EXPLANATORY STATEMENT

Veterans' Children Education Scheme (Update) Instrument No. 4/2003.

The purpose of the attached Instrument is to make a number of relatively minor and technical variations to the Veterans’ Children Education Scheme (VCES).

The VCES is a Scheme made under section 117 of the Veterans’ Entitlements Act 1986 (VEA) and its purpose is to enable the Repatriation Commission to accept financial liability for the education and training of the children of certain veterans, being veterans who, generally speaking, died of, or suffered from, a war-caused condition.

The variations made to the VCES by the attached Instrument are as follows:

revising definitions/inserting new ones

• the definition “ ‘approved’ ‘not otherwise approved’ ” was separated into two definitions, namely: “approved full-time tertiary or technical and further education course” and “course not otherwise approved”.  This variation did not alter the meaning of the previous definition.  It simply ensures the definitions in the VCES comply with current drafting practices.

• a definition of “fare” has been introduced.  A definition of “fare” was needed, particularly as the definition makes it clear that “fare” includes the cost of public transport between a student’s home and place of study.

• a definition of “responsible Departments” has been made.  This was done to overcome the problem caused by Departments being referred to in the VCES by name (eg Department of Employment, Education, Training and Youth Affairs) which meant that every time the name of the relevant Department changed, the VCES needed to be changed.  The new definition will refer to the relevant Departments by reference to the legislation they administer that is relevant for the purposes of the VCES.

legal-meaning changes

• legal-type changes were made to the references in the VCES to a child failing to satisfy the Progress Rules in the Social Security Act 1991. 

The way the references were previously framed suggested that the Progress Rules applied to “VCES children” by virtue of the Social Security Act 1991, which is not the case.  The Progress Rules in the Social Security Act 1991 are to apply to “VCES children” but only because the VCES “invites” them to apply.  The Progress Rules in the Social Security Act 1991 do not, of their own force or volition, apply to VCES children. 

Accordingly the VCES was amended to state the correct legal position which is that a VCES child must satisfy the Progress Rules in the Social Security Act 1991 as if the child had been a child in respect of whom the Progress Rules had applied.

updating references to legislation

• certain provisions of the VCES previously stated that “VCES benefits” for children were to be paid to the person to whom child support allowances were paid under the Social Security Act 1991.  But such allowances are now paid as the Family Tax Benefit under the

A New Tax System (Family Assistance)(Administration) Act 1999.  Accordingly it was necessary to update the relevant provisions so that VCES benefits were payable to the person to whom the Family Tax Benefit was paid.

correcting misdescriptions in titles

• a number of references in the VCES to the “Commonwealth Assistance to Isolated Children Scheme” were slightly incorrect in that the correct reference to the Scheme is: “Commonwealth Assistance for Isolated Children Scheme” (emphasis added).  The attached Instrument rectifies the error.

fares allowance

• under the previous “fares allowance provision” of the VCES the Repatriation Commission could only grant a fares allowance to a student in respect of travel on private transport from the student’s home to the student’s place of study, when travel on public transport should also have been capable of attracting a fares allowance.

This anomalous situation occured because the VCES had stated that a fares allowance could be granted on the same basis one could be granted under the “Fares Instrument” made under the Social Security Act 1991. 

But under the Social Security Act 1991 the Fares Instrument only applied to the fares allowance for travel on private transport with the fares allowance for travel on public transport being regulated in other provisions of the Act.  The Commission was confined, therefore, to granting a fares allowance only where private transport had been used.

Accordingly, the VCES was amended to enable the Commission to base a fares allowance on all of the fare allowance provisions of the Social Security Act 1991, not just on the fare provisions connected to the Fares Instrument, which means the Commission can now grant a fares allowance for travel on both private and public transport.

increase in board members

• the VCES establishes an Education Board in each State.  These Boards have functions associated with the provision of education to eligible children.  Prior to the attached Instrument, Boards could have not less than five members and not more than ten.  It was found that a membership of ten members was inadequate to deal with the work generated by VCES matters, particularly issues connected with children in country areas.  Accordingly the Repatriation Commission decided to increase the number of Board members to a maximum of fifteen, which is the maximum number of members the Boards were permitted at the inception of the VCES.  The attached Instrument implements the Commission’s decision.

appeals

• the VCES provides for an internal review of decisions made under the Scheme. 

Previously it was unclear if a decision of the Repatriation Commission (ie its delegate) could be reviewed by the Commission or whether only decisions made by Education Boards under the VCES could be reviewed.  Further, there was no express direction that an internal review should not be conducted by the person who made the decision that is the subject of the review.  The attached Instrument amends the VCES to make it clear that decisions of a Commission delegate may be reviewed and that a decision-maker must not review their own decision.

The attached Instrument is made under section 117 of the Veterans’ Entitlements Act 1986 (VEA).

The VEA does not specify any conditions that need to be met before the power to make the Instrument is exercised.

The Instrument does not affect the rights of any person so as to disadvantage that person and nor does it impose liabilities on any person other than on the Repatriation Commission and the Commonwealth.

Further details of the Instrument are contained in the attachment.

Attachment

Sections

Sections 1-4 are formal provisions.  It should be noted that an internal review being conducted immediately before the commencement of the attached Instrument is to continue as if the Instrument had not been made because otherwise the review might need to be terminated if it could not comply with the new requirements for the internal-review of decisions.

Items in Schedule

Item [1]  creates a definition of “approved full-time tertiary or technical and further education course”.  This definition is not new and is one of two parts of a former definition that was deconstructed because it did not conform to usual drafting standards.  The definition relates to the allowance for living away from home.  This allowance will not be granted unless the student in question is undertaking an approved full-time tertiary or technical and further education course, being an approved course under Part 2.11 of the Social Security Act 1991.

Item [2]  provides for a definition of “course not otherwise approved”.  This definition is the other part of the definition referred to in Item [1] that was separated to produce two definitions.  The definition in Item [2] relates to the granting of scholarships under the VCES.  A scholarship may be awarded under paragraph 7.2.3 of the VCES even though the course the proposed recipient of the scholarship is studying is a “course not otherwise approved” and this phrase means a course that is not an approved course of education or study under Part 2.11 of the Social Security Act 1991.

Item [3]  establishes a definition of “fare”.  This definition is relevant to the grant of a fares allowance under paragraph 5.1 of the VCES.  A “fare”, for which a student may receive an allowance, is the amount of money a student must pay in order to use public or private transport to travel between the student’s home and the student’s place of study.

Item [4]  creates a definition of “responsible Departments”. 

  Previously references to Departments in the VCES were references to those Departments by their name, which caused difficulties when their name changed.  The new definition means that where Departments are mentioned in the VCES they are referred to by way of the legislation they administer. 

Item [5]  replaced references to “Centrelink” and “Department of Employment, Education, Training and Youth Affairs” with “the responsible Departments”.  The responsible Departments are the Commonwealth Departments of State that administer, respectively, the Social Security Act 1991 and the Student Assistance Act 1973.

Item [6]  clarifies the legal position in relation to the application of the Progress Rules in the Social Security Act 1991 to children in the VCES, namely that under the VCES the rules apply to a student as if the student was a person subject to the Progress Rules under the Social Security Act 1991.  Previously the relevant provisions in the VCES implied that the Progress Rules directly applied to students under the VCES which is not the case because the Social Security Act 1991 does not regulate students studying under the VCES.

Item [7]  provides that education allowances paid to students other than tertiary students (relevant benefits) are to be paid to the person who is entitled to be paid family tax benefit. 

  This amendment was necessary because the VCES previously provided that education allowances for a student were to be paid to the person to whom family allowances were paid under the Social Security Act 1991.  But these allowances were discontinued under the Social Security Act 1991 and essentially became payable as the family tax benefit under the A New Tax System (Family Assistance)(Administration) Act 1999.  This meant the VCES needed to be amended because there was no longer a person designated as the person to whom education allowances could be paid. 

Items [8]/[9] correct a misdescription of the Commonwealth Assistance for Isolated Children Scheme.  The relevant change is the substitution of “... to Isloated Children”  with “... for Isolated Children”.

Item [10]  omits the existing provisions dealing with the fares allowance and substitutes new ones.

  If the Repatriation Commission has granted a student a “living away from home allowance” then it may grant the student a fares allowance (ie accept liability for a fare or part of a fare) in respect of the cost to the student of travelling between the student’s home and place of study.  The cost of using private transport may be a fare.

  In the course of making a decision about a fares allowance in a particular situation and the level of allowance, if a fares allowance is granted, the Commission is to be guided by Part 2.26 of the Social Security Act 1991 as to the situations under that Act when a fares allowance is granted and the level of allowance paid in a particular situation.

Item [11]  increases the maximum number of members that may be appointed to an Education Board under the VCES from ten to fifteen.  This was a response to the increase in work handled by Boards.

Item [12]  omits some of the existing provisions dealing with the internal-review of a decision under the VCES and substitutes new provisions.

  If an application for review of a decision of the Repatriation Commission (usually the delegate) or of an Education Board is made then the Commission is to review the decision or have the decision reviewed by a Commission-delegate (who must not be a person who made the decision being reviewed).

  If the Commission or delegate (reviewer) decides the decision under review was unsatisfactory, then the reviewer must set aside the decision and substitute a more appropriate decision.  If the reviewer is not satisfied the decision under review was unsatisfactory, the reviewer is to affirm the decision.

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 Repatriation Commission