Veterans' Entitlements Amendment Regulations 2003 (No. 1) 2003 No. 247
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 247
Issued by the Authority of the Minister for Veterans' Affairs
Veterans' Entitlements Act 1986
Veterans' Entitlements Amendment Regulations 2003 (No. 1)
Section 216 of the Veterans' Entitlements Act 1986 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Veterans' Children Education Scheme (the Scheme) is a scheme established under section 117 of the Act. The Scheme enables the Repatriation Commission to accept financial liability for education and training provided to the children of certain classes of veterans. Occasionally payments have been unlawfully made under the Scheme due to mistake or fraud.
The Scheme has now been prescribed by Regulations so that unlawful payments made under the Scheme may be recovered under the overpayments machinery in the Act.
Sections 205 to 205A of the Act provide for the administrative recovery of overpayments of entitlements under the Act. This provides a more efficient process than if payments are sought to be recovered by common law debt recovery measures.
Paragraph 205(1)(b) of the Act provides that the overpayments machinery applies to payments made unlawfully to a person under a prescribed educational scheme. Paragraph (j) of the definition of prescribed educational scheme in subsection 205(8) of the Act defines such a scheme to include schemes prescribed for the purposes of that definition.
The Regulations prescribe the Scheme for the purposes of paragraph 205(1)(b) of the Act.
While it is possible that overpayments under the Scheme may already be recoverable under the overpayments machinery in the Act (ie paragraph 205(1)(c)), thereby making the Regulations unnecessary, the situation is not clear, because paragraph 205(1)(c) provides for the recovery of unlawful payments "under the Act". Unlawful payments under the Scheme may be said to arise not so much under the Act as under an instrument under the Act and it is unclear if the two situations are one and the same.
Making the Regulations avoids this issue and makes the situation clear, namely that unlawful payments under the Scheme are recoverable under the overpayments machinery in the Act.
The Act specifies no conditions that needed to be met before the power to make the Regulations was exercised.
Details of each of the Regulations are set out in the attachment.
The Regulations took effect on gazettal.
0306681A-030819A
ATTACHMENT
Veterans' Entitlements Amendment Regulations 2003 (No. 1)
Regulation 1 refers to the name of the Regulations.
Regulation 2 provides for the Regulations to commence on gazettal.
Regulation 3 refers to the Schedule of the Regulations which contains the amendment to the Principal Regulations (the Veterans' Entitlements Regulations 1986).
Item [1] inserts a new Regulation 15A in the Principal Regulations. Regulation 15A prescribes the Veterans' Children Education Scheme for the purposes of paragraph (j) of the definition of prescribed educational scheme in subsection 205 (8) of the Veterans' Entitlements Act 1986.
Overview
The Veterans' Entitlements Amendment Regulations 2003 (No. 1) were enacted to address the problem of unlawful payments made under the Veterans' Children Education Scheme, which is established under the Veterans' Entitlements Act 1986. The Act allows the Governor-General to make regulations necessary or convenient to carry out or give effect to the Act. The Regulations prescribe the Scheme to ensure that unlawful payments are recoverable under the overpayments machinery of the Act, providing a more efficient recovery process than common law debt recovery measures. The policy objective is to clarify and facilitate the recovery of unlawful payments made under the Scheme, thereby ensuring the proper administration of veterans' entitlements.
Scope and Application
The Veterans' Entitlements Amendment Regulations 2003 (No. 1) apply to the Veterans' Children Education Scheme, which is a provision under the Veterans' Entitlements Act 1986 enabling the Repatriation Commission to accept financial liability for the education and training of children of certain classes of veterans. These regulations are designed to ensure that any unlawful payments made under this scheme can be recovered through the overpayments machinery outlined in the Act. This machinery provides a more efficient recovery process compared to common law debt recovery measures. The regulations clarify the recovery of unlawful payments under the scheme by prescribing it as a scheme for the purposes of the overpayments provisions in the Act, thereby avoiding potential ambiguities about the applicability of the overpayments machinery to such payments. The regulations have a national reach, applying across Australia in accordance with the Commonwealth jurisdiction of the Act. The regulations do not specify any particular conditions or thresholds that must be met for their application, and they came into effect immediately upon gazettal.
Key Provisions
The Veterans' Entitlements Amendment Regulations 2003 (No. 1) introduces changes to the Veterans' Children Education Scheme, established under section 117 of the Veterans' Entitlements Act 1986. This scheme enables the Repatriation Commission to accept financial liability for education and training provided to the children of certain classes of veterans. Regulation 3 of the Amendment Regulations inserts a new Regulation 15A in the Principal Regulations, prescribing the Veterans' Children Education Scheme for the purposes of the definition of a prescribed educational scheme in subsection 205(8) of the Act (Regulation 15A). This ensures that unlawful payments made under the Scheme can be recovered under the overpayments machinery in the Act, as specified in sections 205 to 205A.
The Regulations impose obligations on parties involved in the Veterans' Children Education Scheme, particularly the Repatriation Commission, to ensure that any unlawful payments are recovered. This includes following the administrative process outlined in the overpayments machinery, which provides a more efficient recovery process compared to common law debt recovery measures. The overpayments machinery is designed to recover unlawful payments made under prescribed educational schemes, as specified in paragraph 205(1)(b) of the Act. By prescribing the Veterans' Children Education Scheme, the Regulations clarify that payments made under this scheme are subject to the overpayments recovery process, ensuring a consistent approach to handling unlawful payments.
Breaches of the provisions in the Regulations can lead to civil consequences, including the recovery of unlawful payments through the overpayments machinery. Under sections 205 to 205A of the Act, the Repatriation Commission has the authority to recover overpayments made under prescribed educational schemes. Failure to comply with these requirements can result in the Commission taking action to recover any unlawful payments, ensuring that resources are appropriately allocated for the intended beneficiaries of the Scheme. While the Regulations do not specify criminal penalties for breaches, non-compliance with the overpayments machinery could potentially lead to legal action under the Act or other relevant legislation.