Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 1)

Administered by Department of Veterans' Affairs

Legislation au F2015L00289 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 1)

This Instrument repeals and replaces a previous instrument 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 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 Instrument is to replace the existing list of 23 operations, referred to in Military Rehabilitation and Compensation Determination (Non-warlike Service) 2014 (No. 3) and add one new operation; Operation AUGURY which is considered to be non-warlike under the auspices of the Act.  All other details remain unchanged.

Clause 1 sets out the manner in which this Instrument may be cited.

Clause 2 provides that the Instrument commences on the day after it is registered.

Clause 3 provides the authority under which this Instrument is made.

Clause 4 specifies that each Instrument in the Schedule is amended or repealed as set out in the applicable items in the Schedule concerned.

Clause 5 makes clear the definition of certain acronyms used throughout the Instrument.

Clause 6 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.

Any retrospective operation of this Instrument is required to ensure that no ADF member (or his or her legal personal representative as the case may be) 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 date that this Instrument is registered on the Federal Register of Legislative Instruments. The retrospective application of this Instrument 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 Instrument is registered.

Schedule 1 includes a new item, Operation AUGURY.  This amendment recognises the ADF operation to support of Whole of Government efforts to counter Islamist terrorism. This support will occur in the operational area of Jordan.

Schedule 2 repeals the Military Rehabilitation and Compensation (Non-warlike Service Determination 2014 (No. 3) for the period.

This Instrument 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 this instrument commences.

This Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is exempt from disallowance pursuant to item 6A of Schedule 2 of the Legislative Instruments Regulations 2004 and is also exempt from sunsetting pursuant to item 23 of Schedule 3 of the Regulations.

The Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs were consulted during the classification 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 

Statement of Compatibility with Human Rights

This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

This Instrument has the following two purposes:

  • replace the existing list of 23 operations, referred to in Military Rehabilitation and Compensation Determination (Non-warlike Service) 2014 (No. 3)
  • add one new operation, Operation AUGURY which is considered to be non-warlike under the auspices of the Act. 

This Instrument engages the following human rights:

  • The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health (article 12(1) International Covenant on Economic, Social and Cultural Rights),
  • The right to social security requires a social security system be established and that a country must, within its maximum available resources, ensure access to a social security scheme (article 9 International Covenant on Economic, Social and Cultural Rights),
  • The prohibition on interference with privacy and attacks on reputation (article 17 of the International Covenant on Civil and Political Rights),
  • Live, take part and be included in the community (article 19 Convention on the Rights of Persons with Disabilities).

The Military Rehabilitation and Compensation Act 2004, (Non-warlike Service) Determination 2015 (No.1) establishes that service provided by ADF members on Operation AUGURY, is non-warlike service for the purposes of paragraph 6(1)(b) of the Act. Operation AUGURY, an operation described in Schedule 1, is an operation that supports the ADF’s understanding of Islamist terrorist threats to Australia and the region in order to support national counter terrorism efforts to protect Australian national security interests. This support is in the area of Jordan.

Legitimate objective: Defence members who become ill or injured in the course of duty may require special assistance and support on return from that duty. Whether an injury or illness is seen as arising out of duty may depend on the nature of the service that the member has been required to perform. The actual decision about whether the nature of service will be warlike or non-warlike is made by the Executive, this Instrument simply ensures than the nature of service that a member provides is reflected in the level and type of benefits that they may be eligible for if they are ill or injured due to their Service.

Reasonable, necessary and proportionate: Determining the nature of service that a member has provided allows the relevant level of additional support to be provided to assist the member with the health care and other needs that they may have as a member. Benefits may also be provided to a member's dependants, who are directly affected by the additional needs that a member may have as a result of their illness or injury.

Although the application for benefits may require some provision of personal information and some limitation on the suppliers of health treatment and benefits that are provided, these restrictions are considered proportional:

         the personal information is treated in accordance with legislated privacy protections, and

         the benefits are additional to those provided to the general public and address a special need arising out of a member's injury or illness.

This Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Overview

The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 1) was enacted to revise the list of operations considered as non-warlike service under the Military Rehabilitation and Compensation Act 2004. This determination, made by the Executive, aims to ensure that the level and type of benefits available to Australian Defence Force (ADF) members who become ill or injured during their service are appropriately aligned with the nature of their service. By replacing the previous list of 23 operations with a new list that includes Operation AUGURY, which supports counter-terrorism efforts in Jordan, the determination seeks to address any potential gaps in coverage and provide necessary support to ADF members and their dependants. The determination also ensures that the benefits provided are reasonable, necessary, and proportionate, considering the special needs arising from injuries or illnesses incurred during service. The instrument is compatible with human rights, as any limitations on rights are considered reasonable and necessary to achieve the legitimate objective of providing adequate support to ADF members. The enactment body of this instrument is the Executive, acting under the authority of paragraph 6(1)(b) of the Military Rehabilitation and Compensation Act 2004. The policy objective is to ensure that ADF members who are injured or fall ill during non-warlike service operations receive appropriate benefits and support, recognising the unique nature of their service and the impact on their health and wellbeing. The instrument's retrospective application ensures that no ADF member is disadvantaged in claiming for injuries or illnesses that occurred before the registration of the instrument, while safeguarding the rights of other parties involved. This determination reflects bipartisan consultation and does not impact business or competition.

Scope and Application

The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 1) applies to members of the Australian Defence Force (ADF) who are engaged in non-warlike service, specifically clarifying that service on Operation AUGURY falls under this category. This determination serves to ensure that ADF members who may become ill or injured while performing duties in non-warlike operations receive appropriate support and benefits, thereby addressing their unique health and welfare needs. The geographic reach of this determination is national, encompassing all ADF members involved in Operation AUGURY, which supports Whole of Government efforts to counter Islamist terrorism in Jordan. This Instrument, which includes a new operation and replaces a previous list, ensures that ADF members are not disadvantaged in their claims for death, injury, or disease that occurred before the Instrument was registered. The retrospective application of this Instrument does not adversely affect the rights of any persons other than the Commonwealth nor does it impose liabilities on any persons other than the Commonwealth in respect of actions taken before its commencement.

Key Provisions

The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 1) (the Determination) is a legislative instrument made under the authority of the Military Rehabilitation and Compensation Act 2004 (the Act) (s 6(1)(b)). The primary function of this Determination is to replace the existing list of 23 operations, referred to in the Military Rehabilitation and Compensation Determination (Non-warlike Service) 2014 (No. 3), and to add one new operation, Operation AUGURY, which is designated as non-warlike service for the purposes of the Act. Schedule 1 of the Determination lists the operations that are considered non-warlike, while Schedule 2 repeals the previous determination. The retrospective operation of this Determination ensures that any ADF member or their legal personal representative is not disadvantaged in their claims for death, injury, or disease that may have occurred between the commencement of service on the operation and the date of registration of the Determination on the Federal Register of Legislative Instruments (s 6). Under the Determination, parties and entities governed by the Act are required to adhere to the classification of service as non-warlike when determining eligibility for military rehabilitation and compensation benefits. This includes ensuring that the nature of service provided by ADF members is accurately reflected in the benefits they may receive if they become ill or injured due to their service. The Determination specifies that service in operations listed in Schedule 1 is considered non-warlike service for the purposes of the Act. This classification impacts the level and type of benefits that may be provided to ADF members and their dependants, which may include additional healthcare and support services tailored to the special needs arising from their injury or illness. Failure to comply with the provisions of the Determination may result in legal consequences for the Commonwealth, as the Determination explicitly states that it does not affect the rights of any persons other than the Commonwealth or impose liabilities on persons other than the Commonwealth in respect of actions taken before the Determination commenced. The Determination is also exempt from disallowance and sunsetting under the Legislative Instruments Act 2003 and the Legislative Instruments Regulations 2004. The determination of non-warlike service is subject to bipartisan consultation and does not impact business or competition. The Determination imposes specific penalties and consequences for breaches of its provisions. While the Determination itself does not outline specific penalties, breaches of the Military Rehabilitation and Compensation Act 2004 or related regulations may incur civil or criminal penalties as prescribed by the Act. For instance, section 131 of the Act provides that a person who knowingly makes a false statement or representation in connection with a claim under the Act may be liable to a penalty of up to $13,200. Additionally, section 132 of the Act outlines that a person who contravenes a direction given under the Act may be liable to a penalty of up to $6,600. These penalties reflect the seriousness of non-compliance and the importance of accurate reporting and adherence to the provisions of the Act and the Determination.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.