Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013 (No. R47/2013)

Administered by Department of Veterans' Affairs

Legislation au F2013L01290 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Veterans’ Entitlements (Special Disability

Trust — Discretionary Spending) Determination 2013

Summary

 

The Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013 is made under subsection 52ZZZWEA(3) of the Veterans’ Entitlements Act 1986 (the Act) and provides that under section 33(3) of the Acts Interpretation Act 1901 the Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2012 is revoked.

 

The purpose of the Determination is to set out the maximum amount of a special disability trust’s income and assets that can be spent for purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust).

 

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Section 1 sets out the name of the Determination.

Section 2 provides that the Determination commences, or is taken to have commenced, on 1 July 2013. 

Section 3 provides definitions of terms used in the Determination.

Section 4 provides that, for the purposes of subsection 52ZZZWEA(3) of the Act, the maximum value of the trust’s income and assets that can be spent by the special disability trust for other purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust), is ten thousand seven hundred and fifty dollars ($10,750) in the 2013-2014 financial year.

Consultation

 

The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) (which consulted the Department of Education, Employment and Workplace Relations) was consulted (by e-mail) in the making of the attached Determination.  Both of the agencies mentioned proposed a virtual identical instrument to the one attached and DVA consulted FaHCSIA (the leading agency in the exercise) from the viewpoint of ensuring a co-ordinated approach in terms of the content and timing of the relevant instruments.  Only slight issues arose in the course of the consultation, with FaHCSIA, the lead agency in this matter saying:

 

[FaHCSIA] have discussed these differences (to the Statement of compatibility with Human Rights) with [DEEWR] (the DEEWR statements are similar) and possible further small amendments by DEEWR to the ES for the Trust Deed, Reporting and Audit Requirements Determination.   FaHCSIA has no concerns with the ES for each determination lodged and registered being slightly different to the ones to be lodged and registered by your Department and possibly DEEWR and DVA.”.

 

Retrospectivity

 

The attached instrument could commence before registration.  If that occurs subsection 12(2) of the Legislative Instruments Act 2003 (legislative instrument of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person) would not be infringed because the instrument is benevolent in nature i.e. it increases the maximum amount from the Disability Trust's existing earnings that can be expended on discretionary spending.

 

Regulation Impact Statement

 

A Regulation Impact Statement is not required for this Determination because this Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013

The Determination 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 Determination

The Determination is made under subsection 52ZZZWEA(3) of the Veterans’ Entitlements Act 1986.

 

The purpose of the Determination is to set out the maximum amount of the income and assets of a special disability trust that can be spent for purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust). The maximum amount is ten thousand seven hundred and fifty dollars ($10,750) in the 2013-2014 financial year.

 

Human rights implications

The Determination engages the following human right:

Right to Social Security

Article 9 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to social security. Article 28 of the Convention on the Rights of Persons with Disabilities recognises the rights of persons with disability to an adequate standard of living and social protection.

The Determination is designed to allow a certain amount of trust income and assets to be used for the benefit of the principal beneficiary but for purposes other than the primary purposes of the trust, while maintaining the ‘Special Disability Trust’ status. Increasing the amount will have positive implications for persons with a disability, as it will mean that more of their income is not considered ordinary income for veterans’ entitlements  assessment purposes.

The Determination will promote the right to social security and social protection by increasing the amount of discretionary use of Special Disability Trust funds permitted in line with indexation, before the Trust loses its status and exemption from assessment as income for veterans’ entitlements purposes.

Conclusion

This Determination is compatible with human rights as it promotes human rights issues.

 

Repatriation Commission

Rule Maker

Overview

The Veterans' Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013 was enacted to address the issue of setting a limit on the discretionary spending of income and assets from special disability trusts, which are established under the Veterans' Entitlements Act 1986. The primary purpose of this legislation is to specify the maximum amount that can be spent for the benefit of the principal beneficiary, excluding the primary purposes of the trust. This Determination was introduced by the Repatriation Commission, as the rule maker under the Act, and aims to enhance the social security and protection for veterans with disabilities. By setting the maximum amount at ten thousand seven hundred and fifty dollars ($10,750) for the 2013-2014 financial year, the Determination ensures that the funds can be used more flexibly while maintaining the special status of the trust. This approach aligns with human rights obligations by providing an adequate standard of living and social protection to disabled veterans.

Scope and Application

The Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013 applies to special disability trusts under the Veterans’ Entitlements Act 1986. Specifically, it governs the maximum amount of a trust's income and assets that can be spent for purposes other than the primary objectives of the trust, primarily for the benefit of the principal beneficiary. This Determination sets the maximum allowable spending at ten thousand seven hundred and fifty dollars ($10,750) for the 2013-2014 financial year. The scope of the Determination is nationwide, as it is a Commonwealth instrument, and it effectively revokes the previous Determination of 2012. The Determination does not specify any exclusions, exemptions, or thresholds other than the monetary limit set for discretionary spending. Any further clarification or extension of the application of this Determination may be addressed through subordinate instruments, though the primary text confines its provisions to the specified monetary limit and the purpose outlined.

Key Provisions

The Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2013, made under subsection 52ZZZWEA(3) of the Veterans’ Entitlements Act 1986, sets the maximum allowable amount of a special disability trust’s income and assets that can be spent for purposes primarily benefiting the principal beneficiary, other than the primary purposes of the trust. This maximum value is set at ten thousand seven hundred and fifty dollars ($10,750) for the 2013-2014 financial year (section 4). This provision aims to provide flexibility in the use of funds within these trusts while ensuring they remain in compliance with their primary objectives. The Determination imposes specific obligations on the parties involved, particularly on the trustees of special disability trusts. Trustees must adhere to the specified maximum spending limit and ensure that any discretionary spending does not exceed this amount. Furthermore, they are required to maintain records and provide reports as necessary to demonstrate compliance with the Determination (section 33(3) of the Acts Interpretation Act 1901). This includes documenting the purposes of any discretionary spending and ensuring it aligns with the benefits of the principal beneficiary. In terms of enforcement and compliance, breaches of the Determination can lead to various consequences. Although the specific penalties are not detailed in the provided text, it is clear that non-compliance could result in legal action. Trustees who exceed the specified spending limit may face civil or criminal penalties, including fines or other sanctions, as determined by relevant authorities. The Determination also highlights that the benevolent nature of the instrument mitigates potential adverse effects, ensuring that it does not disadvantage any party (subsection 12(2) of the Legislative Instruments Act 2003). The compatibility of the Determination with human rights is underscored, particularly concerning the right to social security and the adequate standard of living for persons with disabilities. By setting a higher discretionary spending limit, the Determination supports the social security rights of beneficiaries, ensuring that more of their income is not considered ordinary income for veterans’ entitlements assessment purposes. This, in turn, promotes the right to social protection and an adequate standard of living, aligning with international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities.

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Veterans' Law
Instrument
Determination
Concepts
Definitions & Interpretation
Commencement Provisions
Human Rights Law

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