EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO. 98
Seamen’s War Pensions and Allowances Regulations (Amendment)
Issued by authority of the Minister of State for Veterans’ Affairs
Under section 59 of the Seamen’s War Pensions and Allowances Act 1940 (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 to the provisions of the Veterans’ Entitlements Act 1986 the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 and proposed Veterans’ Entitlements Regulations. The regulations are to ensure consistency with the Veterans’ Entitlements Act 1986 and the Veterans’ Entitlements Regulations. These regulations also make other minor amendments.
Details of the regulations are set out below.
Regulation 1 - Interpretation
Regulation 4 of the Seamen’s War Pensions and Allowances Regulations contains definitions of terms used in the Regulations.
Regulation 1 inserts a definition of ‘funeral benefit’ in regulation 4. This definition is required for the application of regulations 19 and 20A of the Seamen’s War Pensions and Allowances Regulations.
Regulation 1 also inserts a definition of ‘travelling expenses’ to mean fares, losses or expenses in respect of which a payment may be made under regulation 32 or 34A of the Regulations. The definition is required for the application of regulation 20 of the Seamen’s War Pensions and Allowances Regulations.
Regulation 2 - Repeal of regulations 7, 7A, 8, 10, 11, 12 and 13
Regulation 2 has repealed regulations 7, 7A, 8, 10, 11, 12 and 13 of the Seamen’s War Pensions and Allowances Regulations.
Regulations 7 and 7A of the Seamen’s War Pensions and Allowances Regulations provided for the payment of a sitting fee and travelling and meal allowances to a member of a Pensions
Committee, other than an officer or employee of the Commonwealth Public Service, in respect of each day or part day on which he attends a meeting of the Committee. As these payments are covered by determinations of the Remuneration Tribunal, regulations 7 and 7A are not required and have been repealed.
Sub-regulation (1) of regulation 8 of the Seamen’s War Pensions and Allowances Regulations provided for a declaration as to the correctness of information set out in a claim, or document relating to a claim, to be made before a person before whom a statutory declaration may be made by virtue of the Statutory Declarations Act 1959, a registrar under the Repatriation Regulations or an officer of the Department. Sub-regulation(2) of regulation 8 provided that in the case of a person under the age of 16, the declaration could be made by a person over the age of 16 years who had knowledge of the information set out in the claim or document.
Such declarations are not required and are no longer obtained. Regulation 2 has repealed regulation 8.
Regulation 10 of the Seamen’s War Pensions and Allowances Regulations required a Deputy Commissioner to cause the date on which a claim is lodged to be recorded on the claim. This is an administrative matter for which provision is not required in the regulations, as provision for the lodging of claims is contained in sections 26 and 26AA of the Act.
Regulation 2 has repealed regulation 10.
Regulations 11, 12 and 13 of the Seamen’s War Pensions and Allowances Regulations provided for pensions payable under the Act to be paid in the same manner as provided from time to time for payment of pensions under the Repatriation Act 1920; for the determination of pension fortnights and the due date of instalments of pensions.
The Schedule to the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 amended the Act by substituting a new section 54. That section now provides the manner in which pensions payable under the Act shall be paid.
Regulations 11, 12 and 13 of the Seamen’s War Pensions and Allowances Regulations were no longer required and have been repealed by regulation 2.
Regulation 3
Regulation 3 has repealed regulation 18 and substituted a provision identical to that applying to veterans under section 123 of the Veterans’ Entitlements Act 1986.
The new sub-regulation 18(1) provides that where an amount, of pension or allowance payable under the Act or the
Regulations accrues and is unpaid on the death of a person, or becomes payable after death in respect of a grant of a claim for pension or an allowance made before death, the Repatriation Commission may distribute the unpaid monies. The sub-regulation provides that the priority on which the monies will be distributed will be to the legal personal representative, if one exists and, in any other case, to any surviving dependants of the person and if there are no dependants, to any other person or persons to whom it would, in the opinion of the Commission, be appropriate in all the circumstances of the case, to pay that amount.
The new sub-regulation 18(2) allows the Repatriation Commission to approve the amount of each share of unpaid monies where payment is approved among 2 or more persons.
The new sub-regulation 18(3) allows the Repatriation Commission to approve payment to a dependant or among dependants to the exclusion of another dependant or dependants where there is no legal personal representative of the deceased.
Regulation 4
Regulation 4 has repealed regulations 19, 20 and 21 of the Seamen’s War Pensions and Allowances Regulations and substituted new regulations 19, 20 and 21.
Regulation 19 of the Seamen’s War Pensions and Allowances Regulations provided for an application for a benefit to be made to the Secretary in writing on the approved form.
Regulation 20 of the Seamen’s War Pensions and Allowances Regulations provided that applications be dealt with in the manner laid down by the Commission from time to time.
Regulation 21 of the Seamen’s War Pensions and Allowances Regulations provided that except in special circumstances, benefits would not be granted or payable in respect of any period before the date of lodgement of the application. These regulations have been replaced by regulation 19 which is similar to section 111 of the Veterans’ Entitlements Act 1986 and which provides for the manner for making applications.
The new sub-regulation 19(1) provides that the regulation applies to applications for clothing allowance, funeral benefit under regulation 38, temporary incapacity allowance, loss of earnings allowance and travelling expenses under regulation 32 or 34A.
The new sub-regulation 19(2) provides that the application for a specified benefit shall be in accordance with a form approved by the Repatriation Commission, shall be accompanied by such certificates and evidence (relevant to the
application) as is required to be furnished by the regulations or the form of application, and shall be made by forwarding to, or delivering at, an office of the Department in Australia.
The new sub-regulation 19(3) provides that an application may be made by the person eligible to be granted the benefits or by another person on that person’s behalf with the approval of that person or of the Commission if the person is unable to give such approval because of mental or physical incapacity.
The new sub-regulation 19(4) provides for the Commission to approve a person to make an application on behalf of a person who is unable to give such approval because of physical or mental incapacity.
The new sub-regulation 19(5) provides that where a person makes an application on behalf of another, the person on whose behalf the application is made it to be treated as the applicant.
The new sub-regulation 19(6) provides for a person to lodge an informal application, that is, an application in writing other than in accordance with the approved form. If the person subsequently lodges an application in writing in accordance with the approved form, within 3 months of being advised of the necessity to do so, or at any time if the applicant is not so
advised, the Commission may treat the second application as having been lodged on the date that the informal application was received.
Regulation 4 also inserts a new regulation 20 into the Seamen’s War Pensions and Allowances Regulations which imposes time limits within which applications for benefits under the Regulations must be lodged. Regulation 20 contains the same provisions as section 112 of the Veterans’ Entitlements Act 1986 in its application to veterans.
The new sub-regulation 20(1) requires an application for temporary incapacity allowance to be made within 12 months of the start of the period in respect of which the allowance is claimed, that is, the relevant period applicable to the incapacity for the purpose of regulation 38B.
The new sub-regulation 20(2) requires an application for loss of earnings allowance to be made within 12 months of the start of the period in respect of which the person has suffered a loss of salary, wages or a loss of earnings on his or her own account.
The new sub-regulation 20(3) requires an application for travelling expenses under regulation 32 or 34A to be lodged within 3 months after completion of that travel.
The new sub-regulation 20(4) provides that an application for temporary incapacity allowance, loss of earnings allowance or travelling expenses which is lodged after the expiration of the specified time limit will have no force or effect.
The new sub-regulation 20(5) provides a savings provision in that the time limits will not apply in relation to an application for temporary incapacity allowance or loss of earnings allowance in respect of a period which commenced before the commencement of regulation 4, or in relation to an application for travelling expenses in respect of travel undertaken before the commencement of regulation 4.
Regulation 4 also inserts a new regulation 21 into the Seamen’s War Pensions and Allowances Regulations which imposes time limits on the lodgement of applications for funeral benefits. This regulation contains similar provisions to section 113 of the Veterans’ Entitlements Act 1986.
The new sub-regulation 21(1) requires an application for the grant of funeral benefit under regulation 38 to be made within 12 months of the death of the Australian mariner.
The new sub-regulation 21(2) provides that where a determination is made under the Act, after the death of the mariner, that the mariner died as a direct result of having
sustained a war injury, an application for the grant of funeral benefit may be made within 12 months after the date of that determination.
The new sub-regulation 21(3) provides that an application for the grant of funeral benefit which is made after the expiration of the periods specified will have no force or effect.
The new sub-regulation 21(4) contains a savings provision and provides that the time limits do not apply in respect of deaths which occurred before the commencement of the regulation.
Regulation 4 also inserts a new regulation 21A into the Seamen’s War Pensions and Allowances Regulations to provide for the lodgement of applications for benefits at approved places or with approved persons. This is a definitional regulation and accords with sub-section 5(11) of the Veterans’ Entitlements Act 1986.
The new regulation 21A provides that where an application is lodged at an approved place whether inside or outside Australia or with an approved person, that application will be deemed to have been received at an office of the Department in Australia on the day on which it was so lodged.
Regulation 5 - Repeal of regulations 23 and 24
Regulation 5 has repealed existing regulations 23 and 24 of the Seamen’s War Pensions and Allowances Regulations.
Regulation 23 provided that a Deputy Commissioner could not grant an application for a benefit unless he was satisfied that the purpose for which the benefit was required was likely to be achieved, having regard to the character, fitness and previous experience of the applicant. The regulation was unnecessarily paternalistic and has been repealed.
Regulation 24 provided that a benefit granted to a person under the regulations could be paid or handed on that person’s behalf to such other person as the Deputy Commissioner thinks fit. The inclusion of a new section 54 of the Act by the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 has rendered the provisions of this regulation redundant and it has been repealed by regulation 5.
Regulation 6 - Treatment for war disabilities
Regulation 26 provided for a Deputy Commissioner to provide medical treatment for an Australian mariner in respect of an incapacity due to a war injury, subject to such conditions as the Commission determines from time to time.
Regulation 6 amends the existing regulation to provide that it is the Repatriation Commission which will provide medical treatment subject to such conditions as it sees fit. The amendment is required to make existing regulation 26 consistent with Part V of the Veterans’ Entitlements Act 1986, which provides that the Commission has the power to arrange for the provision of treatment.
Regulation 7 - Medical treatment for Australian mariners who have suffered detention etc
Regulation 26A provided for a Deputy Commissioner to provide medical treatment for specified Australian mariners in respect of an incapacity, whether or not due to a war injury, subject to such conditions as the Commission determines from time to time.
Regulation 7 amends the existing regulation to provide that it is the Repatriation Commission which will provide medical treatment subject to such conditions as it sees fit. The amendment makes existing regulation 26 consistent with Part V of the Veterans’ Entitlements Act 1986, which provides that it is the Commission which may arrange for the provision of treatment.
Regulation 8 - Additional medical treatment for Australian mariners
Regulation 8 has repealed existing regulation 26B of the Seamen’s War Pensions and Allowances Regulations and substituted a new regulation 26B.
Regulation 26B of the Seamen’s War Pensions and Allowances Regulations provided for the Deputy Commissioner to provide medical treatment in a hospital or institution referred to in section 120D of the Repatriation Act 1920 for an Australian mariner where the mariner is not otherwise eligible for treatment under these regulations. Sub-regulation 26B(2) provided that the treatment may be provided under the regulation only if it did not adversely affect the provision of medical treatment under any other provision of these regulations or certain provisions of the Repatriation or associated Regulations.
The Veterans’ Entitlements Act 1986 repealed the Repatriation Act 1920, the Interim Forces Benefits Act 1947, the Repatriation (Far East Strategic Reserve) Act 1956, and the Repatriation (Special Overseas Service) Act 1962.
Regulation 8 has repealed existing regulation 26B of the Seamen’s War Pensions and Allowances Regulations and substituted a new regulation 26B to provide that the Commission
may, subject to such conditions as it determines from time to time, provide medical treatment at a hospital or other institution for an Australian mariner who is not otherwise eligible for medical treatment under these regulations.
Regulation 9 - Non-liability where treatment not granted, & c
Regulation 28 of the Seamen’s War Pensions and Allowances Regulations provided that a Deputy Commissioner could refuse to grant medical treatment and the Commission would not be liable for any expenditure subsequently incurred, where a medical officer was of the opinion that the mariner had caused a recurrence of, or had aggravated his disability or retarded his recovery by misconduct, willful act, neglect or was recalcitrant to the prejudice of his fellow patients.
Regulation 9 has amended existing regulation 28 of the Seamen’s War Pensions and Allowances Regulations to omit the reference to ‘a Deputy Commissioner’ and substitute ‘the Commission’. The amendment provides consistency with Part V of the Veterans’ Entitlements Act 1986 which provides that it is the Repatriation Commission which has the power to refuse to provide treatment.
Regulation 10 - Surgical aids, & c
Regulation 29 of the Seamen’s War Pensions and Allowances Regulations provided that a Deputy Commissioner could refuse to arrange for the repair or renewal of artificial or surgical aids or appliances, or require the person to pay for for the repair or renewal, where the need for the repair or renewal has arisen from the carelessness or willful act of the person.
Regulation 10 has substituted references to the Commission for the references to the Deputy Commissioner in this regulation to make the provision consistent with Part V of the Veterans’ Entitlements Act 1986.
Regulation 11 - Expenses of travelling for medical treatment or pension purposes
Regulation 32 of the Seamen’s War Pensions and Allowances Regulations provided for a Deputy Commissioner to grant fares and allowances for travelling for medical treatment or pension purposes.
Regulation 11 substitutes references to the Commission in place of the references to ‘a Deputy Commissioner’ throughout regulation 32. The amendment achieves consistency with the provisions of the Veterans’ Entitlements Act 1986 in relation to the grant of travelling expenses.
The regulation has also repealed sub-regulation 32(2) which provided that a Deputy Commissioner could authorise the payment of an allowance in respect of any wages or salary lost by an attendant who accompanied a person required to attend for medical treatment or pension purposes.
Regulation 11 inserts a new sub-regulation 32(2) to provide that it is the Repatriation Commission which may authorise the payment of fares for an attendant.
Regulation 11 has also repealed existing sub-regulation 32(4) and substitutes a new sub-regulation 32(4) to specify the maximum amount of subsistence allowance payable under regulation 32. This new sub-regulation is consistent with the provisions of the Veterans’ Entitlements Regulations.
Regulation 12 - Repeal of regulation 33
Regulation 33 of the Seamen’s War Pensions and Allowances Regulations provided for the payment of an allowance to a mariner in respect of an attendance in connection with a war injury at an out-patient clinic or hospital of the Department, the rooms of a medical officer, dentist, medical specialist, or other health-care provider, an artificial limb factory of the Department or the Central Office or Branch Office of the Department.
The provisions of this regulation would have duplicated those of regulations 38B and 39 which have been inserted by regulation 18 of these Statutory Rules. Regulation 33 was no longer required and has been repealed.
Regulation 13 - Medical treatment for widows, & c
Regulation 34 of the Seamen’s War Pensions and Allowances Regulations provided that a Deputy Commissioner could provide medical treatment for a widow, separated widow, child or the defacto wife of a deceased Australian mariner.
Regulation 13 substitutes a reference to the Commission in place of the reference to a Deputy Commissioner in sub-regulation 34(1) to maintain consistency with the provisions of Part V of the Veterans’ Entitlements Act 1986.
Regulation 14 - Expenses of travelling for medical treatment by eligible persons
Regulation 34A of the Seamen’s War Pensions and Allowances Regulations provided for the Deputy Commissioner to pay travelling expenses to a widow, separated widow, child or defacto wife of a deceased Australian mariner who travels to obtain medical treatment, for the restoration of his or her
health, to be fitted with a surgical aid or appliance or artificial replacement, to hospital or for pension purposes.
Regulation 14 substitutes references to the Commission in place of references to a Deputy Commissioner throughout this regulation to maintain consistency with the provisions of the Veterans’ Entitlements Act 1986 which relate to travelling expenses.
Paragraph 14(g) omits sub-regulation 34A(4) and substitutes a new sub-regulation 34A(4) which specifies the maximum amount of subsistence allowance payable. This new sub-regulation is consistent with the provisions of the Veterans’ Entitlements Regulations.
Regulation 15 - Allowance to certain widows
Regulation 37 of the Seamen’s War Pensions and Allowances Regulations provided that an allowance at the rate of $24 per fortnight was payable to the widow, separated widow or defacto wife of a deceased Australian mariner who had reached 50 years of age, was, in the opinion of the Commission, unemployable, or who had a child under the age of 16 or was undergoing a course of education or training for which the child did not receive, or was not entitled to, an adequate living wage.
Regulation 15 has repealed the regulation 37 and substituted a new regulation 37 to provide that the allowance is payable to the widow of an Australian mariner to whom a pension is payable under sub-sections 12(1) or 17A(1) of the Act in respect of the mariner’s death.
The regulation is necessary to align the provisions of regulation 37 with section 30 of the Veterans’ Entitlements Act 1986.
Regulation 16 - Funeral expenses
Regulation 16 amends regulation 38 to substitute a reference to a Deputy Commissioner with a reference to the Commission. This provides consistency with the provisions of Part VI the Veterans’ Entitlements Act 1986 relating to funeral expenses.
Regulation 17 - Clothing allowance
Regulation 38A of the Seamen’s War Pensions and Allowances Regulations provided that a Deputy Commissioner could grant a clothing allowance to an Australian mariner in receipt of a disability pension in respect of certain amputations.
Paragraph 17(a) amends existing regulation 38A by substituting a reference to the Commission in place of a
reference to a Deputy Commissioner to achieve consistency with the provisions of section 97 of the Veterans’ Entitlements Act 1986 which provides for the payment of clothing allowance to veterans.
Paragraph 17(b) substitutes a new table of disabilities in sub-regulation 38A(1) for which clothing allowance is payable. The substituted table includes an additional item to provide legislative authority for the payment of the allowance to a mariner who has been blinded in both eyes as a result of a war injury. The provision is consistent with section 97 of the Veterans’ Entitlements Act 1986.
Paragraph 17(c) repeals sub-regulation 38A(2) and substitutes a new sub-regulation 38A(2) which provides that if a mariner is required to use a crutch or crutches in addition to any other artificial aid, the amount of clothing allowance payable may be increased to the maximum rate.
Paragraphs 17(d) & (e) amend sub-regulation 38A(3) and substitute references to the Deputy Commissioner with references to the Commission. This provides consistency with section 97 of the Veterans’ Entitlements Act 1986.
Paragraph 17(g) adds a new paragraph to define the term ‘blindness’ for the purposes of the regulation. The definition provides consistency with the definition in section 5 of the Veterans’ Entitlements Act 1986.
Regulation 18
Regulation 18 has repealed regulation 38B of the Seamen’s War Pensions and Allowances Regulations and substitutes new regulations 38B, 39, 39A and 39B.
Former regulation 38B applied those provisions of the Repatriation Regulations relating to the payment of loss of earnings allowance and temporary incapacity allowance. As the Repatriation Act 1920 has been repealed by the Veterans’ Entitlements Act 1986 the Repatriation Regulations consequently have no effect. It is necessary to have separate provision in the Seamen’s War Pensions and Allowances Regulations to authorise the payment of these allowances.
Regulation 18 has inserted regulation 38B which provides for the payment of temporary incapacity allowance. Regulation 38B contains the same provisions as section 107 of the Veterans’ Entitlements Act 1986 and regulation 7 of the Veterans’ Entitlements Regulations in relation to the payment of this allowance
Regulation 18 has also inserted regulation 39 which provides for the payment of loss of earnings allowance. Regulation 39 contains the same provisions as section 108 of the
Veterans’ Entitlements Act 1986 relating to the payment of this allowance.
Regulation 18 has also inserted regulation 39A which specifies the information to be supplied by an applicant for loss of earnings allowance. This regulation is similar to regulation 8 of the Veterans’ Entitlements Regulations.
Regulation 18 has inserted regulation 39B which provides for the payment of an advance on account of loss of earnings allowance. Regulation 39B contains similar provisions to section 109 of the Veterans’ Entitlements Act 1986 relating to the payment of this allowance.
Regulation 19 - Review of benefits
Regulation 19 has made amendments to regulation 40 of the Seamen’s War Pensions and Allowances Regulations.
Regulation 40 provided that a Deputy Commissioner could review a grant of a benefit if sufficient reason existed for so doing.
Regulation 19 has substituted references to a Deputy Commissioner with references to the Commission to provide consistency in the language of the regulations.
Regulation 20 - Repeal of regulations 42. 44, 45 and 46
Regulation 20 has repealed regulations 42, 44, 45 and 46.
Regulation 42 related to the notification of the death of a pensioner or grantee to a Deputy Commissioner. The schedule to the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 provides for amendments to the Act to provide information gathering powers - new sections 29 and 30.
Regulation 42 was therefore not required. Regulation 20 has repealed that regulation.
Regulations 44, 45 and 46 related to the completion of forms required under the regulations and these regulations no longer had any operative effect. Regulation 20 has therefore repealed regulations 44, 45 and 46.
Authority: Section 59 of the Seamen’s War Pensions and Allowances Act 1940