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VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT 1991 No. 74 of 1991 - SCHEDULE 3
SCHEDULE 3 Section 5
OTHER AMENDMENTS OF ACTS
PART 1
Defence Service Homes Act 1918 Subsection 4 (1) (definition of "agreement"):
After "1A" insert ", and as in force from time to time". Subsection 4 (1)
(definition of "Eligible person"):
Omit "the female dependant", substitute "a widow, widower or dependent
parent". Subsection 4 (1) (definition of "Female dependant"):
Omit the definition. Subsection 4 (1) (definition of "further advance"):
Omit "widow's advance", substitute "widow or widower advance". Subsection 4
(1) (definition of "widow's advance"):
Omit the definition. Subsection 4 (1):
Insert: " `dependent parent' means a parent of a person mentioned in
paragraphs (a) to (g) of the definition of `Eligible person' if:
(a) the person so mentioned:
(i) is dead; and
(ii) at the time of death, was not legally married; and
(b) one of the following subparagraphs applies:
(i) the parent is a widow or widower and was dependent on the
person before the person became an eligible person;
(ii) the parent's husband or wife is so incapacitated as to be
unable to contribute materially to that parent's support;
`widow or widower advance' means a subsidised advance to a
person referred to in section 20 for a purpose referred to in
that section;". Subsection 4 (2C):
Omit "female dependant", substitute "widow, widower or dependent parent".
Subsection 18 (6):
Omit "widow's advance", substitute "widow or widower advance". Subsection 20
(1):
Omit "widow's advance", substitute "widow or widower advance". Paragraph 20
(1) (a):
Omit the paragraph, substitute:
"(a) the person is:
(i) the widow, widower, widowed mother or widowed father of an eligible
person; or
(ii) the wife or husband of an eligible person who is temporarily or
permanently insane; and". Paragraph 20 (1) (c):
Omit "widow's advance", substitute "widow or widower advance". Subsection 20
(2):
Omit "widow's advance", substitute "widow or widower advance". Paragraphs 20
(2) (a) and (b):
Omit "she", substitute "he or she". Paragraph 23 (1) (a):
Omit the paragraph, substitute:
"(a) the applicant is a purchaser or borrower who is:
(i) the widow or widower of an eligible person; or
(ii) the widowed mother or widowed father of an eligible person; or
(iii) the wife or husband of an eligible person who is temporarily or
permanently insane; or". Paragraph 25 (1) (c):
Omit "widow's advance", substitute "widow or widower advance". Section 32:
Omit "widow's advance", substitute "widow or widower advance". Paragraph 36
(1) (b):
Omit "widow's advance", substitute "widow or widower advance".
Veterans' Entitlements Act 1986 Before paragraph 31 (7) (a):
Insert:
"(aa) by reason of the Commission having regard to a
matter that affects the payment of a pension or attendant allowance in the
circumstances specified in paragraph (6) (a); or". Subsection 31 (8):
Omit "(not being a date more than 3 months before the date of the
determination)". Subsection 74 (3):
After "compensation" (first occurring) insert "(other than a lump sum payment
mentioned in paragraph (3A) (a))". After subsection 74 (3):
Insert:
"(3A) In this section, if:
(a) a lump sum payment is made under section 137 of the Commonwealth
Employees' Rehabilitation and Compensation Act 1988 to a person who
is:
(i) a member of the Forces or a member of a Peacekeeping Force, in
respect of the incapacity of the member from injury or disease;
or
(ii) a dependant of a member of the Forces or of a member of a
Peacekeeping Force, in respect of the death of the member from
injury or disease; and
(b) that person is in receipt of, or is subsequently granted, a pension
under this Part in respect of that incapacity or death; the person is
taken to have been, or to be, in receipt of payments of compensation:
(c) that is determined by, or under the instructions of, the Commonwealth
Actuary to be equivalent to the amount of that lump sum payment; and
(d) at the rate per fortnight for the person's life determined by, or
under the instructions of, the Commonwealth Actuary; and
(e) beginning:
(i) on the day that lump sum payment is made to that person; or
(ii) on the day the pension becomes payable to the person; whichever
is the later day.".
Veterans' Entitlements (Transitional Provisions and
Consequential Amendments) Act 1986 Section 12:
Repeal the section.
PART 2
Veterans' Entitlements Act 1986 Section 5 (Index of definitions):
Insert the following terms in their respective appropriate alphabetical
positions (determined on a letter-by-letter basis):
"exempt funeral investment 5Q (1)
"tax year 5Q (1)
"type A funeral investment 5Q (1)
"type B funeral investment 5Q (1)".
Subsection 5D (1) (definition of "disease"):
Omit the definition, substitute: " `disease' means:
(a) any physical or mental ailment, disorder, defect or morbid condition
(whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid
condition; but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid
condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the
effect of exercise on blood pressure) or the temporary effect
of extraneous agents (for example, alcohol on blood cholesterol
levels);". After subsection 5G (1):
Insert:
"(1A) In deciding for the purposes of this Act whether or not a person resides
in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in
Australia; and
(c) the nature and extent of the person's employment, business or
financial ties with Australia; and
(d) any other matter relevant to determining whether the person intends to
remain permanently in Australia.". Subsection 5H (8):
Add at the end:
"(zh) a payment received by the person for serving, or
being summoned to serve, on a jury;
(zi) a payment received by the person for expenses incurred by the person
as a witness, other than an expert witness, before a court, tribunal
or commission;
(zj) a return on an exempt funeral investment.". Subsection 5Q (1):
Insert: " `exempt funeral investment' means:
(a) a type A funeral investment of not more than $5,000 (disregarding any
return on the investment) that does not relate to a funeral:
(i) to which another type A funeral investment relates; or
(ii) to which a type B funeral investment relates; or
(iii) expenses for which have been paid in advance; or
(b) a type B funeral investment of not more than $5,000 (disregarding any
return on the investment) that does not relate to a funeral:
(i) to which another type B funeral investment relates; or
(ii) to which a type A funeral investment relates; or
(iii) expenses for which have been paid in advance; `tax year' has
the same meaning as `year of income' has in the Income Tax
Assessment Act; Note: section 6 of the Income Tax Assessment
Act defines `year of income' as the financial year (1 July to
30 June) or, if another accounting period has been adopted
under section 18 of that Act instead of the financial year,
that accounting period. `type A funeral investment' means an
investment:
(a) that:
(i) matures on the death of the investor; or
(ii) matures on the death of the investor's partner; and
(b) that cannot be realised before maturity; and
(c) the return on which is not payable before maturity; and
(d) the amount paid on whose maturity is to be applied to the expenses of
the funeral of the person on whose death it matures; `type B funeral
investment' means an investment:
(a) made by:
(i) a person who is a member of a couple; or
(ii) both members of a couple; and
(b) that matures on the death of:
(i) whichever member of the couple dies first; or
(ii) whichever member of the couple dies last; and
(c) that cannot be realised before maturity; and
(d) the return on which is not payable before maturity; and
(e) the amount paid on whose maturity is to be applied to the expenses of
the funeral of a member of the couple.". Paragraph 13 (1) (c):
After "pensions" insert "by way of compensation". Paragraph 13 (1) (d):
After "pension" insert "by way of compensation". Subsection 13 (2):
After "pensions" insert "by way of compensation". Before Division 8 of Part
III:
Insert:
"Division 8AA - Ordinary income test - ordinary income concept Ordinary income
is generally total gross income (not net income after deductions) from all
sources
"45A. (1) A person's ordinary income is to be worked out by adding together
the person's ordinary income from all sources. Note: for `ordinary income' see
subsection 5H (1).
"(2) A person's ordinary income consists of:
(a) the person's ordinary income as defined in subsection 5H (1); and
(b) amounts that are taken to be ordinary income of the person under
section 45B (trading stock) or under Division 8 (investment income),
Division 8A (money held or invested at low interest rate), Division 8B
(money on loan) or Division 8C (deprived assets).
"(3) Subject to sections 45B, 45C and 45D, a person's ordinary income is the
person's gross ordinary income without any deduction. Ordinary income from a
business - treatment of trading stock
"45B. (1) If:
(a) a person carries on a business; and
(b) the value of all the business' trading stock on hand at the end of a
tax year is greater than the value of all the business' trading stock
on hand at the beginning of that tax year; the person's ordinary
income for that tax year in the form of profits from the business is
to include the amount of the difference in values.
"(2) If:
(a) a person carries on a business; and
(b) the value of all the business' trading stock on hand at the end of a
tax year is greater than the value of all business' trading stock at
the beginning of that tax year; the person's ordinary income for that
tax year in the form of profits from the business is to be reduced by
the amount of the difference in values. Permissible reductions -
business income
"45C. (1) Subject to subsections (2) and (3) and section 45D, if a person
carries on a business, the person's ordinary income from the business is to be
reduced by:
(a) losses and outgoings that related to the business and are allowable
deductions for the purposes of section 51 of the Income Tax Assessment
Act; and
(b) depreciation that relates to the business and is an allowable
deduction for the purposes of subsection 54 (1) of that Act; and
(c) amounts that relate to the business and are allowable deductions under
subsection 82aa (1) of that Act.
"(2) If the person is to be taken because of Division 8A to receive ordinary
income or additional ordinary income from money, the person's ordinary income
from the money is not to be reduced by any expenses incurred by the person
because of the investment of the money.
"(3) If the person is to be taken because of Division 8B to receive ordinary
income or additional ordinary income from a loan, the person's ordinary income
from the loan is not to be reduced by any expenses incurred by the person
because of the loan. Permissible reductions - investment income
"45D. If a person is to be taken because of Division 8 to receive ordinary
income by way of rate of return on an investment, the person's ordinary income
on the investment may be reduced but only in accordance with section 46G or
46R (reasonable investment costs).". Division 8A of Part III (heading):
After "8A - " insert "Ordinary income test - ". Division 8B of Part III
(heading):
After "8B - " insert "Ordinary income test - ". Division 8C of Part III
(heading):
After "8C - " insert "Ordinary income test - ". After paragraph 52 (1) (j):
Insert:
"(ja) an amount invested in an exempt funeral investment
and any return on the investment;". Section 59A (Indexed and Adjusted Amounts
Table):
After item 7 in the Table insert:
"7AA. Rent assistance rent free area * Service Pension Rate Calculator
Where There Are No Dependent
Children - point 41-C12 - Table
C-2 - column 3 - all amounts
* Service Pension Rate Calculator
Where There Are Dependent
Children - point 42-D12 - Table
D-2 - column 3 - all amounts
* Service Pension Rate Calculator
for Widows, Widowers and
Non-illness Separated Spouses
- point 44-C12 - Table
C-2 - column 3 - all amounts
"7A. Maintenance maintenance free * Service Pension Rate Calculator
income free area Where There Are No Dependent
for service pension Children - point 41-E6 - Table
E-1 - column 3 - all amounts
* Service Pension Rate Calculator
Where There Are Dependent
Children - point 42-F9 - Table F-1
- columns 3 and 5 - all amounts
* Service Pension Rate Calculator
For Widows, Widowers and
Non-illness Separated Spouses
- point 44-E6 - Table E-1 -
columns 3 and 5 - all amounts". Section 59B (1) (CPI Indexation Table):
After item 4 in the Table insert:
"4A. Maintenance 1 July December most recent $2.60
free area December quarter
before reference quarter ".
Subsection 59B (1) (CPI Indexation Table - items 6, 7, 8, 9 and 10 of column
3):
Omit "13 June", substitute "1 July". After section 59G:
Insert: Adjustment of rent free area
"59GA. (1) This Act has effect as if, on 1 July each year, the rent free area
applicable to a person who is not a member of a couple were replaced with the
amount that is, on that day, the pension free area applicable to a person who
is not a member of a couple.
"(2) This Act has effect as if, on 1 July each year, the rent free area
applicable to a person who is partnered were replaced with the amount that is,
on that day, the pension free area applicable to a person who is partnered.".
Section 59H:
Omit "13 June" (wherever occurring), substitute "1 July". Section 59J:
Omit "13 June", substitute "1 July". Section 59K:
Omit "13 June" (wherever occurring), substitute "1 July". Paragraph 70 (1)
(c):
After "pension" insert "by way of compensation". Paragraph 70 (1) (d):
After "pension" insert "by way of compensation". Subsection 70 (2):
After "pensions" insert "by way of compensation". Paragraph 118JA (a):
Omit the paragraph, substitute:
"(a) the person is in receipt of:
(i) a service pension; or
(ii) a pension whose rate is specified under subsection 30 (1) or
(2); or". Subsection 118JB (1):
Omit subsection (1), substitute:
"(1) Subject to subsection (2), the rate of a pharmaceutical allowance for a
person is twice the amount of the rate specified in subsection (2).". After
subsection 118jb (2):
Add: "Note: the amount specified in subsection (2) is indexed in line with CPI
increases under section 198E.". After section 198D:
Insert: Indexation of pharmaceutical allowance
"198E. (1) In this section, unless the contrary intention appears: `index
number', in relation to a quarter, means the All Groups Consumer Price Index
number, being the weighted average of the 8 capital cities, published by the
Australian Statistician for that quarter; `relevant rate' means the rate
specified in subsection 118JB (2); `year to which this section applies' means:
(a) the year commencing on 20 September 1991; or
(b) any later year commencing on 20 September.
"(2) Subject to subsection (3), if at any time, whether before or after the
commencement of this section, the Australian Statistician has published or
publishes an index number in respect of a quarter in substitution for an index
number previously published by the Australian Statistician in respect of that
quarter, the publication of the later index number is to be disregarded for
the purpose of this section.
"(3) If at any time, whether before or after the commencement of this section,
the Australian Statistician has changed or changes the reference base for the
consumer price index, then, for the purposes of the application of this
section after the change took place, or takes place, regard is to be had only
to index numbers published in terms of the new reference base.
"(4) Where the factor worked out under subsection (5) in relation to a
relevant rate in relation to a year to which this section applies is greater
than 1, this Act, and any Act that refers to this Act, have effect as if for
that relevant rate there were substituted, on the first day of that year:
(a) subject to paragraph (b) - the rate worked out by multiplying by that
factor:
(i) where subparagraph (ii) does not apply - the relevant rate; or
(ii) if, because of another application or other applications of this
section, this Act has had effect as if another rate was substituted,
or other rates were successively substituted, for the relevant rate -
the substituted rate or the last substituted rate, as the case may be;
or
(b) where the amount of the rate worked out under paragraph (a) is not a
multiple of 10 cents per fortnight - a rate equal to that amount
rounded down to the nearest multiple of 10 cents.
"(5) The factor to be worked out for the purposes of subsection (4) in
relation to a year to which this section applies is:
(a) in relation to the year commencing on 20 September 1991 - the number,
calculated to 3 decimal places, worked out by dividing the index
number for the March quarter 1991 by the index number for the March
quarter 1990; or
(b) in relation to each subsequent year - the number calculated to 3
decimal places, worked out by dividing the index number for the last
preceding March quarter by the highest index number in respect of an
earlier March quarter, not being a March quarter that occurred before
1991; or
(c) if the number worked out under paragraph (a) or (b) would, if it were
calculated to 4 decimal places, end in a number greater than 4 - the
number so worked out increased by 0.001.
"(6) Where, because of the application of this section, this Act has effect as
if another rate were substituted for a relevant rate on the first day of a
year to which this section applies, the substitution, in so far as it affects
instalments of pharmaceutical allowance under this Act, has effect in relation
to every instalment of the allowance that falls due on or after the first day
of that year.".
PART 3
Veterans' Entitlements Act 1986 Subsection 198 (1) (definition of "relevant
year"):
Omit "12 June 1987", substitute "1 July 1991".
PART 4
Veterans' Entitlements Act 1986 Section 118JA:
Repeal the section, substitute: Qualification for pharmaceutical allowance
"118JA. Subject to sections 118K and 118L, a person is eligible to receive a
pharmaceutical allowance if:
(a) the person is in receipt of:
(i) a service pension under section 38 or 39, a spouse's service
pension under section 40 or a carer's service pension under
section 41; or
(ii) a pension whose rate is specified under subsection 30 (1) or
(2); or
(b) but for subsection 13 (7), a pension would have been payable to the
person at a rate specified in subsection 30 (2).".
NOTES ABOUT SECTION HEADINGS 1. On the day sections 40, 48 and 66 of the
Veterans' Entitlements Act 1986 are taken to be modified by section 3 of this
Act, the headings to the sections are to be read as if they had been altered
by omitting "wife's" and substituting "spouse's". 2. On the day sections 38,
41, 42 and 58K of the Veterans' Entitlements Act 1986 are amended by section 4
of this Act, the headings to the sections are altered by omitting "wife" and
substituting "partner". 3. On the day sections 38A and 38B of the Veterans'
Entitlements Act 1986 are amended by section 4 of this Act, the headings to
the sections are altered by omitting "Wife" and substituting "Partner". 4. On
the day section 38N of the Veterans' Entitlements Act 1986 is amended by
section 4 of this Act, the heading to the section is altered by omitting
"woman's wife" and substituting "person's partner". 5. On the day section 44
of the Veterans' Entitlements Act 1986 is amended by section 4 of this Act,
the heading to the section is altered by omitting "wife service pension for
widows and non-illness separated wives" and substituting "partner service
pension for widows, widowers and non-illness separated spouses". 6. On the day
section 45 of the Veterans' Entitlements Act 1986 is amended by section 4 of
this Act, the heading to the section is altered by inserting "or war widower"
after "widow". 7. On the day sections 18, 20 and 32 of the Defence Service
Homes Act 1918 are amended by section 5 of this Act, the headings to those
sections are altered by omitting "widows' advances" and substituting "widow or
widower advances".
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