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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2015 BUDGET MEASURES) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Veterans‟ Affairs,
Senator The Honourable Michael Ronaldson)
Table of Contents
Outline and Financial Impact ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ii
Statement of Compatibility with Human Rights ... ... ... ... ... ... ... ... ... ... ... ... ... iii
1 Short Title .......................................................................................... vi
2 Commencement ................................................................................. vi
3 Schedules .......................................................................................... vi
Schedule 1 - Veterans' Vocational Rehabilitation Scheme . ... ... .. ... ... ... ... ... ... . 1
Schedule 2 - Reconsideration and review of determinations ... ... ... ... ... ... ... ... ... 8
Schedule 3 - Graves of dependants of members of the Defence Force ... ... ... ... ... 11
i
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2015 BUDGET MEASURES) BILL 2015
OUTLINE AND FINANCIAL IMPACT
The Bill will give effect to a number of Veterans‟ Affairs 2015 Budget measures that will:
enhance the Veterans‟ Vocational Rehabilitation Scheme under the Veterans'
Entitlements Act 1986;
create a single appeal path for the review of original determinations made under Military
Rehabilitation and Compensation Act 2004; and
expand the war graves Regulation making power under the Defence Act 1903, to include
graves of service dependants buried in Terendak Military Cemetery in Malaysia.
FINANCIAL IMPACT STATEMENT
Schedule 1 - Veterans‟ Vocational Rehabilitation Scheme
Cost of $0.7 million over 4 years
Schedule 2 - Reconsideration and review of determinations
Saving of $2.2 million over 4 years
Schedule 3 - Graves of dependants of member of the Defence Force
Cost of $1.8 million over 4 years
ii
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2015 BUDGET MEASURES) BILL 2015
Schedule 1 - Veterans' Vocational Rehabilitation Scheme
This Schedule 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.
Overview
The amendments in Schedule 1 will enhance the Veterans‟ Vocational Rehabilitation Scheme
under the Veterans' Entitlements Act 1986.
Human rights implications
Schedule 1 engages the following human rights:
Right to health
Article 12 of the International Covenant on Economic, Cultural and Social Rights refers to "the
right of everyone to the enjoyment of the highest attainable standard of physical and mental
health".
Rights of people with a disability
Article 26 requires countries to organise and strengthen rehabilitation programs for people with
disability, particularly in health, employment, education and social services.
The amendments to Part VIA of the Veterans‟ Entitlements Act will enhance the Veterans‟
Vocational Rehabilitation Scheme by expanding the range of services and providing increased
benefits to participants.
Conclusion
The Schedule is compatible with human rights as the measure advances the engaged human
rights.
Schedule 2 - Reconsideration and review of determinations
iii
This Schedule 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.
Overview
The amendments in Schedule 2 will create a single appeal path for the review of original
determinations made under the Military Rehabilitation and Compensation Act 2004.
Human rights implications
Schedule 2 engages the following human rights:
Right to a fair hearing
The right to a fair trial and fair hearing is protected by article 14 of the International Covenant on
Civil and Political Rights. The right applies to both criminal and civil proceedings and to cases
before both courts and tribunals.
The right is concerned with procedural fairness and encompasses notions of equality in
proceedings, the right to a public hearing and the requirement that hearings are conducted by an
independent and impartial body.
The amendments create a single pathway for appeals and replace the current arrangement which
provides a claimant with dual pathways: reconsideration of an original determination by the
Military Rehabilitation and Compensation Commission or review of the original determination
by the Veterans‟ Review Board. With dual pathways in place claimants were faced with a
confusing choice with different time limits for submitting appeals and longer decision times
depending on which path was taken. Legal aid is available to eligible claimants who sought an
appeal to the Veterans‟ Review Board while costs could be awarded by the Administrative
Appeals Tribunal to those who initially sought reconsideration by the Military Rehabilitation and
Compensation Commission.
The proposed amendments to create a single pathway of appeal engage the right to a fair hearing
as they may be seen as removing an existing avenue of appeal for a claimant. The amendments
prevent a claimant from directly seeking the reconsideration of an original determination by the
Military Rehabilitation and Compensation Commission. Under the single pathway, the claimant
will seek a review of the original decision by the Veterans‟ Review Board, in addition the
Military Rehabilitation and Compensation Commission may review the decision under
subsection 347(1) of the Military Rehabilitation and Compensation Act.
If the original determination is varied by the Military Rehabilitation and Compensation
Commission, a new original determination is made setting out the reasons for the decision. The
appellant will retain the option of accepting the varied determination or continuing with the
appeal to the Veterans‟ Review Board.
The determination of the appeal by the Veterans‟ Review Board is a reviewable determination
and the appellant has the right to seek a review by the Administrative Appeals Tribunal.
iv
The purpose of the amendments is to simplify and streamline the appeal process with the internal
review by the Military Rehabilitation and Compensation Commission allowing for a quicker
resolution for simpler appeals or those that are accompanied with new evidence. Other benefits
include the provision of access to legal aid for all eligible claimants.
The effect of the amendments is that there is no limitation on the right to a fair hearing of a
claimant seeking a review of an original determination by the Military Rehabilitation and
Compensation Commission as the avenue for an appeal remains in place through the Veterans‟
Review Board and the Administrative Appeals Tribunal.
Conclusion
None of the proposed amendments will have an adverse impact on the rights of a claimant to
seek a review of an original determination. The amendments also have the broad support of the
veteran community through the representatives of the peak ex-service organisation and through
various consultative forums conducted in 2013 and 2014.
Schedule 3 - Graves of dependants of members of the Defence Force
This Schedule does not engage human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview
The amendments in Schedule 3 will expand the war graves Regulation making power under the
Defence Act 1903, to include graves of service dependants buried in Terendak Military Cemetery
in Malaysia.
Human rights implications
Schedule 3 does not engage human rights or freedoms.
Conclusion
Schedule 3 does not engage human rights or freedoms.
v
VETERANS' AFFAIRS LEGISLATION AMENDMENT
(2015 BUDGET MEASURES) BILL 2015
Short Title Clause 1 sets out how the Act is to be cited.
Commencement Clause 2 sets out the commencement date of the provisions of the Act.
Schedules Clause 3 provides that legislation that is specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
This explanatory memorandum uses the following abbreviations:
"AAT" means the Administrative Appeals Tribunal;
"Military Rehabilitation and Compensation Act" means the Military Rehabilitation and
Compensation Act 2004;
"MRCC" means the Military Rehabilitation and Compensation Commission;
"Veterans‟ Entitlements Act" means the Veterans' Entitlements Act 1986;
"VRB" means the Veterans‟ Review Board; and
"VVRS" means the Veterans‟ Vocational Rehabilitation Scheme.
vi
Schedule 1 - Veterans' Vocational Rehabilitation Scheme
Overview
The amendments in Schedule 1 will enhance the Veterans‟ Vocational Rehabilitation
Scheme under the Veterans‟ Entitlements Act.
Background
Rehabilitation is provided for under Part VIA of the Veterans‟ Entitlements Act. The
VVRS - Instrument No. 5 of 1997 is made under section 115B of the Veterans‟
Entitlements Act. The VVRS is a voluntary, vocational rehabilitation scheme for
persons eligible under the Veterans‟ Entitlements Act. The scheme is designed to
assist eligible persons to find or continue in suitable employment. There is no penalty
if a person does not complete a rehabilitation program.
Persons participating in the VVRS, who withdraw from the workforce for any reason,
including retirement, will return to the rate of disability pension they received prior to
their participation in the VVRS.
Division 2 of Part VIA sets out a regime for recipients of Special rate or Intermediate
rate disability pension that modifies the effect of paid work on their rate of disability
pension through the application of a reduced daily pension amount. To be eligible
for Special rate disability pension under section 24 or 25 of the Veterans‟
Entitlements Act, a person must be unable to work for more than 8 hours per week
(subsection 24(1)(b)). To be eligible for Intermediate rate disability pension under
section 23 of the Veterans‟ Entitlements Act, a person must be unable to work 20 or
more hours per week (subsection 23(2)(b)).
To encourage participation on the VVRS, recipients of Special and Intermediate rate
disability pension may undertake paid work beyond the thresholds of 8 hours or 20
hours per week respectively without losing entitlement to that disability pension and
associated benefits. The provisions in Division 2 currently operate so that Special or
Intermediate rate disability pension paid to the Scheme participant is gradually
reduced over a seven year period to 100 per cent of the general rate. For the first two
years, the disability pension is paid at 100 per cent of the general rate, plus a
percentage of the difference between general rate and the Intermediate rate or Special
rate, based on the hours worked. Over the next five years, the amount of disability
pension paid is reduced by 5 per cent every six months until it is equivalent of the
general rate pension.
As the rate of invalidity service pension, paid under section 37 of the Veterans‟
Entitlements Act, would also be affected by a return to paid work, Division 2 of Part
VIA also contains provisions that modify the treatment of income for invalidity
service pension recipients who undertake paid work as a result of the VVRS. For the
first two years after commencing paid work, 50 per cent of the veteran‟s earnings are
excluded income for the purposes of the income test in Part IIIB of the Veterans‟
Entitlements Act. Over the following five years, the excluded income amount is
1
reduced by five per cent every six months. Thus after seven years, all income from
paid work is assessable under the income test.
Subsection 115D(1) applies section 115D to a veteran who is engaged in paid work of
more than 8 hours per week - the threshold that applies to Special rate disability
pension. The section sets out how to treat the person‟s work hours and income for the
purposes of Special rate or Intermediate rate disability pension. This provision
currently applies the Special rate threshold of more than 8 hours paid work to both
Special rate and Intermediate rate disability pension recipients even though the
threshold for Intermediate rate disability pension is 20 or more hours paid work per
week.
Section 115E and 115F of the Veterans‟ Entitlements Act provide a safety net so that
if the combined work and pension income of a participant of the Scheme is less than
the participant‟s rate of pension on commencement of the Scheme, the participant
may apply to have their reduced daily pension rate increased so that their combined
work and pension income equals the rate of pension on commencement of the
Scheme.
It should be noted that the definition of veteran defined in section 115A for the
purposes of part VIA, includes a „member of the Forces‟ or a „member of a
Peacekeeping Force‟ as defined in section 68 of the Veterans‟ Entitlements Act.
On and from 20 March 2016, the enhancements to the VVRS will:
expand the range of services available through the VVRS to include the
provision of medical management and psychosocial services. Medical
management services involve the monitoring of treatment measures to restore
or maximise a person‟s physical and psychological function. Psychosocial
services involve a set of comprehensive, individually tailored rehabilitation
interventions that help to promote recovery and an optimal level of
functioning. Psychosocial services can include pain management, adjustment
to disability counselling and family education;
increase the threshold for Intermediate rate disability pension recipients to not
more than 20 hours per week before their paid work affects their rate of
disability pension in accordance with the threshold for paid work for
Intermediate rate in section 23 of the Veterans‟ Entitlements Act. This will
mean that an Intermediate rate recipient who participated in the VVRS will not
receive less disability pension than an Intermediate rate recipient who did not
participate in the VVRS;
change the maximum reduction for a Special rate disability pension recipient
to the Intermediate rate of disability pension instead of 100 per cent of the
general rate set in subsection 22(3) where the Special rate recipient is
undertaking paid work of less than 20 hours per week. This will mean that a
Special rate disability pension recipient who participated in the VVRS and
who is undertaking less than 20 hours paid work per week will not receive less
pension than an Intermediate rate recipient who has not participated in the
VVRS;
2
disregard periods of 6 months or more of unemployment when calculating a
person‟s initial period or the following five year period for the purposes of
determining excluded income amounts for invalidity service pensioner
recipients under section 115G. This will achieve a more reasonable pension
reduction regime following a prolonged absence from the workforce and will
avoid disadvantage to participants who start the Scheme but experience
lengthy absences from the workforce; and
for the purposes of sections 115E and 115F, exclude from the definition of
work and income pension rate defined in section 115A;
in the case of a Special rate recipient - an amount equal to 8 hours of that
recipient‟s salary, wages or earnings; and
in the case of an Intermediate rate recipient - an amount equal to 20 hours
of that recipient‟s salary, wages or earnings.
This will mean that an amount equivalent to the permissible earnings for
Special and Intermediate recipients will be disregarded for VVRS participants
when determining whether the person‟s reduced daily pension amount should
be increased and will give them the same benefit from permissible earnings as
is received by a non-participant of the VVRS.
Explanation of the Items
Veterans' Entitlements Act 1986
Item 1 makes a technical amendment to subsection 23(5) to make it clear that the
subsection is subject to, and therefore may be affected by, subsection 23(6).
Item 2 makes a technical amendment to subsection 24(4) to make it clear that the
subsection is subject to, and therefore may be affected by, new subsection 24(5A).
Item 3 makes a technical amendment to subsection 24(5) to make it clear that the
subsection is subject to, and therefore may be affected by, new subsection 24(5A).
Item 4 inserts new subsection 24(5A) after subsection 24(5). Section 24 sets out the
eligibility criteria and rate for Special rate disability pension. The unreduced rate of
Special rate disability pension is provided for in subsection 24(4). The formula for
working out the reduced rate of Special rate disability pension for a VVRS participant
is provided for in subsection 24(5).
New subsection 24(5A) provides that, where a recipient of Special rate disability
pension is undertaking paid work for more than 8 hours per week but less than 20
hours per week as a result of undertaking a vocational rehabilitation program under
the Veterans‟ Vocational Rehabilitation Scheme, the rate at which Special rate
disability pension is payable to the person is the higher of either:
3
the reduced amount worked out under subsection 24(5); or
the intermediate rate of disability pension specified in subsection 23(4).
This will ensure that a Special rate recipient who has participated in the VVRS and
who is undertaking less than 20 hours paid work per week, will not receive a lesser
rate of disability pension than an Intermediate rate recipient who has not participated
in the VVRS.
Item 5 makes a technical amendment to subsection 24(6) to make it clear that the
subsection is subject to, and therefore may be affected by, new subsection 24(5A).
Item 6 makes a technical amendment to subsection 24A(1A) to make it clear that the
subsection is subject to, and therefore may be affected by, new subsection 24(5A).
Item 7 amends subsection 25(2) to make it clear that the subsection applies as if
section 24 applied to the person and is subject to, and therefore may be affected by,
new subsection 24(5A).
Item 8 makes a technical amendment to section 37AAA to make it clear that the
reference in section 37AAA to the period of 5 years mentioned in subsection 115G(2)
may be affected by new subsection 115G(2A). The application of new subsection
115G(2A) may extend the aforementioned 5 year period including by extending the
initial period referred to in subsection 115G(1).
Item 9 makes a technical amendment to paragraph 98A(2)(a) to include a reference to
new subsection 24(5A).
Item 10 makes a technical amendment to paragraph (a) of the definition of deceased
veteran's amount in subsection 98A(3) to include a reference to new subsection
24(5A).
Item 11 makes a technical amendment to section 115A as a consequence of the
addition of new subsections 115A(2) and (3).
Items 12 and 13 amend the definition of work and pension income rate in section
115A. The changes to the Scheme require the definition of work and pension income
rate for the purposes of section 115E, to differentiate between a veteran on
Intermediate rate and a veteran on Special rate disability pension. These differences
are provided for in the new subsections 115A(2) and (3). Under section 115E a
person may apply for an increase to their reduced daily pension amount so that the
work and pension income rate they receive is not less than their rate of disability
pension on commencement of the VVRS.
New subsection 115A(2) provides that the work and pension income rate for a
pension period for a veteran receiving Intermediate rate disability pension under
section 23 is worked out using the formula in new subsection 115A(2). The formula
4
calculates the work and pension income rate for the veteran by multiplying the
number of hours worked by the veteran in that pension period (14 days), minus 40
hours which is the permissible number of hours an Intermediate rate veteran may
work in a fortnight (14 days), by the veteran‟s average hourly rate from remunerative
work in that pension period and then adding the rate of disability pension paid to the
veteran for that pension period.
New subsection 115A(3) provides that the work and pension income rate for a
pension period for a veteran receiving Special rate disability pension under section 24
is worked out using the formula in new subsection 115A(3). The formula calculates
the work and pension income rate for the veteran by multiplying the number of hours
worked by the veteran in that pension period (14 days), minus 16 hours which is the
permissible number of hours an Intermediate rate veteran may work in a fortnight (14
days), by the veteran‟s average hourly rate from remunerative work in that pension
period and then adding the rate of disability pension paid to the veteran for that
pension period.
This will mean that the permissible earnings for Special and Intermediate recipients
are disregarded for VVRS participants when determining whether the person‟s
reduced daily pension amount should be increased and will give them the same
benefit from permissible earnings as a non-participant of the VVRS.
Item 14 amends subsection 115B(5) by adding new paragraphs 115B(5)(da) and (db).
Subsection 115B(1) authorises the Repatriation Commission to make, by legislative
instrument, a scheme known as the Veterans‟ Vocational Rehabilitation Scheme.
Subsection 115B(5) lists, but does not limit, the types of matters the Scheme may
provide for or relate to. New paragraphs 115B(5)(da) and (db) insert references to
the new services of management of medical conditions and psychosocial services that
will become available under the VVRS on and from 20 March 2016.
Item 15 repeals subsection 115D(1) and substitutes new subsections 115D(1) and
115D(1A). New subsection 115D(1) provides that section 115D applies to a veteran
who is in receipt of Intermediate rate disability pension if the veteran is undertaking
paid work of 20 hours or more per week as a result of undertaking a vocational
rehabilitation program under the VVRS. This new subsection replaces the threshold
of more than 8 hours of paid work per week that currently applies to Special rate
pension with the threshold of 20 or more hours of paid work per week that applies to
Intermediate rate disability pension.
Notes at the end of new subsection 115D(1) advise that the reduced daily pension
amount worked out in the section is used to work out the rate of pension payable
under section 23 and that the section does not apply to certain veterans: see
subsections 115D(5) and (6).
New subsection 115D(1A) preserves the threshold that existing section 115D applies
to a veteran who is in receipt of Special rate disability pension if the veteran is
undertaking paid work of more than 8 hours per week as a result of undertaking a
vocational rehabilitation program under the VVRS.
5
Notes at the end of new subsection 115D(1A) advise that the reduced daily pension
amount worked out in the section is used to work out the rate of pension payable
under section 24 and that the section does not apply to certain veterans: see
subsections 115D(5) and (6).
Item 16 repeals the definition of taper amount in subsection 115D(7) and substitutes
a new definition.
This item is related to item 15 and adjusts the formula in the definition of taper
amount to be applied to a recipient of Intermediate rate disability pension to take
account of the increased number of hours that an intermediate recipient may work
before section 115D applies. For this purpose the divisor in the formula to apply in
these cases is changed from 32 to 20.
Item 17 inserts new subsection 115G(2A) after subsection 115G(2). Section 115G
provides for the treatment of income from remunerative work for the purposes of the
veterans‟ entitlements income test. For the first two years of remunerative work after
undertaking a vocational rehabilitation program under the VVRS, half of the veteran‟s
income from remunerative work is disregarded for the purposes of the income test.
For years three to seven, the disregarded amount of income is decreased by five per
cent for each six month period (that are aligned with CPI indexation days).
New subsection 115G(2A) provides that where a veteran undertakes no remunerative
work for a continuous period of at least six months, that period will be disregarded
when calculating the initial period or the following five year period referred to in
subsections 115G(1) and (2) respectively and when doing the calculations provided
for in subsections 115G(1) and (2).
The amendment will pause the calculation of the duration of the initial period or the
following five year period for any periods of six months or more where the veteran
did not undertake any remunerative work.
Item 18 sets out the application and savings provisions that apply to this measure.
Subitem 18(1) is an application provision and provides that the amendments made by
items 2 to 7, 15 and 16 apply in relation to weeks beginning on or after
20 March 2016 where those weeks fall within pension periods beginning or after
20 March 2016.
Subitem 18(2) is an application provision and provides that the amendments made by
items 12 and 13 apply in relation to pension periods beginning on or after
20 March 2016.
Subitem 18(3) is an application provision and provides that item 17 applies in relation
to continuous periods beginning on or after 20 March 2016. This clarifies that the
6
calculation of the person‟s initial period or the following five year period is not
restarted as a result of the commencement of item 17.
Subitem 18(4) is a saving provision and provides that the amendments made by
Schedule 1 do not affect, in relation to a veteran, the continuity of an initial period or
second period referred to in section 115D of the Veterans‟ Entitlements Act.
Commencement
Clause 2 provides that the amendments commence on and from 20 March 2016.
7
Schedule 2 - Reconsideration and review of determinations
Overview
The amendments in Schedule 2 will create a single appeal path for the review of
original determinations made under the Military Rehabilitation and Compensation
Act.
Background
The Military Rehabilitation and Compensation Act 2004 (Military Rehabilitation and
Compensation Act) provides compensation and other benefits for current and former
members of the Defence Force who suffer a service injury or disease. The Military
Rehabilitation and Compensation Act also provides compensation and other benefits
for the dependents of some deceased members.
Under the existing arrangements, the two pathways for a reconsideration or review of
an "original determination" under Chapter 8 of the Military Rehabilitation and
Compensation Act are:
internal reconsideration by the MRCC under Part 3; or
review by the VRB under Part 4.
If the claimant is dissatisfied with the reconsideration by the MRCC or the review by
the VRB, Part 5 provides for the claimant to apply to the AAT for a review of what is
referred to as a "reviewable determination".
In 2011, the Review of Military Compensation Arrangements recommended that the
MRCA appeal process be refined to a single appeal path for clients. The amendments
in this Schedule give effect to this recommendation.
The single appeal path will remove internal reconsideration by the MRCC for
claimants and enable a claimant to appeal an original decision of the MRCC to the
VRB with a second tier of appeal to the AAT.
Currently, applicants that choose reconsideration by the MRCC are not able to access
legal aid at the AAT. While the removal of reconsideration by the MRCC will have
the consequent effect of not being able to apply for award costs at the AAT, the single
appeal path through the VRB will mean that all applicants will have access to legal
aid at the AAT, subject to the usual legal aid eligibility criteria.
Explanation of the Items
8
Military Rehabilitation and Compensation Act 2004
Items 1 to 4 amend section 344, the simplified outline to Chapter 8 of Part 4 of the
MRCA, to remove references to the right of a claimant to seek reconsideration of a
determination by the MRCC and to outline the single path of appeal through the VRB
to the AAT.
Item 5 is a consequential amendment to section 345A, which modifies the application
of Chapter 8 to decisions made by the MRCC concerning clean energy payments.
Paragraph 345A(2)(c) is repealed as it referenced subsections 349(2) and (3). Those
sections are to be repealed by Item 8.
Item 6 amends section 346 which sets out the requirements for the notification of
original determinations by the MRCC and the Chief of the Defence Force.
Subsection 346(5) is amended to remove the requirement for a notice to include the
option for a claimant dissatisfied with an original determination, to request a
reconsideration by the MRCC.
Items 7 and 8 amend section 349.
The heading to the section is repealed and substituted so that it refers to the power of
the Chief of the Defence Force under subsection 349(4) to request the reconsideration
by the MRCC of an original determination which relates to liability for a service
injury, disease or death of a Defence Force member.
Subsections 349(1) to (3) are repealed to remove references to requests by the
claimant for the MRCC to reconsider original determinations made by the MRCC or
the Chief of the Defence Force.
Item 9 amends section 352 which provides for the right of the claimant to make an
application to the VRB for the review of an original determination.
Subsection 352(2) is repealed as it had stated that the claimant could not make an
application to the VRB for the review of an original determination if the claimant had
also requested reconsideration by the MRCC under section 349.
Item 10 is an application provision. It provides that the amendments made by
Schedule 2 apply in relation to original determinations made on or after the
commencement of the amendments.
The effect of the provision is to ensure that original determinations made before the
commencement of the amendments will continue to be subject to the provisions of
Chapter 8 as they existed before the amendments.
9
Commencement
Clause 2 provides that the amendments commence on and from 1 January 2016.
10
Schedule 3 - Graves of dependants of members of the
Defence Force
Overview
The amendments in Schedule 3 will expand the war graves Regulation making power
under the Defence Act 1903, to include graves of service dependants buried in
Terendak Military Cemetery in Malaysia.
Background
Under the Administrative Arrangements Order, the Minister for Veterans‟ Affairs has
administrative responsibility for paragraph 124(1)(qba) of the Defence Act 1903.
Section 124(1) provides that "The Governor-General may make regulations, not
inconsistent with this Act, prescribing all matters which by this Act are required or
permitted to be prescribed, or which are necessary or convenient to be prescribed, for
securing the good government of the Defence Force, or for carrying out or giving
effect to this Act, and in particular prescribing matters providing for and in relation
to:"
Paragraph 124(1)(qba) refers to "The provision and maintenance of, and the execution
of work in connexion with, the graves of persons who have died:
(i) while on service as members of the Defence Force; or
(ii) as a result of service as members of the Defence Force".
The Government has offered to repatriate the remains of deceased Vietnam veterans
buried in the Terendak Military Cemetery in Malaysia and Kranji War Cemetery in
Singapore if requested to do so by the families. The remains of eight service
dependants who accompanied veterans serving in Malaysia are also buried in the
Terendak Military Cemetery and the Government has also offered to repatriate these
remains if requested to do so by the families.
Among other matters authorised under Regulation 31 of the Defence Force
Regulations 1952, the Director of War Graves may arrange the repatriation of
remains of a member of the Defence Force who has died while on service.
The amendments in Schedule 3 will expand the Regulation making power under
paragraph 124(1)(qba) of the Defence Act 1903, to include graves of service
dependants buried in Terendak Military Cemetery in Malaysia.
This will enable Regulation 31 of the Defence Force Regulations 1952 to be
amended to provide for the repatriation of the remains of the service dependants
buried in Terendak Military Cemetery in Malaysia.
Explanation of the Items
11
Defence Act 1903
Items 1 to 5 are technical amendments to paragraph 124(1)(qba) as a consequence of
new subparagraph 124(1)(qba)(iii).
Item 6 inserts new subparagraph 124(1)(qba)(iii) after subparagraph 124(1)(qba)(ii).
New subparagraph 124(1)(qba)(iii) authorises the Regulations to make provision for,
or in relation to, the grave of a person who, immediately before their death, was a
dependant of a member of the Defence Force on service, where the grave of the
dependant is located in the Terendak Military Cemetery in Malaysia.
Commencement
Clause 2 provides that the amendments in Schedule 3 commence on the day after the
Act receives Royal Assent.
12