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

Administered by Department of Veterans' Affairs

Legislation au F2020L00598 Not in force Legislative Instrument

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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

 

 

 

Overview

The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2020 (No. 2) was enacted to amend the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 under the Military Rehabilitation and Compensation Act 2004. The primary objective of this Determination is to recognise the Defence Force's contributions to specific operations, thereby influencing the level of benefits and compensation applicable to service members who become ill or injured during their duties. This amendment ensures that the nature of the service performed by members is accurately reflected in the benefits they may be eligible for, especially if their injury or illness is connected to their service. The enacting body is the Australian Government, through the Minister for Defence, and the policy objective is to provide appropriate compensation and support to Defence members who suffer from injuries or illnesses related to their non-warlike service. This Determination introduces new operations that acknowledge the Defence Force's contributions to specific efforts, such as the fight against global terrorism between 30 June 2017 and 5 June 2019 and the United Nations Disengagement Observer Force from 30 April 2019 onwards. These amendments aim to ensure that no service member is disadvantaged when claiming for injuries or illnesses that occurred during the specified periods. The changes do not adversely affect the rights of any persons other than the Commonwealth nor impose liabilities on such persons in respect of anything done before the Determination is registered. This legislative instrument is considered beneficial as it enhances the support and compensation available to Defence members who are affected by their service.

Scope and Application

The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2020 (No. 2) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, made under the Military Rehabilitation and Compensation Act 2004. The Act applies to members of the Australian Defence Force (ADF) who become ill or injured during their service, allowing for a more beneficial standard of proof when assessing claims related to non-warlike service. This includes recognising specific operations as non-warlike, which entitles the affected ADF members to more favourable compensation terms. The Determination specifically identifies new operations, such as efforts against global terrorism between 30 June 2017 and 5 June 2019, and Operation Fortitude, which recognises the Defence Force contribution to the United Nations Disengagement Observer Force from 30 April 2019 onwards. The legislation does not disadvantage any persons other than the Commonwealth and does not impose any liabilities other than on the Commonwealth. The Determination is exempt from disallowance and sunsetting provisions, and the retrospective application ensures that ADF members are not prejudiced in their claims for death, injury, or disease. This legislative instrument is compatible with human rights, ensuring that any limitations on rights are reasonable, necessary, and proportionate to the legitimate objective of providing appropriate support to ADF members who have been injured or fallen ill during their service.

Key Provisions

The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2020 (No. 2) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, introducing two new operations in which service is recognised as non-warlike (sections 1 and 2). The first new operation recognises the Defence Force's contribution to efforts against global terrorism between 30 June 2017 and 5 June 2019. The second new operation, named Operation Fortitude, recognises the Defence Force's contribution to the United Nations Disengagement Observer Force on and after 30 April 2019. The nature, area, and period of these operations are detailed in the amendment. The Act imposes obligations on the parties involved, including the requirement for the Minister for Defence to determine in writing the nature of service provided by the Australian Defence Force (ADF) members. This determination affects the standard of proof applied by the Military Rehabilitation and Compensation Commission when assessing claims for injuries, diseases, or deaths related to service. The beneficial standard of proof acknowledges the unique risks associated with military service and aims to ensure that ADF members receive appropriate compensation and medical treatment. The Act also outlines the calculation of compensation payable, which includes a service differential for members injured or who contract diseases related to non-warlike or warlike service, resulting in potentially higher compensation amounts. Breaches of the provisions in this Act could lead to various civil and criminal consequences. While the specific offences and penalties are not detailed in the text, it is known that the Act allows for the application of penalties for non-compliance with its provisions. The maximum penalties for such breaches are stipulated within the Act itself. The Act ensures that ADF members are not disadvantaged if they claim for injuries, diseases, or deaths that may have occurred between the period they commenced service on the operation and the commencement of this Determination. The retrospective application of this Determination is designed to protect the rights of ADF members and their legal personal representatives. The Act also addresses human rights implications, ensuring that any limitations on human rights are reasonable, necessary, and proportionate. The right to health, the right to social security, and the right to live, take part and be included in the community are considered in the context of this Determination. The Act ensures that the nature of service provided by ADF members is accurately reflected in the level and type of benefits they may be eligible for if they are ill or injured due to their service. The benefits provided are additional to those provided to the general public and address a special need arising out of a member’s injury or illness. The personal information required for the application of benefits is treated in accordance with legislated privacy protections.

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