EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service) Determination 2008/1
For the avoidance of doubt, this Determination does not affect the operation of the previous Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/1, made under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004 (the Act).
This Determination revokes and replaces the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/2 (the 2007/2 Determination), made under paragraph 6 (1) (b) of the Act. Paragraph 6 (1) (b) of the Act defines non-warlike service as meaning service with the Australian Defence Force (ADF) 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 replace the existing list of twelve operations referred to in the 2007/2 Determination and to add a thirteenth operation which determines that service with the ADF in support of the ADF mission in Sudan, on Operation HEDGEROW, is non-warlike service for the purpose of the Act. The reference to the other operations in the 2007/2 Determination 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 2007/2 Determination and provides that this Determination replaces that earlier instrument and confirms that the operation of the previous Military Rehabilitation and Compensation (non-warlike service) Determination 2007/1 is not affected by this Determination.
Clause 3 of this Determination provides that the Determination commences on 28 July 2008, the day that members of the ADF were first approved to deploy on non-warlike service in Operation HEDGEROW.
Clause 4 specifies that service in the ADF mission in Sudan, Operation HEDGEROW, is non-warlike service under the Act.
The Schedule is amended by the addition of item 13, which specifies the ADF mission in Sudan, Operation HEDGEROW as an operation; service on it is therefore non-warlike service under the Act.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA) and is taken to have commenced on 28 July 2008.
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 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 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 2008/1 was enacted to address the need to update the list of operations that constitute non-warlike service under the Military Rehabilitation and Compensation Act 2004. This Determination, made by the relevant authority under the Act, aims to ensure that service in support of specific operations within the Australian Defence Force is accurately classified as non-warlike, thus affecting eligibility for compensation and rehabilitation benefits. The Determination revokes the previous Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/2 and introduces a new operation, namely service with the ADF in support of the ADF mission in Sudan, on Operation HEDGEROW, as non-warlike service. This update ensures that ADF members are appropriately compensated for their service without causing any disadvantage or affecting the rights of other persons.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2008 applies to service personnel within the Australian Defence Force (ADF) who are engaged in non-warlike service operations as defined by the Defence Minister under the Military Rehabilitation and Compensation Act 2004. This Determination specifically revokes and replaces the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/2, clarifying that service in twelve previously listed operations remains unaffected, while adding a thirteenth operation, the ADF mission in Sudan, Operation HEDGEROW, as a non-warlike service for the purposes of the Act. The scope of this Determination is national, encompassing all ADF members involved in the specified operations. The Determination also includes a retrospective commencement date to protect the rights of ADF members who might have incurred death, injury, or disease between the start of their deployment and the registration of this instrument, ensuring they are not disadvantaged. The Determination is exempt from disallowance and sunsetting provisions under the Legislative Instruments Act 2004.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2008/1 (the Determination) provides a list of operations that are classified as non-warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004 (the Act). Clause 4 of the Determination specifies that service in the Australian Defence Force (ADF) mission in Sudan, on Operation HEDGEROW, is considered non-warlike service (s.4). This Determination replaces the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/2, which contained a list of twelve operations, with the addition of Operation HEDGEROW as the thirteenth operation (s.2). The Determination does not affect the operation of the previous Military Rehabilitation and Compensation (Non-warlike Service) Determination 2007/1 (s.2).
Under the Act, non-warlike service is defined as service with the ADF that is determined in writing by the Defence Minister to be non-warlike service (s.6(1)(b)). The Determination imposes the obligation on the Defence Minister to classify certain ADF operations as non-warlike service. This classification is crucial because it affects the eligibility of ADF members for rehabilitation and compensation under the Act. The Determination ensures that ADF members who are injured or become ill while on Operation HEDGEROW are eligible for the same benefits as those injured or ill in other non-warlike operations.
There are no explicit offences, penalties, or civil/criminal consequences stated within the Determination itself for breach of its provisions. However, any failure to comply with the Act’s requirements regarding the classification of service as non-warlike could potentially lead to disputes over eligibility for rehabilitation and compensation. Such disputes would be addressed under the Act, which includes provisions for review and appeal. The Determination is designed to clarify and update the list of non-warlike operations to ensure consistent and fair treatment of ADF members under the Act.