Veterans' Entitlements (Clarke Review) Act 2004 (Cth)

Veterans' Entitlements (Clarke Review) Act 2004 No. 100, 2004 Compilation No. 1 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Veterans' Entitlements (Clarke Review) Act 2004 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Schedule(s) Part 2—Compensation payments for North Korean internment 4 Definitions 5 Eligibility for compensation payment 6 Amount of compensation payment 7 Claims 8 Determination of claims 9 Death of eligible person 10 Application of certain provisions of the Veterans' Entitlements Act 1986 11 Recovery of overpayments 12 Exemption from income tax 13 Assets test 14 Appropriation of Consolidated Revenue Fund Schedule 1—Indexation of above general rate disability pensions Veterans' Entitlements Act 1986 Schedule 2—Defence Force Income Support Allowance Part 1—Amendment of the Veterans' Entitlements Act 1986 Part 2—Amendment of other Acts A New Tax System (Family Assistance) Act 1999 Income Tax Assessment Act 1936 Income Tax Assessment Act 1997 Social Security Act 1991 Part 3—Application and transitional provisions Schedule 3—Rent assistance for war widows and war widowers Veterans' Entitlements Act 1986 Schedule 4—Funeral benefits Veterans' Entitlements Act 1986 Schedule 5—Minesweeping and bomb/mine clearance service Veterans' Entitlements Act 1986 Schedule 6—MRCA‑related amendments Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 Veterans' Entitlements Act 1986 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for compensation payments in respect of veterans interned by North Korean military forces and to amend the Veterans' Entitlements Act 1986, and for other purposes Part 1—Preliminary 1 Short title This Act may be cited as the Veterans' Entitlements (Clarke Review) Act 2004. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 14 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 30 June 2004 2. Schedule 1 20 March 2004. 20 March 2004 3. Schedule 2, items 1 to 14 20 September 2004. 20 September 2004 3A. Schedule 2, item 15 The day on which this Act receives the Royal Assent. 30 June 2004 3B. Schedule 2, items 16 to 18 20 September 2004. 20 September 2004 3C. Schedule 2, items 19 and 20 The later of: 20 September 2004 (a) the start of 20 September 2004; and (paragraph (a) applies) (b) immediately after the commencement of item 4 of Schedule 1 to the Veterans' Entitlements Amendment (Direct Deductions and Other Measures) Act 2004. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 3D. Schedule 2, items 21 to 44 20 September 2004. 20 September 2004 4. Schedule 3, items 1 to 13 1 January 2005. 1 January 2005 5. Schedule 3, item 14 The later of: 1 January 2005 (a) 1 January 2005; and (paragraph (a) applies) (b) the commencement of item 45 of Schedule 1 to the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 6. Schedule 4 1 July 2004. 1 July 2004 7. Schedule 5 1 April 2004. 1 April 2004 8. Schedule 6 At the same time as section 3 of the Military Rehabilitation and Compensation Act 2004 commences. 1 July 2004 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act 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. Part 2—Compensation payments for North Korean internment 4 Definitions In this Part: Commission means the Repatriation Commission referred to in the Veterans' Entitlements Act 1986. compensation payment means a payment under this Part. designated war period means the period beginning on 27 June 1950 and ending at the end of 19 April 1956. eligible person means a person who is eligible for a compensation payment. interned means: (a) confined in a camp, building, prison, cave or other place (including a vehicle); or (b) restricted to residing within specified limits. North Korean military forces means air forces, naval forces, land forces or other military forces of North Korea (however described). partner, in relation to a veteran, means: (a) a person who is legally married to the veteran; or (b) a person who is a partner (within the meaning of the Veterans' Entitlements Act 1986) of the veteran. Secretary means the Secretary of the Department. social security law means: (a) the Social Security Act 1991; and (b) the Social Security (Administration) Act 1999; and (c) any other Act that is expressed to form part of the social security law. veteran means a person covered by section 6C of the Veterans' Entitlements Act 1986, in so far as that section relates to item 1 of the table in Schedule 2 to that Act. 5 Eligibility for compensation payment Veteran (1) A veteran is eligible for a compensation payment if the following conditions are satisfied: (a) the veteran was alive at the beginning of 1 July 2003; (b) the veteran was interned by North Korean military forces at any time during the designated war period. Partner of deceased veteran (2) A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied: (a) the person was alive at the beginning of 1 July 2003; (b) the veteran died before 1 July 2003; (c) the person was a partner of the veteran immediately before the veteran's death; (d) the veteran was interned by North Korean military forces at any time during the designated war period. One payment only (3) A person is not entitled to more than one compensation payment. 6 Amount of compensation payment A compensation payment is a one‑off payment of $25,000. 7 Claims (1) Claims for compensation payments must be made in accordance with procedures determined by the Secretary under subsection (2). Note: Compensation payments will be made automatically to those eligible persons the Department is aware of. (2) The Secretary may, in writing, determine the procedures for making claims. 8 Determination of claims (1) Claims are to be decided by the Commission. (2) A person who is dissatisfied with the Commission's decision on a claim may apply to the Administrative Review Tribunal for review of the decision. 9 Death of eligible person If an eligible person dies or died before receiving a compensation payment, then the payment is to be made to the person's estate. Note: A claim will still be required under section 7. 10 Application of certain provisions of the Veterans' Entitlements Act 1986 The following provisions of the Veterans' Entitlements Act 1986 apply as if this Part were part of that Act: (a) subsection 119(1) and sections 128, 208, 213 and 214; (b) any other provisions of that Act that are incidental to the provisions mentioned in paragraph (a). 11 Recovery of overpayments Any overpayment under this Part may be recovered by the Commonwealth as a debt in a court of competent jurisdiction. 12 Exemption from income tax Compensation payments are exempt from income tax. 13 Assets test Veterans' Entitlements Act 1986 (1) The value of a person's assets for the purposes of the Veterans' Entitlements Act 1986 is reduced by any compensation payment received by the person. Social security law (2) The value of a person's assets for the purposes of the social security law is reduced by any compensation payment received by the person. 14 Appropriation of Consolidated Revenue Fund The Consolidated Revenue Fund is appropriated for the purposes of compensation payments. Schedule 1—Indexation of above general rate disability pensions Veterans' Entitlements Act 1986 1 Subsection 22(4) Omit "increased by 50% of the maximum rate set out in subsection (3)", substitute "$433.65 per fortnight". 2 Paragraph 98B(1)(a) Omit "a rate that had been increased under", substitute "the rate specified in". 3 Subparagraph 99(2)(a)(i) Omit "increased", substitute "worked out". 4 Subparagraph 113(2)(b)(i) Omit "increased", substitute "worked out". 5 Subsection 198(1) Insert: above general rate means the following rates: (a) the rate under subsection 22(4); (b) the rate under subsection 23(4); (c) the rate under subsection 24(4). 6 Subsection 198(1) (paragraphs (b) and (c) of the definition of relevant rate) Repeal the paragraphs. 7 At the end of subsection 198(4) (before the note) Add: Note 1: For indexation of each above general rate, see subsection (5E). 8 Subsection 198(4) (note) Omit "Note", substitute "Note 2". 9 After subsection 198(5D) Insert: (5E) This Act has effect as if, on the first day (the adjustment day) of each relevant period, there were substituted, for each above general rate, the rate worked out as follows: Method statement Step 1. Work out the general rate on the adjustment day. Step 2. Work out the general rate on the day before the adjustment day. Step 3. Work out the above general rate on the day before the adjustment day. Step 4. Subtract the rate at step 2 from the rate at step 3. Step 5. Multiply the amount worked out at step 4 by the pension MBR factor specified in section 59LA (rounding the result up to the nearest $0.10). Step 6. Add the rate worked out at step 1 to the amount worked out at step 5: the result is the above general rate on the adjustment day. 10 Subsection 198(10) After "relevant rate", insert "or an above general rate". Schedule 2—Defence Force Income Support Allowance Part 1—Amendment of the Veterans' Entitlements Act 1986 1 Subsection 5H(1) (paragraph (b) of the definition of adjusted income) Repeal the paragraph, substitute: (b) a payment that is disability pension under paragraph (d) of the definition of disability pension in section 5Q payable to the person; 2 Subsection 5H(1) (paragraphs (cc), (cd) and (ce) of the definition of adjusted income) Repeal the paragraphs. 3 After paragraph 5H(8)(f) Insert: (g) a payment under Part VIIAB, including a payment made under regulations made under that Part; 4 Subsection 5Q(1) Insert: Defence Force Income Support Allowance or DFISA means Defence Force Income Support Allowance under Part VIIAB. 5 Subsection 5Q(1) Insert: DFISA bonus means DFISA bonus under Part VIIAB. 6 At the end of paragraph 45TC(1)(e) Add: Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the person's partner: see subsection 23(1D) of the Social Security Act. 7 After subparagraph 45TC(1)(f)(i) Insert: (ia) DFISA bonus; or 8 At the end of paragraph 45TC(2)(e) Add: Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the person's partner: see subsection 23(1D) of the Social Security Act. 9 After subparagraph 45TC(2)(f)(i) Insert: (ia) DFISA bonus; or 10 At the end of paragraph 45TC(3)(e) Add: Note: Even though the person may not have actually received an amount of social security pension or benefit because the rate of the pension or benefit was nil, in some cases the person will be taken to have received the pension or benefit if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the person's partner: see subsection 23(1D) of the Social Security Act. 11 After subparagraph 45TC(3)(f)(i) Insert: (ia) DFISA bonus; or 12 At the end of section 53J Add: Note: Even though the partner may not actually have been receiving an amount of social security pension because the rate of the pension was nil, in some cases the partner will have been taken to be receiving the pension if adjusted disability pension (within the meaning of section 118NA) was payable to the person or the partner: see subsection 23(1D) of the Social Security Act. 13 At the end of section 53M Add: (7) If DFISA was payable to the partner in relation to a social security pension the partner was receiving, then the rate of that pension on the last day of the last pension period that ended before the day of the partner's death is increased by the rate of DFISA that was payable to the partner on that day. 14 Paragraph 53NA(1)(a) After "pension" (first occurring), insert ", DFISA". 15 After Part VIIA Insert: Part VIIAB—Defence Force Income Support Allowance and related payments Division 1—Introduction 118N Simplified outline The following is a simplified outline of this Part: This Part is about payment of: (a) Defence Force Income Support Allowance (DFISA); and (b) DFISA bonus; and (c) DFISA‑like payments under regulations made under this Part. DFISA—see Division 2 DFISA is payable to a person if the rate of the person's social security pension or benefit has been reduced (including to nil) because the person, or the person's partner, has been paid adjusted disability pension (within the meaning of this Part). Payment of DFISA is automatic: a person does not need to make a claim for it. DFISA bonus—see Division 3 DFISA bonus is payable to a person if the amount of the person's social security pension bonus has been reduced (including to nil) because the person, or the person's partner, has been paid adjusted disability pension (within the meaning of this Part). Payment of DFISA bonus is also automatic. DFISA‑like payments—see Division 4 Regulations made under this Part may provide for DFISA‑like payments to be paid to a person if adjusted disability pension (within the meaning of this Part) payable to the person, or the person's partner, reduces the amount of a payment payable to the person under a Commonwealth Act, regulations or an instrument made under such an Act, or a Commonwealth administered program. 118NA Definitions In this Part: adjusted disability pension means: (a) a pension under Part II or IV (other than a pension that is payable under section 30 to a dependant of a deceased veteran); or (b) temporary incapacity allowance under Part VI; or (c) a pension payable because of subsection 4(6) or (8B) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (other than a pension payable in respect of a child); or (d) a payment (either as a weekly amount or a lump sum) under section 68, 71, 75 or 80 of the MRCA (permanent impairment); or (e) a payment of a Special Rate Disability Pension under Part 6 of Chapter 4 of the MRCA. amount includes a nil amount. excluded amount means an amount that is not income for the purposes of the Social Security Act because of subsection 8(8) of that Act. partner has the same meaning as in subsection 4(1) of the Social Security Act. rate includes a nil rate. social security age pension means age pension under Part 2.2 of the Social Security Act. social security pension bonus means pension bonus under Part 2.2A of the Social Security Act. Division 2—Defence Force Income Support Allowance Subdivision A—Payment of Defence Force Income Support Allowance 118NB Payment of Defence Force Income Support Allowance (1) Defence Force Income Support Allowance (DFISA) is payable to a person each day on or after 20 September 2004 if: (a) adjusted disability pension is payable to the person, or the person's partner, on that day; and (b) social security pension or social security benefit (the primary payment) is payable to the person on that day; and (c) the adjusted disability pension reduces (including to nil) the rate of the primary payment on that day. Note 1: For adjusted disability pension and partner see section 118NA. Note 2: For social security pension and social security benefit see section 5Q. Note 3: Even though the person may not actually be paid an amount of social security pension or benefit because the rate of the pension or benefit is nil, in some cases the pension or benefit will be taken to be payable to the person if adjusted disability pension is payable to the person or the person's partner: see subsection 23(1D) of the Social Security Act. (2) However, DFISA is not payable to the person on that day if: (a) the rate of DFISA would be nil; or (b) section 1129, 1130B or 1131 of the Social Security Act (financial hardship) applies to the person in relation to the primary payment; or (c) before that day: (i) the person had elected not to be covered by this Division; and (ii) that election had not been withdrawn. (3) An election, or a withdrawal of an election, under paragraph (2)(c): (a) must be by document lodged at an office of the Department in Australia in accordance with section 5T; and (b) is taken to have been made on a day determined under that section. Subdivision B—Rate of Defence Force Income Support Allowance 118NC Rate of Defence Force Income Support Allowance DFISA rate where primary payment is neither compensation affected nor prescribed (1) The rate of DFISA on a day that is on or after 20 September 2004 is worked out using method statement 1 in this subsection, unless: (a) Part 3.14 of the Social Security Act (compensation recovery) applies to reduce the rate of the primary payment on that day (in which case see method statement 2 in subsection (2)); or (b) the primary payment is a social security pension or social security benefit that is prescribed for the purposes of this section (in which case, see subsection (3)). Note: For primary payment see section 118NB. Method Statement 1 Step 1. Work out the daily provisional payment rate for the primary payment on that day. Note: For daily provisional payment rate see subsection (4). Step 2. Work out what would have been the daily provisional payment rate (the notional rate) for the primary payment on that day if both of the following assumptions were made: First assumption The first assumption is that the adjusted disability pension payable to the person, or the person's partner, were an excluded amount (see section 118NA). Note: This will mean the adjusted disability pension will not be treated as income when calculating the notional rate. Second assumption The second assumption is that, if an amount of rent assistance was included in the primary payment, that amount were reduced (but not to less than nil) by the rent reduction amount. Note: For rent assistance and rent reduction amount see subsection (4). Step 3. Subtract the daily provisional payment rate under step 1 from the notional rate under step 2. The difference is the rate of DFISA on that day. DFISA rate where primary payment is compensation affected but not prescribed (2) The rate of DFISA on a day that is on or after 20 September 2004 is worked out using method statement 2 in this subsection if: (a) Part 3.14 of the Social Security Act (compensation recovery) applies to reduce the rate of the primary payment on that day; and (b) the primary payment is not a social security pension or social security benefit that is prescribed for the purposes of this section. Note: For primary payment see section 118NB. Method Statement 2 Step 1. Work out the daily provisional payment rate for the primary payment on that day. Note: For daily provisional payment rate see subsection (4). Step 2. Work out the amount by which Part 3.14 of the Social Security Act reduces the daily primary payment rate on that day. Step 3. Subtract the amount in step 2 from the rate in step 1. Step 4. Work out what would have been the daily provisional payment rate (the notional rate) for the primary payment on that day if the 2 assumptions referred to in step 2 of method statement 1 in subsection (1) were made. Step 5. Work out the amount by which Part 3.14 of the Social Security Act would have reduced the notional rate on that day if that rate had been the daily primary payment rate. Step 6. Subtract the amount in step 5 from the rate in step 4. Step 7. Subtract the amount in step 3 from the amount in step 6. The difference is the rate of DFISA on that day. Regulations may prescribe other ways of calculating rate of DFISA (3) The regulations may prescribe a social security pension or social security benefit for the purposes of this section. If the regulations do so, the regulations must also prescribe the method to work out the daily rate of DFISA that is payable in relation to that pension or benefit. Note: For social security pension and social security benefit see section 5Q. Definitions (4) In this section: daily provisional payment rate means the provisional payment rate, provisional annual payment rate or provisional fortnightly payment rate referred to in the Rate Calculator used under the Social Security Act to work out the rate of the primary payment, converted to a daily rate by dividing the rate by 364 (for a provisional annual payment rate) or 14 (for a provisional fortnightly payment rate). rent assistance has the same meaning as in the Social Security Act. rent reduction amount is the amount that would be a person's income reduction under the Social Security Act if that income reduction were worked out by applying the same income test or ordinary income test that was used under that Act in calculating the person's primary payment, but applying that test on the basis that the adjusted disability pension payable to the person, or the person's partner, were the person's only ordinary income for the purposes of that Act. Subdivision C—Special rules for the Social Security Act 118ND Bereavement payments under the Social Security Act Increase of bereavement payments to take account of DFISA (1) If, immediately before a person dies: (a) a social security pension or social security benefit was payable to the person; and (b) DFISA was payable to the person; then, for the purposes of the bereavement payment provisions of the Social Security Act, the rate of the pension or benefit that, if the person had not died, would have been payable to the person on a day during the bereavement period is increased by the rate of DFISA that would also have been payable to the person on that day. Note 1: For social security pension and social security benefit see section 5Q. Note 2: For bereavement payment provision and bereavement period see subsection (4). DFISA paid to person after the person dies (2) If: (a) a person is qualified for payments under a bereavement payment provision of the Social Security Act in relation to the death of the person's partner; and (b) after the person's partner died, an amount of DFISA to which the partner would have been entitled if the partner had not died has been paid under this Part; and (c) the Social Security Secretary is not satisfied that the person has not had the benefit of the DFISA amount; the following provisions have effect: (d) the DFISA amount is not recoverable from the person or from the personal representative of the person's partner, except to the extent (if any) that the DFISA amount exceeds the amount payable to the person under the bereavement payment provision; (e) the amount payable to the person under the bereavement payment provision is to be reduced by the DFISA amount. Note: For bereavement payment provision and Social Security Secretary see subsection (4). Financial institutions not liable (3) If: (a) a person is qualified for payments under a bereavement payment provision of the Social Security Act in relation to the death of the person's partner; and (b) the amount of DFISA to which the person's partner would have been entitled if the person's partner had not died has been paid under this Part into an account with a financial institution within the bereavement period referred to in the bereavement payment provision; and (c) the financial institution pays to the person, out of the account, an amount not exceeding the total of the DFISA amounts paid as mentioned in paragraph (b); the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person's partner or anyone else in respect of the payment of that money to the person. Definitions (4) In this section: bereavement payment provisions of the Social Security Act means the following provisions of that Act: (a) Division 9 of Part 2.2 (age pension); (b) Division 10 of Part 2.3 (disability support pension); (c) Division 9 of Part 2.4 (wife pension); (d) Division 9 of Part 2.5 (carer payment); (e) Division 9 of Part 2.7 (bereavement allowance); (f) Division 9 of Part 2.8 (widow B pension); (g) Division 9 of Part 2.10 (parenting payment); (h) Division 10 of Part 2.11 (youth allowance); (i) Division 10 of Part 2.11A (austudy); (j) Division 9 of Part 2.12 (newstart); (k) Division 11 of Part 2.12B (mature age allowance); (l) Division 9 of Part 2.14 (sickness allowance); (m) Division 9 of Part 2.15 (special benefit); (n) Division 9 of Part 2.15A (partner allowance); (o) Division 10 of Part 2.16 (special needs pension). bereavement period has the meaning given by subsection 21(2) of the Social Security Act. Social Security Secretary means the Secretary of the Department administered by the Minister who administers the Social Security Act. 118NE Remote Area Allowance under the Social Security Act (1) If, on a day that is on or after 20 September 2004: (a) adjusted disability pension is payable to a person or a person's partner; and (b) a social security pension or social security benefit is payable to the person; and (c) the rate of the social security pension or social security benefit is nil; and (d) the rate of the social security pension or social security benefit would not be nil if the 2 assumptions (that relate to the adjusted disability pension) referred to in step 2 of method statement 1 in subsection 118NC(1) were made; then, for the purposes of the remote area allowance provisions of the Social Security Act, the rate of the social security pension or social security benefit on that day is taken to be greater than nil. Definitions (2) In this section: remote area allowance provisions of the Social Security Act means the following provisions of that Act: (