The Commission may approve payment of a service pensioner’s service pension to another person if:
(a) the service pensioner requests the Commission, in writing, to pay the pension to that person; and
(b) the Commission is satisfied that that person has agreed to receive payment as agent of the service pensioner.
“(2) An approval under subsection (1):
(a) must be in writing; and
(b) must specify the person to whom the pension is to be paid; and
(c) must specify the period for which the pension is to be paid to that person.
“(3) If a payment of pension is made to a person in accordance with an approval under subsection (1):
(a) the payment is, for all purposes, to be taken to be a payment of the pension to the service pensioner; and
(b) neither the Commonwealth nor the Commission is bound to oversee the application of the payment by the person; and
(c) the person is to be taken to receive the payment as agent for the service pensioner.
“58e. If an amount of service pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the amount may be paid on an earlier day.
“58f. (1) The Commission may direct that the whole or a part of the amount of a person’s service pension is to be paid, at the intervals that the Commission specifies, to the credit of an account with a bank, credit union or building society.
“(2) The account must be an account nominated and maintained by the person to whom the service pension is payable.
“(3) The account may be an account that is maintained by a person to whom the service pension is payable jointly or in common with another person.
“(4) If the Commission gives a direction under subsection (1), the service pension is to be payable in accordance with the direction.
“58g. Subject to sections 58h and 58j, service pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
“58h. (1) The Commission may make deductions from instalments of service pension payable to a person if the recipient requests the Commission to make those deductions for payment to the Commissioner of Taxation.
“(2) If deductions are made under subsection (1), the amounts deducted are to be paid to the Commissioner of Taxation.
“58j. The Commission must, in accordance with section 218 of the Income Tax Assessment Act, for the purposes of enabling the collection of tax that is, or may become, payable by a recipient of a service pension:
(a) make deductions from instalments of the pension payable to the recipient; and
(b) pay the amount deducted to the Commissioner of Taxation.
“58k. (1) A person’s right to commence, or to continue, to be paid:
(a) an age service pension; or
(b) an invalidity service pension; or
(c) a wife service pension;
granted to the person is not affected by the fact that the person leaves Australia.
Note: although a service pensioner can leave Australia and continue to receive the pension, the following need to be noted:
(a) rent assistance is not payable to a person who is outside Australia;
(b) if the person is being looked after by a carer, carer service pension will not be paid while the carer is outside Australia (see subsection (2)).
“(2) A carer service pension is not payable to a person who is outside Australia.
“(3) Subsection (1) has effect subject to section 58m (claim based on short-term residence).
“58l. If a service pension is payable to a person who is physically outside Australia, the pension may be paid:
(a) in the manner determined by the Commission; and
(b) in the instalments determined by the Commission.
“58m. (1) If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d) the person makes a claim for:
(i) an age service pension; or
(ii) an invalidity service pension; or
(iii) a wife service pension; and
(e) the claim is made within the period of 12 months after the person again became an Australian resident; and
(f) the person leaves Australia before the end of that period of 12 months; and
(g) there is no determination in respect of the person under subsection (2);
a service pension granted on the basis of that claim is not payable to the person while the person is outside Australia.
“(2) The Commission may determine that subsection (1) is not to apply to a person if the Commission considers that the person’s reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to Australia.
“(3) A determination under subsection (2) must be by instrument in writing.
“58n. If:
(a) a person who is outside Australia is receiving:
(i) an age service pension; or
(ii) an invalidity service pension; or
(iii) a wife service pension; or
(iv) a social security pension (other than a sheltered employment allowance or rehabilitation allowance); and
(b) the pension is cancelled or ceases to be payable automatically; and
(c) immediately after the cancellation or cessation, the person is eligible for:
(i) an age service pension; or
(ii) an invalidity service pension; or
(iii) a wife service pension;
the pension referred to in paragraph (c) may be granted to the person as if the person were an Australian resident and in Australia.”.
1. No. 27, 1986, as amended. For previous amendments, see Nos. 106 and 130, 1986; Nos. 78, 88 and 130, 1987; Nos. 13, 35, 75, 99, 134 and 135, 1988; Nos. 59, 83, 84, 93, 163 and 164, 1989; Nos. 56, 84 and 119, 1990; and No. 2, 1991.
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House of Representatives on 11 April 1991
Senate on 28 May 1991
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