EXPLANATORY STATEMENT
Veterans’ Entitlements (Special Disability Trust – Discretionary Spending) Determination 2016 (Instrument 2016 No. R42)
EMPOWERING PROVISION
Subsection 52ZZZWEA(3) of the Veterans’ Entitlements Act 1986 (VEA).
PURPOSE
The attached instrument (2016 No. R42) replaces the Veterans’ Entitlements (Special Disability Trust – Discretionary Spending) Determination 2015 (Instrument 2015 No. R65).
The purpose of the instrument 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 is to meet reasonable care and accommodation needs of the beneficiary).
The instrument is designed to allow a certain amount of trust income and assets (known as “the discretionary spending amount”) 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.
This instrument increases the discretionary spending amount from $11,250 to $11,500, in line with CPI changes, for the 2016 /17 financial year, with effect from 1 July 2016. Increasing the amount will mean that more of the income of a person with a disability will be excluded for income support assessment purposes under the VEA.
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 of Veterans’ Affairs (DVA) have virtually identical legislative instruments in place relating to Special Disability Trusts. DSS was consulted in the course of this exercise to ensure a consistent approach to the increase of 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.
RETROSPECTIVITY
None, if registered before 1 July 2016. If registered after that date the instrument will operate retrospectively from 1 July 2016. Subsection 12(2) of the Legislation Act 2003 will not be infringed as the instrument does not disadvantage a person or impose liabilities on a person other than the Commonwealth. The instrument is beneficial in nature in that it increases the maximum amount from a disability trust’s existing earnings that can be used for discretionary spending.
DOCUMENTS INCORPORATED-BY-REFERENCE
No.
REGULATORY IMPACT
Nil.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached instrument engages the Right to Social Security contained in article 9 of the International Covenant on Economic Social and Cultural Rights.
The instrument promotes the right to social security for those people whose entitlements under the VEA are affected by receiving income from a special disability trust. The rights will be promoted by increasing the amount of discretionary use of special disability trust funds before the trust loses its status as a ‘special disability trust’.
Conclusion
The attached instrument is compatible with human rights, relevantly, the Right to Social Security.
Simon Hill
Director Benefits and Payments, Policy Support Branch, as delegate of the Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS
See: Attachment A
Attachment A
FURTHER EXPLANATION OF PROVISIONS
Section 1 sets out the name of the instrument – the Veterans’ Entitlements (Special Disability Trust – Discretionary Spending) Determination 2016.
Section 2 is the commencement provision. It provides for the instrument to commence on 1 July 2016.
Section 3 revokes the Veterans’ Entitlements (Special Disability Trust — Discretionary Spending) Determination 2015. The authority for the revocation is subsection 33(3) of the Acts Interpretation Act 1901.
Section 4 defines the terms used in section 5 of the instrument.
Section 5 provides that, for the purposes of subsection 52ZZZWEA(3) of the Act, the maximum value of income and assets that can be applied by a special disability trust for other purposes that are primarily for the benefit of the principal beneficiary (other than purposes that are the primary purpose of the special disability trust) is $11,500 for the 2016-2017 financial year.