REPATRIATION (SPECIAL OVERSEAS SERVICE).
No. 89 of 1962.
An Act to provide Benefits for certain Members of the Defence Force who have served on Special Service outside Australia, and for purposes connected therewith.
[Assented to 14th December, 1962.]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Short title.
1. This Act may be cited as the Repatriation (Special Overseas Service) Act 1962.
Commencement.
2. This Act shall come into operation on a date to be fixed by Proclamation.
Interpretation.
3.—(1.) In this Act, unless the contrary intention appears—
“adopted”, in relation to a child, means adopted in accordance with the law of a State or a Territory of the Commonwealth or of another country;
“Board” means a Repatriation Board constituted under the Repatriation Act;
“child”, in relation to a member of the Forces, means a child, under the age of sixteen years, of the member, and includes his step-son, step-daughter, adopted child, or ex-nuptial child under that age;
“member”
“member” or “member of the Forces” means a person who, while a member of the Defence Force, has served on special service;
“member of the family”, in relation to a member of the Forces, means the wife, father, mother, adoptive father, adoptive mother, grandfather, grandmother, step-father, step-mother, foster-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister, step-brother, step-sister, adoptive brother, adoptive sister, adopted child or mother-in-law of the member;
“parents” includes—
(a) the mother of a member of the Forces, being a member who was born out of wedlock and brought up by her;
(b) the step-mother or adoptive mother of a member of the Forces, being a member who was brought up by her; and
(c) the foster-mother of a member of the Forces;
“pension” means a pension under this Act, and includes the amounts and allowances specified in the Second and Fifth Schedules to the Repatriation Act as applied by section seven of this Act;
“special duty”, in relation to a special area, means duty relating directly to the warlike operations or state of disturbance by reason of which the declaration in respect of the area has been made by regulations in accordance with section four of this Act;
“special service”, in relation to a person, means service of the person in a special area while—
(a) a member of, or attached to, a body, contingent or detachment of the Naval, Military or Air Forces at a time when it was allotted for special duty in that special area; or
(b) a member of the Naval, Military or Air Forces allotted for special duty in that special area;
“the Commission” means the Repatriation Commission constituted under the Repatriation Act;
“the Repatriation Act” means the Repatriation Act 1920–1962.
(2.) For the purposes of this Act, a person whose birth was ex-nuptial but whose parents have married each other since his or her birth shall be deemed to be a son or daughter, as the case may be, of those parents and shall be deemed not to be an ex-nuptial child.
Special areas.
4.—(1.) The regulations may declare that, by reason of warlike operations, or a state of disturbance, in or affecting a specified area outside Australia, that area shall become, on a specified date, a special area for the purposes of this Act or shall be deemed to have become, on a specified date (which may be a date before the commencement of the regulations or before the commencement of this Act), a special area for the purposes of this Act.
(2.) The regulations may declare that a special area shall, on and after a specified date, be no longer a special area for the purposes of this Act.
Extension of Act to Territories.
5. This Act extends to all the Territories of the Commonwealth.
Liability of Commonwealth to pay pensions to members of the Forces.
6.—(1.) Upon the incapacity or death of a member of the Forces whose incapacity or death has resulted from an occurrence that happened during a period of special service of the member (including the contracting of a disease during such a period), the Commonwealth is, subject to this Act, liable to pay to the member, to the dependants of the member or to both, as the case may be, pensions in accordance with Division 1 of Part III. of the Repatriation Act as applied by the next succeeding section.
(2.) In the application of the last preceding sub-section in relation to, or to matters arising out of, an incapacity or the death of a member, a reference to the dependants of a member of the Forces shall be read as a reference to—
(a) in the case of a male member—
(i) the wife or widow of the member;
(ii) the widowed mother of the member, if the member is unmarried;
(iii) a child of the member;
(iv) if the member is deceased, a parent of the member who is at any time after the death of the member without adequate means of support;
(v) any other member of the family of the member who was wholly or partly dependent upon his earnings at any time during the relevant period of special service;
(vi) an ex-nuptial child of a son or daughter of the member, being an ex-nuptial child wholly or partly dependent upon the earnings of the member at any time during the relevant period of special service; and
(vii) where the member is an ex-nuptial child, the parent or grandparent of the member, being a parent or grandparent wholly or partly dependent upon the earnings of the member at any time during the relevant period of special service; and
(b) in
(b) in the case of a female member—
(i) the husband or widower of the member if he was married to the member before or during the relevant period of her special service;
(ii) a child of the member; and
(iii) such other members of the family of the member, or, if the member is an ex-nuptial child, such of the parents or grandparents of the member as were wholly or partly dependent upon her earnings at the time of the commencement of, or at any time during, the relevant period of special service.
(3.) Subject to the next succeeding sub-section, the Commonwealth is not liable under this section if the incapacity or death of a member—
(a) was due to the member’s serious default or wilful act;
(b) arose from intentionally self-inflicted injuries; or
(c) arose from, or from an occurrence that happened during the commission of, a serious breach of discipline by the member.
(4.) Where the death of a member is, in the opinion of the Commission, due to venereal disease contracted during the member’s special service, the last preceding sub-section does not affect the liability of the Commonwealth to pay pensions to the widow, widower or children of the member.
(5.) Where the origin of the cause of an incapacity or of the death of a member of the Forces existed before the commencement of a period of special service of the member and, in the opinion of the Commission or a Board—
(a) the incapacity from which the member is suffering was contributed to in any material degree, or has been aggravated, by the conditions of that special service or the member’s death has been contributed to in any material degree by those conditions; and
(b) neither the incapacity or death, nor the origin of the cause of the incapacity or death, was due to the member’s serious default or wilful act,
the incapacity or death shall be deemed to have resulted from an occurrence that happened during that period of special service.
(6.) Where the incapacity of a member of the Forces has resulted from an occurrence that happened during a period of special service of the member a pension is not payable in respect of that incapacity for any period before the termination of that period of special service.
(7.) Where
(7.) Where a pension is granted, the Commission or a Board may, subject to this Act, approve of the payment of the pension as from a date not more than three months before the date of lodgment of the claim for pension.
(8.) The right conferred by this Act on a member of the Forces to payment by way of pension in respect of an incapacity, or on a person other than a member to payment by way of pension in respect of an incapacity or the death of a member, is in substitution for the right (if any) of that member or of that other person to a payment in respect of the incapacity, or of the incapacity or death of the member, as the case may be, to which, but for this sub-section, he would have been entitled under the Naval Defence Act 1910–1952, the Defence Act 1903–1956 or the Air Force Act 1923–1956, and any such right of the member or other person under any of those Acts is, by force of this sub-section determined.
(9.) If a person or persons who is or are entitled under this Act to pension in respect of the incapacity or death of a member is or are also entitled under—
(a) the law of a part of the Queen’s dominions other than the Commonwealth; or
(b) the law of a State,
to receive any payment or payments in respect of the incapacity or death of the member resulting from employment in relation to warlike operations in which the Sovereign is or was engaged, or in connexion with the British Commonwealth Far East Strategic Reserve, the rate or amount of every such payment shall be taken into account in assessing the rate or rates of pension payable under this Act so that the total payments to that person or those persons, as the case may be, shall not exceed the total payments to which that person, or those persons respectively or collectively, would be entitled if eligible solely under this Act.
(10.) An ex-nuptial child of a member of the Forces (not being a child whom the member has adopted) is not entitled to pension under this section in respect of an incapacity or the death of the member if that incapacity or death has resulted from an occurrence that happened during a period of special service of the member that—
(a) where the member is a male—commenced more than nine months before the birth of the ex-nuptial child; or
(b) where the member is a female—terminated more than nine months before the birth of the ex-nuptial child.
7.—(1.) Subject
Extension of certain provisions of Repatriation Act.
7.—(1.) Subject to this Act, the provisions of Divisions 1 to 4 (inclusive) of Part III. (other than section twenty-four, sub-sections (3.) and (4.) of section thirty-seven and sections forty-two, forty-four and fifty-four) and sections one hundred and fourteen, one hundred and fourteen a, one hundred and nineteen, one hundred and twenty a, one hundred and twenty b and one hundred and twenty-one of, and the Schedules to, the Repatriation Act extend to and in relation to—
(a) members of the Forces within the meaning of this Act; and
(b) the dependants of those members.
(2.) In the application, by virtue of the last preceding sub-section, of the provisions of the Repatriation Act specified in that sub-section, in relation to, or to matters arising out of, an incapacity or the death of a member—
(a) a reference to a member of the Forces or to a member shall be read as a reference to a member of the Forces within the meaning of this Act;
(b) a reference to dependants shall be read, in relation to that member, as a reference to the persons who are dependants of that member for the purposes of the application of sub-section (1.) of section six of this Act in relation to that incapacity or death;
(c) a reference to war service shall be read as a reference to special service; and
(d) a pension under this Act shall be deemed to be a pension under Division 1 of Part III. of the Repatriation Act.
Pensions payable to certain dependent females.
8.—(1.) Where—
(a) a person was, both at the time of the commencement of a period of special service of a member and at the time of the happening, during that period, of an occurrence (including the contracting of a disease) that resulted in the member’s incapacity or death, recognized as the wife of the member though not legally married to him; and
(b) the Commission is satisfied that that person was wholly or partly dependent upon the earnings of the member at those times,
a pension under this Act may be paid to that person at a rate not exceeding the rate of pension that would have been payable to her under this Act if she had been legally married to the member.
(2.) A pension may be paid under this section in addition to any pension payable to the wife or widow, as the case may be, of the member.
9. Where,
Pension to divorcee of member.
9. Where, at the time of the happening during a member’s special service of an occurrence (including the contracting of a disease) that resulted in the incapacity or death of the member, a person who had been the wife of the member but had been divorced was dependent upon alimony or maintenance payable by the member, a pension under this Act may, on discontinuance of the payment of the alimony or maintenance, as the case may be, be paid to that person at a rate equal to—
(a) the amount of the alimony or maintenance, as the case may be; or
(b) the rate of pension which would have been payable to her if she had not been divorced,
whichever is the less.
Limitations on pensions to dependants of female members.
10.—(1.) A pension under this Act in respect of the incapacity or death of a female member of the Forces shall not be granted or continued to a person, other than the member or a child of the member, unless—
(a) where the pension is in respect of the incapacity of the member—the member is being paid, or, in the case of a deceased member, was immediately before her death being paid, a pension at a rate not less than fifty per centum of the rate for total incapacity and the person is wholly or substantially dependent upon the member or would, but for the death or incapacity of the member, be so dependent; or
(b) where the pension is in respect of the death of the member —the person would, but for the death of the member, be so dependent,
and, where the person is the husband of the member, unless the husband is, by reason of physical or mental incapacity, unable to earn a livelihood, is without adequate means of support and is not separated from the member.
(2.) A pension under this Act shall not be granted or continued to a child of a female member of the Forces unless the member is dead and the child is without adequate means of support, or, if the member is not dead, unless—
(a) the father or step-father of the child—
(i) is, by reason of physical or mental incapacity, unable to earn a livelihood and is without adequate means of support; or
(ii) is dead or is separated or divorced from, or has deserted, the member; and
(b) the child is wholly or substantially dependent upon the member and is without adequate means of support.
Maximum rates of pensions where death, &c. attributable partly to other service.
11. Where the incapacity or death of a member was, or the incapacity and death of a member were both, attributable partly to the special service of the member and partly to—
(a) the service of the member in or in connexion with—
(i) the present war within the meaning of section twenty-three of the Repatriation Act;
(ii) the war within the meaning of section one hundred of that Act; or
(iii) the warlike operations in Korea or Malaya before the commencement of the Repatriation (Far East Strategic Reserve) Act 1956; or
(b) “Malayan service” of the member within the meaning of section three of the Repatriation (Far East Strategic Reserve) Act 1956–1962,
the Commonwealth is not liable to pay to a person, in respect of the incapacity or death, pensions at rates which in the aggregate, exceed the rate at which pension would be payable to that person if the incapacity or death, or both the incapacity and death, as the case may be, were attributable wholly to the special service of the member.
Evidence.
12. For the purposes of this Act, or any other Act, a certificate under the hand of a person authorized by the Naval Board, the Military Board or the Air Board to give certificates under this section certifying that a body, contingent, detachment or member of the Naval, Military or Air Forces was or was not, during a specified period, allotted for special duty in a specified special area is conclusive evidence of the matters stated in the certificate.
Delegation.
13.—(1.) The Commission may, with the approval of the Minister, by writing under its seal, delegate, either generally or otherwise as provided in the instrument of delegation, all or any of its powers and functions under this Act (except this power of delegation) or under the provisions of the Repatriation Act as applied by section seven of this Act.
(2.) A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.
(3.) A delegation under this section is revocable in writing at will and does not prevent the exercise of a power or the performance of a function by the Commission.
Regulations.
14.—(1.) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are
necessary
necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, making provision for or in relation to—
(a) the granting of assistance and benefits to—
(i) members of the Forces;
(ii) children (including step-children, adopted children and ex-nuptial children) of members of the Forces, whether under the age of sixteen years or not;
(iii) dependants (as defined by the regulations), other than children, of members of the Forces; and
(iv) persons to whom section eight of this Act applies;
(b) the granting of assistance by way of payment of funeral expenses in respect of any of the persons referred to in the last preceding paragraph; and
(c) penalties not exceeding a fine of Twenty-five pounds or imprisonment for three months for offences against the regulations.
(2.) The regulations may make provision for or in relation to—
(a) the payment of any pension or allowance to a person on behalf of, or as trustee for, the person to whom the pension or allowance is payable under this Act; and
(b) the disbursement or accumulation of a pension or allowance so paid for the benefit of the person to whom it is payable under this Act or of members of the family of that person or of persons dependent on him.