EXPLANATORY STATEMENT
Defence Force (Home Loans Assistance) (Warlike Service—Operation Augury) Declaration 2017
The Defence Force (Home Loans Assistance) Act 1990 (the Act) provides for the payment of housing loan subsidies for certain members of the Australian Defence Force (ADF). Subsection 3C(1) of the Act defines warlike service as meaning service with the ADF that is of a kind determined in writing by the Defence Minister to be warlike service for the purpose of the Act.
The purpose of this Instrument is to declare service provided by ADF personnel on Operation Augury as warlike under the auspices of the Act.
Clause 1 sets out the name and manner in which this Instrument may be cited.
Clause 2 provides that the Instrument commences in accordance with column 2 of the table, which is the day after this Instrument is registered.
Clause 3 provides the authority under which this Instrument is made.
Clause 4 makes clear the definition of certain abbreviations and acronyms used throughout this Instrument.
Clause 5 specifies that service in the area and superjacent airspace of Afghanistan that commenced on or after 28 April 2016 is warlike service for the purposes of subsection 3C(1) of the Act. Any retrospective operation of this Instrument is required to ensure that no ADF member (or their legal personal representative as the case may be) is disadvantaged if claiming for death, injury or disease that may have occurred between the period when they commenced service on the operation and the date that this Instrument is registered.
Entitlements under this Act are limited to a decreasingly small number of eligible ADF members as this Act is closed to new members.
The effect of this Instrument is that it will enable those eligible members of the ADF who are rendering or have rendered warlike service on Operation Augury and are entitled to assistance under the Defence Home Owner Scheme established under the Act, to certain additional benefits under the Act. These benefits entitle a person who is rendering or has rendered warlike service to additional periods of housing subsidy as well as a waiver of the five year qualifying period of service. The entitlement to additional years of subsidy range from two additional years, for warlike service of less than three months, to five additional years for warlike service of more than nine months.
This Instrument does not affect the rights of any persons (other than the Commonwealth) so as to disadvantage those persons nor does it impose liabilities (other than on the Commonwealth) in respect of anything done before the date this Instrument commences and is not affected by section 12(2) of the Legislation Act 2003.
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Consultation
The Department of the Prime Minister and Cabinet and the Department of Veterans' Affairs were consulted during the classification process. It is noted that decisions about the nature of service are subject to bipartisan consultation through Government and do not impact business or competition.
Authority: Subsection 3C(1)
Defence Force (Home Loans Assistance) Act
1990
Statement of Compatibility with Human Rights
This Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The purpose of this Instrument is to declare Operation Augury be considered warlike under the auspices of the Act.
This Instrument engages the following human rights:
- The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health (article 12(1) International Covenant on Economic, Social and Cultural Rights),
- The right to social security requires a social security system be established and that a country must, within its maximum available resources, ensure access to a social security scheme (article 9 International Covenant on Economic, Social and Cultural Rights),
- The prohibition on interference with privacy and attacks on reputation (article 17 of the International Covenant on Civil and Political Rights),
- Live, take part and be included in the community (article 19 Convention on the Rights of Persons with Disabilities).
Defence Force (Home Loans Assistance) (Warlike Service—Operation Augury) Declaration 2017 establishes that service provided by ADF members on Operation Augury is warlike service for the purposes of subsection 3C(1) of the Act. Operation Augury, for service in the area and superjacent airspace of Afghanistan as described in this Declaration, is in support of the ADF's understanding of Islamist terrorist threats to Australia and the region.
Legitimate objective: Defence members who become ill or injured in the course of duty may require special assistance and support on return from that duty. Whether an injury or illness is seen as arising out of duty may depend on the nature of the service that the member has been required to perform. The actual decision about whether the nature of service will be warlike or non-warlike is made by the Executive, this Instrument simply ensures that the nature of service that a member provides is reflected in the level and type of benefits that they may be eligible for if they are ill or injured due to their Service.
The retrospective application of this Instrument does not affect the rights of any persons (other than the Commonwealth) so as to disadvantage those persons nor does it impose liabilities (other than on the Commonwealth) in respect of anything done before the date the Instrument is registered. It is a beneficial legislative instrument.
Reasonable, necessary and proportionate: Determining the nature of service that a member has provided allows the relevant level of additional support to be provided to assist the member with the health care and other needs that they may have as a member. Benefits may also be provided to a member's dependants, who are directly affected by the additional needs that a member may have as a result of their illness or injury.
Although the application for benefits may require some provision of personal information and some limitation on the suppliers of health treatment and benefits that are provided, these restrictions are considered proportional:
- the personal information is treated in accordance with legislated privacy protections, and
- the benefits are additional to those provided to the general public and address a special need arising out of a member's injury or illness.
This Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.