House of Representatives

Veterans' Affairs Legislation Amendment (Veteran-Centric Reforms No.1) Bill 2018

Explanatory Memorandum

(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Michael McCormack MP)

Schedule 5 - Qualifying service

Veterans' Entitlements Act 1986

Schedule 5 would amend the relevant provisions within Division 2 of the Veterans' Entitlements Act 1986 (VEA) relates to a claim for qualifying service. The amendment will create an additional way for a qualifying determination to be made.

The automated qualifying service determination will primarily be based on information the Department of Defence (Defence) provides DVA. The process is intended remove the need for a veteran to make a claim for qualifying service prior to the qualifying determination being made. It is intended for Defence to provide DVA information about a veteran's service which may provide evidence of eligibility for qualifying service. Once it has been confirmed the veteran has rendered qualifying service this will satisfy the requirements necessary to allow the Commission to make a determination qualifying service has been rendered. This will remove a step in the process a veteran must currently complete in order to make an application for some benefit or payment.

This is the first legislative amendment to support the implementation of the veteran-centric reforms and is part of the broader improvement strategy to ease the transition process for veterans. The veteran-centric reforms aim is to put veterans and their needs to the front of Departmental systems reform including legislation and policy. The recent data sharing improvements between Defence and DVA will improve the ability to share client information and over time streamline the information processes related to a client's eligibility for benefits and payments.

It is intended to record only positive automated qualifying service determinations within DVA systems with the veteran being notified they satisfy the qualifying service requirement. Where the automated process is unable to make a positive qualifying service determination (this may be due to incomplete data or service records) no automated qualifying service determination, in respect to the veteran, will be made. This amendment will not alter the right of the veteran, at any time, to make a manual application for a qualifying service determination in order to determine their eligibility for benefits and payments.

These amendments commence on the 28th day after this Act receives Royal Assent.

Notes of Clauses:

Items 1 will amend paragraph 35(1)(a) of the Veterans' Entitlements Act 1986 (VEA). This amendment substitutes the words 'claims for' with 'establishing'. This amendment supports the automation of the qualifying service determination process. The amendments will remove the requirement for a veteran to make an application for a qualifying service determination, however, a veteran may still do so if they chose to.

Item 2 amends the heading of Division 2 of Part III to 'Division 2 - Establishing qualifying service'. This is a consequential amendment to amendments made below.

Item 3 amends the heading of Subdivision A of Part III to 'Subdivision A - Pathways to establishing qualifying service'. This is a consequential amendment to amendments made below.

Item 4 amends Section 35B to prescribe the pathways to establish qualifying service. The amendment will substitute section 35B and insert new section 35BA.

New subsection 35B(1) will provide two pathways to establish qualifying service. To establish a veteran has rendered qualifying service either a make a proper claim must be made for a determination the veteran has rendered such service; or there must be a determination in force under section 35BA in respect of the veteran.

The intent of this subsection is to allow two ways qualifying service may be established either through making a claim or by a determination in force under section 35BA.

Subsection 35B(2) will provide two pathways to establish qualifying service for the purposes of paragraph 38(1)(aa) or (e) a person's partner or deceased partner has rendered qualifying service. To establish qualifying service a proper claim must be made for a determination the person's partner or deceased partner has rendered such service; or there must be a determination in force under section 35BA in respect of the person's partner or deceased partner.

This subsection will enable the partner of a veteran, including the partner of a deceased veteran, to make an application for a qualifying service determination or where there is a determination in force under section 35BA, they may rely on the determination.

Note 1 provides a veteran must have rendered qualifying service to be eligible for age service pension or invalidity service pension as provided in subsection 36(1) and 37(1).

Note 2 provides a claim is not required for a determination under section 35BA.

Note 3 provides the definition of qualifying service is in section 7A.

New subsection 35BA(1), will provide the Commission may make a written determination a specified veteran has rendered qualifying service if the Commission is satisfied the veteran has rendered such service.

The intent of this subsection is to provide a new mechanism to enable a qualifying service determination to be made without the veteran making a claim for qualifying service. In the circumstances where the Commission is satisfied the veteran has rendered qualifying service they may make a determination in respect of the veteran.

Note 1 provides a claim in not required for a determination under this section.

Note 2 provides the definition of qualifying service is in section 7A.

New subsection 35BA(2) will provide the Commission must give a copy of the determination to the veteran or any person described 38(1)(aa) or (e) in relation to the veteran.

Section 38(1)(aa) and (e) provides a person who is a member of a couple or a widow/er, whose partner is/was a veteran who has/had rendered qualifying service and is qualified for an aged pension under the Social Security Act 1991 may be eligible for a partner service pension.

New subsection 35BA(2) will enable the widow/er to establish their deceased partner rendered qualifying service to establish their eligibility for a range of benefits and/or payments.

New subsection 35BA(3) "a determination by the Commission under this section that the veteran has rendered qualifying service is proof, for all purposes of this Act, that the veteran has rendered qualifying service".

This subsection makes it clear where the Commission has made a determination regarding a veteran's qualifying service the determination is exhaustive for the purpose of the Act.

New subsection 35BA(4) will clarify a determination under this section is not a legislative instrument under the Legislation Act 2003.

Item 5 is a technical amendment inserting a reference to section 35H within section 35J. This amendment will provide where there is a determination made by the Commission, a veteran has qualifying service, this is proof for all the purposes of the Act, the veteran has rendered qualifying service.

Item 6 is a saving provision and clarifies where a veteran has made a claim for a qualifying service determination prior to the commencement date of the amendment, the validity of the claim is not affected.

This saving provision will ensure an application for a determination made prior to this amendment is a valid application and the amendment will not adversely affect their application. It is intended the Commission will make a qualifying service determination under section 35BA, in relation to veterans with qualifying service prior to the commencement of this amendment.


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