Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No. 2)

Administered by Department of Veterans' Affairs

Legislation au F2016L00049 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Military Rehabilitation and Compensation (Non-warlike Service)

Determination 2015 (No.2)

 

This Instrument revokes and replaces a previous determination 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 24 operations, referred to in Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.1) and add one new operation; Operation MANITOU in an amended area which is considered to be non-warlike under the auspices of the Act. This has been inserted as item 21 in Schedule 1 with subsequent items being renumbered. All other details remain unchanged.

 

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

 

Clause 2 provides that the Instrument commences in accordance with column 2 of the table, which is the day after this Instrument 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Clause 4 specifies that each instrument in the Schedule is amended or repealed as set out in the applicable items in the Schedule concerned.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 abbreviations and acronyms used throughout this 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 MANITOU in an amended area and adds an end date to service in the previous area of 13 May 2015. This amendment recognises the ADF operation to support maritime operations including counter-piracy operations in the described area of operations.

 

Schedule 2 repeals the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.1).

 

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.

 

Consultation

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

 

The Human Rights (Parliamentary Scrutiny) Act 2011 section 9(1) states that a legislative instrument subject to disallowance requires a Statement of Compatibility to be prepared. Though this Determination is not subject to disallowance it 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 24 operations, referred to in Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.1)

 

  • add one new operation, Operation MANITOU in an amended area 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).

 

This Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.2) establishes that service provided by ADF members on Operation MANITOU in an amended area, is non-warlike service for the purposes of paragraph 6(1)(b) of the Act. Operation MANITOU, an operation described in Schedule 1, is a maritime operation, including counter-piracy operation.

 

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. 2) was enacted to address the need for a revised list of operations considered non-warlike service under the Military Rehabilitation and Compensation Act 2004. This determination, introduced by the Australian Government, revokes the previous list of operations and introduces a new operation, Operation MANITOU in an amended area, while maintaining all other details. The objective of this legislation is to ensure that the nature of service performed by members of the Australian Defence Force is accurately reflected in the benefits they may be eligible for if they suffer injury or illness due to their service. This is achieved by determining whether the service is warlike or non-warlike, which subsequently influences the level and type of benefits provided. The determination is compatible with human rights, as the limitations it imposes on personal information and healthcare providers are deemed reasonable, necessary, and proportionate to the special needs arising from members' injuries or illnesses.

Scope and Application

This legislative instrument, the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.2), pertains to the Military Rehabilitation and Compensation Act 2004. It applies specifically to Australian Defence Force (ADF) members who may require special assistance and support if they become ill or injured in the course of non-warlike duty. This Determination classifies certain military operations as non-warlike service for the purposes of determining eligibility for military rehabilitation and compensation benefits. It specifically adds Operation MANITOU in an amended area as non-warlike service, thereby expanding the list of operations previously defined in a related determination. The retrospective application of this instrument ensures that no ADF member is disadvantaged in claiming for death, injury, or disease that may have occurred before the determination is registered, while it does not affect the rights of any other persons nor impose liabilities on anyone other than the Commonwealth in respect of actions taken prior to its registration. The scope of this Determination is national, as it falls under the Commonwealth's legislative authority, and it applies to ADF members who serve in operations designated as non-warlike. The Determination does not impose any new liabilities or disadvantage any persons other than the Commonwealth in relation to actions taken before its registration. Although it is exempt from disallowance and sunsetting, it is compatible with human rights as any limitations on rights are deemed reasonable, necessary, and proportionate. The Determination is subject to bipartisan consultation through the Government and does not impact business or competition.

Key Provisions

The Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.2) (the Determination) amends the definition of non-warlike service under the Military Rehabilitation and Compensation Act 2004 (the Act) by including Operation MANITOU in an amended area as non-warlike service (sections 1 and 6). This amendment, as noted in Schedule 1, reflects the ADF's maritime operations, including counter-piracy operations, and adjusts the end date for service in the previous area to 13 May 2015. The Determination revokes the previous list of operations outlined in the Military Rehabilitation and Compensation (Non-warlike Service) Determination 2015 (No.1) and incorporates this new operation to ensure that ADF members are correctly classified for the purpose of compensation and rehabilitation benefits. The Determination imposes several obligations on ADF members, primarily in ensuring that their service is accurately classified as non-warlike for the purposes of eligibility for benefits under the Act. It mandates that service in Operation MANITOU, as amended, must be recognised as non-warlike, which could affect the type and level of rehabilitation and compensation a member may receive in the event of injury or illness arising from their service. The retrospective application of this Determination ensures that no ADF member is disadvantaged in claiming for death, injury, or disease that may have occurred before the Determination's registration on the Federal Register of Legislative Instruments. In terms of consequences for breach, the Determination does not explicitly outline specific offences or penalties for non-compliance. However, any failure to correctly classify service as non-warlike could potentially result in ADF members not receiving the appropriate level of rehabilitation and compensation benefits to which they are entitled. The Determination ensures that any such misclassification does not disadvantage the ADF member, thereby maintaining the integrity and purpose of the Act in providing necessary support to those who have been injured or fallen ill during their service. The Determination is exempt from disallowance and sunsetting, meaning it does not require parliamentary approval to be enacted and is not subject to automatic review or expiry. This legislative exemption underscores the importance of the Determination in maintaining the operational integrity of the Act. Furthermore, the Determination is compatible with human rights, ensuring that any limitations on rights, such as the right to health and social security, are reasonable, necessary, and proportionate in providing additional support to ADF members who have been injured or fallen ill during their service.

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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.