Statutory Rules
1978 No. 184
REGULATIONS UNDER THE REPATRIATION ACT 1920*
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Repatriation Act 1920.
Dated this twenty-eighth day of September 1978.
ZELMAN COWEN
Governor-General
By His Excellency’s Command,
EVAN ADERMANN
Minister of State for Veterans’ Affairs
AMENDMENTS OF THE REPATRIATION REGULATIONS†
Attendance allowance and payments of expenses of appellant
1. Regulation 46a of the Repatriation Regulations is amended by omitting from sub-regulation (4a) “ sustenance allowance under regulation 71 or 72 for a period ” and substituting “ loss of earnings allowance under regulation 71 in respect of a period ”.
Heading to Part IV
2. The heading to Part IV of the Repatriation Regulations is amended by omitting “ SUSTENANCE ” and substituting “ LOSS OF EARNINGS ”.
3. Regulation 71 of the Repatriation Regulations is repealed and the following regulations are substituted:
Allowance while undergoing medical treatment, &c.
“ 71. (1) Where—
(a) a member has, during any period, been unable on account of a prescribed reason to engage (whether as an employee of another person or otherwise) in the occupation in which
* Notified in the Commonwealth of Australia Gazette on 5 October 1978.
† Statutory Rules 1943 No. 233 as amended by Statutory Rules 1945 No. 48; 1946 No. 182; 1947 Nos. 72, 106, 149 and 169; 1948 Nos. 38, 43, 80, 135 and 137; 1950 No. 96; 1951 Nos. 7 and 58; 1952 Nos. 7, 88 and 101; 1953 No. 6; 1956 Nos. 32, 73 and 101; 1958 No. 22; 1960 Nos. 56 and 60; 1961 Nos. 74 and 139; 1962 No. 93; 1963 Nos. 57 and 104; 1965 No. 124; 1966 Nos. 65 and 168; 1967 No. 150; 1968 No. 122; 1969 No. 178; 1970 No. 150; 1972 Nos. 180 and 186; 1973 Nos. 25, 151 and 282; 1974 No. 57; 1975 No. 93; and 1977 No. 167.
the member would otherwise have been engaged, or could otherwise reasonably have been expected to have been engaged, as a means of earning his living; and
(b) as a result of that inability to engage in that occupation, the member has incurred a loss of earnings,
loss of earnings allowance is payable, subject to and in accordance with this regulation, to the member in respect of that loss.
“ (2) Where a member to whom sub-regulation (1) applies in respect of a period would, but for the inability in respect of which sub-regulation (1) so applies to him, have been engaged, or could, but for that inability, reasonably have been expected to have been engaged, in the occupation referred to in sub-regulation (1) in relation to the member as an employee of another person, the Deputy Commissioner may require the member to produce—
(a) a certificate in accordance with sub-regulation (3) issued by that other person; or
(b) where the obtaining or production of such a certificate would be impracticable—such other evidence, being evidence within the knowledge or control of the member, in relation to the loss of earnings referred to in paragraph (1) (b) in relation to the member as may be necessary to determine the amount of that loss of earnings.
“ (3) A certificate referred to in sub-regulation (2) shall be in an approved form and shall contain the following particulars in respect of the member to whom the certificate relates:
(a) the relevant period;
(b) the number of hours during which, but for the inability referred to in sub-regulation (1) in relation to the member, the member would have been employed, or could reasonably have been expected to have been employed, during that period;
(c) the rate, or rates, at which, but for that inability, the member would have been remunerated, or could reasonably have been expected to have been remunerated, during that period;
(d) the amount of earnings that, but for that inability, the member would have received, or could reasonably have been expected to have received, in respect of that period.
“ (4) Where, in any year, a member, being an employee of another person—
(a) was, during any period or periods in respect of which the member has been granted sick leave, unable on account of a prescribed reason to engage in the occupation to which his usual employment by that person relates;
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(b) has been unable during any subsequent period to engage in that occupation by reason of—
(i) any illness or incapacity; or
(ii) the necessities of any medical treatment (other than treatment of a kind referred to in paragraph (a), (b), (c) or (d) of sub-regulation (16)) related to such illness or incapacity; and
(c) has incurred a loss of earnings as a result of the inability referred to in paragraph (b),
loss of earnings allowance is payable, subject to and in accordance with this regulation, to the member in respect of that loss.
“ (5) The Deputy Commissioner may require a member to whom sub-regulation (4) applies to produce—
(a) a certificate in accordance with sub-regulation (6) issued by the person by whom the member has been employed during the relevant period; or
(b) where the obtaining or production of such a certificate would be impracticable, such other evidence, being evidence within the knowledge or control of the member, in relation to—
(i) the annual sick leave entitlement of the member;
(ii) the period or periods referred to in paragraph (4) (a) in relation to the member; and
(iii) the loss of earnings referred to in paragraph (4) (c) in relation to the member,
as may be necessary to determine the amount of that loss of earnings.
“ (6) A certificate referred to in sub-regulation (5) shall be in an approved form and shall contain the following particulars in respect of the member to whom the certificate relates:
(a) the relevant period;
(b) the number of hours during which, but for the inability referred to in paragraph (4) (b) in relation to the member, the member would have been employed, or could reasonably have been expected to have been employed, during that period;
(c) the rate, or rates, at which, but for that inability, the member would have been remunerated, or could reasonably have been expected to have been remunerated, during that period;
(d) the amount of earnings that, but for that inability, the member would have received, or could reasonably have been expected to have received, in respect of that period;
(e) the date on which the member was last credited with an annual sick leave entitlement by that person;
(f) the number of days in the annual sick leave entitlement with which the member was so credited;
(g) the number of days (including any part of a day) in the period or periods in respect of which the member has, since the date referred to in paragraph (e), been granted sick leave.
“ (7) Allowance is not payable to a member under sub-regulation (4) in respect of any period in a year (being a period referred to in paragraph (4) (b) in relation to the member), or any part of such a period, that, together with any other such period that has, or periods that have, occurred previously in that year (being a period or periods in respect of which allowance has been paid or is payable), exceeds whichever is the less of—
(a) the period, or periods in the aggregate, referred to in paragraph (4) (a) in relation to the member (being a period that has, or periods that have, occurred previously during that year); and
(b) the member’s annual sick leave entitlement in respect of that year.
“ (8) Allowance is not payable to a member under sub-regulation (1) or (4) in respect of a relevant period, or part of a relevant period, in respect of which—
(a) where paragraph (b) does not apply—pension was, or would, but for paragraph (c) of the proviso to sub-section 101 (1) of the Act, have been, payable in respect of the member at a rate equal to the Special Rate of Pension specified in Schedule 2 to the Act; or
(b) where the member has a wife, a child or children, or a wife and a child or children—pension was, or would, but for paragraph (c) of the proviso to sub-section 101 (1) of the Act, have been, payable—
(i) in respect of the member, at a rate equal to the Special Rate of Pension specified in Schedule 2 to the Act; and
(ii) in respect of that wife, that child or those children, or that wife and that child or those children, as the case may be, in accordance with Table B of Schedule 3 to the Act.
“ (9) Allowance is not payable to a member under sub-regulation (1) or (4) where the amount referred to in sub-paragraph (10) (b) (ii) in relation to the member in respect of the relevant period is equal to or exceeds the amount referred to in sub-paragraph (10) (b) (i) in relation to the member in respect of that period.
“ (10) The amount of loss of earnings allowance payable to a member under sub-regulation (1) or (4) in respect of loss of earnings during the relevant period is whichever is the less of—
(a) the amount calculated in accordance with the formula—
where—
a is the number of hours in the relevant period during which, but for the inability of the member to engage in the occupation referred to in relation to the member in sub-regulation (1) or (4), the member would have been engaged in, or could reasonably have been expected to have been engaged in, that Occupation; and
b is—
(i) in relation to a member other than a member referred to in sub-paragraph (ii)—
(A) except where clause (B) applies—the amount equal to the average amount, in respect of the relevant period, of the Special Rate of Pension specified in Schedule 2 to the Act; or
(B) where the member has a wife, a child or children, or a wife and a child or children—the amount equal to the aggregate of the amount referred to in clause (A) and the average amount, in respect of the relevant period, of the total pension that is specified in Table B of Schedule 3 to the Act as payable fortnightly in respect of the dependants of a member having the same dependants (not including any dependant other than a wife or child) as the member; or
(ii) in relation to a member to whom the Commonwealth was, or would, but for paragraph (c) of the proviso to sub-section 101 (1) of the Act, have been, liable to pay in respect of the relevant period pension ascertained in accordance with the Schedules to the Act—the amount by which the amount that would be applicable to the member under sub-paragraph (i) if that sub-paragraph applied to him exceeds—
(A) except where clause (B) applies—the amount equal to the average amount, in respect of the relevant period, of the pension (not including any allowances payable to the member in accordance with Schedule 2 or 5 to the Act) that was, or would, but for paragraph (c) of the proviso to sub-section 101 (1) of the Act, have been, payable fortnightly in respect of the member; or
(B) where the member has a wife, a child or children, or a wife and a child or children—the amount equal to the aggregate of the amount referred to in clause (A) and the average amount, in respect of the relevant period, of the total pension that was, or would, but for paragraph (c) of the proviso to sub-section 101 (1) of the Act, have been, payable fortnightly in respect of that wife, that child or those children, or that wife and that child or those children, as the case may be;
and
(b) the amount equal to the difference between—
(i) the amount that, but for the inability referred to in sub-regulation (1) or paragraph (4) (b) in relation to the member, the member would have earned, or could reasonably have been expected to have earned, during the relevant period if he had been able to engage during that period in the occupation referred to in that sub-regulation or paragraph, as the case may be, in relation to the member; and
(ii) the amount equal to the aggregate of the prescribed deductions in relation to the member in respect of the relevant period.
“ (11) Where loss of earnings allowance is payable under this regulation to a member who has a wife, a child or children, or a wife and a child or children, the Commission may direct that such part of the allowance as the Commission determines be paid to such persons as the Commission specifies.
“ (12) Subject to sub-regulations (13) and (14), the Commission may, at any time after the commencement of the relevant period in relation to a member to whom sub-regulation (1) or (4) applies, authorize the payment of an advance, or advances, on account of loss of earnings allowance.
“ (13) The Commission shall, in determining the amount of any advance to be paid in accordance with sub-regulation (12), ensure that, so far as is practicable having regard to the nature of the inability in relation to which this regulation applies to the member and the estimated duration of the relevant period in relation to the member, the amount of the advance, or the amount in the aggregate of such advances, bears to the estimated total amount of allowance to which the member will be entitled in respect of the relevant period (when concluded) the same proportion as the period, or periods in the aggregate, to which the advance or advances is or are related bears to the likely duration of the relevant period.
“ (14) Notwithstanding the payment of any advance or advances under sub-regulation (12), the total amount of allowance to which a member is entitled under this regulation in respect of loss of earnings shall not exceed the amount of allowance calculated in accordance with sub-regulation (10).
“ (15) In this regulation—
‘ annual sick leave entitlement ’ in relation to a member, being an employee of another person, means the number of days with which, under the terms and conditions of the member’s employment, the member is, at the commencement of a year, notionally credited in respect of that year, being the number of days of sick leave that may be granted to the member;
‘ child ’, in relation to a member, has the same meaning as in Part III of the Act;
‘ relevant period ’, in relation to a member to whom sub-regulation (1) or (4) applies, means the period of inability to engage in an occupation (whether as an employee or or otherwise) in respect of which sub-regulation (1) or (4), as the case may be, applies to the member;
‘ sick leave ’, in relation to a member, being an employee of another person, means leave of absence from the member’s employment granted to the member without loss of earnings by reason of any illness or incapacity or medical treatment necessitated by illness or incapacity;
‘ year ’, in relation to a member, being an employee of another person, means the period of 12 months that commenced on the date on which, under the terms and conditions of his employment, the member was last credited with an annual sick leave entitlement.
“ (16) For the purposes of sub-regulations (1) and (4), each of the following reasons is a prescribed reason:
(a) the necessities of treatment for an incapacity due to war service;
(b) the necessities of treatment for, or institutional care in consequence of, venereal disease contracted during war service;
(c) the need to await the supply of, or repairs to, an artificial replacement or other surgical aid or appliance necessitated by an incapacity due to war service;
(d) an investigation carried out under regulation 72, or the necessities of any treatment connected with such an investigation.
“ (17) In this regulation, a reference to a loss of earnings incurred by a member includes a reference to such a loss incurred by a reduction in earnings.
Prescribed deductions
“ 71a. (1) Where a member to whom sub-regulation 71 (1) or (4) applies has engaged, during the relevant period, in an occupation (not being the occupation referred to in that sub-regulation in relation to that member) in which, but for the inability in respect of which that sub-regulation applies to the member, the member would not otherwise have engaged, or could not otherwise reasonably have been expected to have engaged, during that period, an amount equal to the amount of income earned by the member in respect of his engagement in that occupation during that period is, for the purposes of sub-paragraph (10) (b) (ii), a prescribed deduction in relation to that member in respect of that period.
“ (2) Where a member to whom sub-regulation 71 (1) or (4) applies has received, or is entitled to receive, under any law of the Commonwealth, a State, a Territory or a country other than Australia (being a law that makes provision for the payment of compensation or benefits to a person by reason of an incapacity arising out of, or in the course of, the person’s employment, or caused by, or arising out of the use of a motor vehicle) an amount in respect of loss of earnings incurred by the member as a result of the inability in respect of which that sub-regulation applies to the member, an amount equal to so much of that amount as relates to loss of earnings incurred during the relevant period is, for the purposes of sub-paragraph (10) (b) (ii), a prescribed deduction in relation to that member in respect of that period.
“ (3) Where a member to whom sub-regulation 71 (1) or (4) applies (being a member who is an employee of another person) has received, or is entitled to receive, from that person an amount (not being an amount referred to in sub-regulation (2) in relation to the member) by way of gratuity or other payment in respect of loss of earnings incurred by the member as a result of the inability in respect of which that sub-regulation applies to the member, an amount equal to so much of that amount as relates to loss of earnings incurred during the relevant period is, for the purposes of sub-paragraph (10) (b) (ii), a prescribed deduction in relation to that member in respect of that period.
“ (4) Where a member to whom sub-regulation 71 (1) or (4) applies has received, or is entitled to receive, under any contract, agreement or arrangement (whether or not the member is a party to that contract, agreement or arrangement), including any insurance policy, an amount (not being an amount referred to in sub-regulation (2) or (3)) in respect of loss of earnings incurred by the member as a result of the inability in respect of which that sub-regulation applies to the member, an amount equal to so much of that amount as relates to loss of earnings during the relevant period is, for the purposes of sub-paragraph (10) (b) (ii), a prescribed deduction in relation to that member in respect of that period.
“ (5) In this regulation, ‘ relevant period ’ has the same meaning as in regulation 71.”.
Investigation related to claim by a member, &c.
4. Regulation 72 of the Repatriation Regulations is amended by omitting sub-regulations (2) and (3).
Repeal of regulation 72a
5. Regulation 72a of the Repatriation Regulations is repealed.
Attendance allowance
6. Regulation 74a of the Repatriation Regulations is amended by adding at the end thereof the following sub-regulation:
“ (3) Where a member is entitled to be paid an allowance under regulation 71 in respect of loss of earnings incurred as a result of a period of inability to engage in an occupation, the member shall not be entitled to be paid an allowance under sub-regulation (2) in respect of his attendance at an appointed place during that period.”.
Power of Deputy Commissioner to require information
7. Regulation 188 of the Repatriation Regulations is amended—
(a) by omitting from sub-regulation (1) “ person to whom a sustenance or other allowance has been granted ” and substituting “ person to whom an allowance has been granted ”; and
(b) by omitting from sub-regulation (1) “ member in respect of whom a pension or sustenance or other allowance has been claimed ” and substituting “ member in respect of whom a pension or allowance has been claimed ”.
Extension of certain provisions to 1914–1918 members (general service)
8. Regulation 193 of the Repatriation Regulations is amended—
(a) by inserting in sub-regulation (2) “, subject to this regulation,” after “ apply ”; and
(b) by adding at the end thereof the following sub-regulation:
“ (3) For the purposes of the extended application of regulation 71, a reference in sub-regulation 71 (8) or paragraph 71 (10) (a) to paragraph (c) of the proviso to sub-section 101 (1) of the Act shall be read as a reference to paragraph (c) of the proviso to sub-section 24 (1) of the Act.”.
Extension of certain provisions to 1914-1918 members (home service)
9. Regulation 194 of the Repatriation Regulations is amended—
(a) by inserting in sub-regulation (2) “, subject to this regulation,” after “ apply ”; and
(b) by adding at the end thereof the following sub-regulation:
“ (3) For the purposes of the extended application of regulation 71, a reference in sub-regulation 71 (8) or paragraph 71 (10) (a) to paragraph (c) of the proviso to sub-section 101 (1) of the Act shall be read as a reference to paragraph (c) of the proviso to sub-section 24 (1) of the Act.”.
Extension of certain provisions to Korea and Malaya members
10. Regulation 198 of the Repatriation Regulations is amended—
(a) by omitting from paragraph (b) of sub-regulation (2) “ the next succeeding sub-regulation ” and substituting “ sub-regulation (3) ”; and
(b) by inserting after sub-regulation (2) the following sub-regulation:
“ (2a) For the purposes of the extended application of regulation 71, a reference in sub-regulation 71 (8) or paragraph 71 (10) (a) to paragraph (c) of the proviso to sub-section 101 (1) of the Act shall be read as a reference to sub-section 107c (6) of the Act.”.
Extension of certain provisions to certain members of the Defence Force
11. Regulation 200 of the Repatriation Regulations is amended—
(a) by omitting from sub-regulation (2) “ and paragraph (b) of sub-regulation (1) of regulation 71 ”; and
(b) by inserting after sub-regulation (4) the following sub-regulation:
“ (4a) For the purposes of the extended application of regulation 71—
(a) a reference in sub-regulation 71 (8) or paragraph 71 (10) (a) to paragraph (c) of the proviso to sub-section 101 (1) of the Act shall be read as a reference to such of the provisions of sub-section 107q (3), sub-section 107r (4) and sub-section 107r (5) as is or are applicable; and
(b) sub-regulation (16) shall have effect as if paragraph (b) were omitted.”.
Transitional
12. (1) Where regulation 71 or 72 of the Repatriation Regulations as in force immediately before the commencement of these Regulations would, if the amendments of the Repatriation Regulations effected by these Regulations had not come into operation, apply to a person in relation to the whole of a period that commenced before the commencement of these Regulations and ends after the commencement of these Regulations, the provisions of the Repatriation Regulations as in force immediately before the commencement of these Regulations shall continue to apply to the person in respect of that period as if those amendments had not come into operation.
(2) Where—
(a) a person would, but for sub-regulation (1), be entitled to loss of earnings allowance under regulation 71 of the Repatriation Regulations as amended by these Regulations in respect of any period, being the same period as, or a period forming part of, the period referred to in paragraph (b); and
(b) the amount of such allowance would have exceeded the amount of allowance to which the person is entitled by virtue of sub-regulation (1) in relation to the period that commences on the commencement of these Regulations and ends on the expiration of the period in relation to which sub-regulation (1) applies to the person,
the person shall be entitled to a supplementary allowance equal to the amount of the excess.