Military Rehabilitation and Compensation Amendment (Non-warlike Service) Determination 2019 (No. 1)

Administered by Department of Veterans' Affairs

Legislation au F2019L01199 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Military Rehabilitation and Compensation Amendment
(Non-warlike Service) Determination 2019 (No. 1)

This Determination amends Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 made under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004 (the Act). Paragraph 6(1)(b) of the Act defines non-warlike service as meaning service with the Australian Defence Force (the ADF) that is of a kind determined in writing by the Minister for Defence to be non-warlike service for the purposes of the Act.

 

A determination of non-warlike service allows the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing a claim for liability of a veteran’s injury, disease or death in relation to a period of non-warlike service.  This beneficial standard of proof reflects an understanding of the unique nature of military service and the risks associated with service on warlike and non-warlike operations.  Similarly, an assessment of permanent impairment and the calculation of compensation payable to a member involves determining a compensation factor for an impairment and lifestyle rating whereby a service differential applies. The outcomes in terms of compensation will be more beneficial for ADF members who are injured or contract a disease that relates to non-warlike or warlike service and will mean greater compensation amounts will be payable compared to those members who were injured on peacetime service.  A veteran with non-warlike service will also be eligible for treatment of malignant neoplasia and pulmonary tuberculosis on a non-liability basis.

 

This Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is exempt from disallowance pursuant to item 21 in Section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulations) and is also exempt from sunsetting pursuant to item 39 in Section 12 of the Regulations.

 

The purpose of this Determination is to amend Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 by inserting an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

The historical dates in this Determination do not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such a person (other than the Commonwealth). The retrospective application of this Determination is required to ensure that no ADF member (or their legal personal representative) 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 commencement of this Determination.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this Determination commences on the day after the Determination is registered on the Federal Register of Legislation.

Section 3 identifies that this Determination has authority under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004.

Section 4 provides that each Determination that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.

Schedule 1 – Non-warlike Service

Section 1 omits and substitutes a table item into Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. The table item inserts an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

Consultation

 

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:  Paragraph 6(1)(b) of the

Military Rehabilitation and
Compensation Act 2004

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Military Rehabilitation and Compensation Amendment (Non-warlike Service) Determination 2019 (No. 1)

This Determination 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.

Overview of the Determination

The purpose of this Determination is to amend Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 by inserting an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

Human rights implications

This Determination 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).

 

  • Live, take part and be included in the community (article 19 Convention on the Rights of Persons with Disabilities).

 

This Determination establishes a further period of operation for Operation Okra, together with the nature and area of the operation.

 

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 Determination 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 historical date in this Determination 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 Determination 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.

 

  • 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.

 

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Darren Chester, Minister for Veterans and Defence Personnel

 

 

 

 

 

Overview

The Military Rehabilitation and Compensation Amendment (Non-warlike Service) Determination 2019 (No. 1) was enacted to address the need for a more precise definition and classification of non-warlike service within the Australian Defence Force (ADF). This Determination, which amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, was made under the authority of the Military Rehabilitation and Compensation Act 2004. The primary policy objective of this Determination is to ensure that ADF members receive appropriate compensation and support for injuries or diseases contracted during their service, particularly distinguishing between warlike and non-warlike operations. By specifying the nature, area, and duration of non-warlike service operations, such as Operation Okra, the Determination aims to provide a clearer framework for assessing claims, thereby ensuring that ADF members and their families receive fair and adequate compensation. This legislative instrument was created by the Parliament of Australia and is exempt from disallowance and sunsetting under the Legislation (Exemptions and Other Matters) Regulation 2015. The Department of Veterans' Affairs was consulted during the classification process, and it is noted that the determination of the nature of service is subject to bipartisan consultation. The Determination is also compatible with human rights, ensuring that any limitations on rights are reasonable, necessary, and proportionate, providing additional support to ADF members and their dependents without imposing undue burdens on other stakeholders.

Scope and Application

The Military Rehabilitation and Compensation Amendment (Non-warlike Service) Determination 2019 (No. 1) is a legislative instrument under the Military Rehabilitation and Compensation Act 2004, designed to clarify and amend the definition of non-warlike service within the Australian Defence Force (ADF). This determination applies to ADF members who have served in non-warlike operations, providing them with a more beneficial standard of proof and potentially higher compensation amounts for injuries, diseases, or deaths related to their service. The determination also affects the eligibility of veterans for treatment of specific conditions on a non-liability basis. The scope of this amendment is limited to the operational details of Operation Okra, setting an end date and detailing the nature, area, and period of operation. The application of this Determination is national, impacting all ADF members across Australia. It is exempt from disallowance and sunsetting under the relevant legislative regulations, ensuring its continued effect without the need for periodic review or parliamentary approval. This legislative instrument is intended to ensure that ADF members are not disadvantaged in their claims related to service in non-warlike operations and provides clarity on the nature of their service for the purpose of compensation and benefits.

Key Provisions

The Military Rehabilitation and Compensation Amendment (Non-warlike Service) Determination 2019 (No. 1) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, which was made under the Military Rehabilitation and Compensation Act 2004 (the Act) (s. 3). This amendment is specifically directed towards defining the end date of Operation Okra, a military operation, and clarifying its nature, area, and further period of operation (Schedule 1, s. 1). This legislative change is intended to ensure that ADF members who may have been injured or contracted diseases during their service are appropriately compensated, and that the benefits they receive reflect the nature of their service. Under the amended Determination, the Military Rehabilitation and Compensation Commission is required to apply a more beneficial standard of proof when assessing claims for liability of a veteran’s injury, disease, or death related to non-warlike service (Explanatory Statement). This means that veterans who have served in non-warlike operations will receive more favourable consideration in their claims for compensation, as the standard of proof is lowered to reflect the unique nature and risks associated with military service. Additionally, ADF members injured or contracting diseases during non-warlike service will be eligible for more substantial compensation amounts, and veterans will also qualify for treatment of specific conditions such as malignant neoplasia and pulmonary tuberculosis on a non-liability basis (Explanatory Statement). The Determination imposes specific obligations on the Military Rehabilitation and Compensation Commission and the ADF members. The Commission is tasked with accurately assessing and approving compensation claims based on the revised criteria for non-warlike service, ensuring that the benefits provided reflect the unique risks and nature of the service performed (Schedule 1, s. 1). ADF members are required to provide accurate and complete information regarding their service and any injuries or diseases they may have incurred, to facilitate the assessment process (Explanatory Statement). The Determination ensures that the rights of individuals, apart from the Commonwealth, are not adversely affected and that no new liabilities are imposed on them prior to the Determination's registration (Explanatory Statement). The Determination does not explicitly outline specific offences or penalties for non-compliance. However, any breaches of the requirements for accurate and complete information, or any fraudulent claims for benefits, could potentially be subject to existing legal frameworks governing military compensation and veterans' affairs. These may include civil or criminal penalties for fraud, misrepresentation, or providing false information, as stipulated in relevant Acts such as the Crimes Act 1914 or the Defence (Special Provisions) Act 1952. The maximum penalties for such offences could vary, but generally include fines and imprisonment, depending on the severity of the offence.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.