EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 1)
This Determination amends Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 (the Principal Determination) made under paragraph 6(1)(b) 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)(b) 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 this 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 two new non-warlike operations 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)(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 amendment
Section 1 inserts item 26A into Schedule 1 of the Principal Determination which provides that from 21 December 2020 to 11 February 2021 service on support operations in Somalia is non-warlike service for the purposes of the definition of non-warlike service in paragraph 6(1)(b) of the Act.
Section 2 inserts item 28 into Schedule 1 of the Principal Determination which provides that from 18 June 2022 to 3 July 2022 service on ADF reconnaissance tasks and support to the Prime Minister’s visit in Ukraine is non-warlike service for the purposes of the definition of non-warlike service in paragraph 6(1)(b) 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)(b) of the
Military Rehabilitation and
Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 1) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 under the Military Rehabilitation and Compensation Act 2004. This amendment was enacted to address the need for updating the definition of non-warlike service to include more recent military operations. The determination ensures that certain operations are recognised as non-warlike, thus enabling a more beneficial standard of proof for veterans claiming compensation for injuries, diseases, or deaths related to these operations. By adding specific operations and timeframes to the schedule of non-warlike service, the amendment aims to provide greater compensation to affected members of the Australian Defence Force. This amendment is made in accordance with subsection 33(3) of the Acts Interpretation Act 1901 and is subject to the interpretation principles within that Act, ensuring a consistent and legally sound approach to the classification of military service.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (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 legislative instrument, which is subject to the Acts Interpretation Act 1901 and the Legislation Act 2003, is designed to clarify the scope of non-warlike service for the purposes of determining the benefits and compensation payable to veterans who have been injured, contracted a disease, or died in relation to their service. The Amendment Determination adds two new periods of non-warlike service to the list, thereby extending the types of service that can qualify for more beneficial standards of proof and compensation calculations. Specifically, service on support operations in Somalia from 21 December 2020 to 11 February 2021 and service on ADF reconnaissance tasks and support to the Prime Minister’s visit in Ukraine from 18 June 2022 to 3 July 2022 are now recognised as non-warlike service. These amendments ensure that no veteran or their legal personal representative is disadvantaged in their claims for death, injury, or disease related to these operations. The retrospective nature of the Determination is intended to protect the rights of veterans without imposing any prejudicial liabilities on entities or persons, except the Commonwealth.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 1) primarily focuses on amending the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. This amendment is made under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004 and is consistent with subsection 33(3) of the Acts Interpretation Act 1901. The primary purpose of this Determination is to expand the definition of non-warlike service by adding two new operations to the schedule of non-warlike activities (Section 4). Specifically, it includes service on support operations in Somalia from 21 December 2020 to 11 February 2021 (Schedule 1, Section 1) and service on ADF reconnaissance tasks and support to the Prime Minister’s visit in Ukraine from 18 June 2022 to 3 July 2022 (Schedule 1, Section 2).
The obligations imposed by this Act include ensuring that veterans who served in the newly defined non-warlike operations are assessed under a more beneficial standard of proof for claims related to their service. This beneficial standard is designed to take into account the unique risks and nature of military service. The Military Rehabilitation and Compensation Commission is responsible for applying this standard when assessing claims for injury, disease, or death, as well as when determining compensation amounts. The retrospective application of this Determination ensures that no member of the Australian Defence Force (ADF) or their legal personal representative is disadvantaged when making a claim for service-related injuries or diseases that occurred during the specified periods.
The Determination outlines specific consequences for non-compliance, although it does not explicitly state offences or penalties. The historical dates incorporated in this Amendment Determination do not adversely affect the rights of any person (other than the Commonwealth) or impose any liability on such a person. The legislation is exempt from disallowance and sunsetting, as per the relevant regulations. This means that the Determination is legally binding and will remain in effect unless otherwise repealed by a subsequent legislative instrument.