EXPLANATORY STATEMENT
Veterans' Entitlements (Means Test Treatment of Private Companies—Excluded Companies) Declaration 2025
EMPOWERING PROVISION
The Repatriation Commission makes this instrument under section 52ZZA(5) of the Veterans’ Entitlements Act (1986) (the Act).
PURPOSE
This instrument revokes schedule 11 to the Veterans’ Affairs (Legislative Instrument Re-making Exercise) Instrument 2014 (the 2014 Instrument) and remakes it as a new standalone instrument ahead of its sunsetting date. Schedule 11 contains the Veterans’ Entitlements (Means Test Treatment of Private Companies—Excluded Companies) Declaration 2001.
The instrument has been re-made with no substantive changes from Schedule 11 to the 2014 Instrument.
OVERVIEW
Subsection 52ZZA(5) of the Veterans’ Entitlements Act 1986 (the Act) provides that the Commission may, by legislative instrument, declare that each company included in a specified class of companies is an excluded company for the purposes of section 52ZZA.
The Veterans’ Entitlements (Means Test Treatment of Private Companies—Excluded Companies) Declaration 2025 specifies a class of companies for the purposes of subsection 52ZZA(5).
The effect of a company being an excluded company is that the assets and income of such a company will not be attributed to an individual for the purposes of ascertaining the person’s assets or income for means testing purposes under Division 11A of Part IIIB of the Act.
The instrument excludes a class of companies from the definition of designated private company. The class of companies excluded by this instrument are those that have the sole or dominant purpose of:
- receiving, managing or distributing property given to it, by a government or government-type body, for a community purpose;
- holding, managing or disposing of indigenous-held land, for a community purpose; or
- receiving, managing or distributing income generated from the use of indigenous-held land and applied for a community purpose.
The overall policy objective of the instrument is to apply the same approach taken in the equivalent instrument under the Social Security Act 1991 which is the Social Security (Means Test Treatment of Private Companies — Excluded Companies) Declaration 2017).
The following minor and technical changes have been made to the drafting of schedule 11 to the 2014 Instrument:
- authority provision added—new section 3;
- repeal provision added as new section 3A—noting this section will be automatically repealed under section 48C of the Legislation Act 2003. Again, this is intended to preserve consistency with the numbering in the Social Security Act instrument.
In addition, section 6 of the instrument has been updated (and the scope broadened slightly) for consistency with the equivalent provision in the Social Security (Means Test Treatment of Private Companies — Excluded Companies) Declaration 2017.
EXPLANATION OF PROVISIONS
Part 1 consists of sections 1, 2, 3, 3A, 4 and 5 and deals with preliminary matters.
Section 1 states that the name of the instrument is the Veterans' Entitlements (Means Test Treatment of Private Companies—Excluded Companies) Principles 2025.
Section 2 states that the instrument commences on the day after the day it is registered.
Section 3 provides the authority for the Repatriation Commission to make the instrument, namely section 52ZZA of the Act.
Section 3A repeals schedule 11 to the 2014 instrument.
Section 4 sets out the purpose of the instrument.
Section 5 is the definition section. It signposts terms used in the instrument that have a defined meaning in the Act. It also defines other terms used in the instrument, namely “Act”—to mean the Veterans’ Entitlements Act 1986; and “social security entitlement” —to have the same meaning it has in the Social Security Act 1991.
Part 2 consists of section 6, which deals with characteristics a company must possess to be an excluded company.
Section 6 declares that a company will be an excluded company for section 52ZZA of the Act if the company has the sole or dominant purpose of:
- receiving, managing or distributing property given to it, directly or indirectly, by a government or government-type body, for a community purpose;
- holding, managing or disposing of indigenous-held land, for a community purpose; or
- receiving, managing or distributing income generated from the use of indigenous-held land and applied for a community purpose.
The terms "government body" and "community purpose" are defined in section 5 of the instrument, as are the terms "income" and "indigenous-held land".
CONSULTATION
The Department did not consult directly with individuals likely to be affected by the remake of this instrument. This was not considered necessary given the remake is administrative in nature to prevent the instrument from arbitrarily sunsetting on 1 April 2025. The remaking of this instrument will maintain the same policy intent and treatment to set out decision-making principles that the Commission must comply with in making determinations under section 52ZZA of the Act. These determinations relate to modifying the way in which Division 11A of Part IIIB of the Act would otherwise maintain the assets and liabilities of a company or trust against an individual receiving a means tested income support payment.
HUMAN RIGHTS IMPLICATIONS
This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.
Approved by the rule-maker:
The Repatriation Commission
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Veterans' Entitlements (Attribution of Assets) Principles 2025
This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Veterans' Entitlements (Means Test Treatment of Private Companies—Excluded Companies) Declaration 2025 (the instrument) repeals schedule 11 to the Veterans’ Affairs (Legislative Instrument Re-making Exercise) Instrument 2014 and remakes it as a standalone instrument ahead of its sunsetting date of 1 April 2025.
Subsection 52ZZA(5) of the Veterans’ Entitlements Act 1986 (the Act) provides that the Commission may, by legislative instrument, declare that each company included in a specified class of companies is an excluded company for the purposes of section 52ZZA.
The instrument specifies a class of companies for the purposes of subsection 52ZZA.
The effect of a company being an excluded company is that the assets and income of such a company will not be attributed to an individual for the purposes of ascertaining the person’s assets or income for means testing purposes under Division 11A of Part IIIB of the Act, in relation to Veterans’ Affairs payments.
Human rights implications
This instrument engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system.
The instrument will operate beneficially and support a person’s human rights as the effect of the instrument is to ensure that assets and income generated within certain excluded companies will not be attributed to an individual for the purposes of ascertaining the person’s assets or income for means testing purposes under Division 11A of Part IIIB of the Act.
Conclusion
This instrument supports a person’s human right to social security and is therefore compatible with human rights.
Repatriation Commission
Rule-Maker