2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Veterans' Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008 No. , 2008 (Veterans' Affairs) A Bill for an Act to amend the law relating to veterans' affairs, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 3 Schedule 1--Veterans' Entitlements Act 1986 4 Part 1--International agreements 4 Part 2--Amounts excluded from income 5 Part 3--Rental income forgone 6 Part 4--Assets disregarded for assets test 7 Part 5--Minor amendments 8 Part 6--Technical amendments, including amendments relating to legislative instruments 10 Schedule 2--Australian Participants in British Nuclear Tests (Treatment) Act 2006 18 Schedule 3--Military Rehabilitation and Compensation Act 2004 20 Part 1--Definition of disease 20 Part 2--Effect of days worked on compensation 21 Part 3--Weekly compensation for wholly dependent partners 22 Part 4--Claims for compensation 23 Part 5--Technical correction 24 [Page Break] 2 veterans' affairs, and for other purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Veterans' Affairs Legislation 6 Amendment (International Agreements and Other Measures) Act 7 2008. 8 2 Commencement 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Veterans' Affairs Legislation Amendment (International Agreements and Other Measures) Bill 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The day after this Act receives the Royal Parts 1 to 5 Assent. 3. Schedule 1, The day on which this Act receives the items 25 to 44 Royal Assent. 4. Schedule 1, The day on which this Act receives the item 45 Royal Assent. However, the provision(s) do not commence at all if item 2 of Schedule 2 to the Veterans' Entitlements Legislation Amendment (2007 Election Commitments) Act 2008 commences on or before that day. 5. Schedule 1, The day on which this Act receives the items 46 to 69 Royal Assent. 6. Schedule 1, Immediately after the commencement of 4 September item 70 item 20 of Schedule 3 to the Veterans' 2001 Affairs Legislation Amendment (2001 Budget Measures) Act 2001. 7. Schedule 1, The day on which this Act receives the items 71 to 86 Royal Assent. 8. Schedule 2 The day after this Act receives the Royal Assent. 9. Schedule 3, The day after this Act receives the Royal Parts 1 to 4 Assent. 10. Schedule 3, Immediately after the commencement of 16 March 2007 Part 5 item 22 of Schedule 4 to the Veterans' Affairs Legislation Amendment (Statements of Principles and Other Measures) Act 2007. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. [Page Break] 2 part of this Act. Information in this column may be added to or 3 edited in any published version of this Act. 4 3 Schedule(s) 5 Each Act that is specified in a Schedule to this Act is amended or 6 repealed as set out in the applicable items in the Schedule 7 concerned, and any other item in a Schedule to this Act has effect 8 according to its terms. [Page Break] 2 Schedule 1--Veterans' Entitlements Act 1986 3 Part 1--International agreements 4 1 At the end of section 199 5 Add: 6 ; and (f) amounts for the purpose of giving effect to arrangements 7 entered into under section 203 (Arrangements with 8 Governments of other countries). 9 2 Application 10 Paragraph 199(f) of the Veterans' Entitlements Act 1986 applies to 11 payment of amounts on or after the commencement of this Part for the 12 purpose of giving effect to arrangements entered into under section 203 13 of that Act before, on or after that commencement. 14 3 Section 203 15 Omit "Governor-General", substitute "Minister". 16 4 Paragraph 203(a) 17 Omit "the same". 18 5 Paragraph 203(a) 19 Omit "as are granted in that country to, or in relation to, persons who 20 have been members of the Defence Force of the Commonwealth and 21 have rendered operational service during such a war or in that 22 operational area, as the case may be". 23 6 Saving of arrangements made before this Part commences 24 The amendments of section 203 of the Veterans' Entitlements Act 1986 25 made by this Part do not affect an arrangement entered into under that 26 section before the commencement of this Part. [Page Break] 2 Part 2--Amounts excluded from income 3 7 After paragraph 5H(8)(haa) 4 Insert: 5 (hab) a payment of an approved scholarship (within the meaning of 6 subsection 8(1) of the Social Security Act 1991) awarded on 7 or after 1 September 1990; 8 8 After paragraph 5H(8)(pab) 9 Insert: 10 (pac) disability expenses maintenance; [Page Break] 2 Part 3--Rental income forgone 3 9 At the end of section 48 4 Add: 5 (2) Subsection (1) does not apply to a course of conduct consisting of 6 the provision of short-term or long-term residential 7 accommodation to a family member of the person for no payment 8 or payment less than the market value of the provision of the 9 accommodation. 10 Note: For family member see subsection 5L(1). [Page Break] 2 Part 4--Assets disregarded for assets test 3 10 After paragraph 52(1)(oa) 4 Insert: 5 (ob) the value of any native title rights and interests of the person, 6 or of a community or group of which the person is a member; 7 11 At the end of subsection 52(1) 8 Add: 9 ; (q) the amount (if any) that the person has retained from a 10 payment made to the person by the Mark Fitzpatrick Trust. 11 12 After subsection 52(1D) 12 Insert: 13 Native title rights and interests 14 (1DA) In this section: 15 native title rights and interests means: 16 (a) native title rights and interests within the meaning of 17 section 223 of the Native Title Act 1993; or 18 (b) any rights and interests of a similar nature under any law of a 19 State, a Territory or a foreign country (whether or not the 20 rights and interests relate to land or waters outside Australia); 21 but, to avoid any doubt, does not include any right or interest in a 22 lease or licence, or in a freehold estate. [Page Break] 2 Part 5--Minor amendments 3 13 Section 5 (index of definitions) 4 Omit: money that attracts interest 46G 5 14 Subsection 5N(1) (note 2 at the end of the definition of 6 Government rent) 7 Omit "(4A)", substitute "(4)". 8 15 Section 5PA 9 Repeal the section. 10 16 Subsection 59LA(1) (definition of pension MBR factor) 11 Omit "worked out to 3 decimal places.". 12 17 After subsection 59LA(2) 13 Insert: 14 (2A) A pension MBR factor worked out under subsection (1) is to be 15 worked out to 3 decimal places. However: 16 (a) if a pension MBR factor worked out under subsection (1) 17 would, if it were worked out to 4 decimal places, end in a 18 number that is greater than 4, the pension MBR factor is to be 19 increased by 0.001; and 20 (b) if a pension MBR factor worked out under subsection (1) or 21 paragraph (a) of this subsection would be less than 1, the 22 pension MBR factor is to be increased to 1. 23 18 At the end of section 115G 24 Add: 25 (3) This section has effect only for the purposes of working out the 26 amount of a veteran's invalidity service pension. 27 19 Subsection 118D(1) (note 1) 28 Repeal the note. [Page Break] 2 Omit "Note 2:", substitute "Note:". 3 21 Subsection 118K(6) (note) 4 Repeal the note. 5 22 Subsection 118M(1) (note) 6 Repeal the note. 7 23 Subpoint 118ZZA-5(1) (note) 8 Repeal the note. 9 24 Subsection 128A(3C) 10 Omit "first pension payday", substitute "day". [Page Break] 2 Part 6--Technical amendments, including 3 amendments relating to legislative 4 instruments 5 25 Subsection 5C(5) 6 Omit "declare in writing", substitute ", by legislative instrument, 7 declare". 8 26 Subsection 5C(5) (second sentence) 9 Repeal the sentence. 10 27 Subsection 5J(1F) 11 Omit "in writing", substitute "by legislative instrument". 12 28 Subsection 5J(1F) (second sentence) 13 Repeal the sentence. 14 29 Subsection 5JA(1B) 15 Omit "in writing", substitute "by legislative instrument". 16 30 Subsection 5JA(1B) (second sentence) 17 Repeal the sentence. 18 31 Subsection 5JA(6) 19 Omit "in writing", substitute "by legislative instrument". 20 32 Subsection 5JA(6) (second sentence) 21 Repeal the sentence. 22 33 Subsection 5JB(1C) 23 Omit "in writing", substitute "by legislative instrument". 24 34 Subsection 5JB(1C) (second sentence) 25 Repeal the sentence. 26 35 Subsection 5JB(5) [Page Break] 2 36 Subsection 5JB(5) (second sentence) 3 Repeal the sentence. 4 37 Subsection 5JBA(5) (definition of PF) 5 Omit "in writing by the Commission", substitute "by the Commission 6 under subsection (5A)". 7 38 After subsection 5JBA(5) 8 Insert: 9 (5A) The Commission must, by legislative instrument, determine 10 principles for the purposes of the definition of PF in 11 subsection (5). 12 39 Subsection 5JBA(12) 13 Omit "in writing", substitute "by legislative instrument". 14 40 Subsection 5JBA(12) (second sentence) 15 Repeal the sentence. 16 41 Subsection 5JBA(13) 17 Repeal the subsection. 18 Note: The following heading to subsection 5JBA(14) is inserted "Definitions". 19 42 Subsection 29(7) 20 Repeal the subsection. 21 43 Subsections 29(9) and (10) 22 Repeal the subsections, substitute: 23 Legislative instruments 24 (9) Subsections (10) and (11) apply in relation to: 25 (a) a document prepared by the Commission in accordance with 26 subsection (1); or 27 (b) an instrument under subsection (2); 28 that is approved by the Minister under subsection (3). [Page Break] 2 Minister on the day on which he or she approves it. 3 (11) Despite subsection 12(2) of the Legislative Instruments Act 2003, 4 the document or instrument may be expressed to take effect before 5 the date it is registered under that Act. 6 44 Subsection 37AA(3) 7 Repeal the subsection, substitute: 8 Legislative instrument 9 (3) A determination under this section is a legislative instrument. 10 45 Subsection 45AA(3) 11 Repeal the subsection, substitute: 12 Legislative instrument 13 (3) A determination under this section is a legislative instrument. 14 46 Subsection 49M(3) 15 Omit "disallowable instrument for the purposes of section 46A of the 16 Acts Interpretation Act 1901", substitute "legislative instrument". 17 47 Subsection 52B(3) (definition of pension valuation factor) 18 Omit "for the purposes of this section", substitute "under 19 subsection (4)". 20 48 Subsection 52B(4) 21 Repeal the subsection, substitute: 22 (4) The Commission must, by legislative instrument, make a 23 determination for the purposes of the definition of pension 24 valuation factor in subsection (3). 25 49 Subsection 52ZC(4) 26 Omit "by the Minister for Social Security by determination in writing", 27 substitute ", by legislative instrument, by the Minister administering the 28 Social Security Act". 29 50 Subsection 52ZC(5) [Page Break] 2 51 Subsection 52ZQ(2) 3 Omit "writing", substitute "legislative instrument". 4 52 Subsection 52ZQ(4) 5 Repeal the subsection. 6 53 Subsection 52ZZA(2) 7 Omit "by writing, determine", substitute "by legislative instrument, 8 declare". 9 54 Subsection 52ZZA(3) 10 Omit "determination", substitute "declaration". 11 55 Subsection 52ZZA(4) 12 Repeal the subsection. 13 56 Subsection 52ZZA(5) 14 Omit "writing", substitute "legislative instrument". 15 57 Subsection 52ZZA(7) 16 Repeal the subsection. 17 58 Subsection 52ZZB(4) 18 Omit "writing", substitute "legislative instrument". 19 59 Subsection 52ZZB(6) 20 Repeal the subsection. 21 60 Subsections 52ZZO(3), (4) and (5) 22 Omit "writing", substitute "legislative instrument". 23 61 Subsection 52ZZO(7) 24 Repeal the subsection. 25 62 Subsections 52ZZZO(3), (4) and (5) 26 Omit "writing", substitute "legislative instrument". [Page Break] 2 Repeal the subsection. 3 64 Subsection 52ZZZQ(1) 4 Omit "(1)". 5 65 Subsection 52ZZZQ(1) 6 Omit "writing", substitute "legislative instrument". 7 66 Subsection 52ZZZQ(2) 8 Repeal the subsection. 9 67 Subsection 53B(3) 10 Repeal the subsection, substitute: 11 Legislative instrument 12 (3) A determination under this section is a legislative instrument. 13 68 Subsection 88A(3) 14 Repeal the subsection, substitute: 15 Legislative instrument 16 (3) A determination under this section is a legislative instrument. 17 69 Subsections 90A(5) and (6) 18 Repeal the subsections, substitute: 19 (5) An instrument determining or amending principles that is approved 20 by the Minister under subsection (4) is a legislative instrument 21 made by the Minister on the day on which he or she approves it. 22 (6) Section 12 of the Legislative Instruments Act 2003 has effect in 23 relation to an instrument referred to in subsection (5) as if a 24 reference in that section to the day when the instrument is 25 registered were a reference to the day on which the Minister 26 approves it. 27 70 Subsection 100(1) (note) 28 Omit "133", substitute "113". [Page Break] 2 71 Subsection 115B(4) 3 Repeal the subsection, substitute: 4 (4) A scheme made by the Commission, or an instrument varying or 5 revoking such a scheme, that has been approved by the Minister 6 under subsection (3) is a legislative instrument made by the 7 Minister on the day on which he or she approves it. 8 72 Subsection 116A(1) 9 Omit "in writing", substitute "by legislative instrument". 10 73 Subsection 116A(2) 11 Omit "written determination", substitute "legislative instrument". 12 74 Subsection 116A(3) 13 Repeal the subsection. 14 75 Subsection 118(2) 15 Omit "determines in writing", substitute ", by legislative instrument, 16 determines". 17 76 Subsection 118(3) 18 Repeal the subsection. 19 77 Subsection 122B(5) (second sentence) 20 Repeal the sentence. 21 78 Subsection 122B(6) 22 Omit "disallowable instrument for the purposes of section 46A of the 23 Acts Interpretation Act 1901", substitute "legislative instrument". 24 79 Subsection 132(12) 25 Omit "section,", substitute "section". 26 80 Subsections 180A(2) and (3) 27 Omit "in writing", substitute "by legislative instrument". 28 81 Subsection 180A(4) [Page Break] 2 82 Paragraph 196B(8)(c) 3 Omit "revoke", substitute "make a determination revoking". 4 83 Subsection 196B(13) 5 Omit "A determination under subsection (10)", substitute "Despite 6 section 12 of the Legislative Instruments Act 2003, a determination 7 under subsection (10) of this section". 8 84 After subsection 196B(13) 9 Insert: 10 (13A) A determination under this section: 11 (a) must be in writing; and 12 (b) is a legislative instrument. 13 85 Section 196D 14 Repeal the section. 15 86 Saving of determinations 16 Definitions 17 (1) In this item: 18 amended VEA means the Veterans' Entitlements Act 1986 as in force 19 immediately after the commencement time. 20 commencement time means the time when this item commences. 21 unamended VEA means the Veterans' Entitlements Act 1986 as in force 22 before the commencement time. 23 Determinations under subsection 5JBA(5) 24 (2) A determination that: 25 (a) was made under the definition of PF in subsection 5JBA(5) 26 of the unamended VEA; and 27 (b) was in force immediately before the commencement time; 28 has effect at and after that time as if it had been made under subsection 29 5JBA(5A) of the amended VEA. [Page Break] 2 (3) A determination that: 3 (a) was made under the definition of pension valuation factor in 4 subsection 52B(3) of the unamended VEA; and 5 (b) was in force immediately before the commencement time; 6 has effect at and after that time as if it had been made under subsection 7 52B(4) of the amended VEA. 8 Determinations under subsection 52ZZA(2) 9 (4) A determination that: 10 (a) was made under subsection 52ZZA(2) of the unamended 11 VEA; and 12 (b) determined that each company included in a specified class 13 of companies is a declared private company for the purposes 14 of section 52ZZA of the unamended VEA; and 15 (c) was in force immediately before the commencement time; 16 has effect at and after that time as if it declared that each company 17 included in the specified class is a declared private company for the 18 purposes of section 52ZZA of the amended VEA. [Page Break] 2 Schedule 2--Australian Participants in British 3 Nuclear Tests (Treatment) Act 2006 4 5 1 Subsection 4(1) (definition of nuclear test participant) 6 Omit "or (3)", substitute ", (3) and (3A)". 7 2 After subsection 5(3) 8 Insert: 9 (3A) A person is a nuclear test participant if the person: 10 (a) was at any time during the period from the beginning of 11 1 May 1965 to the end of 30 June 1988 present in the nuclear 12 test area that was the Maralinga area; and 13 (b) was, at that time, either: 14 (i) a Commonwealth Police Officer under the 15 Commonwealth Police Act 1957; or 16 (ii) a member of the Australian Federal Police under the 17 Australian Federal Police Act 1979; and 18 (c) was, at that time, an Australian resident. 19 (3B) Paragraph 5(1)(a) of the Australian Federal Police Act 1979 does 20 not apply to subparagraph (3A)(b)(i) of this section. 21 Note: Paragraph 5(1)(a) of the Australian Federal Police Act 1979 provides 22 that a reference in a law of the Commonwealth to a Commonwealth 23 Police Officer is to be read as a reference to a member of the 24 Australian Federal Police. 25 3 Treatment before commencement but on or after 19 June 26 2006 27 (1) The Repatriation Commission may approve, under subsection 13(1) of 28 the Australian Participants in British Nuclear Tests (Treatment) Act 29 2006, treatment for a person that was provided before the 30 commencement of this Schedule but on or after 19 June 2006 if: 31 (a) the person makes a claim under that Act within 6 months 32 after that commencement for a determination that the person 33 is an eligible person; and [Page Break] 2 an eligible person because of subsection 5(3A) of that Act (as 3 amended by this Schedule). 4 (2) This item has effect despite subsection 13(2) of that Act. 5 4 Expenses of travel before commencement but on or after 6 19 June 2006 7 (1) This item applies to travel undertaken before the commencement of this 8 Schedule but on or after 19 June 2006 for the purpose of: 9 (a) obtaining treatment of a person who: 10 (i) makes a claim under the Australian Participants in 11 British Nuclear Tests (Treatment) Act 2006 within 6 12 months after that commencement for a determination 13 that the person is an eligible person; and 14 (ii) is determined by the Commission under that Act to be 15 an eligible person because of subsection 5(3A) of that 16 Act (as amended by this Schedule); or 17 (b) accompanying a person described in paragraph (a) travelling 18 for the purpose described in that paragraph as his or her 19 attendant. 20 (2) If a claim for a determination of entitlement to be paid travelling 21 expenses in connection with the travel is made under that Act 22 (disregarding subsection 21(2) of that Act) within 6 months after the 23 commencement of this Schedule, the Repatriation Commission may: 24 (a) approve or authorise the travel, for the purposes of section 19 25 of that Act; and 26 (b) determine the claim under that Act. [Page Break] 2 Schedule 3--Military Rehabilitation and 3 Compensation Act 2004 4 Part 1--Definition of disease 5 1 Section 5 (definition of disease) 6 Repeal the definition, substitute: 7 disease means: 8 (a) any physical or mental ailment, disorder, defect or morbid 9 condition (whether of sudden onset or gradual development); 10 or 11 (b) the recurrence of such an ailment, disorder, defect or morbid 12 condition; 13 but does not include: 14 (c) the aggravation of such an ailment, disorder, defect or morbid 15 condition; or 16 (d) a temporary departure from: 17 (i) the normal physiological state; or 18 (ii) the accepted ranges of physiological or biochemical 19 measures; 20 that results from normal physiological stress (for example, 21 the effect of exercise on blood pressure) or the temporary 22 effect of extraneous agents (for example, alcohol on blood 23 cholesterol levels). 24 Note: This amendment corrects the formatting, but does not change the wording, of the 25 definition of disease in section 5 of the Military Rehabilitation and Compensation Act 26 2004. [Page Break] 2 Part 2--Effect of days worked on compensation 3 2 Subsection 196(3) (paragraph (c) of the definition of 4 number of days) 5 Repeal the paragraph, substitute: 6 (c) otherwise: 7 (i) 5; or 8 (ii) if the Commission determines another number as the 9 number of days that the person would normally work in 10 the part of the week--that other number. [Page Break] 2 Part 3--Weekly compensation for wholly dependent 3 partners 4 3 Paragraph 234(5)(a) 5 Omit "and (b)", substitute ", (b) and (c)". 6 4 Waiver of earlier overpayments 7 If: 8 (a) before the commencement of this Part, an amount of 9 compensation was paid as if the amendment made by this 10 Part had already commenced; and 11 (b) that amount exceeded the amount of compensation that was 12 payable because the amendment had not commenced; and 13 (c) the excess would be recoverable by the Commonwealth apart 14 from this item; 15 the right to recover the excess is waived. [Page Break] 2 Part 4--Claims for compensation 3 5 Subsection 322(2) 4 Repeal the subsection. 5 Note 1: The heading to section 322 is altered by omitting "liability". 6 Note 2: The following heading to subsection 322(1) is inserted "Claim for acceptance of 7 liability". 8 6 At the end of section 322 9 Add: 10 Claim for compensation 11 (4) A claim for compensation must not be made if another claim for 12 compensation for the same matter has not yet been finally 13 determined. 14 (5) Another claim for compensation for the same matter must be 15 supported by additional evidence. 16 When a claim is finally determined 17 (6) For the purposes of this section, a claim is finally determined when 18 either: 19 (a) a decision that has been made in respect of the claim is not 20 subject to any form of reconsideration or review; or 21 (b) a decision that has been made in respect of the claim was 22 subject to some form of reconsideration or review, but the 23 period within which such a reconsideration or review could 24 be instituted has ended without a reconsideration or review 25 having been instituted. 26 7 Application of amendments 27 The amendments made by this Part apply in relation to a claim made on 28 or after the commencement of this Part, whether a claim for 29 compensation for the same matter has been made before, on or after that 30 commencement. [Page Break] 2 Part 5--Technical correction 3 8 Subsection 327(1) 4 After "(3),", insert "if". 5 Note: This inserts a word that was wrongly omitted by an earlier amendment.