Veterans' Affairs Legislation Amendment Act 1991

Part 1 — PRELIMINARY

Part 1 of Schedule 2 commences or is taken to have commenced on 1 July 1991, immediately after the commencement of the Social Security (Job Search and Newstart) Amendment Act 1991 and the Social Security (Rewrite) Amendment Act 1991.

Part 2 of Schedule 3 commences or is taken to have commenced on 1 July 1991, immediately after the commencement of section 19 of the Veterans’ Entitlements (Rewrite) Transition Act 1991.

Part 3 of Schedule 3 is taken to have commenced on 12 June 1991.

Part 4 of Schedule 3 is taken to have commenced on 20 March 1991.

Part 2 — AMENDMENTS OF ACTS

Modifications and amendments of the Veterans ’ Entitlements Act 1986 (commencing on 22 January 1991)

Part 3 — TRANSITIONAL AND SAVINGS ETC.

Part 1

Modifications of Veterans ’ Entitlements Act 1986

Paragraph 11 (1) (b):

Omit the paragraph, substitute:

“(b) in respect of a female veteran (including a veteran who has died):

(i) the husband or widower of the veteran; or

(ii) a man with whom the veteran is living, or was living immediately before her death, as his wife on a genuine domestic basis although not legally married to him (whether or not her husband or widower is also alive); or

(iii) a child of the veteran;

is a dependant of the veteran.”.

Subsection 35 (1) (paragraph (b) of the definition of “ income support pension ” ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 35 (1) (definition of “ service pensioner ” ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 35 (1) (definition of “ wife ’ s service pension ” ):

Omit the definition.

Subsection 35 (1):

Insert:

“ ‘spouse’s service pension’ means a spouse’s service pension granted to the spouse of a veteran under section 40;”.

Subsection 35 (14):

Omit “wife’s”, substitute “spouse’s”.

Paragraph 37 (1) (a):

Omit “wife’s”, substitute “spouse’s”.

SCHEDULE 1—continued

Subsection 40 (1):

Subsection 40 (3):

Paragraph 42 (1) (d):

Subsection 42 (2) (definition of “ service pension ” ):

Omit “wife’s”, substitute “spouse’s”.

Subparagraph 42 (3) (b) ( i ):

Subparagraph 42 (5) (a) ( i ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 42 (8):

Omit “wife’s”, substitute “spouse’s”.

Subsection 43 (1):

Omit “wife’s”, substitute “spouse’s”.

Subsection 43 (2):

Paragraph 43 (3) (b):

SCHEDULE 1—continued

Paragraph 43 (5) (a):

Subsection 44 (4):

Omit “wife’s”, substitute “spouse’s”.

Section 45:

Omit “wife’s”, substitute “spouse’s”.

Subsection 46 (4):

Omit “wife’s”, substitute “spouse’s”.

Subsection 48 (1):

Omit “wife’s”, substitute “spouse’s”.

Subsection 48 (2):

Subsection 48 (3):

Subsection 48 (4):

Subsection 48 (4a):

Subparagraph 48 (4 a ) (a) ( i ):

SCHEDULE 1—continued

Paragraph 48 (4a) (a):

(f) Omit “in relation to the wife”, substitute “in relation to the person”.

(g) Omit “in relation to the husband”, substitute “in relation to the spouse”.

(h) Omit “husband” (last occurring), substitute “spouse”.

Subsection 48 (4 b ):

Omit “wife or widow”, substitute “person eligible to receive a spouse’s service pension”.

Subsection 49a (2):

Paragraph 49a (3) (a):

Subsection 49a (4):

Subsection 49a (5) (paragraphs (a) and (b) of the definition of “ prescribed pension ” ):

After “widow (wherever occurring), insert “or widower”.

Subsection 49a (5) (definition of “ service pension ” ):

Omit “wife’s”, substitute “spouse’s”.

SCHEDULE 1—continued

Subsection 49a (5):

Insert:

“ ‘widower’ means a man who is a widower for the purposes of Part III.”.

Subsection 49b (1) (definition of “ pension ” ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 51 (2):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Paragraph 51 (5) (a):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Paragraph 52 (9) (a):

Omit “wife’s”, substitute “spouse’s”.

Subparagraph 52 (10) (b) ( i ):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Subparagraph 52 (11) (b) ( i ):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Paragraph 53 (1) (a):

Omit “wife’s”, substitute “spouse’s”.

Subsection 53 (2):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Subsection 53 (4):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Subsection 54 (1):

Omit “wife’s”, substitute “spouse’s”.

Subsection 55 (3):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Subsection 55 (4):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Paragraph 55 (6) (a):

Omit “wife’s”, substitute “spouse’s”.

Subsection 55 (10):

Omit “wife’s”, substitute “spouse’s”.

SCHEDULE 1—continued

Subsection 57 (2):

Omit “wife’s” (wherever occurring), substitute “spouse’s”.

Paragraph 57a (13) (b):

Subsection 58 (5):

Omit “wife’s”, substitute “spouse’s”.

Subsection 59 (8):

Omit “wife’s”, substitute “spouse’s”.

Subsection 61 (5):

Omit “wife’s”, substitute “spouse’s”.

Subsection 63 (6):

Omit “wife’s”, substitute “spouse’s”.

Subsection 66 (1):

Subsection 66 (2):

Subsection 66 (3):

Subsection 66 (4):

Subsection 67 (3):

Omit “wife’s”, substitute “spouse’s”.

Paragraph 81 (2) (b):

Omit “wife’s”, substitute “spouse’s”.

Paragraph 82 (2) (a):

Omit “wife’s”, substitute “spouse’s”.

SCHEDULE 1—continued

Section 118a (subparagraph (a) ( i ) of the definition of “ eligible pensioner ” ):

Omit “wife’s”, substitute “spouse’s”.

Section 118a (definition of “ special wife service pensioner ” ):

Omit the definition, substitute:

“ ‘special spouse’s service pensioner’ means a person who either:

(a) is:

(i) in receipt of spouse’s service pension; and

(ii) legally married to a veteran but living separately and apart from the veteran on a permanent basis; and

(iii) not living with a person who is an eligible pensioner within the meaning of either Social Security Act 1947 as husband and wife on a genuine domestic basis; orsection 1 18a of this Act or section 151a of the

(b) is:

(i) in receipt of spouse’s service pension because of section 66; and

(ii) not living with a person who is an eligible pensioner within the meaning of either Social Security Act 1947 as husband and wife on a genuine domestic basis;”.section 118a of this Act or section 151a of the

Subsection 118d (2):

Omit “wife”, substitute “spouse’s”.

Subsection 118f (2):

Omit “wife”, substitute “spouse’s”.

Subsection 118g (4):

Omit “wife”, substitute “spouse’s”.

Subsection 118h (5):

Omit “wife”, substitute “spouse’s”.

Subsection 118 j (3) (subparagraph (b) (ii) of the definition of “ advance payment period ” ):

Omit “wife”, substitute “spouse’s”.

Paragraph 118 ja (a):

Omit “wife’s”, substitute “spouse’s”.

Subsection 118 jb (2):

Omit “wife”, substitute “spouse’s”.

SCHEDULE 1—continued

Subsection 118 k (2) (subparagraph (b) (ii) of the definition of “ advance payment period ” ):

Omit “wife”, substitute “spouse’s”.

Subsection 118 m (1) (paragraph (b) of the definition of the “ X ” ):

Omit “wife”, substitute “spouse’s”.

Paragraph 118 n (1) (d):

Omit “wife”, substitute “spouse’s”.

Paragraph 118 n (2) (e):

Omit “wife”, substitute “spouse’s”.

Paragraph 119 (1) (b):

Omit “wife’s”, substitute “spouse’s”.

Paragraph 119 (1) (e):

Omit “wife’s”, substitute “spouse’s”.

Subsection 119 (2) (paragraph (a) of the definition of “ application ” ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 119 (2) (paragraph (b) of the definition of “ claim ” ):

Omit “wife’s”, substitute “spouse’s”.

Subsection 125 (2):

Omit “wife’s”, substitute “spouse’s”.

Subsection 176 (8):

Omit “wife’s”, substitute “spouse’s”.

Subsection 189 (5) (definition of “ pension ” ):

Omit “wife’s”, substitute “spouse’s”.

Part 2

Amendments of Veterans ’ Entitlements Act 1986

After subsection 13 (8 a ):

Insert:

“(8b) If:

SCHEDULE 1—continued

the Commonwealth is not liable to pay a pension to that dependant under this section.”.

Subsection 13 (9):

After “widow” (wherever occurring) insert “or widower”.

Subsection 13 (11):

After “(8a),” insert “(8b),”.

Subsection 30 (1):

After “widow” insert “or widower”.

Subsection 30 (4):

After “‘widow’” insert “, ‘widower’”.

After subsection 70 (11):

Insert:

“(11a) If:

(a) a male dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a child of the member) has re-married or married after the death of the member; and

(b) the re-marriage or marriage occurred before 22 January 1991; the Commonwealth is not liable to pay a pension to that dependant under this section.”.

Subsection 70 (12):

After “widow” (wherever occurring) insert “or widower”.

__________

SCHEDULE 2 Section 4

AMENDMENT OF ACTS (COMMENCING ON 1 JULY 1991)

Part 1

Social Security Act 1991

Section 3 (Index of definitions):

Insert the following terms in their respective appropriate alphabetical positions (determined on a letter-by-letter basis):

“armed services widower 4 (1)

widower 23 (1)”.

Subsection 4 (1):

Insert:

“ ‘armed services widower’ means a man who was the partner of:

immediately before the death of the person;”.

Subsection 23 (1) (paragraph (c) of the definition of “service pension”):

Omit “wife”, substitute “partner”.

Subsection 23 (1):

Insert:

“ ‘widower’ means a man who was the partner of a woman immediately before she died;”.

Subparagraph 249 (2) (b) (ii):

Omit “wife”, substitute “partner”.

After subsection 258 (3):

Add:

“(4) A sole parent pension is not payable to a man if:

SCHEDULE 2—continued

Subparagraph 262 (2) (b) (ii):

Omit “wife”, substitute “partner”.

Sub-subparagraph 315 (1) (d) (iv) ( a ):

Omit “wife’s”, substitute “partner”.

After subsection 321 (3):

Add:

“(4) A widowed person allowance is not payable to a man if:

Subparagraph 362 (2) (b) (ii):

Omit “wife”, substitute “partner”.

Subparagraph 372 (2) (b) (ii):

Omit “wife”, substitute “partner”.

After paragraph 533 (1) (b):

Add:

“(ba) the person is a widower who is receiving a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or”.

Section 533 (Note 2):

After “(b)” insert “or a widower receiving a payment under the VEA who is not covered by paragraph (ba)”.

After subsection 614 (3):

Insert:

“(3a) A newstart allowance is not payable to a man if:

After subsection 675 (3):

Insert:

“(3a) Sickness benefit is not payable to a man if:

(a) the man is an armed services widower; and

SCHEDULE 2—continued

(b) the man is receiving a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act.

After subsection 735 (3):

Add:

“(4) Special benefit is not payable to a man if:

After subsection 787 (3):

Add:

“(4) A special needs pension is not payable to a man if:

Section 1067 (Benefit Rate Calculator A —point 1067-K4— subparagraph (b) (iv)):

Section 1068 (Benefit Rate Calculator B —point 1068-J4— subparagraph (b) (iv)):

Part 2

Veterans ’ Entitlements Act 1986

Section 5 (Index of definitions):

(a) Omit:

“non-illness separated wife 5e (1)”,

substitute:

“non-illness separated spouse 5e (1)”.

(b) After:

SCHEDULE 2—continued

“war widow 5e (1)”,

insert:

“war widower 5e (1)”.

Subsection 5e (1) (definition of “ non-illness separated wife ” ):

Omit the definition.

Subsection 5e (1):

Insert:

“ ‘non-illness separated spouse’ means a person:

(c) who is not receiving age or invalidity service pension;

‘war widower’ means a man:

(a) who was the partner of, or was legally married to:

(i) a veteran; or

(ii) a person who was a member of the Forces for the purposes of Part II; or

(iii) a person who was a member of the Forces for the purposes of Part IV;

immediately before the death of the veteran or person; and

(b) who is receiving:

(i) a pension payable under Part II or IV at a rate determined under or by reference to subsection 30 (1); or

(ii) a pension that:

(a) is payable under the law of a foreign country; and

(b) is, in the opinion of the Commission, similar in character to a pension referred to in subparagraph (i);”.

Subsection 5 g (4):

Subparagraphs 5 l (7) (c) (ii), (d) (ii) and (e) (ii):

Omit “wife”, substitute “spouse”.

SCHEDULE 2—continued

Subsection 5m (6) (paragraph (c) of the definition of “ couple ’ s assets deeming provisions ” ):

Omit “Widow or Non-illness Separated Wife Service Pension Rate Calculator”, substitute “Service Pension Rate Calculator for Widows, Widowers and Non-illness Separated Spouses”.

Subsection 5 q (1) (paragraph (c) of the definition of “ service pension ” ):

Omit “wife”, substitute “partner”.

Subsection 11 (1):

Omit the subsection, substitute:

“(1) In this Act, unless the contrary intention appears:

‘dependant’, in relation to a veteran (including a veteran who has died), means:

of the veteran.

Paragraph 35 (1) (b):

Omit “wife”, substitute “partner”.

Subparagraph 36 h (2) (a) (ii):

Omit “wife”, substitute “partner”.

Paragraph 36 n (2) (c):

Omit “‘Frozen Rate’ Widow Service Pension Rate Calculator”, substitute “Service Pension Rate Calculator for ‘Frozen Rate’ Widows and Widowers”.

After paragraph 36 n (2) (c):

Add:

“; or (d) if the veteran is a war widower who is receiving a pension under Part II or IV at a rate determined under or by reference to subsection 30 (1)—the Service Pension Rate Calculator for ‘Frozen Rate’ Widows and Widowers at the end of section 45.”.

Subparagraph 37 h (2) (a) (ii):

Omit “wife”, substitute “partner”.

SCHEDULE 2—continued

Paragraph 37 n (2) (c):

Omit “‘Frozen Rate’ Widow Service Pension Rate Calculator”, substitute “Service Pension Rate Calculator for ‘Frozen Rate’ Widows and Widowers”.

After paragraph 37 n (2) (c):

Add:

“; or (d) if the veteran is a war widower who is receiving a pension under Part II or IV at a rate determined under or by reference to subsection 30 (1)—the Service Pension Rate Calculator for ‘Frozen Rate’ Widows and Widowers at the end of section 45.”.

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 (2 c ):

Omit “female dependant”, substitute “widow, widower or dependent parent”.

Subsection 18 (6):

Omit “widow’s advance”, substitute “widow or widower advance”.

SCHEDULE 3—continued

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”.

SCHEDULE 3—continued

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 Commonwealth Employees’ Rehabilitation and Compensation Act 1988 to a person who is:section 137 of the

(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:

(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.”.

SCHEDULE 3—continued

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 5 d (1) (definition of “ disease ” ):

Omit the definition, substitute:

“ ‘disease’ means:

but does not include:

(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 5 g (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

SCHEDULE 3—continued

Subsection 5 h (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 5 q (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;

‘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

SCHEDULE 3—continued

(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

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.

“(2) A person’s ordinary income consists of:

“(3) Subject to sections 45b, 45c and 45d, a person’s ordinary income is the person’s gross ordinary income without any deduction.

SCHEDULE 3—continued

Ordinary income from a business —treatment of trading stock

“45b. (1) If:

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:

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:

“(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).”.

SCHEDULE 3—continued

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 118 ja :

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

SCHEDULE 3—continued

(b) but for subsection 13 (7), a pension would have been payable to the person at a rate specified in subsection 30 (2).”.