Explanatory Memorandum
(Circulated by authority of the Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP)Schedule 5 - Compensation payments in respect of certain World War Two internment
Summary
This Schedule gives effect to the 2007 Budget measure that will provide for a once-only compensation payment to veteran and civilian prisoners of war interned by enemy forces in Europe during World War Two, or their surviving widows or widowers.
Background
The Government has previously made once-only compensation payments to persons interned by the Japanese and the North Koreans. Prisoners of war of enemy forces in Europe also experienced extreme brutality and starvation and also suffered from some of the same diseases that affected prisoners of war of the Japanese.
Explanation of the changes
Item 1 defines a number of terms for the purposes of this Part.
Item 2 sets out the eligibility criteria to be applied to determine whether a person is eligible for a compensation payment.
To be an eligible person as a 'veteran' as set out in subitem 2(1), the following conditions must be met:
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- the veteran must have been interned by the military forces of an enemy State at any time between 3 September 1939 and 11 May 1945 inclusive; and
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- the veteran was alive at the beginning of 1 January 2007.
To be an eligible person as a 'partner of a deceased veteran' as set out in subitem 2(2), the following conditions must be met:
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- the person must be alive at the beginning of 1 January 2007, and
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- the person must be the partner of a veteran who died before 1 January 2007; and
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- the person must have been the partner of the veteran immediately before the veteran's death; and
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- the veteran must have been interned by the military forces of an enemy State at any time between 3 September 1939 and 11 May 1945 inclusive.
To be an eligible person as a 'civilian' as set out in subitem 2(3), the following conditions must be met:
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- the person must be alive at the beginning of 1 January 2007, and
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- the person must have been interned by the military forces of an enemy State at any time between 3 September 1939 and 11 May 1945 inclusive; and
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- the person must have been domiciled in Australia immediately before their interment.
To be an eligible person as a 'partner of a deceased civilian as set out in subitem 2(4) the following conditions must be met:
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- the person must be alive at the beginning of 1 January 2007, and
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- the person must be the partner of a civilian who died before 1 January 2007; and
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- the person must have been the partner of the civilian immediately before the civilian's death; and
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- the civilian must have been interned by the military forces of an enemy State at any time between 3 September 1939 and 11 May 1945 inclusive; and
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- the civilian must have been domiciled in Australia immediately before the civilian's interment.
Subitem 2(5) provides that a person is entitled to only one compensation payment under this item regardless of whether they meet the criterion for an eligible person more than once under a particular subitem, or under more than one subitem.
Item 3 provides that the compensation payment is a one-off payment of $25,000.
Item 4 provides that the Secretary may determine procedures for the making of claims for a compensation payment under this Part.
Subitem 4(1) provides that a claim for a compensation payment must be made in accordance with procedures determined by the Secretary under subitem 4(2) of this Schedule.
Subitem 4(2) provides that the Secretary may make a written determination setting out the procedures for making a claim for a compensation payment under this Schedule.
This will enable the Secretary to set in place procedures that will assist persons, wishing to establish their eligibility for a payment, to provide sufficient information to confirm eligibility and arrangements for payment.
A Note has been inserted after subitem 4(1) to make it clear that compensation payments will be made automatically to those eligible persons of whom the Department is aware.
Item 5 provides for the determination of claims.
Subitem 5(1) provides that claims are to be determined by the Commission.
Subitem 5(2) provides a review right for a person who is dissatisfied with a decision of the Commission in relation to the claim for a compensation payment under this Schedule. Subitem 5(2) provides such a person with a right of merit review by the Administrative Appeals Tribunal.
Item 6 provides that if an eligible person dies before receiving a compensation payment, then the payment will be made to the eligible person's estate. A Note has been inserted after item 6 to make it clear that a payment cannot be made unless a claim has been received. So for a payment to be made to an eligible person's estate, a claim must have been received in respect of that person's payment. The claim may be made by another person on behalf of that person.
Item 7 provides that certain provisions of the Veterans' Entitlements Act apply to this Schedule as if this Schedule was part of the Veterans' Entitlements Act. The provisions that will apply are:
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- Subsection 119(1) - Commission not bound by technicalities;
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- Section 128 - Secretary may obtain information etc.;
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- Section 208 - Offences;
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- Section 213 - Delegation by Commission;
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- Section 214 - Delegation by Secretary; and
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- any other provisions that are incidental to the provisions mentioned above.
Subsection 119(1) of the Veterans' Entitlements Act provides a context for the consideration, hearing and determination of a claim or application by the Commission. The same circumstances will apply to the Commission when determining a claim for a compensation payment. Briefly, this means that the Commission:
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- is not bound by any rules of evidence, but may inform itself on any matter it thinks just;
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- shall act according to substantial justice and the substantial merits of the case without regard to legal form and technicalities; and
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- shall take into account any difficulties in ascertaining the existence of any fact, matter, cause or circumstance including the passage of time and any deficiency in relevant official records.
Section 128 of the Veterans' Entitlements Act authorises the Secretary to require a person capable of supplying information which might affect the grant or payment of a pension, benefit or allowance under the Veterans' Entitlements Act, to produce that information or give evidence. Item 7 extends this power to a claim for a compensation payment under this Schedule.
Section 208 of the Veterans' Entitlements Act provides for offences and penalties in relation to the intentional making of a false claim or statement in connection with a claim or application for a pension, allowance or benefit under the Veterans' Entitlements Act. Item 7 extends these offences and penalties to a claim for a compensation payment under this Schedule.
Sections 213 and 214, respectively, of the Veterans' Entitlements Act provide that the Commission and the Secretary may delegate all or any of their powers under the Veterans' Entitlements Act, other than the power of delegation, to certain persons as specified in subsection (4) of the respective provisions. Item 7 means that the Secretary or Commission will also be able to delegate their powers authorised by this Schedule in relation to determining a claim for a compensation payment.
Item 8 provides for the recovery of any overpayments of compensation payments. An overpayment may be recovered in a court of competent jurisdiction.
Item 9 provides that compensation payments made under this Schedule are exempt from income tax.
Item 10 provides that the compensation payment will not be affected by the assets test under the Veterans' Entitlements Act and the social security law.
Subitem 10(1) provides that, for the purposes of the assets test under the Veterans' Entitlements Act, the value of a person's assets is to be reduced by the amount of a compensation payment received by the person under this Schedule. The reduction is a permanent $25,000 reduction in the value of the person's assets.
Subitem 10(2) provides for the same reduction in the value of the person's assets for the purposes of the social security law.
Item 11 provides that the Consolidated Revenue Fund is appropriated for the purposes of the compensation payments.