WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Veterans' Affairs Legislation Amendment (Budget and
Compensation Measures) Bill 1997
Date Introduced: 25 June 1997
House: House of Representatives
Portfolio: Veterans' Affairs
Commencement:
- Much of this Bill commences on Royal Assent; however
- Part 1 of the Bill, and items 36, 37, 38 and 41, which involve
changes to the way operational and qualifying service are defined -
are taken to have commenced on 13 May 1997;
- Part 2 of Schedule 1, amending provisions relating to advance
lump-sum payments, and Part 3 of Schedule 1, limiting the
Commonwealth's future liability for tobacco use in some
circumstances, commences on 1 January 1998.
To amend the Veterans' Entitlements Act 1986 (the
Veterans' Act) to:
- extend eligibility for certain benefits including
defence-service home loans, to armed forces personnel who served in
some overseas deployments;
- allow all disability pensioners and their war widow/ers to take
as an advance a lump sum payment of up to $500; and
- limit the Commonwealth's liability for injury or death to
service personnel due solely to tobacco use either begun or
increased after 31 December 1997.
Until 1914, Australia had no national, government-funded
compensation payment scheme for returned service personnel injured
in the line of duty. The War Pensions Act 1914, modelled
on the pre-existing United Kingdom legislation, was designed to
provide compensation for those disabled or
bereaved due to war. It provided monetary compensation for
pain, discomfort, disfigurement, impaired physical and mental
capacity, a lower standard of health, lost or reduced earning
capacity and the inability to participate in normal social
activities.
It was not enough to live on. That came later when it became
clear that some ex-servicemen were totally unable to support
themselves. It was targetted at those who had served in a war, ie
had eligible war service (or operational service) as it became
defined.
The service pension (an income support payment)
was not introduced until 1935. It is the broad equivalent of the
civilian age pension and is primarily for those with 'theatre of
war' service. The pension was designed to take into account the
indefinable and intangible effects of strenous war service which
could contribute to premature ageing and a reduced ability to earn
a living.
This benefit was designed to assist the increasing numbers of
World War I (WWI) veterans approaching retirement age and
increasing numbers of unemployed ex-servicemen, especialy older age
veterans.
It was easy enough for veterans of WWI or World War II (WWII) to
prove whether they had operational or qualifying service or both.
However, the position with regards to other activities like
occupation forces, peacekeeping forces and merchant marine
activities, was not so clear.
Much of the vigour and emotion in the debate since World War I
would not exist if it were possible to simply and fairly decide who
should get access to repatriation.
In terms of current repatriation pensions and benefits, there
are still essentially two categories: operational service, and
qualifying service.
To be eligible for operational service, a member of the defence
forces must have served overseas, in a clearly defined area, during
a war, or on a similar operation. They are entitled to a disability
pension for injuries, disease or death attributal to that
service.
The most comprehensive benefits are provided to service
personnel with qualifying service. They are entitled to a
disability pension for any resulting illness, injury or death due
to their qualifying service, plus the income and assets tested
service pension. To be eligible nowadays, they must not only have
served overseas, in a clearly defined area, during a war or similar
operation, but must have incurred danger from hostile forces.
Before the last election, the Coalition promised to review
repatriation entitlements. After the election, the Department of
Veterans' Affairs and the Department of Defence conducted a joint
study - 'Review of Service Entitlement Anomalies'. This was
recently submitted to Cabinet. It reviewed existing documents, but
did not hold public hearings or take submissions from the
public.
The amendments in this Bill in relation to operational and
qualifying areas of service arise from this report.
The changes implemented in this Bill were foreshadowed in this
year's Budget. A budget press release, issued on May 13 1997 by the
Minister for Veterans' Affairs, detailed the changes and the
impact.
The 1997-98 Veterans Affairs Budget addresses outstanding
anomalies in veterans' entitlements and introduces new measures to
help older veterans live independently.
'Another 10,500 veterans, at a cost of $19.4 million over four
years, will become eligible for compensation for injuries or
diseases resulting from thier overseas service in the Australian
Defence Forces,' the Minister for Veterans Affairs, Bruce Scott
announed today.
The measures in the Bill are to take effect from the date of
announcement - May 13, 1997.
The Veterans' Act lists the overseas deployments regarded as
operational service. This Bill adds six new areas:
- British Commonwealth Occupation Forces, Japan - 3 January 1949
to 30 June 1951 inclusive;
- Singapore during the Malayan Emergency - 29 June 1950 to 31
August 1957 inclusive;
- Far East Strategic Reserve, Navy - 2 July 1955 to 27 May 1963
inclusive;
- Demilitarised Zone, Korea - 19 April 1956 onwards;
- HMA Ships Vampire and Quickmatch, Vietnam - 25 January 1962 to
29 January 1962 inclusive;
- North East Thailand, including Ubon - 31 May 1962 to 31 August
1968 inclusive.
The joint departmental report recommended that these operations
be classified as equivalent to 'hazardous' service, rather than
operational service - however, it acknowledged that the same
benefits would be paid under either definition.
The Bill also makes a number of amendments aimed at giving some
groups access to the service pension. It does this by including the
following peace-keeping forces on the list for qualifying
service:
- United Nations Commission on Korea from 1 January
1949;
- United Nations India-Pakistan Observation Mission from
20 September 1965;
- United Nations Interim Force in Lebanon from 23 March
1978; and
- United Nations Iran/Iraq Military Observer Group from 11
August 1988.
Also now included are embassy guards and evacuation personnel
who stationed in Vietnam between 12 January 1973 to April 1975
inclusive. This is in line with the departmental report's
recommendation.
It can certainly be argued that conditions of service in Vietnam
did not become less hazardous after the withdrawal of Australian
troops at the beginning of 1973 and may have in fact become more
so. The country continued as an active 'war' zone until its
collapse to the communist forces in 1975. In addition to the danger
of encircling communist troops and infiltrators, there was an
active hostility from South Vietnamese elements, angered at their
'abandonment' by their once-time allies.(1)
In addition, the Bill changes the way in which operational and
qualifying service will be determined in the future. At the moment,
operational service, for the purposes of veterans' entitlements, is
whatever is listed in the Act. In future, operational service will
be that list, plus any service defined as 'warlike' or
'non-warlike'. Qualifying service will include warlike service.
The definitions for 'warlike' and 'non-warlike' in this Bill,
contain no clues as to what those words mean - they are simply
defined as being 'service in the Defence Force of a kind determined
in writing by the Minister for Defence' to be warlike/non-warlike
service.
However, a standard defence force conditions-of-service manual,
Indman, does give definitions.(2) It defines 'warlike operations'
as:
those military activities where the application of force is
authorised to pursue military objectives and there is an
expectation of casualties.
This could include:
- a state of declared war;
- conventional combat operations against an armed adversary;
and
- peace-enforcement operations in support of 'diplomatic efforts
to restore peace between belligerents who may not be consenting to
intervention and may be engaged in combat activities'.
'Non-warlike' operations are defined as
those military activities short of Warlike operations where
there is risk associated with the assigned task(s) and where the
application is limited to self-defence. Casualties could incur but
are not expected.
Types of operations included in this category are mine-clearance
and peacekeeping.
In layman's terms, warlike operations are those where service
personnel can expect to be shot at; non-warlike operations are
those where service personnel may be shot at, but do not expect to
be.
The definitions are important to defence personnel, because they
determine what additional allowances are payable for particular
overseas deployments. According to the Department of Defence, an
operation is defined as warlike or non-warlike during initial
planning, with a determination issued by the Minister. A
classification may be subsequently changed if conditions warrant
it.
By adopting the defence classifications, the Department of
Veterans' Affairs is seeking to streamline procedures so that a
determination by the Minister for Defence automatically flows on to
repatriation benefits without the need to further amend the
Veterans' Act.(3)
However, the flip-side to this, is that parliament will no
longer have the opportunity to scrutinise additions to the
operational service list.
Operational service
Items 1 to 8 detail the
additional deployments/operations to be considered operational
service, and incorporate defence force definitions of warlike and
non-warlike service into the Act for the purpose of determining
future repatriation benefits.
Item 3 inserts into subsection
5C(1) a definition for non-warlike service (see
above).
Item 5 inserts into subsection
5C(1) a definition for warlike service (see above).
Item 6 repeals section 6 and
inserts a new one. This is a rewritten and extended list of
deployments to be regarded as operational service. The additions
are:
- British Commonwealth Occupation Forces, Japan - 3 January 1949
to 30 June 1951 inclusive;
- Singapore during the Malayan Emergency - 29 June 1950 to 31
August 1957 inclusive;
- Far East Strategic Reserve, Navy - 2 July 1955 to 27 May 1963
inclusive;
- Demilitarised Zone, Korea - 19 April 1956 onwards;
- HMA Ships Vampire and Quickmatch, Vietnam - 25 January 1962 to
29 January 1962 inclusive; and
- North East Thailand, including Ubon - 31 May 1962 to 31 August
1968 inclusive.
The Explanatory Memorandum says that while new deployments have
been added, the rewrite does not affect existing entitlements.
The rewritten and restructured operational service provisions
involve no change in policy. These new provisions are intended to
cover exactly the same service as was covered by the repealed
section 6.(4)
Service in Vietnam after 12 January 1973 is not included on the
new list of operational service. Instead, the new mechanism for
declaring a deployment as warlike or non-warlike will be used to
extend benefits to those veterans, according to the Explanatory
Memorandum.
Immediately after Royal Assent, the Minister for Defence will
determine that service in Vietnam between 12 January 1973 and 29
April 1975 inclusive was warlike service.(5)
New section 6F allows for this, by including
warlike and non-warlike service within the terms of operational
service. It says that:
A member of the Defence Force is taken to have been rendering
operational service during any period of warlike service or
non-warlike service of the member.
(Later amendments in this Bill are also intended to classify
this Vietnam service as qualifying service as well, so veterans get
the higher level of benefits.)
Advance payments of pensions
Items 9 to 27 in
Schedule 1 build on earlier amendments to the
Veterans' Act to widen the group of people entitled to take part of
their pension as a lump-sum advance. The Act was first amended in
1995 so that pensioners receiving service pensions or income
support supplement would be able to take part of their entitlement
as a lump-sum advance of up to $500 - to be paid back in regular
instalments over a maximum of six months.
This Bill will extend that entitlement to any pensioner
receiving a service pension, income support supplement, disability
pension and war widow/er's pension under the Veterans' Act.
Items 9 to 17 are technical
amendments.
Item 18 repeals Part IIID of the Act dealing
with advance lump-sum payments.
Item 19 inserts a new Part
IVA, detailing the new provisions with regard to advance
payments. Many of the new provisions are similar to the old ones.
The major differences are the wider category of people who are now
eligible, and the way in which the maximum amount which may be
advanced is calculated. The Bill also relaxes one of the qualifying
criteria.
Under paragraph 61(1)(c), the advance may only be granted if the
Repatriation Commission is satisfied that it will be used to help
meet the person's living expenses. Proposed section
79B omits this requirement.
The new formula for calculating the maximum advance payable is
contained in new section 79K. It says that the
maximum amount will be either $500, or:
- if the applicant is receiving a disability or war widow/er
pension under Parts II or IV of the Act - 13 times the fortnightly
rate of pension (providing its less than $500); or
- if the applicant is receiving a service pension under Part III,
or an income support supplement - the annual rate of payment
divided by 2 (again, providing the amount is less than $500.)
These are the only two options specified under the new proposal.
Under existing section 67C, there are three options:
- $500;
- 6 per cent of their annual payment rate; or
- any amount the pensioner asks for, providing it is smaller than
either of the above.
This third option has been dropped from the new section. There
is a legal argument that a person may still be able to apply for,
and get, an amount less than $500 or what they're entitled to under
the appropriate formula. However, it would leave less room for
idiosyncratic bureaucratic interpretation if the amendments
specifically spelt this out, as the existing provisions do.
The new Part IVD also contains specific provisions dealing with
appeals. These are contained in new sections 79T
to 79Y, and items 20, 21, and 22.
Tobacco products
Item 29 inserts a definition for tobacco
products into subsection 5Q(1) of the Veterans' Act. The definition
includes tobacco in any form, including any product which is not
included on the Australian Register of Therapeutic Goods, that
contains tobacco as its main, or as a substantial, ingredient.
Item 30 inserts a definition of tobacco use
into subsection 5Q(1) which includes smoking, chewing or
inhaling.
In combination, these two items ensure that the amendments
capture not just cigarette smoking, but any use to which tobacco
may be put, eg being sniffed as snuff.
Items 31 and 32 are in similar
terms. Item 31 inserts new subsection
8(6), and item 32 inserts new
subsection 9(7).
These two items seek to make it clear that the Commission will
not accept tobacco-related death or injury as war-caused, if the
serviceman or woman:
- began to smoke or use tobacco products after 31 December 1997;
or
- increased the amount of cigarettes or tobacco products used
after 31 December 1997.
Items 31 and 32 are linked to item 33. Item 33
inserts new subsection 70(9) which says
specifically that the Commonwealth is not liable for any death,
incapacity or injury solely due to the serviceman or woman:
- taking up smoking or using tobacco products after 31 December
1997; or
- increasing the amount of cigarettes or other tobacco products
used after 31 December 1997.
Qualifying service
Part 4 of Schedule 1, amongst
other things, enlarges the category of service personnel defined as
having qualifying service. Under existing provisions, peace-keeping
operations which are categorised as qualifying service are listed
in Schedule 3 of the Veterans Act. This adds four more:
- United Nations Commission on Korea from 1 January
1949
- United Nations India-Pakistan Observation Mission from
20 September 1965
- United Nations Interim Force in Lebanon from 23 March
1978
- United Nations Iran/Iraq Military Observer Group from 11
August 1988
Item 36 also amends the definition of
'qualifying service' in section 7A, by including, at
paragraph 7A(1)(a) warlike service. It should be
noted that definitions for warlike and non-warlike service are
being inserted in the Act in section 5C(1) - see items 1 to 5 of
this Bill.
As already discussed, the definitions for warlike, or
non-warlike service are far from clear.
Nevertheless, the Explanatory Memorandum is confident that there
will be no need in the future to add to the list of peace-keeping
forces in Schedule 3, because they will be covered under the new
definition for non-warlike service. So procedures for gazetting new
listings are to be removed from the Act.
Service in Vietnam between 12 January 1973 and 29 April 1975
inclusive is also to be regarded as qualifying service. This is not
explicit in the Bill, although it is explicit in the Explanatory
Memorandum.(6) The new procedure laid out in the Bill is expected
to be followed. The Minister for Defence is expected to make a
determination that service in Vietnam between those dates was
warlike service.
- Review of Service Entitlement Anomalies, a joint report of the
Departments of Defence and Veterans' Affairs, p14.
- Indman 1 Vol 4 Complete Revise (Feb 97) annex A, instruction
4010.
- Explanatory Memorandum to the Veterans' Affairs Legislation
Amendment (Budget and Compensation Measures) Bill 1997
- Ibid, p4.
- Ibid, p8
- Ibid, p21.
Bronwyn Young and Peter Yeend
23 September 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
1997.
This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 24 September 1997
Back to top