EXPLANATORY STATEMENT
Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025
EMPOWERING PROVISION
Subsection 52ZZZWEA(3) of the Veterans’ Entitlements Act 1986 (the VEA).
PURPOSE
The Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025 (the Determination) is made under subsection 52ZZZWEA(3) of the VEA.
The Determination revokes and replaces the Veterans’ Entitlements (Special Disability Trust – Limit on Expenditure for Other Purposes) Determination 2024 (the earlier determination).
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 for the primary purposes of a special disability trust which are to meet reasonable care and accommodation needs of the beneficiary).
A special disability trust is a private trust, established by family members, to provide primarily for the reasonable care and accommodation needs of a family member with a severe disability.
The Determination sets a limit on the amount of trust income and assets (the discretionary spending limit) to be used for the benefit of the principal beneficiary for purposes other than the primary purposes of the trust, while retaining the “special disability trust” status.
The Determination raises the discretionary spending limit from $14,500 for the 2024-2025 financial year, to $14,750 to take effect from 1 July 2025. This increase is a consequence of two increases to CPI over the past two years.
The authority to revoke the earlier determination is provided for in subsection 33(3) of the Acts Interpretation Act 1901. The subsection provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
OVERVIEW
The Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025 (the Determination) is a legislative instrument 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 which are to meet reasonable care and accommodation needs of the beneficiary).
The maximum amount for the 2025-2026 tax year is $14,750.
EXPLANATION OF PROVISIONS
Section 1 states the name of the Instrument.
Section 2 provides that the Instrument commences on1 July 2025.
Section 3 This section provides that the authority for making the instrument is subsection 52ZZZWEA(3) of the VEA.
Section 4 This section defines the terms used in the Instrument.
Section 5 This section repeals the Veterans’ Entitlements (Special Disability Trust – Limit on Expenditure for Other Purposes) Determination 2024.
Section 6 This section imposes a limit of $14,750 on expenditure for other purposes for the 2025-2026 tax year.
Consultation
Section 17 of the Legislation Act 2003 requires a rule-maker to be satisfied, before making a legislative instrument, that any consultation the rule-maker considered appropriate and reasonably practicable has been undertaken.
The Department of Social Services (DSS) and the Department have virtually identical legislative instruments in place relating to special disability trusts. The Payment Structures and Seniors Branch at DSS was consulted during this exercise to ensure a consistent approach in the preparation of the instrument to set the discretionary spending amount. The nature of consultation with DSS was by way of email correspondence.
In these circumstances, it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
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.
Making the instrument
Subsection 52ZZZWEA(3) of the VEA confers on the Repatriation Commission the power to determine, by legislative instrument, the discretionary spending limit (the determining power). Under Instrument of Delegation No. R1 of 2019 made under section 213 of the VEA, the Repatriation Commission has delegated the determining power to an APS employee performing duties at Executive Level 1 or higher in the Department of Veterans’ Affairs (the Department). The person who made the Determination was an APS employee performing duties in a position at Executive Level 2 namely the Director of the Benefits Policy Branch.
Approved by
Director, Benefits Policy Branch
Rule-maker
Attachment A
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—Limit on Expenditure for Other Purposes) Determination 2025 (the Determination)
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 (the recognised rights).
Overview of the Disallowable Legislative Instrument
The Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025 (the Determination) (the Instrument) replaces the Veterans’ Entitlements (Special Disability Trust – Limit on Expenditure for Other Purposes) Determination 2024 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 which are to meet reasonable care and accommodation needs of the beneficiary).
The maximum amount for the 2025-2026 tax year is $14,750.
Human rights implications
The Determination engages the following human rights:
the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
the right to an adequate standard of living as recognised in Article 11 of ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities.
The Determination promotes the right to social security and the right to an adequate standard of living for those people whose entitlements under the VEA are affected by receiving income from a special disability trust. The rights are promoted by providing for an amount of $14,750 as the limit for the discretionary use of special disability trust funds before the trust loses its status as a ‘special disability trust’.
Conclusion
The attached Determination is compatible with human rights because it promotes the right to social security and the right to an adequate standard of living.
Director, Benefits Policy Branch
Rule-Maker