EXPLANATORY STATEMENT
STATUTORY RULES NO. 45
Issued by Authority of the Minister of State for Veterans’ Affairs
Repatriation Regulations (Amendment)
Under section 124 of the Repatriation Act 1920 (the Act), the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to the Act.
These regulations give effect to the provisions of the Repatriation Legislation Amendment Act 1984 which came into operation on 1 January 1985 and which provides for a restructuring of the Repatriation determining system.
Under the Act as it existed prior to its amendment by the Repatriation Legislation Amendment Act 1984, initial determinations of claims for disability pensions were undertaken by Repatriation Boards. There was a right of appeal to the Repatriation Commission from a decision of a Repatriation
Board and a further right of review by the Repatriation Review Tribunal, the President of which could refer a case to the Administrative Appeals Tribunal if the case raised a matter of important principle. Various avenues also existed for the re-opening of claims by the submission of further evidence.
The Repatriation Legislation Amendment Act 1984 provided for the abolition of Repatriation Boards and for the Repatriation Commission to be responsible for the initial decisions on claims for disability and service pensions; for the establishment of a Veterans’ Review Board as the first level of review of decisions in respect of disability pension matters; for senior Delegates of the Repatriation Commission to operate as the first level of review on decisions in respect of service pension matters; for the abolition of the Repatriation Review Tribunal and for the Administrative Appeals Tribunal to be the final level of review on the merits in all disability pension and service pension matters.
Details of the regulations are set out below.
Regulation 1 - Interpretation
Existing regulation 5 of the Repatriation Regulations contains definitions of terms used in the regulations.
Regulation 1 has replaced the former definition of ‘claimant’ with a new definition which has regard to the amended provisions of the Act that specify, in section 27, who may make a claim for pension or an application for an increased pension.
Regulation 1 has also amended existing regulation 5 to delete the definitions of ‘Registrar’ and ‘Special Magistrate’ as these offices no longer exist.
Regulation 2 - Repeal of Regulations 7 and 8
Former regulations 7 and 8 of the Repatriation Regulations related to the powers and functions of a Registrar of War Pensions. As this office no longer exists, regulation 2 has repealed these regulations.
Regulation 3 - Repeal of Regulation 10
Former regulation 10 of the Repatriation Regulations dealt with the procedure to be followed in lodging a claim for a service pension. Section 88 of the Act now specifies the procedures to be followed.
Regulation 3 has repealed former regulation 10.
Regulation 4 - Declaration by claimants
Existing sub-regulation 12(1) of the Repatriation Regulations specifies those persons before whom a declaration as to the correctness of information provided in respect of a claim or other document may be made.
Regulation 4 has amended sub-regulation 12(1) to remove the references to ‘a Special Magistrate, a Registrar’ and ‘a Registrar under the Social Services Consolidation Act 1947’ as these offices no longer exist. It has also omitted the reference to ‘a Secretary to a Local Committee’ as the last two of these Committees are in the process of being wound up.
Regulation 4 has also updated the terminology used to describe the holders of certain offices before whom a declaration may be made.
Regulation 5 - Repeal of Regulation 13
Former regulation 13 of the Repatriation Regulations specified addresses for the lodgement of claims. This regulation was made pursuant to paragraph 123AC(1)(b) of the Act. Section 123AC of the Act was repealed in 1981, accordingly there was no longer any authority in the Act for this regulation.
Regulation 5 has repealed former regulation 13.
Regulation 6 - Repeal of Regulations 13B and 13C
Former regulations 13B and 13C of the Repatriation Regulations provided for the effective date of a claim lodged with the Department which was not on the approved form.
Regulation 6 has repealed former regulations 13B and 13C as these matters are now covered by sections 24, 26, 90A, 101, 107C and 107M of the Act.
Regulation 7 - Payment or reimbursement of expenses for the production of medical reports, etc
Former regulation 14A of the Repatriation Regulations provided for reimbursement (in accordance with an approved scale) of expenses reasonably incurred by a claimant, applicant or appellant in support of a successful claim, application or appeal to the Repatriation Commission or application to the Repatriation Review Tribunal. Regulation 7 has repealed the former regulation 14A of the Repatriation Regulations and substituted a new regulation 14A that reflects the new Repatriation determining system.
Sub-regulation 14A(1) of the Repatriation Regulations now provides that where the Repatriation Commission allows a claim or application, or part of a claim or application, the Repatriation Commission may pay the expenses incurred, in accordance with an approved scale, by the claimant or applicant in providing documentary medical evidence in support of the claim or application. Sub-regulation 14A(2) is now a similar provision in respect of a review of a decision of a claim for service pension. Sub-regulation 14A(3) now provides that the evidence must have been reasonable for supporting the claim, application or review.
Sub-regulation 14A(4) now provides definitions to ensure that terms used in this regulation are those used in the Act.
Regulation 8 - Repeal of Regulations 15 and 16
Former regulations 15 and 16 of the Repatriation Regulations related to the issue of pension certificates or identification cards and the authority to pay instalments of pensions by a postmaster or other officer. These regulations related to methods of payment of pensions which no longer operate.
Regulation 8 has repealed former regulations 15 and 16.
Regulation 9 - Repeal of Regulations 19, 20, 21, 22 and 23
Former regulations 19, 20, 21, 22 and 23 of the Repatriation Regulations related to the payment of instalments of pensions by methods which no longer operate. These included payment in person, the issue of receipts and the presentation of orders and declarations.
Regulation 9 has repealed former regulations 19, 20, 21, 22 and 23.
Regulation 10 - Repeal of Regulation 28
Former regulation 28 of the Repatriation Regulations provided that a statement relating to the income and accumulated property of a service pensioner should be in accordance with a specific form. Provisions similar to those of the former regulation 28 are now included in sub-section 121(2) of the Act.
Regulation 10 has repealed former regulation 28.
Regulation 11
Regulation 11 has repealed former Division 3 of Part II of the Repatriation Regulations and substituted a new Division 3 of Part II. Division 3 of Part II previously related to certain matters concerning the Repatriation Review Tribunal which was abolished by the Repatriation Legislation Amendment Act 1984.
Division 3 of Part II now prescribes certain matters relevant to the operation of the Veterans’ Review Board as follows:
Regulation 40 - Interpretation
This regulation now applies the meaning of ‘applicant’ in Part IIIA of the Act to this Division.
Regulation 41 - Allowances payable to members of the Veterans’ Review Board
Sub-section 107VZE(2) of the Act provides that members of the Veterans’ Review Board are to be paid such allowances as are prescribed. This regulation now prescribes that the allowances are to be the same as those payable to an officer of the Australian Public Service.
Regulation 42 - Travelling expenses payable to applicants
Sub-section 107VZR(1) of the Act provides that, subject to such conditions as the Repatriation Commission determines, an applicant who attends a hearing of the Veterans’ Review Board is entitled to such travelling expenses for travel within Australia as are prescribed. This regulation now prescribes the cost of conveyance and accommodation (where an overnight stay is required) as travelling expenses.
Regulation 43 - Fees for witnesses
Sub-section 107VZS(1) of the Act provides that a person (other than the applicant), summoned to appear before the Veterans’ Review Board is entitled to be paid fees and allowances for expenses fixed by or in accordance with the regulations. This regulation now provides that the fees and allowances will be determined in accordance with the scale in Schedule 2 of the Administrative Appeals Tribunal Regulations.
Regulation 44 - Summons
Paragraph 107VV(2)(a) of the Act provides that the presiding member of the Veterans’ Review Board may summon a person to appear at a hearing to give evidence and produce such documents (if any) as are referred to in the summons.
This regulation now prescribes the form of the summons and specifies the method of service of the summons.
Regulation 12 - Allowance while undergoing medical treatment, etc
Existing regulation 71 of the Repatriation Regulations provides for the payment of loss of earnings allowance to a member undergoing medical treatment. Former paragraph 71(16)(d) provided for the payment of the allowance to a member undergoing investigation of a claim as provided by former regulation 72. Sub-section 28(1) of the Act now provides for the investigation of claims and applications for pensions and former regulation 72 has been repealed.
Regulation 12 has amended paragraph 71(16) (d) of the Repatriation Regulations to delete the reference to former regulation 72 and substitute a reference to sub-section 28(1) of the Act.
Regulation 13 - Repeal of Regulation 72
Former regulation 72 of the Repatriation Regulations provided for the investigation of claims for disability pensions.
Regulation 13 has repealed former regulation 72 as sub-section 28(1) of the Act now provides for the investigation of claims and applications for pensions.
Regulation 14 - Attendance allowance
Existing regulation 74A of the Repatriation Regulations provides for the payment of a loss of earnings allowance in respect of a member who attends a medical or other appointment at the request of a Deputy Commissioner. Former sub-regulation 74A(2) provided that the allowance was to be calculated in accordance with former sub-regulation 46A(2) or (4). Former sub-regulations 46A(2) and (4) were contained in Division 3 of Part II of the Repatriation Regulations which has been repealed by regulation 12.
Regulation 14 has provided that the relevant provisions from the former regulation 46A are now included in regulation 74A.
Regulation 15 - Funeral Expenses
Existing regulation 179 of the Repatriation Regulations provides for the payment of funeral benefits where the member dies in specified circumstances, including where death occurred in an institution, while travelling to or from an institution or after being discharged from an institution while terminally ill. This provision applied to those hospitalised while undergoing investigation of a claim under the former regulation 72. Regulation 72 has been repealed.
Regulation 15 has amended paragraph 179(1)(c) of the Repatriation Regulations to delete the reference to former regulation 72 and substitute a reference to sub-section 28(1) of the Act.
Regulation 16 - Repeal of Regulation 182
Former regulation 182 of the Repatriation Regulations provided for the Repatriation Commission to delegate its powers or functions under the Repatriation Regulations. Section 12 of the Act now provides for the Commission to delegate its powers or functions under the Act or Regulations.
Regulation 16 has repealed former regulation 182 to avoid duplication between the regulations and the Act.
Regulation 17 - Exercise by Commission of powers of Deputy Commissioner or Education Board
Former regulation 183 of the Repatriation Regulations provided that the Repatriation Commission could exercise any power or authority vested by the Regulations in a Deputy Commissioner or Education Board and that where the exercise of such a power or authority was dependent upon the belief or opinion of a Deputy Commissioner or Education Board, the exercise of that power or authority by the Repatriation Commission would have depended upon the belief or opinion of the Repatriation Commission.
Regulation 17 has repealed former regulation 183 and substituted a new regulation 183 which does not contain the terms ‘power and authority’ but includes the terms ‘power and function’ instead. This has provided consistency between the language used in section 12 of the Act and regulation 183.
The former sub-regulation 183(3) referred to a delegation by the Repatriation Commission under regulation 182. Regulation 16 has repealed former regulation 182. New regulation 183 refers to a delegation by the Repatriation Commission under section 12 of the Act which now provides for the Repatriation Commission to delegate its powers and functions under the Act or regulations.
Regulation 18 - Prescribed travelling expenses for the purposes of sub-section 29D(1) of the Act
Sub-section 29D(1) of the Act provides that, subject to such conditions as the Repatriation Commission determines, a claimant or applicant, or a person likely to be affected by a review by the Repatriation Commission under section 31 of the Act, who travels within Australia for the purpose of attending, at the request of the Repatriation Commission, for a discussion in relation to the claim, application or review, is entitled to such travelling expenses as are prescribed. Regulation 18 has inserted a new regulation 187A which prescribes the cost of conveyance and accommodation (where an overnight stay is required) as travelling expenses.
Regulation 19
Section 121 of the Act concerns, and the former regulation 188 of the Repatriation Regulations concerned, power to require information to be furnished concerning any claimant, applicant, pensioner or person to whom an allowance has been granted. Written advice from the Attorney-General’s Department suggested that former regulation 188 of the Repatriation Regulations was probably wholly invalid because it was inconsistent with section 121 of the Act to the extent that it dealt with the same subject matter.
Regulation 19 has repealed former regulation 188 of the Repatriation Regulations and substituted the regulations which are set out below.
Regulation 188 - Summons under paragraph 29B(1)(a) of the Act
Paragraph 29B(1)(a) of the Act provides that the Repatriation Commission may, in relation to a claim or application for disability pension, summon a person to appear before the Repatriation Commission to give evidence and produce such documents (if any) as are referred to in the summons. This regulation now prescribes the form of the summons and specifies the method of service of the summons.
Regulation 188A - Summons under sub-section 90C(2) of the Act
Sub-section 90C(2) of the Act provides that the Repatriation Commission has, in relation to its review of a claim for a service pension, all the powers of the Veterans’ Review Board under section 107VV. Paragraph 107VV(2)(a) provides that the Veterans’ Review Board may summon a person to appear at a hearing to give evidence and produce such documents (if any) as are referred to in the summons. This regulation now prescribes the form of summons under paragraph 90C(2) and specifies the method of service of the summons.
Regulation 188B - Prescribed travelling expenses for the purpose of sub-section 107VZZA(1) of the Act
Sub-section 107VZZA(1) of the Act provides that, subject to such conditions as the Repatriation Commission determines, the party to a review (other than the Repatriation Commission) or the party to the proceedings whose interests are affected by a reviewable decision before the Administrative Appeals Tribunal, is entitled to receive such travelling expenses for travel within
Australia as are prescribed. This regulation now prescribes the cost of conveyance and accommodation (where an overnight stay is required) as travelling expenses.
Regulation 20 - Extension of certain provisions to certain members of the Defence Force
Former sub-regulation 200(2) of the Repatriation Regulations referred to regulation 10 of the Repatriation Regulations. Regulation 3 has repealed former regulation 10 of the Repatriation Regulations.
Regulation 20 has amended sub-regulation 200(2) to delete the reference to regulation 10.
Schedule 1
Schedule 1 provides the forms of the summons that may be issued under new regulations 44, 188 and 188A.
AUTHORITY: | Section 124 of the Repatriation Act 1920 |
|