Repatriation (Special Overseas Service) Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES NO. 47

Issued by Authority of the Minister of State for Veterans’ Affairs

Repatriation (Special Overseas Service) Regulations (Amendment)

Under section 14 of the Repatriation (Special Overseas Service) Act 1962 (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 carrying out or giving effect to the Act.

These regulations are consequential upon 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.

Details of the regulations are set out below.

Regulation 1 - Interpretation

Existing regulation 3 of the Repatriation (Special Overseas Service) Regulations contains definitions of terms used in the regulations.

Regulation 1 has amended regulation 3 of the Repatriation (Special Overseas Service) Regulations to delete the definition of ‘Board’, as Repatriation Boards no longer exist, and

to delete the definition of ‘claimant’ as this term is only to be used in regulation 65 which contains its own definition of this term.

Regulation 2 - Repeal of regulations 11, 12, 13 and 14

Former regulations 11, 12, 13 and 14 of the Repatriation (Special Overseas Service) Regulations related to the payment of instalments of pensions by methods which no longer operate. These include payment in person, the issue of receipts and the presentation of orders and declarations.

Regulation 2 has repealed former regulations 11, 12, 13 and 14 of the Repatriation (Special Overseas Service) Regulations.

Regulation 3 - Attendance Allowance

Existing regulation 40 of the Repatriation (Special Overseas Service) 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 40(2) provided that the allowance was to be calculated in accordance with former sub-regulation 46A(2) or (4) of the Repatriation Regulations. As a consequence of the Repatriation Legislation Amendment Act 1984 Repatriation Regulation 46A has been repealed. The substance of former sub-regulations 46A(2) and 46A(4) is now included in sub-regulations 74A(2) and (4) of the Repatriation Regulations.

Regulation 3 has amended sub-regulation 40(2) of the Repatriation (Special Overseas Service) Regulations to delete the reference to sub-regulation 46A(2) or (4) of the Repatriation Regulations and substitute a reference to sub-regulation 74A(2) or (4) of the Repatriation Regulations.

Regulation 4 - Payment or reimbursement of expenses for the production of medical reports

Former regulation 65 of the Repatriation (Special Overseas Service) 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 or application, or an appeal to the Repatriation Commission. Regulation 4 has repealed former regulation 65 of the Repatriation (Special Overseas Service) Regulations and substituted a new regulation 65 to reflect the new Repatriation determining system.

Sub-regulation 65(1) now provides that where the Repatriation Commission allows a claim or application, or part of a claim or application, the Repatriation Commission may pay or

reimburse 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 65(2) now makes similar provision in respect of a review of a decision of a claim for service pension. Sub-regulation 65(3) now provides that the evidence must have been reasonable for supporting the claim, application or review. Sub-regulation 65(4) now provides definitions to ensure that the terms used in this regulation are consistent with those applying in the Act.

Regulation 5 - Application of certain provisions of the Repatriation Regulations

Existing regulation 66A of the Repatriation (Special Overseas Service) Regulations applies certain Repatriation Regulations to members under the Repatriation (Special Overseas Service) Regulations. Regulation 66A referred to regulation 72 of the Repatriation Regulations which has been repealed.

Former sub-regulation 66A(2) of the Repatriation (Special Overseas Service) Regulations also contained a drafting error. When sub-regulation 66A(2) was inserted in 1978, reference to regulation 72A of the Repatriation Regulations which, by virtue of sub-regulation 66A(1) applies to members within the meaning of the regulations, was inadvertently omitted.

Regulation 5 has amended regulation 66A of the Repatriation (Special Overseas Service) Regulation to delete the references to regulation 72 of the Repatriation Regulations and has inserted a reference to regulation 72A of the Repatriation Regulations in sub-regulation 66A(2).

Regulation 6 - Repeal of Regulation 69

Former regulation 69 of the Repatriation (Special Overseas Service) Regulations concerned, and section 121 of the Repatriation Act 1920 (which applies to the Act by virtue of section 7 of that Act) concerns, power to require information to be furnished concerning any claimant, applicant or person to whom an allowance has been granted. Written advice from the Attorney-General’s Department suggested that a similar, now repealed, provision of the Repatriation Regulations, former regulation 188, was probably wholly invalid because it was inconsistent with section 121 of the Repatriation Act 1920 to the extent that it dealt with the same subject matter.

Regulation 6 has repealed former regulation 69 of the Repatriation (Special Overseas Service) Regulations.

Regulation 7 - Repeal of regulation 75

Former regulation 75 of the Repatriation (Special Overseas Service) Regulations provided for the Repatriation Commission to delegate its powers and functions under the regulations. Section 13 of the Act provides for the Repatriation Commission to delegate its powers and functions under the Act or the regulations.

Regulation 6 has repealed former regulation 75 of the Repatriation (Special Overseas Service) Regulations to avoid duplication between the regulations and the Act.

Regulation 8

Regulation 8 has provided for the repeal of former Repatriation (Special Overseas Service) Regulations 76 and 77 and the substitution of new regulations 76 and 77.

Regulation 76 - Exercise or performance by Commission of powers or functions of Deputy Commissioners or Education Board.

Former sub-regulation 76(1) of the Repatriation (Special Overseas Service) Regulations provided that the Repatriation Commission could exercise any power or authority vested by the regulations in a Deputy

Commissioner or Education Board. Former sub-regulation 76(2) provided that where the exercise of 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 depend upon the belief or opinion of the Repatriation Commission. Former sub-regulation 76(3) provided that for the purposes of sub-regulation 76(2) the ‘Commission’ included a person to whom the Repatriation Commission had delegated its powers or authority under former regulation 75.

New regulation 76 does not contain the terms ‘power or authority’ but includes the terms ‘power or function’ instead. This has provided consistency between the language used in section 13 of the Act and regulation 76. Sub-regulation 76(3) now provides that for the purposes of sub-regulation 76(2) the ‘Commission’ includes a person to whom the Repatriation Commission has delegated its powers and functions under section 13 of the Act which now provides for the Repatriation Commission to delegate its powers and functions under the Act or regulations.

Regulation 77 - Exercise of powers and performance of functions by Deputy Commissioner

Former regulation 77 provided that a power or authority exercisable by a Deputy Commissioner under the regulations was subject to such conditions as the Repatriation Commission determined. New regulation 77 does not contain the terms ‘power or authority’ but includes the terms ‘power of function’ instead. This has provided consistency in the language used in regulations 76 and 77.