Repatriation (Special Overseas Service) Regulations (Amendment)

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EXPLANATORY STATEMENT

STATUTORY RULES 1985 NO. 272

Minute No. 22 of 1985 - Minister of State for Veterans' Affairs

Subject - Repatriation (Special Overseas Service) Act 1962

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.

The regulations are consequential to the provisions of the Repatriation Legislation Amendment Act 1985 (No. 90 assented to 6 June 1985) which gave effect to the decisions of the Government announced in the Treasurer’s Economic Statement on 14 May 1985.


There are two provisions of the Repatriation Legislation Amendment Act 1985 which impacted on the Repatriation (Special Overseas Service) Regulations. First, the criteria to be applied by Repatriation determining authorities in determining whether a member of the Forces is eligible to receive the Special Rate or Intermediate Rate pension for total incapacity were amended. Under the Act as it existed prior to its amendment by the Repatriation Legislation Amendment Act 1985, an applicant for the Special Rate pension must have been blinded as a result of war service, or have been totally and permanently incapacitated from service-related disabilities to such an extent as to have been precluded from earning other than a negligible percentage of a living wage.

The Repatriation Legislation Amendment Act 1985 provided that an applicant for the Special Rate pension must be:

(a) blinded as a result of war service; or

(b) in receipt of, or eligible for, a pension at the maximum (100%) General Rate; totally and permanently incapacitated from service-related disabilities, which of themselves alone render the member incapable of undertaking more than 8 hours remunerative activity per week; and suffering a loss of salary, wages or earnings by reason of being prevented from continuing in remunerative activity by those service-related disabilities.


The second aspect of the Repatriation Legislation Amendment Act 1985 which affected the Repatriation (Special Overseas Service) Regulations was the abolition of future grants of pension to dependants of members of the Forces, or deceased members of the Forces, other than pensions to war widows and orphans of a deceased member. Previously, pensions were also payable to the widowed mother, widowed stepmother or unmarried mother of a deceased unmarried member, who was without adequate means of support, as well as to the wife and child of an incapacitated member of the Forces.

Details of the Regulations are set out below.

Regulation 1 - Interpretation

Regulation 3 of the Repatriation (Special Overseas Service) Regulations defines terms used in those Regulations.

Sub-regulation 1(a) has removed the definition of “deceased unmarried member” from former regulation 3 of the Repatriation (Special Overseas Service) Regulations as that term has no further application in those regulations.

Sub-regulation 1(b) inserted a definition of “service pension” into former regulation 3. This was necessary because of the amendment to former regulation 16. Sub-regulation 1(c)


amended the definition of “totally and permanently incapacitated” in regulation 3 of the Repatriation (Special Overseas Service) Regulations to make the definition consistent with the provisions of Schedule 2 to the Repatriation Act 1920, as amended by the Repatriation Legislation Amendment Act 1985.

The definition of “wife” in former regulation 3 of the Repatriation (Special Overseas Service) Regulations was amended by sub-regulation 1(d) to omit the reference to a person eligible for a pension in respect of the incapacity of a member as pensions are now granted only in respect of the death of a member.

Regulation 2 - Notification of marriage by female dependant

Regulation 16 of the Repatriation (Special Overseas Service) Regulations provided that a female dependant to whom a pension was payable was required to notify a Deputy Commissioner if she married, obtained a decree nisi of dissolution or nullity of marriage, or if a decree nisi of dissolution or nullity was obtained against her. Sub-regulation 2(a) amended former sub-regulation 16(1) to provide that notification of marriage and divorce is required only by service pensioners. As pensions other than service pensions are now granted only in respect of the member’s death, a female dependant in receipt of a pension other than a service pension is not required to notify of divorce.


Sub-regulation 2(b) inserted a new sub-regulation 16(1A) to require such people to notify of marriage only.

Regulation 3 - Medical treatment for widows, etc.

Regulation 3 removed the references to the widowed mother or widowed step-mother of a deceased unmarried member in former sub-regulation 38(1) of the Repatriation (Special Overseas Service) Regulations, as pensions and other benefits, including treatment, are no longer to be granted to such people.

Sub-regulation 3(2) provides savings provisions in respect of the widowed mother or widowed step-mother of a deceased unmarried member in receipt of a pension who was eligible for treatment benefits under former regulation 38 of the Repatriation (Special Overseas Service) Regulations.

Regulation 4 - Funeral expenses of dependants of deceased members

Former regulation 50 of the Repatriation (Special Overseas Service) Regulations provided for payment of funeral benefits in respect of the funerals of certain dependants of deceased members of the Forces, including the widowed mother, widowed step-mother or unmarried mother of a deceased unmarried member. Pensions and other benefits, including funeral benefits,


are no longer granted to such people, however, provision was required to maintain the eligibility for funeral benefits of the widowed mother, widowed step-mother or unmarried mother of a deceased unmarried member who is currently receiving a pension. Regulation 4 amended former regulation 50 of the Repatriation (Special Overseas Service) Regulations to provide that if a widowed mother, widowed step-mother or unmarried mother of a deceased unmarried member was receiving a pension payable under the Act at the time of her death, funeral expenses may be paid under regulation 50 of the Repatriation (Special Overseas Service) Regulations.

Regulation 5 - Repeal of regulations 55, 57, 58 and 59

Former regulations 55, 57 and 58 of the Repatriation (Special Overseas Service) Regulations provided for the payment of income-support pensions to the widowed mother, parent or aged parent of a deceased unmarried member whose income was less than the amount prescribed in former regulation 59. As a result of the Government’s decision to limit dependants’ pensions to the widow and children of a member whose death has been accepted as service-related, no further grants of pensions referred to in former regulations 55, 57 and 58 will be made and former regulation 59 has no application.


Regulation 5 repealed former regulations 55, 57, 58 and 59 of the Repatriation (Special Overseas Service) Regulations.

Regulation 6 - Repeal of regulation 61

Sub-regulation 6(1) repealed former regulation 61 of the Repatriation (Special Overseas Service) Regulations which provided for an allowance to a widow who remarried, was again widowed and who was without adequate means of support. No further grants of these allowances will be made.

Sub-regulation 6(2) provides for the continuation of an allowance granted under former regulation 61 of the Repatriation (Special Overseas Service) Regulations and which was in payment immediately before the commencement of this Regulation.

Regulation 7 - Repeal of regulation 79

Former regulation 79 of the Repatriation (Special Overseas Service) Regulations provided that in the application of those regulations to a female member, the term “member” meant female member, “wife of a member” meant husband of a female member and “widow of a member” meant widower of a female member. As benefits are no longer granted to the husband or widower of a female member, this regulation was repealed by regulation 7.

Regulation 8 - Limitations on assistance and benefits to dependants of female members

Former regulation 80 of the Repatriation (Special Overseas Service) Regulations limited the assistance and benefits which could be granted to the child of a female member of the Forces. The criteria expressed in former sub-regulation 80(2) reflected those expressed in repealed section 10 of the Act. Regulation 8 replaced those limitations in former sub-regulation 80(2) with the limitations expressed in section 10 of the Act as amended by the Repatriation Legislation Amendment Act 1985.

 

Authority:

Section 14 of the Repatriation (Special Overseas Service) Act 1962

 

Overview

The Repatriation (Special Overseas Service) Act 1962 was enacted to provide a legislative framework for the provision of pensions and other benefits to Australian Defence Force members who have been injured or incapacitated during service overseas. This Act aimed to address the unique needs of these service members and their dependants by providing specific provisions for their care and support. The Act was enacted by the Parliament of Australia, and its primary policy objective is to ensure that members of the Australian Defence Force who have been injured or incapacitated during overseas service receive appropriate financial and medical support. The Repatriation (Special Overseas Service) Regulations (Amendment) were introduced to align the existing regulations with the provisions of the Repatriation Legislation Amendment Act 1985, which made significant changes to the criteria for eligibility for certain pensions and the categories of dependants who could receive benefits. The amendments aimed to streamline the pension eligibility criteria and limit the categories of dependants who could receive benefits, in line with the Government's policy decisions. The regulations introduced by these amendments ensure that the Repatriation (Special Overseas Service) Regulations remain consistent with the updated legislative framework.

Scope and Application

The Repatriation (Special Overseas Service) Regulations (Amendment) applies to the administration and eligibility criteria of pensions and benefits for veterans and their dependants, particularly those who served overseas in war or conflict situations, as specified by the Repatriation (Special Overseas Service) Act 1962. These regulations are designed to implement the amendments introduced by the Repatriation Legislation Amendment Act 1985, which affected the eligibility criteria for special rate and intermediate rate pensions for total incapacity, as well as the cessation of pensions to certain dependants of deceased members of the Forces, with exceptions for war widows and orphans. The regulations primarily affect veterans and their dependants who are seeking or receiving benefits under the Act, and they are applicable across Australia, as the Act is a Commonwealth legislation. Notably, the regulations exclude pensions and benefits for certain categories of dependants, such as widowed mothers, stepmothers, or unmarried mothers of deceased unmarried members, in line with the legislative amendments. The regulations also extend to the interpretation of terms used within the Act, ensuring consistency with other relevant acts and regulations. Subordinate instruments may further detail the implementation of these changes, ensuring that the amendments are effectively carried out across all relevant jurisdictions and applicable scenarios.

Key Provisions

The Repatriation (Special Overseas Service) Regulations (Amendment) are consequential to the Repatriation Legislation Amendment Act 1985, which brought significant changes to the eligibility criteria for pensions and benefits. Regulation 3, which pertains to interpretation, updates definitions to align with the amendments, removing terms like "deceased unmarried member" and updating others to reflect current legislative changes. Regulation 2 addresses notification requirements, stipulating that only service pensioners must notify of marriage or divorce, reflecting the shift in pension eligibility criteria. Regulation 3 removes references to widowed mothers or stepmothers of deceased unmarried members, as they are no longer eligible for benefits, while Regulation 4 maintains funeral benefit eligibility for these individuals if they were already receiving a pension at the time of their death. Regulation 5 repeals regulations related to income-support pensions to widowed mothers, parents, or aged parents of deceased unmarried members, aligning with the new policy direction. Regulation 6 repeals provisions for allowances to widows who remarry and are again widowed, while Regulation 7 repeals gender-specific terms in the regulations as benefits are no longer extended to husbands or widowers of female members. Regulation 8 updates limitations on assistance and benefits for children of female members, aligning with the amended criteria in the Act. The Act imposes specific obligations on parties such as Repatriation determining authorities, service pensioners, and female dependants. Repatriation determining authorities must apply the updated criteria for pension eligibility, including assessing whether an applicant for the Special Rate pension is blinded as a result of war service or meets the new incapacity requirements. Service pensioners must notify of changes in marital status, such as marriage or divorce, while female dependants who are not service pensioners are not required to notify of divorce but must report marriages. The regulations also clarify the cessation of benefits to certain categories of dependants, such as widowed mothers or stepmothers, and update the definitions and application of terms within the Act. Breaches of the provisions in the Repatriation (Special Overseas Service) Regulations can result in civil or criminal consequences, depending on the nature of the violation. For instance, failure to notify of a change in marital status when required could result in penalties under the relevant provisions of the Act. However, specific penalties are not detailed in the Explanatory Statement, and the consequences would depend on the particular circumstances and applicable laws. It is important to note that the regulations themselves do not prescribe specific penalties but rely on the overarching Act and other relevant legislation to determine consequences for non-compliance.

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