Commonwealth Numbered Regulations - Explanatory Statements

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VETERANS' ENTITLEMENTS AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 247

Section 216 of the Veterans' Entitlements Act 1986 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Veterans' Children Education Scheme (the Scheme) is a scheme established under section 117 of the Act. The Scheme enables the Repatriation Commission to accept financial liability for education and training provided to the children of certain classes of veterans. Occasionally payments have been unlawfully made under the Scheme due to mistake or fraud.

The Scheme has now been prescribed by Regulations so that unlawful payments made under the Scheme may be recovered under the overpayments machinery in the Act.

Sections 205 to 205A of the Act provide for the administrative recovery of overpayments of entitlements under the Act. This provides a more efficient process than if payments are sought to be recovered by common law debt recovery measures.

Paragraph 205(1)(b) of the Act provides that the overpayments machinery applies to payments made unlawfully to a person under a prescribed educational scheme. Paragraph (j) of the definition of prescribed educational scheme in subsection 205(8) of the Act defines such a scheme to include schemes prescribed for the purposes of that definition.

The Regulations prescribe the Scheme for the purposes of paragraph 205(1)(b) of the Act.

While it is possible that overpayments under the Scheme may already be recoverable under the overpayments machinery in the Act (ie paragraph 205(1)(c)), thereby making the Regulations unnecessary, the situation is not clear, because paragraph 205(1)(c) provides for the recovery of unlawful payments "under the Act". Unlawful payments under the Scheme may be said to arise not so much under the Act as under an instrument under the Act and it is unclear if the two situations are one and the same.

Making the Regulations avoids this issue and makes the situation clear, namely that unlawful payments under the Scheme are recoverable under the overpayments machinery in the Act.

The Act specifies no conditions that needed to be met before the power to make the Regulations was exercised.

Details of each of the Regulations are set out in the attachment.

The Regulations took effect on gazettal.

0306681A-030819A

Regulation 1 refers to the name of the Regulations.

Regulation 2 provides for the Regulations to commence on gazettal.

Regulation 3 refers to the Schedule of the Regulations which contains the amendment to the Principal Regulations (the Veterans' Entitlements Regulations 1986).

Item [1] inserts a new Regulation 15A in the Principal Regulations. Regulation 15A prescribes the Veterans' Children Education Scheme for the purposes of paragraph (j) of the definition of prescribed educational scheme in subsection 205 (8) of the Veterans' Entitlements Act 1986.