Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this section:
"Board's decision" , in relation to a review by the Board of a Commission's decision, means the decision of the Board, upon its review of the Commission's decision, setting aside the Commission's decision and substituting another decision for it or varying the Commission's decision, but does not include a decision of the Board affirming the Commission's decision.
"Commission's decision" , in relation to a review by the Board, means a decision of the Commission that has been reviewed by the Board.
"substituted decision" means a decision made by the Board in substitution for a decision of the Commission that has been set aside by the Board upon its review of that decision of the Commission.
"varied decision" means a decision of the Commission as varied by a decision of the Board upon its review of that decision of the Commission.
(2) Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
(a) if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board's decision is to operate:
(i) if the person made application for the review within 3 months after service on the person of a copy of the Commission's decision--a date not earlier than the earliest date as from which the Commission could, if it had not refused to grant a pension or attendant allowance, as the case may be, to the person, have approved payment of a pension or of attendant allowance to the person; or
(ii) in any other case--a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia;
(b) if the substituted decision, or the varied decision, as the case may be, is a decision of a kind specified in subsection (3)--the Board shall remit the matter to the Commission to fix the date as from which the Board's decision is to operate, being:
(i) if the Board's decision was made for a reason set out in subsection 31(7)--the date on which the Board's decision was made or an earlier or later date; or
(ii) in any other case--the date of the first available pension pay - day occurring after the date on which a copy of the Board's decision is given to the Commission under section 140;
(c) if the substituted decision, or the varied decision, as the case may be, has the effect of altering the description or nature of the war - caused injury or war - caused disease from which a veteran is suffering, or the description or nature of the defence - caused injury or defence - caused disease from which a member of the Forces or a member of a Peacekeeping Force is suffering--the Board may fix, as the date as from which that alteration is to operate, such date, being the date on which its decision is made or an earlier or later date, as it determines is fair and reasonable in all the circumstances; or
(d) in any other case--the Board may fix, as the date as from which the Board's decision is to operate, a date not earlier than the earliest date that the substituted decision, or varied decision, could have operated if it had been made by the Commission in place of the Commission's decision.
(3) The kinds of decisions specified in this subsection are:
(a) a substituted decision or a varied decision that has the effect of reducing the rate at which a pension is to be paid (not being a pension that is suspended);
(b) a substituted decision that has the effect of suspending a pension (not being a pension that has been cancelled or is suspended); and
(c) a substituted decision that has the effect of cancelling a pension (not being a pension that is suspended).
(4) Where a Board's decision that sets aside a Commission's decision and substitutes another decision for it, or that varies a Commission's decision, is to operate as from a particular date, the substituted decision or the varied decision, as the case may be, shall operate as from the same date.
(4A) If the Board, upon its review of a decision of the Commission, sets aside that decision and subparagraph 139(3)(c)(iii) applies, the decision to set aside the Commission's decision takes effect on the day the Board made its decision or an earlier or later date, as the Board determines is fair and reasonable in all the circumstances.
(5) In this section, a reference to the cancellation of a pension shall be read as including a reference to the cancellation of a pension for the reason that the degree of incapacity of the veteran from war - caused injury or war - caused disease, or both, or the degree of incapacity of the member of the Forces or of the member of a Peacekeeping Force, from defence - caused injury or defence - caused disease, or both, is less than 10 per centum (including nought per centum).