Victorian Bills Explanatory Memoranda

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VETERANS BILL 2005

                             Veterans Bill

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                   General
This Bill establishes the Victorian Veterans Council to promote issues of
concern to veterans and to advise the Government of Victoria in relation to
such issues and creates a Victorian Veterans Fund to provide a source of
funds to support educational and commemorative activities related to
Australia's war and service history. The Bill repeals the Patriotic Funds Act
1958 and re-enacts those provisions into the new Veterans Act, and, in
particular, shifts responsibility for the regulation of patriotic funds from the
Patriotic Funds Council of Victoria to the Director of Consumer Affairs
Victoria. The Bill also repeals the Defence Reserves Re-Employment Act
1995 and the Discharged Servicemen's Preference Act 1943 and makes a
number of minor amendments to other Acts.

                                Clause Notes

                  PART 1--PRELIMINARY MATTERS
Clause 1    sets out the purpose and broad outline of the Act, which is to--
              ·      create a Victorian Veterans Council and a Victorian
                     Veterans Fund; and
              ·      repeal the Patriotic Funds Act 1958 and shift the
                     regulatory provisions relating to patriotic funds to this
                     Act; and
              ·      shift the responsibility for regulating patriotic funds
                     from the Patriotic Funds Council of Victoria to the
                     Director of Consumer Affairs Victoria.

Clause 2    sets out when the various provisions of the Act will come into
            operation, and provides that any provisions which have not come
            into operation on 1 February 2007 will commence on that day.




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551303                                        BILL LA INTRODUCTION 3/10/2005

 


 

Clause 3 defines the key terms in the Act. The central definition is of the term "service or duty". This underpins the definition of "patriotic fund" (which is defined in clause 23) and "veteran". The definition of "veteran" in turn forms the basis of the definition of "ex-service community". PART 2--THE VICTORIAN VETERANS COUNCIL Clause 4 establishes the Victorian Veterans Council as a body corporate, invested with the usual powers of such bodies. Clause 5 sets out the objectives of the Victorian Veterans Council, which are to-- · promote the wellbeing of the ex-service community and the commemoration of those who have died performing service or duty; and · educate Victorians about the service and sacrifice of veterans and the spirit of ANZAC; and · promote cooperation amongst organisations dealing with ex-service community issues. Clause 6 outlines the functions of the Victorian Veterans Council, which are to advise Government on issues affecting veterans, including the regulation of patriotic funds, and distribute the ANZAC Day Proceeds Fund and the Victorian Veterans Fund. Clause 7 provides that the Victorian Veterans Council may do whatever is necessary to enable it to carry out its functions. Clause 8 sets out the membership of the Victorian Veterans Council. The Council will have 11 members appointed by the Governor in Council, including a Chair and a Deputy Chair. The Chair and Deputy Chair must be veterans. One member will be from the RSL and one will be from Melbourne Legacy. Four further members will be nominated by other ex-service organisations. Clause 9 provides that members of the Victorian Veterans Council may be appointed for up to three years, and may be appointed for a maximum of three terms. 2

 


 

Clause 10 provides that the Governor in Council may specify remuneration and allowances for members of the Victorian Veterans Council, and that members' terms and conditions be specified in an instrument of appointment. The clause also clarifies that a member is not subject to the Public Administration Act 2004 (except Part 5 of that Act), in their office as a member of the Victorian Veterans Council. Clause 11 sets out the conditions under which a Victorian Veterans Council member ceases to hold office. These include resignation, bankruptcy, conviction for an indictable offence, failure to attend three consecutive meetings without approval, or ceasing to be a member of the ex-service organisation that nominated the member. Clause 12 allows the Governor in Council to remove a Victorian Veterans Council member at any time, and requires the Governor in Council to remove a member who fails to disclose a conflict of interest or who is convicted of an offence relating to his or her duties as a member. Clause 13 sets out meeting procedures for the Victorian Veterans Council. At least six members must be present before a matter can be decided, and the person presiding has a deliberative vote and if the votes are even, a casting vote. The Council may establish committees and delegate any of its powers (other than the delegation power) to a member of a committee. Clause 14 requires that Victorian Veterans Council members disclose any direct or indirect conflict of interest and that these disclosures be recorded in the minutes. The disclosure of a pecuniary interest precludes the discloser from further discussion or voting. The Council must determine, case by case, how to deal with the disclosure of non-pecuniary interests, and must record how the disclosure was managed in the minutes of the meeting. Clause 15 ensures that actions or decisions of Victorian Veterans Council members, or the Council as a whole, are not rendered invalid merely because of a vacancy on the Council or a defect in the appointment of any member. 3

 


 

Clause 16 sets out acting arrangements. If there is no Chairperson for any period, the Deputy Chairperson acts as Chairperson. If there is no Deputy Chairperson for any time (including when the Deputy Chairperson is acting Chairperson) the Minister may appoint a member to be acting Deputy Chairperson. The Minister may also appoint a suitably qualified person to act as a member in place of a member who is unable to perform his or her duties for any period. Clause 17 requires that the Victorian Veterans Council include information about the uses of the ANZAC Day Proceeds Fund and the Victorian Veterans Fund in the annual report of operations that the Council is required to produce under the Financial Management Act 1994. Clause 18 requires that the Victorian Veterans Council must provide any advice or information sought by the Minister on any matter, including the operations of the Council, within the time specified by the Minister. Clause 19 allows the Department responsible for administering this Part of the Act to appoint staff under Part 3 of the Public Administration Act 2004 to assist the Victorian Veterans Council. PART 3--VICTORIAN VETERANS FUND Clause 20 establishes the Victorian Veterans Fund and outlines what payments must go into the Fund in sub-clause (2) and the purposes for which the Fund may be used in sub-clause (3). Clause 21 requires the Victorian Veterans Council to publish guidelines, approved by the Minister, concerning payments from the Victorian Veterans Fund and the ANZAC Day Proceeds Fund. These guidelines must contain information about application and assessment processes and criteria for grants. Clause 22 makes it an indictable offence for recipients of money from the Victorian Veterans Fund to use that money for purposes other than the purpose for which it was given. 4

 


 

PART 4--PATRIOTIC FUNDS Division 1--Preliminary Clause 23 defines what a "patriotic fund" is for the purposes of the Act. A patriotic fund is any fund raised wholly or in part by private or public subscriptions, collections or contributions or by any other means of raising money for any purpose in connection with any service or duty as an officer or member of the naval, military or air forces of Her Majesty or of the Commonwealth of Australia or of any of the naval, military or air forces of Her Majesty's allies. Those purposes include the relief, assistance and support of officers or members of the armed forces or their dependants and the purchase, renovation and maintenance of halls or clubrooms for the use of serving or ex-service personnel. Clause 24 provides that the definition of assets of a patriotic fund includes any hall, clubroom or other building purchased or leased by a trustee of the fund from money in the patriotic fund. Clause 25 provides that Part 4 has extra-territorial application and applies within and outside Victoria to the full extent of the extra- territorial legislative power of the Parliament. Clause 26 provides that where a provision of Part 4 expressly requires the Minister for Consumer Affairs to make recommendations to the Governor in Council, the Minister must consult with and have regard to the advice of the Victorian Veterans Council. Division 2--General Powers of the Director Clause 27 sets out the powers that the Director of Consumer Affairs Victoria has under the Act in relation to patriotic funds. The Director may approve the establishment of a fund or assist in the administration of a patriotic fund. The Director may seek the advice of the Victorian Veterans Council in relation to any matter concerning the administration of Part 4. Clause 28 provides that the Director may refuse to approve the establishment of any patriotic fund if he or she is of the opinion that the proposed trustee of the fund is ineligible to be a trustee. 5

 


 

Clause 29 sets out the circumstances under which a person or body corporate will be ineligible to be a trustee of a patriotic fund. A natural person will be ineligible to be a trustee of a patriotic fund if they are not fit to act or are incapable of acting, including for reasons of mental or physical infirmity, or if they are bankrupt or convicted of an indictable offence. A body corporate will be ineligible where it is an externally administered corporation, or has been convicted of an indictable offence or if a director of the body corporate is ineligible to act. Clause 30 provides that the Director may delegate any of his or her functions or powers under Part 4 to any member of the public service employed in the administration of this Part. Clause 31 provides that the Director is the successor in law to the Patriotic Funds Council of Victoria. The exception to this is in relation to any patriotic fund or any other trust of which the Patriotic Funds Council was a trustee immediately before the commencement of section 85 of the Act (which repeals the Patriotic Funds Act 1958). This clause provides that the Victorian Veterans Council will become the trustee of those funds or trusts. Clause 32 sets out further powers of the Director under this Part. The Director may regulate and control subscriptions, collections, contributions or donations to any patriotic fund; control all trustees and persons who raise funds for the patriotic fund and approve the transfer of a patriotic fund to the trustees of another patriotic fund. The Director may also make and publish guidelines with respect to administration of the Act and patriotic funds. Division 3--The Operation and Administration of Patriotic Funds Clause 33 provides that a person must not establish any patriotic fund or raise money for a patriotic fund without the prior approval of the Director. Sub-clause (3) sets out the information which is to be included in the application to the Director. The Director may cancel any written approval before the patriotic fund is established or may give approval to the continuation of a patriotic fund if a fund has been established without the prior approval of the Director. 6

 


 

Clause 34 provides that the trustees of a patriotic fund may transfer all or any of the assets of the fund to the trustees of another patriotic fund with the prior approval of the Director. However, if the amount being transferred is less than an amount to be prescribed, then the trustees do not have to seek the approval of the Director but must notify the Director of the transfer within 28 days of the transfer taking place. Clause 35 applies where the trustees of a patriotic fund wish to transfer all or any of the assets of the fund to the trustees of a charitable trust or to a corporation having charitable objects or to a Council exercising power for the relief, assistance or support of persons in special need of help or for any other public purpose. The trustees of the patriotic fund may only transfer the assets with the approval of the Governor in Council unless the value of the assets being transferred does not exceed $50 000 in any 6 month period or another prescribed amount and the approval of the Director is obtained in respect of the transfer. Clause 36 provides that the trustees of a patriotic fund may transfer all or any of the assets of the fund to the trustees of a patriotic fund (or a fund equivalent to a patriotic fund) established in another state or to the trustees of a charitable trust established interstate or a charitable corporation incorporated interstate. The trustees may only transfer the assets out of the state with the approval of the Governor in Council. Clause 37 provides that the Governor in Council may, by Order in Council, appoint a person to be trustee of a patriotic fund where there are no trustees of the fund or, in the opinion of the Governor in Council, the trustees of the fund cannot be ascertained or found. A person appointed by the Governor in Council has full power to deal with the patriotic fund as trustee of that fund. Nothing in this clause precludes the Victorian Veterans Council from being appointed a trustee in these circumstances. Clause 38 enables the Governor in Council to deal with surplus moneys being held in a patriotic fund. The Governor in Council may, by Order in Council, direct that any assets in a patriotic fund which are not required for the purposes of that patriotic fund be-- · applied or used by the trustees of the patriotic fund for any purposes in connection with service or duty which are not authorised by the trust deed; or · transferred to the trustees of another patriotic fund; or 7

 


 

· with the agreement of the trustees of the patriotic fund, transferred and vested in the Victorian Veterans Fund or to the trustees of the Shrine of Remembrance. Clause 39 provides that the Governor in Council may, by Order in Council, vest any patriotic fund in the Victorian Veterans Council if the Governor in Council is satisfied that-- · at least 60% of the trustees of the patriotic fund have consented to the fund being vested in the Victorian Veterans Council; or · there has been maladministration or a failure of administration of the fund; or · the trustees of the patriotic fund have contravened or failed to comply with the provisions of the Act or any direction, instruction or condition imposed by the Governor in Council or the Director under the Act. Any patriotic fund vested in the Victorian Veterans Council is held on the same trusts as it was held by the trustees of the fund except that the Governor in Council may vary such trusts and authorise the Council to apply all or part of the patriotic fund to any other purposes in connection with any service or duty. Clause 40 provides that where a patriotic fund is transferred to and vested in the trustees of another patriotic fund, all acts, matters and things done by the trustees and payments made by the trustees immediately before the transfer are valid and effectual. This clause does not exempt a trustee from any civil or criminal liability for any breach of trust or other unlawful act. Clause 41 states that assets are not payable or transferable out of a patriotic fund unless they are paid or transferred for the purposes for which the patriotic fund was established or for purposes that the Governor in Council has defined under this clause or for a purpose incidental to the proper administration of the patriotic fund. Sub-clause (2) provides that the Governor in Council may, on the application of the trustees of a patriotic fund, clarify the purposes for which the patriotic fund is taken to have been established where the trustees are of the opinion that the purposes are not sufficiently defined. 8

 


 

The Governor in Council may also, on the application of the trustees under sub-clause (4), re-define the purposes of the patriotic fund where the trustees are of the opinion that the amounts of money that may be applied from the patriotic fund or the rate at which the money may be applied, are too small to enable the fund to be put to the best use. Clause 42 sets out the various statements which are required to be supplied to the Director by trustees of patriotic funds. The trustees are required to notify the Director of certain changes including where a trustee dies or retires or a new trustee is appointed. Trustees are also required to provide annual audited statements of receipts and disbursements and balance sheets unless the patriotic fund is part of a prescribed class of funds in which case the statements are not required to be audited. The reporting year ends on 30 June unless the Director has specified a different date for a particular patriotic fund. Clause 43 provides that the trustees of a patriotic fund must, within 30 days after being required by the Director, provide to the Director a statement setting out such particulars as the amount for the time being in the patriotic fund, the amount expended from the patriotic fund and the details of persons that have been paid money from the patriotic fund. Clause 44 sets out the penalties which apply to persons who fail, neglect or refuse to provide the statements or notices required under the Act or provide false information in such statements or notices. Clause 45 provides that all money received by or on behalf of the trustees of any patriotic fund must be paid into a separate account in the name of the patriotic fund or in the names of the trustees as trustees of the patriotic fund. The clause also sets out the requirements applying to the operation of the account. Clause 46 provides that a certificate in writing signed by the Director stating that the Director has given approval to-- · the establishment of a patriotic fund; or · the continuation of the administration of a fund; or · a person raising money for the patriotic fund; or · the transfer of a patriotic fund to the trustees of another patriotic fund-- is admissible as evidence of those facts. 9

 


 

Clause 47 provides that the Director may request that an auditor's report on the accounts and records kept in relation to a patriotic fund be submitted by the trustees as at a specified date. The report must contain the auditor's opinion on whether the money received as a result of the patriotic fund has been properly accounted for and applied and whether the accounts show a true and fair view of the income and expenditure relating to the fund. Clause 48 requires any authorised deposit-taking institution to provide to the Director, when requested to do so in writing by the Director, any information that the Director requires. That information includes what accounts are entered in the institution's books in respect of patriotic funds and what sums of money are credited to any account. Clause 49 applies to patriotic funds that are not functioning properly. Sub-clause (1) outlines the circumstances in which a patriotic fund would be so considered. Examples include where the Director is of the opinion that there have been instances of maladministration or where the trustees have failed to comply with the Act or where the trustees cannot be ascertained or found. If sub-clause (1) applies, the Director may apply to the Magistrates' Court for an order to deal with the patriotic fund. The type of orders that the Director may apply for include prohibiting dealings with assets of the patriotic fund, authorising a person to act as trustee (including the Victorian Veterans Council) or appointing an administrator of the patriotic fund. Clause 50 provides that the Director may appoint an administrator to wind up a patriotic fund, without applying for an order, if at least 60% of the trustees have agreed in writing that the fund be wound up. Clause 51 enables the Governor in Council to order that a patriotic fund be wound up and any assets remaining after the winding up be distributed in accordance with patriotic fund's trust deed, if any of the circumstances specified in clause 49(1) exist in relation to the fund. If the patriotic fund's trust deed does not specify how surplus assets are to be distributed or the deed does not exist or it is not practicable to distribute the assets in accordance with the trust deed then sub-clause (3) provides how the assets may be transferred, for example, to another specified patriotic fund or to the Victorian Veterans Fund. 10

 


 

Clause 52 sets out the powers of an administrator appointed in relation to a patriotic fund under this Act. The administrator has all the powers of the trustees of the patriotic fund conferred on the trustees by the trust deed. The administrator may also dispose of or otherwise deal with any assets of the fund or wind up the patriotic fund if required or authorised to do so. Clause 53 provides for the remuneration of an administrator appointed either by the Magistrates' Court under clause 49 or by the Director under clause 50 or 51(6). Clause 54 provides that the Director may require the administrator of a patriotic fund to report to the Director on any matter concerning the administration of the fund or to make recommendations in relation to the patriotic fund. Clause 55 sets out the obligations of the administrator on the completion of the winding up of a patriotic fund. Such obligations include reporting to the Director that the winding up is complete and providing the director with final financial statements. Clause 56 provides that the administrator will be liable for any loss incurred by a patriotic fund due to any breach of fiduciary duties or fraud, dishonesty, negligence or wilful failure to comply with the Act or regulations by the administrator. Where loss is incurred for other reasons then the administrator must account for the loss in the report given under clause 54 but is not liable for that loss. Clause 57 provides that the administrator holds office until the administrator's appointment is revoked. Sub-clause (2) sets out how an appointment is revoked where the administrator has been appointed by the Magistrates' Court under clause 49. Sub-clause (3) sets out how an appointment is revoked where the administrator has been appointed by the Director under clause 50 or 51(6). Division 4--Enforcement Provisions Clause 58 provides that the Minister or the Director may require a person to provide to them any information or documents that the Minister or Director consider as reasonably necessary to determine whether there has been a breach of the Act. The request for information must be made in writing and identify the information or documents required to be provided. 11

 


 

Clause 59 incorporates into the Act a number of enforcement provisions from the Fair Trading Act 1999 which extend and apply to this Act. These provisions relate to applications for injunctions or other court orders where any provision of the Act is being contravened. Clause 60 provides that an inspector exercising a power under this Division must produce his or her identity card before exercising the power and at any time if asked to do so. Clause 61 specifies the extent of an inspector's power to enter and search any premises on or from which a patriotic fund is being administered or any premises that an inspector believes on reasonable grounds contains any records or accounts required to be kept under the Act or any document that may indicate whether the Act has been complied with. Clause 62 provides that if an inspector has reasonable grounds for suspecting that there is on any premises a particular thing that may be evidence of the commission of an offence under this Act, the inspector may enter and search the premises without a warrant if the occupier of the premises consents in writing to the entry. The clause also provides that the inspector must produce his or her identity card before the entry and inform the occupier of his or her rights under the section to refuse consent. The inspector may inspect and make copies of any thing on the premises and seize the thing in order to prevent its concealment, loss or destruction. Clause 63 provides that any occupier who consents to an entry and search under clause 61 or 62 must be given a copy of the signed consent. Clause 64 provides that an inspector may apply to a magistrate for a search warrant if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence under this Act. The warrant may authorise the inspector to enter the premises and to search for and seize any thing named or described in the warrant. Clause 65 provides that an inspector must make an announcement before executing a search warrant that he or she is authorised by the warrant to enter the premises. The inspector need not make an announcement, if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of any person or that the effective execution of the warrant is not frustrated. 12

 


 

Clause 66 provides that if the occupier is present at the premises when a search warrant is being executed, the inspector must produce his or her identity card and give to the occupier a copy of the execution copy of the warrant. Clause 67 provides that if an inspector seizes a thing, the inspector must give to the owner or custodian of that thing, a receipt which identifies the thing seized and states the name of the inspector and the reason why that thing has been seized. Clause 68 provides that if an inspector seizes a document, a thing that can be readily copied or a storage device containing information, the inspector must give to the owner or custodian a copy of that document, thing or device. Clause 69 provides that an inspector may bring on to the premises any equipment necessary to examine or process things found at the premises or may operate any equipment already at the premises to do so. The inspector may, with the consent of the occupier of the premises, move the thing to another place so that examination or processing can take place. Clause 70 provides that an inspector may operate or require the occupier of the premises or an employee to operate electronic equipment at the premises which is used to access information kept on a disk, tape or other device for the storage of information. An inspector may also seize the disk, tape or other device and the equipment if it is not practicable to put the information in documentary form or copy it. Clause 71 provides for the payment of compensation by the Minister for any damage caused by an inspector in the exercise of any power conferred by the Act, except where the damage is caused during an inspection that reveals that there has been a contravention of the Act. Clause 72 requires an inspector to take reasonable steps to return any thing which has been seized to its owner if the reason for seizure no longer exists. If the seized thing is not returned within 3 months after seizure, the inspector must take reasonable steps to return it unless proceedings have been commenced and are still current or a court makes an order under clause 73. Clause 73 provides that an inspector may apply to the Magistrates' Court for an order extending the period which an inspector may retain a seized thing in specified circumstances. 13

 


 

Clause 74 sets out the power of an inspector when exercising a power of entry under this Act to require a person to give information to the inspector, produce documents to the inspector and to give reasonable assistance to the inspector. It is an offence for a person to refuse or fail to comply with the requirement without reasonable excuse. It is also an offence to give false or misleading information or to produce a document that the person knows to be false or misleading. Clause 75 provides that it is a reasonable excuse for a person to refuse to give information or do any other thing that is required under this Part if the giving of information or the doing of the thing would tend to incriminate that person. Clause 76 provides that it is an offence for a person to hinder or obstruct an inspector exercising a power under this Act without reasonable excuse. Clause 77 provides that it is an offence for a person to impersonate an inspector. Clause 78 provides that an inspector exercising a power of entry under the Act must report the entry to the Director within 7 days after the entry. The report must provide specific details such as the time and place of entry. Clause 79 requires the Director to keep a register of all matters reported under clause 78. Clause 80 provides that any person may complain to the Director about the exercise of an inspector's power and the Director must investigate the complaint and provide a written report to the complainant on the results of the investigation. Clause 81 provides that it is an offence for a person exercising a power conferred by the Act to disclose information that is obtained by him or her while exercising that power. Sub-clause (2) provides that is an offence to use that information to obtain a pecuniary advantage. A person who has obtained information while exercising power under the Act may disclose that information if the disclosure is made or used in the circumstances specified in sub-clause (3), including a disclosure made in legal proceedings at the direction of the court. 14

 


 

Division 5--Miscellaneous Matters Clause 82 provides that a person who is affected by a decision of the Director under this Part may apply to VCAT for a review of the decision within 28 days after-- · the day they were notified of the decision; or · the day they received a statement of reasons, where the person has requested a statement of reasons, under the Victorian Civil and Administrative Tribunal Act 1998-- whichever of those days occurs latest. Clause 83 provides that the Director must report on the operation of Part 4 in the annual report prepared under section 102 of the Fair Trading Act 1999. Clause 84 provides that if two or more persons are responsible for the same offence against the Act, each of them is liable to the penalty for the offence and their liability is independent. Clause 85 repeals the Patriotic Funds Act 1958. All persons, things and circumstances appointed or created by or under that Act immediately before the commencement of this clause will continue to have the same status, operation and effect as if this clause had not come into operation. After the commencement of this clause any reference in any Act, subordinate instrument or other document to the Patriotic Funds Council is to be construed as a reference to the Director. PART 5--GENERAL Clause 86 empowers the Governor in Council to make regulations regarding any matter to give effect to the Act, and specifically in relation to the form and content of accounts and financial statements that trustees must keep and in relation to the advisory role of the Victorian Veterans Council regarding the regulation of patriotic funds. PART 6--AMENDMENTS AND REPEALS Clause 87 amends section 4A of the ANZAC Day Act 1958 to clarify that all of the money accruing to the ANZAC Day Proceeds Fund each year must be disbursed, and provides that the disbursement will occur in accordance with recommendations of the Victorian Veterans Council instead of the Patriotic Funds Council. 15

 


 

Clause 88 makes Part 4 of the Veterans Act 2005 a Consumer Act under the Fair Trading Act 1999. Clause 89 amends the Gambling Regulation Act 2003 to transfer to the Victorian Veterans Fund, on 1 September each year, one day's average Community Support Fund gaming revenue from the previous financial year. Clause 90 replaces, in the Fundraising Appeals Act 1998, a reference to the Patriotic Funds Act 1958 with a reference to the Veterans Act 2005. Clause 91 amends the Shrine of Remembrance Act 1978 to clarify that the trustees of the Shrine of Remembrance can organise and conduct educational activities in the Shrine precinct relating to the military service of Australians. Clause 92 repeals the Defence Reserves Re-Employment Act 1995 and the Discharged Servicemen's Preference Act 1943, and makes the Victorian Veterans Council the successor in law to the Defence Reserves Re-Employment Board which administered those Acts. 16

 


 

 


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