Military Rehabilitation and Compensation (Special Assistance) Instrument 2026

EXPLANATORY STATEMENT

Military Rehabilitation and Compensation (Special Assistance) Instrument 2026

EMPOWERING PROVISION

The Military Rehabilitation and Compensation Commission makes this instrument under section 424 of the Military Rehabilitation and Compensation Act 2004 (the Act).

PURPOSE

The Military Rehabilitation and Compensation (Special Assistance) Instrument 2026 (the instrument) repeals the Military Rehabilitation and Compensation (Special Assistance) Instrument 2023 (the repealed instrument). The instrument prescribes the circumstances in which dependants and former dependants of veterans may be granted special assistance, where they would otherwise miss out on compensation or benefits due to mental illness or injury.

BACKGROUND

On 1 July 2026, the Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2025 (the VETS Act) closed the Veterans’ Entitlements Act 1986 (the VEA) to new compensation claims under Part II and Part IV of the VEA. All new compensation claims, including claims for compensation by dependants and former dependants, are now under the Act moving forward.

To ensure a continuation of the policy enabled by the repealed instrument and support the consolidation of the veterans’ portfolio legislation under a single, ongoing Act, the VETS Act made other changes to the Act, including repealing subsection 424(2). From 1 July 2026, this removes the prohibition on the Repatriation Commission (the Commission) to grant special assistance by way of the instrument, to dependants or former dependants under the VEA. The repealed instrument was required to be remade to accommodate these changes which are administrative in nature. Therefore, in making the instrument, a minor amendment has been made to substitute references to ‘subsection 424(1)’ with ‘section 424’ in sections 6 and 7 of the instrument. No other changes have been made that would alter the policy or outcomes for dependants of veterans.

OVERVIEW

Section 424 of the Act allows the Commission, on its discretion, to grant special assistance to a dependant or former dependant of a veteran in prescribed circumstances. The prescribed circumstances are those in which special assistance may be granted to dependants or former dependants, whose inability to receive full-time education due to a diagnosed mental illness or mental injury, meant they were not entitled to compensation and benefits because they didn’t meet the relevant definitions. The special assistance may include weekly compensation payments, and fully funded medical treatment for all conditions. The instrument specifies two circumstances to ensure dependants and former dependants are not disadvantaged and can be provided special assistance at the Commission’s discretion. These are:

Eligible Young Person

• Dependants and former dependants whose inability to receive full-time education due to a diagnosed mental illness or mental injury, would ordinarily mean they do not meet the definition of ‘eligible young person’ as defined under the Act. The instrument allows the Commission to prescribe that the dependant or former dependant is an ‘eligible young person’ in this situation.

Child

• Dependants and former dependants whose inability to receive full-time education due to a diagnosed mental illness or mental injury, would ordinarily mean they do not meet the definition of ‘child’ as defined under the VEA. The instrument allows the Commission to prescribe that the dependant or former dependant is a ‘child’ in this situation.

MERITS REVIEW

Under section 424 of the Act, the Commission is empowered to make discretionary decisions to grant special assistance to dependants or former dependants of veterans. As a decision will, or is likely to, affect the interest of a person (in particular, an adverse decision), independent merits review is available.

Chapter 8 of the Act provides that certain determinations can be reviewed by the Veterans’ Review Board (the Board) and the Administrative Review Tribunal (the ART).  Broadly, a claimant who has received notice of an original determination may request that the Board review the determination. If dissatisfied with the determination on review, the claimant can apply to the ART for review of the reviewable determination.

Section 345 of the Act defines original determinations and reviewable determinations for the purposes of Chapter 8 of the Act.

Under subsection 345(1) of the Act, an ‘original determination’ means a determination of the Commission under the Act that is not specified in subsection 345(2), or a determination of the Chief of the Defence Force under the Act that relates to rehabilitation for a person if the Chief of the Defence Force is the rehabilitation authority of the person.

Under subsection 345(1) of the Act, a ‘reviewable determination’ means a determination under subsection 350(2) revoking, confirming or varying an original determination, a determination that has been varied under subsection 348(1), a determination under Part 4 by the Board on review of an original determination (except a determination that has been varied under subsection 348(1)), or a decision by the Principal Member under subsection 353C(4), (7) or (9) to dismiss the application for review.

Relevantly, a decision of the Commission under section 424 of the Act to provide special assistance to eligible persons in accordance with the prescribed circumstances set out in sections 6 and 7 of the instrument is not listed in subsection 345(2) of the Act. Therefore, a determination of the Commission made under section 424 of the Act is an ‘original determination’ for the purposes of subsection 345(1) of the Act.

Under section 352A of the Act, a claimant may make an application to the Board for review of an original determination. Section 352B of the Act provides that an application for review must be in writing and is given to the Board within 12 months after the day on which notice of the original determination was given to the person making the application.

Where an original determination has been reviewed by the Board in accordance with Part 4 of Chapter 8 of the Act, that determination is considered a reviewable determination under subsection 345(1) of the Act. Under section 354 of the Act, an application may be made to the ART for a review of a ‘reviewable decision’.

EXPLANATION OF PROVISIONS

Section 1 states the name of the instrument.

Section 2 provides that the instrument commences on 1 July 2026.

Section 3 sets out the authority for the Military Rehabilitation and Compensation Commission making the instrument, namely section 424 of the Act.

Section 4 repeals the repealed instrument.

Section 5 provides the definitions used in the instrument. Relevantly, this section provides the definition of ‘specified condition’ for the purposes of sections 6 and 7 of the instrument.

Section 6 prescribes the circumstances where persons unable to meet the eligible young person definition in subsection 4(1) of the VEA may be granted special assistance. It is intended that the Commission may grant special assistance under section 424 of the Act in circumstances where a person:

1.    is or was a dependant of a member, former member or deceased member; and
2.    has been diagnosed with a condition by a medical practitioner, that meets the definition of ‘specified condition’; and
3.    meets subparagraphs (b)(i) and (iii) of the definition of ‘eligible young person’ in subsection 5(1) of the Act; and
4.    is unable to meet subparagraph (b)(ii) of that definition solely because the specified condition prevents the dependant from receiving full‑time education at a school, college, university or other educational institution; and
5.    would have been entitled to compensation or another benefit under the Act, or would be entitled to such compensation or benefit if a claim was made in respect of the person apart from the circumstance mentioned in paragraph (d).

Section 7 prescribes the circumstances where a person unable to meet the ‘child’ definition in subsection 5F(1) of the VEA may be granted special assistance. It is intended that the Commission may grant special assistance under section 424 of the Act in circumstances where a person:

1.    is or was a dependant of a member, former member or deceased member; and
2.    has been diagnosed with a condition by a medical practitioner, that meets the definition of ‘specified condition’; and
3.    meets subparagraph (b)(i) of the definition of ‘child’ in subsection 5F(1) of the VEA; and
4.    does not meet subparagraph (b)(ii) of that definition solely because the specified condition prevents the dependant from receiving full‑time education at a school, college or university; and
5.    would have been entitled to assistance, an allowance or a benefit under the VEA, or would be entitled to such assistance, allowance or benefit if a claim was made in respect of the person apart from the circumstance mentioned in paragraph (d).

Consultation

In respect of the VETS Act, the Department of Veterans’ Affairs undertook extensive consultation with stakeholders, including three rounds of public consultation on the simplification and harmonisation of veterans’ portfolio legislation. The outcome of this process produced strong support from veterans, ex-service organisations and other stakeholders and informed the pathway to establish the Act as the sole, ongoing scheme for veterans’ compensation and rehabilitation from 1 July 2026. This included that special assistance be provided for solely under the Act from 1 July 2026. This supports a harmonised and integrated system for the provision of special assistance under a single, ongoing Act into the future.

Further consultation specific to this instrument was deemed unnecessary, because the policy enabled by the instrument replicates the repealed instrument, and ensures a continuation of the existing policy upon the commencement of the VETS Act on 1 July 2026.

Human rights implications

This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.

Making the instrument

The instrument is made by the Military Rehabilitation and Compensation Commission.

Approved by

Military Rehabilitation and Compensation Commission

Rule-maker

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Military Rehabilitation and Compensation (Special Assistance) Instrument 2026

This Disallowable Legislative 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 (the recognised rights).

Overview of the Disallowable Legislative Instrument

The Military Rehabilitation and Compensation (Special Assistance) Instrument 2026 (the instrument) repeals the Military Rehabilitation and Compensation (Special Assistance) Instrument 2023 (the repealed instrument) and makes a new instrument in similar terms. The instrument is made by the Military Rehabilitation and Compensation Commission under section 424 of the Military Rehabilitation and Compensation Act 2004 (the Act).

The instrument continues the policy enabled by the repealed instrument by prescribing the circumstances for which the Repatriation Commission (the Commission) may grant special assistance to dependants and former dependants. The instrument mirrors the repealed instrument in the same terms and makes minor technical changes to ensure the continuation of the existing policy following commencement of the Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2025.

The instrument prescribes two circumstances under section 424 of the Act for which the Commission may grant special assistance to dependants and former dependants of a member, former member or deceased member. The instrument is intended to ensure that special assistance may be granted to dependants and former dependants who would have been entitled to treatment and compensation under the Act or the Veterans’ Entitlements Act 2004 but for their inability to carry out full time study due to a diagnosed mental health condition.

Human rights implications

The Instrument engages and promotes the following human rights:

• the right to social security under article 9 of the International Covenant on Economic Social and Cultural Rights (ICESCR).
• the right to an adequate standard of living in article 11 of ICESCR and article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).
• the right to health under article 12(1) of the ICESCR.

Right to social security

Article 9 of the ICESCR states “States Parties… recognise the right of everyone to social security, including social insurance”.  The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system.  The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

The instrument promotes the right to social security, by ensuring that dependants and former dependants who would otherwise be eligible for social security benefits are not precluded from receiving social security because of their mental illness or injury.

Right to an adequate standard of living

The right to an adequate standard of living requires that people, including those with disabilities, have adequate availability and access to food, clothing and housing, and the continuous improvement of living conditions. This instrument promotes the right to an adequate standard of living by ensuring financial assistance can be provided to dependants and former dependants, including those with disabilities, who would otherwise be ineligible for certain benefits because of their mental illness or injury.

Right to health

The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic, Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

The instrument promotes the right to health by enabling grants of assistance, including medical treatment, to dependants and former dependants of veterans who would otherwise have been ineligible because of their mental illness or injury.

Conclusion

The instrument is compatible with human rights because it promotes the right to health, the right to social security and the right to an adequate standard of living.

Military Rehabilitation and Compensation Commission

Rule-Maker