EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike service) Determination 2007/1
For the avoidance of doubt, this Determination does not affect the operation of the previous Military Rehabilitation and Compensation (non-warlike service) Determination 2006/2, 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 non-warlike service for the purposes of the Act.
The purpose of this Determination is to declare service with the Australian Defence Force in support of the Australian whole-of-Government operation to enhance international peace and security, on OPERATION VIGILANCE, is non-warlike service for the purpose of the Act.
Clause 1 of this Determination sets out the manner in which this Determination may be cited.
Clause 2 of this Determination confirms that the operation of the previous Military Rehabilitation and Compensation (non-warlike service) Determination 2006/2 is not affected by this Determination.
Clause 3 of this Determination provides that the Determination is taken to have commenced on 1 July 2006.
Clause 4 specifies that service in an operation described in the Schedule is non-warlike service, for the purposes of paragraph 6 (1) (b) of the Act.
The Schedule specifies the Australian Defence Force support of the Australian whole-of-Government operation to enhance international peace and security, OPERATION VIGILANCE 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.
This Determination is exempt from disallowance pursuant to item 6A of Schedule 2 of the Legislative Instruments Regulations 2004 (the Regulations) and is also exempt from sunsetting pursuant to item 3A of Schedule 3 of the Regulations.
Consultation was considered inappropriate and unnecessary pursuant to section 18 of the LIA because the Determination relates to the service of members of the ADF.
Authority: Paragraph 6 (1) (b) of the Military Rehabilitation and Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2007/1 was enacted in 2007 to address a gap in the existing framework by providing clarity on the status of certain Defence Force operations under the Military Rehabilitation and Compensation Act 2004. This Determination was made by the relevant authority under paragraph 6(1)(b) of the Act and aims to ensure that service in specific operations is classified as non-warlike service, thereby clarifying eligibility for compensation and rehabilitation benefits. The policy objective of this Determination is to support Australian Defence Force members by explicitly stating that their service in designated operations, such as OPERATION VIGILANCE, is considered non-warlike service, thereby ensuring they receive appropriate benefits without undue delay. The Determination was issued to avoid any disadvantage to members who may have commenced service on the operation prior to the formal enactment of the legislation.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2007/1 applies to members of the Australian Defence Force (ADF) who serve in support of the Australian whole-of-Government operation to enhance international peace and security, referred to as OPERATION VIGILANCE. The Determination clarifies that such service is considered non-warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004. The Act itself provides the framework for determining what constitutes non-warlike service, with the Defence Minister having the authority to make such determinations in writing. This Determination is specifically aimed at ensuring that ADF members who are involved in OPERATION VIGILANCE are eligible for military rehabilitation and compensation under the Act, without affecting the operation of previous related determinations or imposing any new liabilities on persons other than the Commonwealth. The Determination commenced on 1 July 2006, with a retrospective application to cover any claims related to injuries or diseases that occurred prior to the registration of the instrument.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike service) Determination 2007/1 provides clarification and specific provisions under the Military Rehabilitation and Compensation Act 2004. Section 4 of the Determination specifies that service in an operation described in the Schedule is considered non-warlike service for the purposes of the Act. The Schedule explicitly lists the Australian Defence Force support of the Australian whole-of-Government operation to enhance international peace and security, OPERATION VIGILANCE, thereby making service on this operation non-warlike service under the Act. Clause 3 ensures that the Determination takes effect from 1 July 2006, which is a retrospective commencement date designed to prevent any Australian Defence Force member from being disadvantaged when claiming for death, injury, or disease that occurred between their commencement of duty on the operation and the registration date of this instrument.
The Determination imposes certain obligations and requirements on parties governed by the Act. For instance, it clarifies that the operation of the previous Military Rehabilitation and Compensation (non-warlike service) Determination 2006/2 remains unaffected by this Determination, as stated in Clause 2. This is crucial for ensuring continuity and legal certainty for all parties involved. Furthermore, the retrospective commencement date specified in Clause 3 aims to protect ADF members' rights by not disadvantaging them in any claims related to the period before the Determination's registration. The Determination also stipulates that it does not affect the rights of any persons other than the Commonwealth, nor does it impose liabilities on any parties other than the Commonwealth in respect of actions taken before its registration.
In terms of offences, penalties, or consequences for breaches, the Determination does not explicitly outline these in the provided text. However, under the Military Rehabilitation and Compensation Act 2004, there are provisions for penalties related to fraudulent claims or misrepresentation of facts in applications for compensation. While the specific penalties are not detailed in the Determination, they can be substantial, including fines and imprisonment for serious offences, as stipulated under the broader legislative framework. The Determination itself is exempt from disallowance and sunsetting, reinforcing its binding nature and long-term applicability.