EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 2)
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. Members with non-warlike service can also receive treatment for any malignant neoplasms and pulmonary tuberculosis, whether or not they are related to service.
The purpose of this Determination is to add 2 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 adds items 29 and 30 into the table at section 1 of Schedule 1 of the Principal Determination which provide the following.
- That on and after 13 October 2023 service supporting Operation BEECH is non-warlike service for the purposes of the definition of non-warlike service in paragraph 6(1)(b) of the Act.
- That on and after 15 February 2024 service supporting Operation HYDRANTH is a non-warlike operation 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. 2) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, as made under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004. This amendment is intended to address gaps in the classification of certain military operations as non-warlike, thereby ensuring that veterans who served in these operations can access more beneficial standards of proof and compensation for injuries, diseases, or deaths related to their service. The purpose of this Determination is to include two additional operations, Operation BEECH and Operation HYDRANTH, in the list of non-warlike operations, which will allow for the retrospective application of more favourable compensation and treatment provisions to affected veterans. This amendment was enacted by the relevant legislature, subject to the interpretation principles in the Acts Interpretation Act 1901, and is exempt from disallowance and sunsetting provisions under the Legislation (Exemptions and Other Matters) Regulation 2015.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 2) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 under the Military Rehabilitation and Compensation Act 2004. This Determination applies to service members of the Australian Defence Force (ADF) who have participated in non-warlike operations, specifically adding two new operations—Operation BEECH and Operation HYDRANTH—to the table that identifies the nature, area, and period of non-warlike service. This amendment ensures that ADF members who have served in these operations are eligible for more beneficial standards of proof when claiming for injuries, diseases, or deaths related to their service, as well as for compensation that reflects the unique risks associated with non-warlike operations. The Determination does not affect the rights of any person other than the Commonwealth and imposes no liabilities on them. The retrospective nature of this amendment ensures that no member is disadvantaged in their claims related to service performed prior to the commencement of this Determination. The scope of this Amendment Determination is limited to the Commonwealth jurisdiction and does not extend to state or territory laws, nor does it impact on business or competition.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination 2024 (No. 2) amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, which was established under section 6(1)(b) of the Military Rehabilitation and Compensation Act 2004 (section 4). This Amendment Determination specifically alters the definition of non-warlike service by adding two new operations to the list: Operation BEECH, effective from 13 October 2023, and Operation HYDRANTH, effective from 15 February 2024. This amendment is intended to ensure that service in these operations is recognised as non-warlike, thus allowing for a more beneficial standard of proof when assessing claims related to injuries, diseases, or deaths occurring during these operations.
The obligations imposed by this Amendment Determination on parties and entities include ensuring that the Military Rehabilitation and Compensation Commission recognises service in these specified operations as non-warlike. This recognition allows for the application of a more favourable standard of proof in liability assessments, meaning that veterans who served in these operations can claim more easily for injuries, diseases, or deaths related to their service. Furthermore, it mandates that these operations be treated with the same benefits as other non-warlike operations, including the application of a service differential in the calculation of compensation for permanent impairment and lifestyle ratings. Additionally, members who served in these operations can receive treatment for malignant neoplasms and pulmonary tuberculosis, regardless of whether these conditions are service-related.
Breaching the provisions of this Amendment Determination could lead to significant consequences. Although the Explanatory Statement does not specify particular offences, penalties, or consequences for non-compliance, the general framework of the Military Rehabilitation and Compensation Act 2004 provides that breaches of its provisions can result in both civil and criminal penalties. For example, under the Act, misleading or false statements made for the purpose of obtaining compensation could lead to criminal charges, with potential penalties including substantial fines or imprisonment. Additionally, failing to comply with the Act's provisions could result in the denial of compensation claims or the requirement to repay any compensation already received under false pretences. It is also worth noting that the Act is subject to the principles of interpretation set out in the Acts Interpretation Act 1901, which could further influence the legal consequences of non-compliance.