EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike service) Determination 2005
This Determination revokes and replaces the Military Rehabilitation and Compensation (Non-warlike service) Determination 2004, made under paragraph 6 (1) (b) of the Military Rehabilitation and Compensation Act 2004 (the Act). 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 nonwarlike service for the purposes of the Act.
The purpose of this Determination is to replace the existing list of eight operations referred to in the earlier 2004 instrument and to add a ninth operation which determines that service with the United Nations Mission in Sudan, on OPERATION AZURE, is non-warlike service for the purpose of the Act. The other operations referred to in the earlier instrument remain unchanged.
Clause 1 of this Determination sets out the manner in which this Determination may be cited.
Clause 2 of this Determination revokes the Military Rehabilitation and Compensation (Non-warlike service) Determination 2004 and provides that this Determination replaces that earlier instrument.
Clause 3 of this Determination provides that the Determination commences on 10 April 2005, the day that members of the Australian Defence Force (ADF) begin non-warlike service in OPERATION AZURE.
Clause 4 specifies that service in an operation described in Schedule 1 is non-warlike service, for the purposes of paragraph 6 (1) (b) of the Act.
Schedule 1 is amended by the addition of item 9, which specifies the United Nations Mission in Sudan, OPERATION AZURE as an operation; service on it is therefore non-warlike service under the Act.
The retrospective commencement date is required to ensure no ADF member is disadvantaged if claiming for death, injury or disease that occurred between the period when they commenced duty on the operation and the date that this instrument is registered. The retrospective application of this Determination does not affect the rights of any persons (other than the Commonwealth) so as to disadvantage those persons nor does it impose liabilities (other than on the Commonwealth) in respect of anything done before the date the Determination is registered.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commences operation upon registration on the Federal Register of Legislative Instruments.
This Determination is exempt from disallowance pursuant to item 6A of Schedule 2 of the Legislative Instruments Regulations 2005 (the Regulations) and is also exempt from sunsetting pursuant to item 3A of Schedule 3 of the Regulations.
Authority: Paragraph 6 (1) (b) of the Military Rehabilitation and Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2005, enacted to address a gap in defining non-warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004, was introduced by the Australian Government and established under the authority of the Defence Minister. This Determination aims to update the existing list of non-warlike operations by replacing the Military Rehabilitation and Compensation (Non-warlike service) Determination 2004 with a revised list, which now includes the United Nations Mission in Sudan, OPERATION AZURE, as a non-warlike service operation. The objective of this Determination is to ensure that members of the Australian Defence Force who serve in specified operations are eligible for appropriate rehabilitation and compensation, clarifying their entitlements under the Act.
This legislative instrument, which comes into effect on 10 April 2005, the commencement date of ADF service in OPERATION AZURE, is registered and operates under the Legislative Instruments Act 2003. It is also exempt from disallowance and sunsetting provisions as per the Legislative Instruments Regulations 2005, ensuring its continued applicability and enforcement. The Determination provides a clear and updated framework for identifying non-warlike service operations, thereby facilitating the administration of rehabilitation and compensation benefits to affected personnel.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2005, which revokes and replaces the 2004 version, applies to members of the Australian Defence Force (ADF) who serve in operations determined to be non-warlike by the Defence Minister under the Military Rehabilitation and Compensation Act 2004. This includes service with the United Nations Mission in Sudan, specifically OPERATION AZURE, which is newly designated as non-warlike service. The Determination ensures that ADF members who serve in these operations are eligible for compensation under the Act for any death, injury, or disease that occurs during their service, even if it happens before the Determination is registered. This retroactive application ensures no ADF member is disadvantaged in their claims. The Determination is subject to the Legislative Instruments Act 2003, operates upon its registration, and is exempt from disallowance and sunsetting provisions under the Legislative Instruments Regulations 2005.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2005 introduces key changes to the existing legislation regarding non-warlike service, as defined under the Military Rehabilitation and Compensation Act 2004 (section 6(1)(b)). This Determination, effective from 10 April 2005, replaces the previous Military Rehabilitation and Compensation (Non-warlike service) Determination 2004 and introduces a ninth operation to the list of non-warlike services. Specifically, service with the United Nations Mission in Sudan, on OPERATION AZURE, is now recognised as non-warlike service under the Act (Clause 4 and Schedule 1).
The primary obligation under this Determination is for the Defence Minister to determine and list operations that qualify as non-warlike service. This involves identifying and documenting specific military operations that do not constitute warlike activities, ensuring that Defence Force members are aware of which services are covered under the Act. The addition of OPERATION AZURE to the list requires the Defence Minister to provide written confirmation of this classification.
Breaches of the provisions in this Determination may not directly impose criminal or civil penalties, but non-compliance could lead to significant repercussions for Defence Force members who might be ineligible for compensation if their service is incorrectly classified. The retrospective commencement date ensures that no member is disadvantaged if they claim for death, injury, or disease that occurred before the Determination was registered. The Determination is exempt from disallowance and sunsetting, meaning it remains in effect unless otherwise amended by subsequent legislation.