EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2022 (No. 1)
This Determination amends Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 (the Principal Determination) made under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004 (the Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). This instrument is also subject to the interpretation principles in the AIA Act.
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.
Paragraph 6(1)(a) of the Act defines non-warlike service as meaning service with the Defence Force that is of a kind determined in writing by the Defence Minister 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.
The purpose of this Determination is to add a new non-warlike operation, Operation Lilia, 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 will commences on the day after registration.
Section 3 identifies that this Determination has authority under paragraph 6(1)(a) 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 amendment
Section 1 inserts item 27 into Schedule 1 of the Principal Determination which provides that on and after 25 November 2021 service on Operation Lilia in the Solomon Islands is non-warlike service for the purposes of the definition of non-warlike service in paragraph 6(1)(a) of the Act.
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)(a) of the
Military Rehabilitation and
Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2022 (No. 1) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, which was made under the Military Rehabilitation and Compensation Act 2004. This amendment was enacted to address the need to formally recognise and compensate service personnel who were engaged in non-warlike operations, specifically by adding Operation Lilia in the Solomon Islands to the list of operations considered non-warlike. The objective of this amendment is to ensure that members of the Australian Defence Force (ADF) who were involved in Operation Lilia and subsequently suffered injury, disease, or death as a result of their service receive more beneficial compensation compared to those who were injured during peacetime service. The determination was made by the relevant authorities in accordance with the Acts Interpretation Act 1901 and is subject to the provisions of the Legislation Act 2003 and the Legislation (Exemptions and Other Matters) Regulation 2015. The Department of Veterans’ Affairs was consulted during the classification process, highlighting the bipartisan approach taken in making these determinations.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2022 (No. 1) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, which was made under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004. This instrument is subject to the interpretation principles set out in the Acts Interpretation Act 1901, and it is exempt from disallowance and sunsetting under the Legislation (Exemptions and Other Matters) Regulation 2015. This Determination applies to service personnel who have been on non-warlike operations, specifically adding Operation Lilia in the Solomon Islands, which commenced on 25 November 2021, into the list of non-warlike operations. This amendment allows the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing claims for injury, disease or death related to non-warlike service, ensuring that service members who are injured or contract a disease during non-warlike operations receive more favourable outcomes in terms of compensation compared to those injured during peacetime service. This Determination does not affect the rights of any person (other than the Commonwealth) in a prejudicial manner nor impose any liability on such a person.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2022 (No. 1) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 (the Principal Determination) under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004 (the Act) (sections 3 and 4). This legislative instrument is exempt from disallowance and sunsetting as per the Legislation (Exemptions and Other Matters) Regulation 2015 (subsection 33(3) of the Acts Interpretation Act 1901). This Determination specifies that service on Operation Lilia in the Solomon Islands from 25 November 2021 onwards is to be recognised as non-warlike service (Schedule 1, item 27). This amendment ensures that veterans who served on Operation Lilia will be eligible for more favourable standards of proof and compensation rates for any injuries, diseases, or deaths related to their service, aligning with the unique risks and nature of military service as defined in the Act.
This Determination imposes specific obligations on the Military Rehabilitation and Compensation Commission to apply the amended standards of proof and compensation calculations for veterans who served on Operation Lilia. The Commission must ensure that these veterans are treated under the more beneficial non-warlike service provisions, recognising the nature of their service and the associated risks. The Department of Veterans’ Affairs was consulted during the classification process, indicating that the decision to classify Operation Lilia as non-warlike service was made through bipartisan consultation and does not adversely impact business or competition.
Breaching the provisions of this Determination could lead to legal consequences for those who fail to comply with the amended standards of proof and compensation calculations. However, the Explanatory Statement does not specify particular offences, penalties, or civil/criminal consequences for non-compliance. The primary focus is on ensuring that veterans receive appropriate recognition and compensation for their service on Operation Lilia. Any failure to adhere to the Determination's provisions could result in disputes or legal challenges regarding the assessment and compensation of claims related to service on Operation Lilia.