EXPLANATORY STATEMENT

Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2020 (No. 2)

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.

This Determination amends Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. The following specific changes have been made.

• A new operation recognising the Defence Force contribution to efforts against global terrorism within the period 30 June 2017 and 5 June 2019 has been added at item 25.
• A new non-warlike operation, Operation Fortitude, has been inserted into the table which states the nature, area and 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 – Amendment to Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019

Section 1 of this Determination inserts two new areas of operation and the period in which Service in that area is non-warlike Service for the purposes of the definition of non-warlike service in paragraph 6(1)(b) of the Act as follows.

• A new operation recognising the Defence Force contribution to efforts against global terrorism within the period 30 June 2017 and 5 June 2019 has been added at item 25.

• A new operation, Operation Fortitude, recognising the Defence Force contribution to the United Nations Disengagement Observer Force for the period on and after 30 April 2019 has been added at item 26.

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 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 (Non-warlike Service) Amendment Determination 2020 (No. 2)

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

This Determination amends Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. The following specific changes have been made.

• A new operation recognising the Defence Force contribution to efforts against global terrorism within the period 30 June 2017 and 5 June 2019 has been added at item 25.
• A new non-warlike operation, Operation Fortitude, has been inserted into the table which states the nature, area and 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 new operation, together with the nature, area and period of the operation. It also establishes a new non-warlike operation Fortitude, together with the nature, area and period 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' Affairs and Minister for Defence Personnel