EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Non-warlike Service)
Determination 2011 (No. 1)
This Determination revokes and replaces previous determinations made under paragraph 6 (1) (b) of the Military Rehabilitation and Compensation Act 2004 (the Act). Paragraph 6 (1) (b) defines non-warlike service as meaning service with the Australian Defence Force (the 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 detail the fifteen operations which are considered to be non-warlike under the auspices of the Act.
Clause 1 sets out the manner in which the Determination may be cited.
Clause 2 provides that the Determination commences on the day after it is registered.
Clause 3 revokes the Military Rehabilitation and Compensation Determination (Non-warlike Service) 2008/1.
Clause 4 makes clear the definition of an acronym used throughout the Determination.
Clause 5 specifies that service in an operation described in Schedule 1 is non-warlike for the purposes of paragraph 6 (1) (b) of the Act.
Schedule 1 is amended by:
- The inclusion of an end date for Item 6, Operation PALADIN.
- Inserting a new Item 7 that describes an amended area of operations for a specified period.
- Inserting a new Item 8 that provides a new commencement date for the previously described area of operations.
- Item numbers for previously recognised operations from Military Rehabilitation and Compensation Determination (Non-warlike Service) 2008/1 have been renumbered to reflect the inclusion of new Items 7 and 8.
These amendment recognises Operation PALADIN, in the described area of operation for the specified period, as non-warlike for the purposes of paragraph 6(1)(a) of the Act.
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 commences.
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.
The Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs were consulted during the reclassification 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) Determination 2011 (No. 1) was enacted to update the definition of non-warlike service under the Military Rehabilitation and Compensation Act 2004. This Act, passed by the Australian Parliament, aims to provide rehabilitation and compensation to members of the Australian Defence Force for injuries or illnesses incurred during their service. The 2011 Determination serves to revoke and replace the previous Military Rehabilitation and Compensation Determination (Non-warlike Service) 2008/1, thereby providing clarity and specificity regarding which operations are considered non-warlike. The policy objective of this Determination is to ensure that service in operations defined as non-warlike is properly recognised and compensated under the Act, without disadvantaging individuals or imposing new liabilities. The enacting authority for this Determination is provided under paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004.
Scope and Application
The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2011 (No. 1) applies to the classification of certain military operations as non-warlike service under the Military Rehabilitation and Compensation Act 2004. It is pertinent to individuals who have served in the Australian Defence Force (ADF) in operations deemed non-warlike for the purposes of the Act. The Determination specifies fifteen operations that fall under this classification, with particular emphasis on the reclassification of Operation PALADIN, including its area of operation and specified period. This Determination has a national jurisdictional reach as it operates under the Commonwealth's legislative framework. It does not disadvantage any persons other than the Commonwealth or impose liabilities on entities other than the Commonwealth concerning actions taken before its commencement. Notably, this Determination is exempt from disallowance and sunsetting provisions under the Legislative Instruments Regulations 2004. The creation and amendments to the Determination were the result of consultations between the Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs, ensuring that the reclassification process is bipartisan and does not impact business or competition.
Key Provisions
The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2011 (No. 1) provides specific definitions and details regarding non-warlike service under the Military Rehabilitation and Compensation Act 2004 (section 6(1)(b)). This Determination specifies which operations are considered non-warlike, thereby affecting the eligibility of military personnel for certain rehabilitation and compensation benefits. The main operative sections include Clause 5, which identifies the operations recognised as non-warlike, and Schedule 1, which lists these operations with specific details such as areas and time periods. For example, Clause 5 states that service in operations described in Schedule 1 is considered non-warlike, while Schedule 1 itself details specific operations such as Operation PALADIN and includes amendments such as end dates and new areas of operations.
The obligations imposed by this Determination primarily concern the Defence Minister and the Australian Defence Force (ADF). The Defence Minister must ensure that the list of non-warlike operations is accurate and up-to-date, as outlined in Clause 5 and Schedule 1. The ADF must also adhere to these definitions when assessing the eligibility of its personnel for rehabilitation and compensation benefits. The Determination requires that all personnel serving in the listed operations be treated according to the criteria set out in the Act.
There are no direct offences, penalties, or consequences for breach specified within this Determination itself. However, any failure to correctly apply the provisions of this Determination could indirectly lead to disputes over eligibility for rehabilitation and compensation benefits. Such disputes could result in legal challenges under the Military Rehabilitation and Compensation Act 2004. The Act itself does not specify maximum penalties for breaches of this Determination but would typically involve judicial review or other legal remedies for non-compliance.
This Determination also ensures that no rights of any persons other than the Commonwealth are adversely affected and does not impose new liabilities on anyone except the Commonwealth itself. It is exempt from disallowance and sunsetting provisions under the Legislative Instruments Regulations 2004, meaning it does not require parliamentary approval and does not automatically expire after a certain period. The consultation process involving the Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs ensures that the reclassification of operations as non-warlike is done through bipartisan consultation, maintaining political neutrality in the process.