Veterans' Entitlements (Partner Service Pension - Retention of Eligibility for Non-illness Separated Spouse) Determination R25 of 2009

Administered by Department of Veterans' Affairs

Legislation au F2009L01478 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

 

Veterans’ Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009

 

EMPOWERING PROVISION

 

Section 38(2AD) of the Veterans’ Entitlements Act 1986 (the Act). 

 

Section 38(2AD) will commence on 1 July 2009.  The attached legislative instrument is able to be made (but not able to commence) before 1 July 2009 by virtue of section 4 of the Acts Interpretation Act 1901.  Under section 4, where a provision of an Act contains an instrument-making power, but the provision has not commenced, an instrument may be made under the provision in readiness for when the provision commences.

 

PURPOSE

 

To set out the circumstances in which a spouse of a veteran will not lose the partner-service pension despite being separated from the veteran for 12 months or more for a reason other than illness.

 

Generally speaking a spouse of a veteran will lose the partner-service pension after being separated from the veteran for 12 months for a reason other than illness (non-illness separated spouse), however subsection 38(2AD) of the Act allows for an exception to this rule.

 

Subsection 38(2AD) enables the Repatriation Commission to make a legislative instrument setting out the circumstances where a non-illness separated spouse of a veteran who has not reached pension age and who has been separated from the veteran for at least 12 months, will not lose the partner-service pension.

 

The Repatriation Commission made the attached instrument (R25/2009) under s.38(2AD) and, generally speaking, it has the effect that a spouse in the relevant circumstances will not lose the partner-service pension if the veteran’s behaviour, arising from a mental condition, was such that it forced the spouse to leave the relevant domestic environment.

 

 

 

 

 

RETROSPECTIVE

 

No.

 

CONSULTATION

 

Yes.  The following interested parties (Ex-Service Organisations) were consulted.  Consultation was by way of letter and respondents were given approximately two weeks to respond by e-mail or telephone.  A number of responses were received:

 

  • Australian Federation of Totally and Permanently Incapacitated Ex-Servicemen and Women
  • Australian Peacekeeper & Peacemaker Veterans' Association
  • Australian Veterans and Defence Services Council Inc
  • Defence Force Welfare Association
  • Partners of Veterans Association of Australia Inc
  • Returned & Services League of Australia Ltd
  • Vietnam Veterans' Association of Australia
  • Vietnam Veterans Federation of Australia

 

DOCUMENTS INCORPORATED-BY-REFERENCE

 

No.

 

FURTHER EXPLANATION

 

Attachment A.

 


Attachment A

 

Items    Explanation

 

1. sets out the name of the instrument.

 

2. provides that the instrument commences on 1 July 2009 – the date of commencement of Part 2 of Schedule 2 of the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 No.143 (the Act that contained the provision enabling the making of the attached instrument).

 

3. states that the purpose of the attached instrument is to set out the circumstances where a non-illness separated spouse of a veteran remains eligible for the partner service pension despite being separated from the veteran for more than 12 months.

 

4. is a definition section.

 

5. sets out the circumstances where a non-illness separated spouse of a veteran remains eligible for the partner service pension despite being separated from the veteran for more than 12 months. 

 

Those circumstances are that on the first day the spouse ceased residing in the same residence as the veteran, the veteran had a psychological or other mental health incapacity caused by:

 

  • a war-caused injury or war-caused disease and the Repatriation Commission has determined that the veteran is entitled to a pension for the injury or disease; or
  • a defence-caused injury or defence-caused disease and the Repatriation Commission has determined that the veteran, as a member of the Defence Force or of a Peacekeeping Force is entitled to a pension for the injury or disease; or
  • a service injury or service disease, as defined in the Military Rehabilitation and Compensation Act 2004, and the Military Rehabilitation and Compensation Commission has accepted liability for the injury or disease; or
  • a disease or disorder in subsection 85(2) of the Veterans’ Entitlements Act 1986 namely malignant neoplasia, pulmonary tuberculosis or post‑traumatic stress disorder, and for which the veteran receives treatment under that Act; or
  • a condition described in a determination under paragraph 88A(1)(a) of the Veterans’ Entitlements Act 1986.  These determinations are legislative instruments and may be found on COMLAW under “V” (for Veterans’ Entitlements …):

 

http://www.frli.gov.au/ ;

 

 and the Repatriation Commission is satisfied that before the day the spouse ceased residing with the veteran, the domestic environment shared by the veteran and spouse was, because of the veteran’s behaviour, unsafe or abusive for the spouse or any child of the spouse.

 

 

 

 

 

 

 

 

 

 

 

 

 

Overview

The Veterans' Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 was enacted under section 38(2AD) of the Veterans’ Entitlements Act 1986. This legislation was introduced to address the gap in pension eligibility for spouses of veterans who are separated for reasons other than illness. The objective of this determination is to ensure that non-illness separated spouses of veterans remain eligible for the partner-service pension if the veteran’s behaviour, stemming from a mental condition, compelled the spouse to leave the shared domestic environment. The Repatriation Commission made this determination to provide clarity and support for veterans’ spouses in such circumstances. The determination was subject to consultation with relevant ex-service organisations and commenced on 1 July 2009.

Scope and Application

The Veterans’ Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009 applies to spouses of veterans who are separated from their veteran partner for reasons other than illness and who have not reached pension age. This legislative instrument outlines the specific circumstances under which such spouses can retain eligibility for a partner service pension. The determination is made under section 38(2AD) of the Veterans’ Entitlements Act 1986, and it applies on a national level, with the commencement date set for 1 July 2009. It was developed following consultation with relevant ex-service organisations and aims to provide clarity and support for spouses affected by the veteran's mental health conditions, ensuring that they do not lose pension eligibility due to circumstances beyond their control. The instrument does not apply retroactively and incorporates no documents by reference.

Key Provisions

The key provisions of the Veterans’ Entitlements (Partner Service Pension – Retention of Eligibility for Non-illness Separated Spouse) Determination R25/2009, under section 38(2AD) of the Veterans’ Entitlements Act 1986, establish specific circumstances in which a spouse of a veteran retains eligibility for a partner service pension despite being separated for 12 months or more due to reasons other than illness (section 3). The determination details that a spouse will not lose pension eligibility if the veteran had a mental health condition, caused by a war-related injury or disease, a defence-related injury or disease, or another service-related injury or disease, and the veteran was receiving treatment or a pension for these conditions (section 4). The domestic environment must have been unsafe or abusive for the spouse or any child due to the veteran’s behaviour before the separation (section 4). The Repatriation Commission must be satisfied that the veteran's behaviour met these criteria (section 4). The Act imposes certain obligations and requirements on the parties involved. For example, the veteran must have a qualifying mental health condition, and the Repatriation Commission must determine that the veteran is entitled to a pension for this condition (section 4). Additionally, the Commission must ascertain that the domestic environment was unsafe or abusive due to the veteran's behaviour (section 4). The spouse must also meet the criteria of being separated for at least 12 months but not having reached pension age (section 4). Failure to comply with the provisions of the determination can lead to serious consequences. Specifically, if a spouse is found to have been incorrectly denied pension eligibility, they may have grounds to challenge the decision. However, the determination does not explicitly outline penalties for breaches. Penalties, if any, would likely stem from broader provisions in the Veterans’ Entitlements Act 1986 or other relevant legislation, though the specific maximum penalties are not stated within this determination.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.