Bills Digest no. 164 2009–10
Veterans' Affairs
Legislation Amendment (2010 Budget Measures) Bill
2010
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
Passage history
Purpose
Background
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Veterans' Affairs Legislation Amendment
(2010 Budget Measures) Bill 2010
Date introduced: 26 May 2010
House: House
of Representatives
Portfolio: Veterans' Affairs
Commencement: Schedules 1 to 4 from 1 July 2010, Schedule 5 from 1
October 2010 and all other sections apart from these from the date
of Royal Assent.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
Glossary
|
Abbreviation
|
Definition
|
|
DSHA
|
Defence Service Homes
Act 1918
|
|
DP
|
Disability Pension
|
|
MRCA
|
|
|
Military Rehabilitation and Compensation Act 2004
|
|
|
SRCA
|
Safety Rehabilitation and Compensation Act
1988
|
|
SP
|
Service Pension
|
|
VEA
|
Veterans’ Entitlements Act 1986
|
|
WWP
|
War Widow’s/er’s Pension
|
To amend the Veterans’
Entitlements Act 1986 (VEA), the Safety Rehabilitation and
Compensation Act 1988 (SRCA) and the Defence
Service Homes Act 1918 (DSHA), to give effect to several
2010–11 Budget initiatives affecting veterans and their
dependants and also members of Australia’s Defence
Forces.
The Government announced in the 2010 Budget an enhancement of
assistance for some participants involved in nuclear tests
conducted by the British government in Australia in the
1950s.[1] The
proposal is to classify the service of nuclear test participants,
who were also members of the Australian Defence Force, as
non-warlike or hazardous peacekeeping service. Hitherto,
nuclear test participation has not been ascribed a service
classification in the VEA and as a result participants were not
provided with assistance under the VEA. Rather, participation
in the British nuclear tests has been covered by military and
civilian workers compensation arrangements. For members of
the Australian Defence Force this is coverage by the SRCA.
To describe the nuclear test service for members of the
Australian Defence Force as non-warlike or hazardous peacekeeping
service will provide them with access to some assistance under the
VEA. This will mainly include access to the Disability
Pension (DP) for illnesses/injuries arising from that service and
to War Widow’s/er’s Pension (WWP) for surviving
partners, where the death of the service person is attributable to
that service.
The financial impact statement attached to the Bill provides
cost estimates of $0.1 million in 2009–10, $5.7 million in
2010–11, $5.3 million in 2011–12, $6.2 million in
2012–13 and $7.0 million in 2013–14. This is a
total of $24.3 million over five years.[2] The Government estimates that
potentially 2700 surviving defence force personnel will benefit
from the initiative.[3]
There have been claims of adverse health and associated outcomes
by the British nuclear test participants made against the
government for many years. A brief background on the British
nuclear tests conducted in Australia and participants can be seen
in the Bills Digest for the Australian Participants in British
Nuclear Tests (Treatment) Bill 2006.[4]
There have been a series of studies and reports on adverse
health outcomes that the participants rely upon to support their
claims that their health has been severely adversely affected and
also that of their families. There was even a Royal
Commission in 1985.[5] Some description and discussion of the health
studies and reports and also previous government inquiries can be
seen in the Bills Digest for the Australian Participants in
British Nuclear Tests (Treatment) Bill 2006.[6]
The Nominal Roll of Australian participants in the British
Atomic Tests Program conducted in Australia from 1952 – 1963
contains 16 716 names. The names on the Roll are in the
following categories:
- Navy – 3268
- Army – 1657
- RAAF – 3201 and
- 8590 civilians, including 10 indigenous people.[7]
Of the total number of British nuclear test participants, 8126
(or 48.6 per cent) were Australian military personnel.
Part IV of the VEA provides for the classification of
peacekeeping service for members of the Defence Force.
Classification of ‘Hazardous Service’ provides
for access to the DP provided under Part IV of the VEA for
illnesses/injuries arising out of the service. It also allows
for access to the WWP provided (under Part II of the VEA), to
surviving partners of a person whose death is accepted as being
caused/attributed by their hazardous service. Such
classification also allows access to a health treatment card (White
Card) for the medical condition/s accepted as being
caused/attributed by their hazardous service. For those with
a significant impairment arising from the hazardous service (that
is, with an impairment of 70 per cent or more), there is also
access to the Gold Card, providing coverage for all medical
conditions.
For a long time, Governments have considered that because the
illness/injuries/death suffered by participants in the British
nuclear tests occurred in peacetime they should be covered by
workers’ compensation arrangements that apply to public
servants generally. For example, Senator the Hon. Nick
Minchin has said in answer to a question on notice:
No disability pension paid by DVA would be paid
for illnesses relating to atomic testing. Atomic testing is not
service covered by the Veterans’ Entitlements Act 1986.
Therefore, all pensions paid by DVA are for conditions arising from
service other than atomic testing.[8]
In 2006, the Howard Government extended coverage for cancer
testing and treatment to British nuclear test participants.[9] This was done in
response to the recommendation of the 2003 Clarke Review of
veterans’ entitlements.[10] In announcing that the government would
provide for free testing and cancer treatment for nuclear test
participants, the then government emphasised that the measure was
not an admission that they accepted there was a link between
increased cancer rates and any exposure to radiation.[11]
On 8 February 2002, the then Minister for Veterans’
Affairs, the Hon Danna Vale, MP announced the establishment of an
independent committee to examine veterans’
entitlements.[12] The Committee became known as the Clarke Review
after the Committee’s Chair, the Hon John Clarke, QC.
The Clarke Review report was released in January 2003[13] and the Howard
Government provided its response to the Clarke Review in March
2004.[14]
In its terms of reference, the Clarke Review was specifically
asked to examine the claims by British nuclear test participants
and consider what would be appropriate assistance by government.
The Clarke Review recommended the accreditation of
participation in the nuclear tests for Defence Force staff as
‘non-warlike hazardous service’.[15]
Some 2160 submissions were made to the Clarke Review with a
majority of the submissions urging that participation in the
British nuclear tests should be classified as ‘non-warlike
hazardous service’, and, as such, they would be as covered by
Part IV of the VEA. Most of the submissions were from former
Defence Force personnel.[16] A small number of submissions also sought
classification of participation in the British tests as
‘qualifying service’ for the service pension.
This is the same as war or warlike service and would
basically have allowed access to the Service Pension (SP) and also
to the Gold Card for those aged 70 or above. This proposal
was not supported by the Clarke Review and it did not recommend
that the British nuclear test participation be classified as being
the same as ‘qualifying service’, or war service.
Essentially, the Howard Government rejected the Clarke Review
recommendation to accord Defence Force personnel involved in the
nuclear testing with accreditation as being involved in non-warlike
hazardous service. However, while the Howard Government chose
not to change the service classification of defence personnel
involved in the British nuclear testing, it made a loose commitment
to meeting these personnel’s needs in other ways. The
Prime Minister reported that:
The Government also had decided to respond
positively to the needs of those affected by the British Atomic
Test programme when the outcomes are available of the Australian
Participants in the British Nuclear Test Programme – Cancer
Incidence and Mortality Study.
The Government will continue to provide special
recognition and comprehensive assistance to those who have served
Australia in times of war, at personal risk of injury or death from
an armed enemy.
In keeping with this approach, we have accepted
the Clarke Report’s recommendation that there be no change in
the incurred danger test for Qualifying Service. However, we reject
the view that this test has been interpreted too narrowly.[17]
There were several submissions made to the Clarke Review to have
various forms of peacetime military service accredited as either
warlike or non-warlike hazardous service under the VEA.[18] Some of these
claims included special submarine operations to the north and west
of Australia, personnel involved in covert intelligence gathering
or covert signals operations and also major peacetime accidents,
like the Black Hawk helicopter accident of 1996. Generally,
the Clarke Review recommended that peacetime service should not be
accredited as service under the VEA. The exception to this
was service that included mine clearing, bomb disposal and
improvised explosive device clearance. Some of the Clarke
Review recommendations, that some mine clearing and bomb disposal
work post World War Two (WWII) in the South Pacific be accredited,
was accepted by the Howard Government. This was provided for
with the Veterans' Entitlements (Clarke Review) Act
2004.[19]
As stated above, only those British nuclear test participants
who were also members of the Australian Defence Force will gain
access to the VEA assistance under this proposed initiative.
This is in accordance with the Clarke Review
recommendation.[20]
The 8 590 civilian nuclear test participant personnel are not
covered.
The accrediting of participation in the British nuclear testing
for Australian Defence Force personnel as hazardous service in the
VEA does break new ground for coverage of ordinary peacetime
military service. This sort of service is not normally
covered in the VEA, rather ordinary peacetime service is normally
covered by military service compensation arrangements, that is
coverage by the SRCA or the Military Rehabilitation and
Compensation Act 2004 (MRCA). This may set a precedent
for other ordinary peacetime military service to be provided with
coverage under the VEA, which was not recommended by the Clarke
Review.[21]
There is still the issue of coverage for civilian personnel
involved in the tests. All nuclear test participants
(civilian and military) were provided for with the benefit of
coverage for cancer screening and treatment in 2006.[22]
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The Government announced in the 2010–11 Budget that it
will accredit submarine special operations conducted in the period
1978 to 1992 as warlike service.[23] Accreditation as warlike service will
provide Australian military personnel involved in such service with
access to the SP from age 60 and also access to a Gold Card from
the age of 70 years.
The financial impact statement attached to the Bill provides
cost estimates of $0.8 million in 2010–11, $2.1 million in
2011–12, $3.2 million in 2012–13 and $5.0 million in
2013–14.[24] This is a total of $11.1 million over four years
and the Government estimates up to 890 former submariners will
benefit.[25]
The Clarke Review received some 44 submissions seeking to have
various forms of peacetime military service classified in the VEA
as either as warlike service or non-warlike service.[26] One of the types
of peacetime service examined was submarine special
operations.[27]
In the late 1970s to the early 1990s, some Royal Australian Navy
(RAN) submarines, filled with special intelligence equipment, were
regularly deployed in areas to the north and west of
Australia. Submissions to the Clarke Review claimed that the
special operations were conducted in an environment in which
overwhelming force could have been expected if the submarine had
been detected. The Clarke Review commented that the
operations were covert and they were unable to elaborate further on
the nature of the tasks performed. The Clarke Review found
that due to the classified nature of the operations, the assessment
of the service and whether it met the warlike definition could only
be made by the Department of Defence. The Review reported
that it had deliberated extensively about the nature of the
operations with the authors of submissions and senior Defence
officials and concluded that there was no evidence to substantiate
a description of the special operation service as warlike. As
a result the Clarke Review recommended that the service be
classified as non-warlike hazardous service.[28] This classification would have
generally provided access to the DP for illnesses/injuries arising
from that service and to WWP for surviving partners, where the
death of the service person is attributable to that service.
This is the same classification of service that has been proposed
by the Government for the nuclear test participants who were
members of the Australian Defence Force–see Schedule 1 of the
Bill.
As said above, the Clarke Review received 44 submissions to have
various forms of peacetime military service to be accredited as
either ‘warlike’ or ‘non-warlike hazardous
service’ under the VEA. These claims included personnel
involved in covert intelligence gathering or covert signals and
also major peacetime accidents like the Black Hawke helicopter
crash of 1996. Generally, the Clarke Review did not recommend
that peacetime service should be accredited as warlike service
under the VEA.[29] The major exception to this was the recommended
accreditation of some peacetime mine clearing and bomb disposal
work post WWII in the South Pacific which was provided for with the
Veterans' Entitlements (Clarke Review) Act 2004.[30]
While accreditation as warlike service for mine and bomb
clearance work does show that some peacetime service has been
recognised as warlike service for the VEA it is exceptional.
Generally, governments have not wanted to have peacetime service
recognised as warlike or non-warlike service in the VEA, as it
would then diminish the special recognition given to the special
service provided for in the VEA. This view was emphasised in
then Prime Minister John Howard’s press release when
announcing the Government’s responses to the Clarke Review
recommendations:
The Government will continue to provide special
recognition and comprehensive assistance to those who have served
Australia in times of war, at personal risk of injury or death from
an armed enemy.
In keeping with this approach, we have accepted
the Clarke Report’s
recommendation that there be no change in the incurred danger test
for Qualifying Service. However, we reject the view that this test
has been interpreted too narrowly.[31]
Governments have considered that illness/injuries and also death
having their origins in military peacetime activities should be
covered by workers’ compensation arrangements, as applies to
public servants generally.
War, and warlike service, involves action against an armed
hostile enemy force in a time of conflict. Section 7A of the VEA
describes qualifying service.[32] It essentially refers to risk and dangers
incurred while a service person was engaged in service during a
period of hostilities from a hostile enemy force. The
proponents of the submarine special service insist that, had they
been detected, they were at great and overwhelming risk and
danger. However, the detail of the special submarine service
has not been made public due to the apparently ‘top
secret’ nature of its operations. Nor has there been
any publicity relating to its operations, such as might be expected
if it had engaged in any conflict with, or discovered any covert
operations by, other forces or nations. Therefore, the
Government’s decision implies acceptance that the risks the
operations ran should be given the same recognition as warlike
service. This is even though the submarine operations were
not during a period of hostilities against an armed enemy force,
hitherto a requirement for the classification of war and warlike
service. This budget initiative might therefore set a
precedent for the accreditation of other claims relating to
dangerous peacetime military service.[33]
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The Government announced in the 2010–11 Budget the
proposal to change the recognition of service status for Australian
Defence Force personnel who served at the Ubon airbase in Thailand
from 31 May to 27 July 1962.[34] The government budget paper refers to
‘new evidence’ and states that personnel ‘were on
a heightened state of alert to respond to a perceived imminent
threat from hostile forces’ during this period. The
service is proposed to be recognised as warlike service or
qualifying service. Currently the service at Ubon in this
period is recognised as non-warlike or operational service.
The current non-warlike (operational service) categorisation
provides some assistance under the VEA, mainly access to the DP for
illnesses/injuries arising from that service and to WWP for
surviving partners, where the death of the service person is
attributable to that service. The change of the service
classification to warlike service (qualifying service) will, in
addition, provide access to the SP and access to the Gold Card for
those aged 70 or more.
The financial impact statement attached to the Bill provides
cost estimates of $0.7 million in 2010–11, $0.6 million in
2011–12, $0.6 million in 2012–13 and $0.7 million in
2013–14.[35] This is a total of $2.6 million over four years
and the Government estimates up to 220 personnel will
benefit.[36]
In May 1962, in the belief that communist forces were intending
to invade Thailand from Laos, Australia, as a partner in the
American led South East Asian Treaty Organisation (SEATO), deployed
a Royal Australian Air Force (RAAF) Sabre fighter squadron No. 79
to Ubon in Thailand. The deployment was aimed at improving
the country’s deficient air defences and to maintain its
territorial integrity. Britain and New Zealand also made
shorter-term contributions to Thai national security.
The directive to the Squadron when it was first deployed set out
its operational role as follows:
a. Self
defence.
b. In defence of
Thailand when instructed by the Air Board.
c. If requested
by the Thai authorities through COMUSMACTHAI, or his nominated
deputy to intercept aircraft attacking with weapons Thai territory
or forces within Thailand, in the event of attack without warning,
when prior reference to the Air Board is not practicable.
Directive c. above gave the squadron an immediate active
role. The squadron was placed on an operation footing on
arrival to provide an immediate response if called upon but it soon
became apparent that such an event was unlikely and no aircraft
were actually placed on air defence alert. In mid-1963, the
Thai Air Force requested assistance from 79 Squadron in the
identification and interception of any intruding aircraft.
Negotiations soon defused the crisis, and most SEATO contingents
had left by March 1963. Australian defence authorities
preferred withdrawal too, but the Cabinet decided there were
political benefits in continuing a joint deployment with American
forces.
The threat positions in South East Asia began to change in
mid-1964. North Vietnam and the Viet Cong were close to
over-running South Vietnam and Chinese MIG-17s were based in Hanoi,
within range of Thailand and these aircraft were later augmented or
replaced by MIG 19s and MIG 21s. From April 1965 the United
States (US) Air Force stationed squadrons of F-4C Phantoms at Ubon
to participate in the air bombardment of North Vietnam, and No. 79
Squadron was absorbed in June of that year into an integrated air
defence system covering Thai territory, with specific
responsibility for protecting the Ubon airbase and surrounding area
from communist retaliation. By late 1967, operating
restrictions on No. 79 Squadron were proving irksome to the US Air
Force, which considered the space occupied by the RAAF at Ubon
could be better utilised. American impatience was heightened
from February 1968 when Russian-built IL-28 bombers moved to bases
within easy striking distance of Thai territory. In March
1968, the Cabinet decided that the Australian presence had outlived
its usefulness. The Sabres were released from alert status on
26 July 1968 and the squadron was fully withdrawn by the end of
August 1968.
During its six-year tour in Thailand, the unit had lost two
aircraft to accidents but were never engaged in combat.
Under the VEA, service in north-east Thailand (including Ubon)
from 31 May 1962 to 24 June 1965 inclusive is classified as
operational service. Operational service categorisation
provides some assistance under the VEA, mainly access to the DP for
illnesses/injuries arising from that service and to WWP for
surviving partners, where the death of the service person is
attributable to that service. Service in certain operations
in the same area from 25 June 1965 to 31 August 1968, when the
squadron and support contingent were withdrawn, is classified as
qualifying service. Qualifying service provides the same
assistance under the VEA as operational service but also provides
access to the SP and the Gold Card for those aged 70 or more.
The Clarke Review examined service in north-east Thailand
including RAAF service in Ubon 1962 to 1968.[37] Submissions were made to the
Clarke Review that all service in Ubon from 1962 to 1965 should be
classified as qualifying service claiming that all service
personnel at Ubon should be treated equally. The claim was
that service prior to 25 June 1965 was similar in nature to the
service after that date.
The Clarke Review concluded that Ubon service prior to 25 June
1965 should not be classified as qualifying service and should
remain as operational service. The Review referred to the
preceding examination of the Ubon service by the Mohr Review of
2000.[38]
Mohr said that while the service in Ubon prior to June 1965 was
uncomfortable and entailed greater hazards than peacetime service
in Australia, it was not of such a nature that it could be
classified as ‘warlike service’.[39]
The proposed reclassification of RAAF Ubon service from 31 May
to 27 July 1962 covers only a very short period. It still
leaves the substantive period of Ubon service prior to June 1965 as
operational service; that is from 28 July 1962 to 24 June
1965. The main claim put to the Clarke Review was that all
Ubon service should be treated as the same, that is, it is a claim
for equity of treatment. However, the reason that all Ubon
service is not treated the same is because there were periods of
different service engagement, risk and danger.
There will probably be pressure from RAAF service personnel for
the period of Ubon service still classified as operational service
to be classified as qualifying service. This is the nature of
the problem experienced by former service personnel – one
group sees another group gain a classification (higher) than the
one they currently have and they consider it unfair as it does not
give them the same recognition of their service as that which has
been conferred on others. This process has been going on
since 1914. The result is the patchwork quilt of recognition
of different service in different ways in the VEA.
Under the VEA, persons who have
British, Commonwealth or allied service may be eligible for
payments and assistance if they were a ‘domicile’ of
Australia prior to enlistment, for example, a young person normally
resident in Australia, who was temporarily absent overseas when
they enlisted. With there being no concept of Australian
citizenship prior to 1949, the domicile concept was used but this
referred only to persons who could exercise a domicile of choice
and that choice was only open to persons aged 21 or more. So
a 19 year old Australian person, who was temporarily overseas,
could not claim to be an Australian domicile, as they were not aged
21 or more at the time of their enlistment.
The amendments to the VEA in
Schedule 4 provide for changes to reduce that age from age 21 down
to age 18. This accords with the fact that the Domicile
Act 1982, has lowered the independent age down from age 21 to
age 18.
The financial impact statement attached to the Bill provides
cost estimates of $0.2 million in 2010–11, $0.2 million in
2011–12, $0.2 million in 2012–13 and $0.2 million in
2013–14.[40] This is a total of $0.8 million over four
years.
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A WWP can be claimed by a partner
of a veteran or eligible member of the Australian armed
services. However, under current WWP claiming provisions,
where a former partner of a veteran (or qualified service person)
remarries after the death of their veteran (or qualified service
person) partner, and the remarriage occurred before they claimed
WWP, they cannot qualify for WWP. Likewise, where a former
partner of a veteran (or qualified service person) has remarried at
the time of death of their former veteran (or qualified service
person) partner, they too cannot qualify for WWP.
The amending provisions presented in Schedule 5 of the Bill are
to align these WWP claiming provisions to also refer to de facto
partners, rather than is currently only to married partners.
The VEA defines a person who is a ‘member of a
couple’ as a person who is a partner of a person to whom they
are legally married to or in a de facto relationship[41], so married and
de facto couples have the same status in the VEA.
This aligning of the de facto provisions with the marriage
provisions is consistent with other definitions of a member of a
couple and also a partner in like legislation. For example,
provisions in the Social Security Act 1991 (SSA) give the
same treatment and accord the same status to de facto partnerships
as they do to legally married partnerships. Also, the use of
the term de facto aligns the VEA with the requirements of the
Same-Sex Relationships (Equal Treatment in Commonwealth
Laws—General Law Reform) Bill 2008.[42]
The financial impact statement attached to the Bill provides
cost estimates of $0.1 million in 2010–11, $0.3 million in
2011–12, $0.4 million in 2012–13 and $0.6 million in
2013–14.[43] This is a total of $1.4 million over four
years.
Item 2 inserts the term
‘British nuclear test defence
service’ into subsection 5Q(1A) of the VEA as
being a service having the same meaning as in Part IV of the
VEA. Part IV of the VEA is titled ‘Pensions for members
of Defence Force or Peacekeeping Force and their dependants’
and contains the provisions for the provision of DP and WWP.
It should be noted the definition proposed to be inserted contains
the words ‘defence service’, so it will only refer to
nuclear test participants who were also members of the Australian
Defence Force.
Items 3 to 5 further define
‘defence service’ in
subsection 68(1) of the VEA and specifically include ‘British
nuclear test defence service’.
Item 6 proposes the insertion of a new
section 69B into the VEA, which contains descriptions of
the service (places, dates and areas) to be classified as
‘British nuclear test defence service’.
Items 8 to 22 generally add ‘British
nuclear test defence service’ to various provisions in the
VEA that refer to specific types of service and definitions of
service.
Item 2 proposes to insert a new section 6DA
into the VEA which contains what service will be described as
‘operational service’. Operational service
essentially allows access to assistance under Part IV of the VEA,
that is, the DP and the WWP. The new section
6DA relates to the period from 1 January 1978 to 31
December 1992 and also refers to the attainment of prescribed
service medals and clasps to meet the requirements for submarine
special operations.
Item 3 presents amendments to section 7A of the
VEA which contains the provisions referring to qualifying
service. The new provisions for 7A contain the same
description as those in new section 6DA in
reference to dates of service and the attainment of service medals
and clasps. Qualifying service essentially provides access to
the SP in the VEA and also indirectly to qualification to a Gold
Card for those aged 70 or more.
There are several separate statutes that a member (or former
member) of the armed services can access for compensation.
The main ones are the VEA, the SRCA and the MRCA. There are
provisions in each of these acts to provide for situations of dual
entitlement or concurrent entitlement. That is to ensure
persons are not able to double-dip. The provisions presented
in Part 2 of Schedule 2 are to amend the SRCA to
ensure that where a person accesses an entitlement under the VEA,
the appropriate access to entitlement under the SCRA is affected to
prevent double-dipping. The MRCA is not included as it refers
to illness/injuries and deaths for service on or after 2004,
whereas the SRCA can refer to service prior to 1998.
Items 3 to 5 amend subsection 6D(1) of the
VEA. Subsection 6D(1) describes operational service for
certain periods of post World War Two service in certain
locations. Item 3 amends the start date for
the service from 31 May 1962 to 28 July 1962 for service in North
East Thailand (including Ubon). Item 4
inserts new subparagraph 6D(1)(a)(iv) to create a new category of
qualifying service in North East Thailand (not including Ubon) from
31 May 1962 to 27 July 1962.
Item 6 amends Schedule 2 of the VEA.
Schedule 2 refers to and describes operational service areas for
the VEA. The amendments in Item 6 adding
these definitions in Schedule 2 will also indirectly add these
items to the description of qualification service.
Items 1 and 2 inserts a definition of
‘domiciled’ in the VEA.
Item 5 inserts a new section 11B
of the VEA which describes domicile referring to a person aged 18
years or more before 1 July 1982.
Items 4 to 6 amends subsection 13(8) of the VEA
to cease eligibility for a widow/er of a deceased veteran where the
person enters into a de facto relationship. Items 7
to 9 amend the VEA to make reference a widow/er of a
deceased veteran who marries or enters a de facto relationship.
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Concluding comments
The amendments to the VEA presented in this Bill are generally
beneficial.
The allowing of British nuclear test participation service for
defence force personnel to be recognised as operational service in
the VEA will be welcomed by ex-service personnel. Nuclear
test participants who were not members of Australian Defence Force
but were civilians will probably feel aggrieved they were not
accorded the same benefit under the VEA.
The recognition of special submarine service as warlike service
is quite unprecedented for normal peacetime service. It may
encourage other dangerous peacetime service to be given the same
accreditation. It could be argued that it also says the
potential risk of danger is now seen as the same as actual exposure
to danger.
There have been representations to government for the
recognition of RAAF Ubon service as warlike service for many
years. The main grievance occurs as different periods of Ubon
service get different accreditation under the VEA and the
complainants feel that it was all similar service and should all be
recognised as the same type of service. The reason different
periods of service in Ubon get different treatment is because there
were periods of different service engagement, risk and
danger. The period being added to qualifying service is small
being from 31 May 1962 to 27 July 1962.
The changes to the WWP eligibility provisions with the adding in
of references to de facto relationships that are to be treated the
same as married relationships is consistent with other Commonwealth
legislation.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2479.
[12]. D Vale (Minister for
Veterans’ Affairs and Minister Assisting the Minister for
Defence), Independent committee to review veterans’
entitlements, media release, Canberra, 8 February 2002, viewed
1 June 2010,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FFNV56%22
[32].
7A Qualifying service
(1) For the purposes of Parts III and VA and sections 85
and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence
Force:
(i) rendered service, during a period of hostilities
specified in paragraph (a) or (b) of the definition of period
of hostilities in subsection 5B(1), at sea, in the field or in
the air in naval, military or aerial operations against the enemy
in an area, or on an aircraft or ship of war, at a time when the
person incurred danger from hostile forces of the enemy in that
area or on that aircraft or ship.
[41].
Section 5E sub-section 2 - Member of a
couple—general
(2) A person is a member of a couple for the purposes of
this Act if:
(b) all of the following conditions are met:
(i) the person is living with another person, whether of
the same sex or a different sex (in this paragraph called the
partner);
(ii) the person is not legally married to the
partner;
(iii) the person and the partner are, in the
Commission’s opinion (formed as mentioned in section 11A), in
a de facto relationship;
(iv) the person and the partner are not within a
prohibited relationship.
[42]. M
Neilsen, K Magarey, E Karlsen, P Yeend, D Daniels, L Rayner,
Same-Sex Relationships (Equal Treatment in Commonwealth
Laws—General Law Reform) Bill 2008, Bills digest, no.
44, 2008–09, Parliamentary Library, Canberra, 2008, viewed 2
June 2010, http://www.aph.gov.au/library/pubs/bd/2008-09/09bd044.htm
Peter Yeend
8 June 2010
Bills Digest Service
Parliamentary Library
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