EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Amendment Determination (No. 3) 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 (AI Act). This instrument is also subject to the interpretation principles in the AI 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 include 1 new non-warlike operation of Operation INHERENT RESOLVE.
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.
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.
Schedule 1—Non-warlike service amendment
Item 1 inserts a new item 32 into the table at section 1 of Schedule 1 of the Principal Determination which provides that from 13 February 2025 service in support of US operations against ISIS 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 and support the amendments made by this Determination.
The rule maker was satisfied that further external consultation was not required.
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. 3) 2026 was enacted to address a gap in the existing framework by amending the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019 under the Military Rehabilitation and Compensation Act 2004. This legislative instrument, made by the Defence Minister in accordance with the authority provided by the Act and the Acts Interpretation Act 1901, introduces a new non-warlike operation, namely service in support of US operations against ISIS from 13 February 2025, to be included in the definition of non-warlike service. This amendment aims to ensure that veterans who are injured or contract a disease in relation to this operation receive a more beneficial standard of proof and compensation compared to those injured during peacetime service, reflecting the unique nature and risks associated with military operations. The Department of Veterans’ Affairs has been consulted and supports these amendments.
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. It applies to all Australian Defence Force members who are injured or contract a disease relating to non-warlike service, specifically adding Operation INHERENT RESOLVE as a new non-warlike operation from 13 February 2025. The aim is to ensure ADF members receive a more beneficial standard of proof when assessing claims for liability of injuries, diseases, or death during non-warlike operations, resulting in potentially greater compensation amounts. The Determination commences on the day after registration and has authority under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004. Importantly, its retrospective application prevents any ADF member from being disadvantaged in their claims for death, injury, or disease that occurred prior to the commencement of this Determination. The Department of Veterans’ Affairs supports these amendments, and no further external consultation was deemed necessary by the rule maker.
Key Provisions
This Determination primarily concerns amendments to the definition of non-warlike service under the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2019. Section 2 indicates that the Determination commences on the day after its registration. Section 3 specifies the authority under which this amendment is made, citing paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004. Section 4 outlines that the amendments are to be applied as specified in Schedule 1 of this Determination, which involves the addition of a new non-warlike operation to the list of such operations.
The obligations imposed by this Amendment Determination on parties or entities include ensuring that ADF members who serve in non-warlike operations are assessed under the more beneficial standard of proof when claiming for injuries, diseases, or death related to their service. This includes the application of a compensation factor for impairments and lifestyle ratings, which considers the unique risks associated with non-warlike service. The Department of Veterans' Affairs is tasked with ensuring that these amendments are implemented correctly, facilitating fair assessments and compensation for affected ADF members.
Breaching the provisions of this Determination could result in legal consequences, although the specific offences and penalties are not detailed within this text. However, generally, under the Military Rehabilitation and Compensation Act 2004, failure to comply with the provisions of the Act or its determinations may result in civil or criminal penalties, including fines and potential imprisonment. The exact penalties would depend on the nature and severity of the breach, but they are intended to enforce compliance and protect the rights of ADF members. The Determination also explicitly states that its retrospective application is designed to prevent any ADF member from being disadvantaged in their claims for injuries, diseases, or death occurring before the commencement of this Amendment Determination.