Eligibility for pensions by way of compensation to members of Defence Force or Peacekeeping Force and their dependants
70 Eligibility for pensions by way of compensation to members of Defence Force or Peacekeeping Force and their dependants
Where:
the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or
a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
in the case of the death of the member—pension by way of compensation to the dependants of the member; or
in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
Where:
a member of the Forces or a member of a Peacekeeping Force has died;
the death of the member was not defence‑caused; and
the member was, immediately before the member’s death:
a member to whom subsection 22(4) or section 23, 24 or 25 applied by virtue of section 73; or
a member to whom section 22 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the member.
Where a pension in respect of the incapacity of a member of the Forces or of a member of a Peacekeeping Force from defence‑caused injury or defence‑caused disease, or both, is granted, after the death of the member, as from a date before the death of the member, subsection (2) applies as if the member had been in receipt of that pension immediately before the member died.
For the purposes of this Act, the death of a member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if the death, injury or disease, as the case may be, resulted from an occurrence that happened while the member was rendering peacekeeping service.
After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for some new defence‑caused injuries, diseases and deaths: see section 70A.
For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
the injury or disease from which the member died, or is incapacitated:
was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for some new defence‑caused injuries, diseases and deaths: see section 70A.
If this Part applies to a member of the Forces solely because the member has rendered hazardous service as specified in section 69A, the death of the member is taken to be defence‑caused, an injury suffered by such a member is taken to be a defence‑caused injury or a disease contracted by such a member is taken to be a defence‑caused disease if:
the death, injury or disease, as the case may be, arose out of, or was attributable to, the hazardous service of the member; or
subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any hazardous service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
the injury or disease from which the member died or is incapacitated:
was suffered or contracted during any hazardous service of the member but did not arise out of that service; or
was suffered or contracted before the commencement of the hazardous service of the member but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, the hazardous service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to hazardous service rendered by the member and section 120A does not apply.
but not otherwise.
After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for some new defence‑caused injuries, diseases and deaths: see section 70A.
If this Part applies to a member of the Forces solely because the member has rendered hazardous service as specified in section 69A, subsections (6) and (7) apply to the person as if references in those subsections to defence service or peacekeeping service, as the case may be were references to hazardous service.
Where, in the opinion of the Commission, the death of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
the death of the member shall be deemed to have resulted from that defence service or peacekeeping service, as the case may be; and
the death of the member shall be deemed to be defence‑caused, for the purposes of this Act.
Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.
Neither paragraph (5)(b) nor (5A)(b) applies:
to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey from the member’s place of duty in a case where the member had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the member’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
the journey, or that part of the journey, was made by that route for a reason connected with the performance of the member’s duty; or
in the circumstances of the particular case, the nature of the risk of sustaining injury, or contracting disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the member’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed and the extent of that risk was not substantially increased, by reason of the interruption.
The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in subsection (4) or in paragraph (5)(a), (b) or (c) or in paragraph (5A)(a), (b) or (c)—if the death, or the injury or disease, as the case may be:
resulted from the member’s serious default or wilful act; or
arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or
in the case of an injury suffered, or disease contracted, by the member to which paragraph (5)(d) or (5A)(d) applies:
if the aggravation of the injury or disease:
resulted from the member’s serious default or wilful act; or
arose from a serious breach of discipline by the member; or
unless the member has rendered hazardous service or the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer.
The Commonwealth is not liable under this section in respect of:
the death; or
the incapacity from injury or disease;
of a member of the Forces, or a member of a Peacekeeping Force, if the death, injury or disease is related to the relevant service of the member only because:
in the case of a member who had not used tobacco products before 1 January 1998—the member used tobacco products after 31 December 1997; or
in the case of a member who had used tobacco products before 1 January 1998—the member increased his or her use of tobacco products after 31 December 1997.
The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease, if the death or incapacity resulted from the serious default or wilful act of the member that happened after the member ceased, or last ceased, to render defence service or peacekeeping service.
The Commonwealth is not liable to pay a pension to a dependant of a member of the Forces, or of a member of a Peacekeeping Force, being a child of the member, under subsection (1) or (2) if the dependant has attained the age of 16 years and payments, by way of a living allowance, are being made in respect of the child:
by way of youth allowance; or
under the scheme known as the Assistance for Isolated Children Scheme;
under the scheme known as the Aboriginal Secondary Assistance Scheme or the scheme known as the Aboriginal Study Assistance Scheme;
under the scheme known as the Post‑Graduate Awards Scheme; or
under the scheme determined under section 258 of the MRCA (education scheme for certain eligible young persons and other children).
The Commonwealth is liable to pay a pension to a reinstated pensioner.
Where a dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a reinstated pensioner or a child of the member) re‑marries, marries or enters into a de facto relationship after the death of the member:
the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board, the Administrative Review Tribunal or the former Administrative Appeals Tribunal, as the case may be, to grant the pension:
was made before the commencement of this Act; or
was or is made after the commencement of this Act upon consideration or re‑consideration of a claim for that pension that was duly made (whether before or after the commencement of this Act) before the re‑marriage, marriage or entry into the de facto relationship occurred; and
a decision granting a pension to the dependant under this section made by the Commission, the Board, the Administrative Review Tribunal or the former Administrative Appeals Tribunal after that re‑marriage, marriage or entry into the de facto relationship occurred (including a decision granting such a pension as from a date before that re‑marriage, marriage or entry into the de facto relationship occurred) is void and of no effect unless the decision was made upon consideration or re‑consideration of a claim for that pension made as described in subparagraph (a)(ii).
For the meaning of reinstated pensioner see section 11AA.
If:
a male dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a child of the member) has re‑married or married after the death of the member; and
the re‑marriage or marriage occurred before 22 January 1991;
the Commonwealth is not liable to pay a pension to that dependant under this section.
Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow or widower of a deceased member of the Forces or member of a Peacekeeping Force, the Commonwealth is not liable to pay another pension to the person under this Part as the widow or widower of another deceased member of the Forces or member of a Peacekeeping Force or under Part II as the widow or widower of a deceased veteran.
Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a member of the Forces or a member of a Peacekeeping Force, would, but for this subsection, become eligible to receive a pension under this Part or Part II as the child of another deceased person, being a member of the Forces, a member of a Peacekeeping Force or a veteran, the Commonwealth is liable to pay a pension to the person under this Part or Part II as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this subsection referred to as the relevant deceased person) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then:
if the relevant deceased person is a member of the Forces or a member of a Peacekeeping Force—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or
in any other case—the Commonwealth is not liable to pay a pension to the person under this Part.
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