EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 11

 

Issued by the Authority of the Minister for Veterans' Affairs

Papua New Guinea (Members of the Forces Benefits) Act 1957

 

Papua New Guinea (Members of the Forces Benefits) Amendment

Regulations 2010 (No. 1)

 

The Papua New Guinea (Members of the Forces Benefits) Act 1957 (the Act) provides for the granting of pensions and other benefits to certain indigenous inhabitants of Papua New Guinea who served in the Australian Defence Force during World War 2 and their dependants (entitled persons).

 

Section 9 of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In particular, regulations may be made prescribing matters for or in relation to the making and determination of claims for pensions, compensation or other benefits under the Act; and determination of the persons who shall, for the purposes of any of the provisions of the Act and the regulations, be deemed to be dependants of members of the Forces.

 

Section 8A of the Act provides that entitled persons are paid pensions under regulations made under the Act and that the rate or amount of pension is to be fixed by the regulations or by reference to a rate or amount fixed by the Veterans’ Entitlements Act 1986.

 

The Regulations amend the Papua New Guinea (Members of the Forces Benefits) Regulations (the Principal Regulations) to introduce a different method of indexing payments.

 

There are currently six entitled persons in receipt of payments under the Principal Regulations – four former Members of the Forces, one widow and one spouse.

 

Regulation 9 of the Principal Regulations sets out the rates of pensions payable to entitled persons in certain circumstances. Regulation 9A of the Principal Regulations deals with the variation of rates of pensions and currently provides that pensions shall be indexed by reference to the Papua New Guinea (PNG) equivalent of the Consumer Price Index.

 

The Regulations amend regulation 9A to align the indexation of payments with the indexation of payments made under the Veterans’ Entitlements Act 1986.

 

This overcomes the difficulty in obtaining current indexation details from the PNG Bureau of Statistics (PNGBOS) in order for indexation to occur. The PNGBOS does not regularly update the relevant details. It would also be equitable and administratively more effective to have the payments based on the method of indexation applied to the corresponding Australian payments.

 

The Regulations also enable persons affected by decisions under the Principal Regulations to apply to the Administrative Appeals Tribunal for a review of the decision and updates the language of the Principal Regulations to bring them in line with current Commonwealth drafting practices.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

The Attorney-General’s Department was consulted about the review provisions of the Regulations. Entitled persons have not been consulted because the Regulations are beneficial, enabling the pensions of those affected to be indexed in a timely manner on the same basis as pensions of their Australian counterparts.

 

 

 

 

0810933A-100121Z

 

 

 

 

 

 

 

ATTACHMENT

 

Details of the Papua New Guinea (Members of the Forces Benefits) Amendment Regulations 2010 (No. 1)

 

 

Regulation 1 - Name of Regulations

 

This regulation provides that the title of the Regulations is the Papua New Guinea (Members of the Forces Benefits) Amendment Regulations 2010 (No. 1).

 

Regulation 2 - Commencement

 

This regulation provides that the Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of Papua New Guinea (Members of the Forces Benefits) Regulations

 

This regulation provides that the Papua New Guinea (Members of the Forces Benefits) Regulations (the Principal Regulations) are amended as set out in the Schedule.

 

Schedule - Amendments

 

Item [1] – regulation 1

 

This item amends the title of the Principal Regulations to reflect current drafting practices.

 

Item [2] – subregulation 3(1)

 

This item inserts a definition for “indexation day” that provides that the indexation day for the pension in item 2 in Table A (dependant under 16) is the 1 January and in any other case (pension for member, widow, other dependants) the indexation day is the 20 March and 20 September.

 

Item [3] – subregulation 3(1)

 

This item inserts a definition for “partially incapacitated” as this term is used in the Principal Regulations but is not defined.

 

Item [4] – regulations 9 and 9A

 

This item substitutes regulations 9 and 9A of the Principal Regulations with new regulations 9, 9A, 9B, 9C and 9D.

 

The new regulations update the language of the Principal Regulations in line with current drafting practices and set out the new provisions for indexation of pension rates.

Regulation 9 sets out the rates of pension that are payable to entitled persons under the Act.

 

Paragraph 9(1)(a) provides that a pension in relation to a deceased member of the Forces is the rate in Table A in Schedule 1 (as indexed under the Regulations).

 

Paragraph 9(1)(b) specifies that the rate of pension payable to a totally incapacitated member is the rate in Table B in Schedule 1 (as indexed under the Regulations).

 

Paragraph 9(1)(c) provides that the rate of pension for a partially incapacitated member, for an incapacity in Schedule 2, is the percentage of the total incapacity rate in Schedule 2 and for an incapacity not in Schedule 2, the percentage of the total incapacity rate determined by the Minister for Veterans’ Affairs under new subregulation 9(2).

 

Subregulation 9(2) enables the Minister for Veterans’ Affairs to determine a percentage of the total incapacity rate that would be the rate of pension for a partially incapacitated member where the member’s incapacity was not listed in Schedule 2 of the Principal Regulations. In making a determination the Minister would need to take into account the:

 

·               nature of the member’s incapacity

·               its duration

·               the percentages of the total incapacity rate for the partial incapacities in Schedule 2 of the Principal Regulations.

 

Regulation 9A provides for the rate of widow’s pension that is payable where the deceased member had more than one wife.

 

Subregulation 9A(1) provides that regulation 9A applies where a deceased member had more than one wife at the time of his death and the arrangement was recognised by native custom.

 

Subregulation 9A(2) provides that each wife of a deceased member, in a union recognised by native custom, is to be taken to be a widow of the member.

 

Subregulation 9A(3) specifies that the rate for a widow’s pension for a fortnight is in Table A in Schedule 1 (indexed under the Regulations) ($340.10), divided by the number of eligible widows for the fortnight, rounded to the nearest multiple of $0.10.

 

Subregulation 9A(4) makes it clear that if a widow’s pension is not payable to one of several widows of the same deceased member, because the widow has remarried, the pension is to be divided among the remaining widows.

 

Regulation 9B addresses the situation where an instalment period for a pension straddles an indexation day. It sets out a formula to be applied in order to arrive at the appropriate rate of pension.

 

Regulation 9C sets out the methods of indexation for the rates of pension mentioned in Tables A and B of Schedule 1 to the Principal Regulations.

 

Subregulation 9C(1) ensures that the rates of pension in Tables A and B of Schedule 1 of the Regulations are indexed on each indexation day for the rate.

 

Subregulation 9C(2) provides that the indexation part of the Regulations would have effect on or after an indexation day as if the indexed rate (new rate) for the pension is substituted for the rate of pension in effect on the day before the indexation day (old rate).

 

Subregulation 9C(3) provides the formula for the indexation of the rates of pensions for entitled persons other than the rate in item 2 in Table A i.e. rates other than the rate for a dependant (of a deceased member) under 16. Accordingly the formula applies to rates of pension for a widow, other dependants and a member.

 

Essentially the formula enables pensions for widows, other dependants and a member to be indexed by reference to an appropriate indexation procedure in the Veterans’ Entitlements Act 1986. That procedure uses a factor called the pension MBR factor as worked out under subsection 59LA(1) of the Veterans’ Entitlements Act 1986 (the VEA).

 

Subregulation 9C(4) provides the formula for the indexation of the rate of pension in item 2 in Table A i.e. rate for a dependant (of a deceased member) under 16. The formula is based on a factor called “the orphan pension factor”. This factor is ascertained by reference to the orphan pension rate under paragraph 30(2)(a) of the VEA.

 

Subregulation 9C(5) provides the mechanism for working out the orphan pension factor. The factor is ascertained by dividing the current orphan pension rate (i.e. rate under paragraph 30(2)(a) of the VEA) by the previous orphan pension rate.

 

The current orphan pension rate is the rate of pension under paragraph 30(2)(a) of the VEA applicable on the indexation day and the previous orphan pension rate is the rate of pension under paragraph 30(2)(a) of the VEA applicable on the day before the indexation day.

Subregulation 9C(6) sets out the decimal places for the orphan pension factor.

 

Regulation 9D ensures that an indexed rate of pension is “rounded up” if need be (to the nearest multiple of $0.10).

 

 

 

 

 

Item [5] – after regulation 20

 

This item inserts a new regulation 21 into the Principal Regulations.

 

Regulation 21 provides a person with a right to apply to the Administrative Appeals Tribunal for a review of certain decisions made under the Principal Regulations by the prescribed authority (the Repatriation Commission) or the Minister for Veterans’ Affairs. The following decisions are reviewable:

 

·        rejection of pension-claim or imposition of condition on pension;

·        determination of percentage of totally-incapacitated pension-rate for a partially-incapacitated pension-rate, in respect of a member;

·        termination of pension;

·        non payment of travel expenses or travel expenses of a particular kind, in respect of a member or attendant;

·        non payment of a gratuity, annuity, allowance or addition to a pension (benefit) in respect of a member; and the rate of any such benefit; and

·        rejection of claim for grant of educational and training facilities.

 

Item [6] – Schedule 1

 

This item substitutes Schedule 1 of the Principal Regulations with a new Schedule 1. The Schedule sets out the rates of pension payable per fortnight for:

 

Widow of a member ………………………... $340.10

Dependant of [deceased] member under 16….$67.50

Any other dependant of [deceased] member…$4.80

Totally incapacitated member…………..……$572.20