EXPLANATORY STATEMENT
Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2026
EMPOWERING PROVISION
This instrument is made under 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 2026 (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 2025 (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 $14,750 for the 2025-2026 financial year, to $15,250 to take effect from 1 July 2026. This increase is a consequence of Consumer Price Index (CPI) increases.
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 2026 (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 2026-2027 tax year is $15,250.
EXPLANATION OF PROVISIONS
Section 1 states the name of the instrument.
Section 2 provides that the instrument commences on 1 July 2026.
Section 3 provides that the authority for making the instrument is subsection 52ZZZWEA(3) of the VEA.
Section 4 defines the terms used in the instrument.
Section 5 repeals the Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025.
Section 6 imposes a limit of $15,250 on expenditure for other purposes for the 2026-2027 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) is remaking an analogous instrument relating to special disability trusts, which apply to payments provided to income support recipients under the Social Security Act 1999. On behalf of the rule maker (the Repatriation Commission) the Department of Veterans’ Affairs (DVA) consulted with DSS during the preparation of this Determination to ensure a consistent and harmonised approach to the annual remaking of the relevant legislative instruments, particularly in relation to setting the discretionary spending amount. Consultation with DSS was undertaken by way of email correspondence. DSS did not raise any concerns during the consultation process.
DSS was the only external stakeholder consulted. The principal beneficiaries of special disability trusts and their trustees were not consulted. DVA did not consider broader consultation necessary, as the remaking of the instrument is undertaken on an annual basis and involves minor and beneficial changes. Specifically, the discretionary spending amount is adjusted in line with movements in the Consumer Price Index to ensure that the effectiveness of special disability trusts is not diminished by inflation. This annual adjustment maintains the real value of the trust arrangements and ensures their ongoing integrity and policy intent are preserved.
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 DVA. 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 2026 (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 2026 (the Determination) replaces the Veterans’ Veterans’ Entitlements (Special Disability Trust—Limit on Expenditure for Other Purposes) Determination 2025. The determination sets 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 2026-2027 tax year is $15,250.
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 right to social security encompasses the entitlement of individuals to access and maintain benefits, whether in cash or in kind, without discrimination, in order to secure protection from, among other things, lack of income arising from disability. The right to an adequate standard of living includes the provision of adequate food, clothing and housing, and the continuous improvement of living conditions, with particular regard to the needs of persons with a disability.
The Determination promotes these rights by supporting the effectiveness of special disability trusts for individuals receiving support under the Veterans’ Entitlements Act 1986. These trusts enhance financial security by allowing beneficiaries to receive additional support without losing access to income support payments.
The Determination sets the allowable limit for the discretionary use of special disability trust funds at $15,250 per annum before the trust ceases to qualify as a ‘special disability trust’ for the purposes of the income support means test. By maintaining and updating this threshold with reference to the Consumer Price Index, the Determination ensures that trustees retain sufficient flexibility to make discretionary expenditures for the benefit of the principal beneficiary without jeopardising the concessional treatment of the trust under social security and veterans’ legislation.
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