EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Members - Service End Date) Amendment Determination 2013
EMPOWERING PROVISION
Section 8(1) of the Military Rehabilitation and Compensation Act 2004 (the Act or MRCA).
PURPOSE
The attached instrument (2013 No. MRCC 5) amends the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) so as to “close off” eligibility under that determination for entitlements under the Act for certain civilians who provide services to the Defence Force on or after the attached instrument commences.
The Defence Minister may, by legislative instrument, determine civilians who provide services to the Defence Force to be members of the Defence Force (deemed members). As deemed members these people may be eligible for entitlements under the Act.
In 2004 the Defence Minister determined that civilians in the following categories were deemed to be members of the Defence Force:
- persons who hold an honorary rank or appointment in the Australian Defence Force
- persons who are on Career Transition Assistance under an arrangement approved by the Australian Defence Force
- members of approved philanthropic organisations serving the Defence Force.
The determination was the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) and it was “open ended” in that it applied to services provided by the categories of civilians in question on and from 1 July 2004.
In 2009 the Review of Military Compensation Arrangements commenced. The Review was a Government commitment to examine the current military rehabilitation and compensation system. The report of the Review’s Steering Committee was released by the Minister for Veterans' Affairs on 18 March 2011.
The Government responded to the report of the Review on 8 May 2012 and one of the recommendations it accepted was that:
“30.1 Members undergoing career transition assistance and personnel holding honorary ranks should be defined under the MRCA as ‘members’.”
In agreeing to the recommendation the Government added a further category of person who should be defined under the MRCA as a member, namely authorised representatives of philanthropic organisations in support of the Defence Force.
The MRCA was amended by the Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Act 2013 which, among other measures, defined “member” as including a person in one of the relevant categories.
Accordingly the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) that provided member-status to the categories of people in question is not required for people in those categories who provide services to the Defence Force in the future and the instrument may be closed off and confined to the relevant people who provided the relevant services in the period from the date the MRCA commenced (1 July 2004) to the date immediately before the MRCA was amended to define member as including the relevant categories of people (30 June 2013).
Under subsections 26(1B) and 26(1C) of the Legislative Instruments Act 2003 (as paraphrased), subordinate legislation that merely replaces previous subordinate legislation does not need explaining in an Explanatory Statement.
The only amendment the attached instrument made to the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) was to insert a period during which the deemed members needed to have provided services to the Defence Force in order to be recognised as members by the instrument. That period is 1 July 2004 – 30 June 2013 and it effectively closes off coverage by the instrument for service provided by the relevant categories of people on or after 1 July 2013. Service on or after 1 July 2013 provided by the relevant categories of people will be covered by the MRCA, not a legislative instrument made under it.
CONSULTATION
Yes. The Steering Committee for the Review of Military Compensation Arrangements consulted the Veteran & Defence Community. Consultation was via ADF base public meetings, a dedicated WebPage, Ex Service Organisation (ESO) working party meetings with ESOs and correspondence.
RETROSPECTIVITY
If the attached instrument commenced before registration, subsection 12(2) of the Legislative Instruments Act 2003 (legislative instrument of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person) would not be contravened because the instrument does not disadvantage any person or impose a liability on any person (except the Commonwealth).
DOCUMENTS INCORPORATED-BY-REFERENCE
No.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The instrument does engage an applicable right or freedom. It relates to the right to social security. The right to social security requires, among other things, the right to a minimum essential level of benefits for all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
A person (deemed member) covered by the attached instrument has the same entitlements under the Act as an enlisted member of the Defence Force which would include compensation and free treatment for any service-related injury or disease.
The instrument preserves the entitlements of deemed members and merely prevents further people joining that class (new entrants to the class are now covered by the Act).
The UN Committee on Economic Social and Cultural Rights has stated that qualifying conditions for benefits must be reasonable, proportionate and transparent.
The attached instrument does not affect the qualifying conditions for the categories of people covered by the instrument. Accordingly it complies with the UN Committee’s requirements.
Conclusion
The instrument is compatible with human rights because it complements the right to social security.
Warren Snowdon
Minister for Veterans’ Affairs
Rule-Maker
FURTHER EXPLANATION
Attachment A.
Attachment A
Items Explanation
1. sets out the name of the instrument.
2. provides that the instrument commences when Schedule 12 of the Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Act 2013 commences.
3. means that people covered by the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) (the principal instrument) before it was amended by the attached instrument are now covered by the principal instrument in its amended state with the result the instrument applies to their service in the period 1 July 2004 – 30 June 2013. Any similar service after this period will be covered by the Act.
4. provides that the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) is amended in accordance with the Schedule to the instrument.
Schedule
5. replaces Schedule 1 of the Military Rehabilitation and Compensation (Members) Determination 2004 (No. 1) with a virtually identical Schedule 1. The only changes are the insertion, in the “Acts column”, of the period 1 July 2004 – 30 June 2013.