EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination (No. 1) 2026
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 amend the period of operation for the non-warlike operation in Libya.
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
Item 1 amends table item 25 of the table at section 1 of Schedule 1 of the Principal Determination to provide for the reopening of the operation in Libya. The table item was originally closed on 5 June 2019, but the operation has continued past those dates and needs to be reopened.
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 (No. 1) 2026 was enacted to amend the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. This legislative instrument, made under the authority of the Military Rehabilitation and Compensation Act 2004 and in accordance with the Acts Interpretation Act 1901, seeks to address the issue of extending the operational period for non-warlike service in Libya, which was originally closed on 5 June 2019. This amendment ensures that veterans and their representatives are not disadvantaged in claiming compensation for injuries or diseases related to their service. The purpose of this Determination is to provide a more beneficial standard of proof for assessing claims related to non-warlike service, ensuring that compensation outcomes are more favourable for affected members of the Australian Defence Force. This Determination was subject to consultation with the Department of Veterans’ Affairs and is exempt from disallowance and sunsetting as per the relevant regulations.
Scope and Application
This Determination amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019, made under the Military Rehabilitation and Compensation Act 2004, concerning the definition and classification of non-warlike service within the Australian Defence Force (ADF). The Act applies to ADF members, including veterans, who seek compensation for injuries, diseases, or deaths occurring during non-warlike service. The scope of this legislation extends to ADF members injured during the specified non-warlike operations, thereby ensuring that such members receive a more beneficial standard of proof and potentially higher compensation. The geographic reach of this Determination is national, as it pertains to operations conducted by Australian forces across various locations. However, the current amendment focuses specifically on the operation in Libya, adjusting the period for which the service is considered non-warlike. The Determination is exempt from disallowance and sunsetting, and it operates retrospectively to safeguard the rights of ADF members who may have incurred injuries or illnesses during the extended period of the Libya operation.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination (No. 1) 2026 amends the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 (Principal Determination) made under the Military Rehabilitation and Compensation Act 2004. Section 4 of this Determination specifies that the Principal Determination is amended or repealed as set out in the Schedule to this Determination. The primary amendment is the reopening of the operation in Libya, which was originally closed on 5 June 2019 but has continued past this date (Item 1, Schedule 1). This amendment allows the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing claims for veterans’ injuries, diseases, or deaths related to the non-warlike service in Libya, thereby ensuring that affected veterans receive appropriate compensation.
The obligations imposed by this Amendment Determination on the parties governed by it primarily involve ensuring that the Military Rehabilitation and Compensation Commission applies the correct standards of proof and compensation assessments for claims related to non-warlike service in Libya. Specifically, the Commission must reassess claims that were previously closed and apply the beneficial standard of proof when determining liability and compensation. This includes assessing permanent impairment and calculating compensation using the appropriate compensation factor and lifestyle rating, ensuring that affected veterans receive more favourable outcomes in terms of compensation compared to those who were injured in peacetime service.
Under this Determination, there are no specific offences or penalties outlined for breaches, as the focus is on amending the operational period for non-warlike service in Libya to ensure no ADF member is disadvantaged when claiming for death, injury, or disease. However, the retrospective application of this Determination ensures that any previously closed claims are reopened and reassessed appropriately. The Department of Veterans' Affairs were consulted during the classification process, indicating that decisions about the nature of service are subject to bipartisan consultation through government and do not impact business or competition.
This legislative instrument is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015 and from sunsetting under the same Regulations. The Authority for this Determination is provided by paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004, ensuring that it is valid and enforceable within the legislative framework. The Department of Veterans' Affairs' consultation underscores the bipartisan nature of these decisions and their non-impact on business or competition.