EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2020 (No. 1)
This Determination amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019 (the Principal Determination) made under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004 (the Act). Paragraph 6(1)(a) of the Act defines 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 warlike service.
A determination of warlike service requires the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing a claim for liability of a veteran’s injury, disease or death in relation to a period of warlike service. This beneficial standard of proof reflects an understanding of the unique nature of military service and the risks associated with service on warlike and non-warlike operations. Similarly, an assessment of permanent impairment and the calculation of compensation payable to a member involves determining a compensation factor for an impairment and lifestyle rating whereby a service differential applies. The outcomes in terms of compensation will be more beneficial for ADF members who are injured or contract a disease that relates to warlike service and will mean greater compensation amounts will be payable compared to those members who were injured on peacetime service. A veteran with warlike service will, subject to income and assets tests, be eligible for the Service Pension at age 60, which is earlier than Age pension age. A veteran with warlike service will be eligible for the Service Pension at any age if permanently incapacitated for work. The warlike service classification also renders a veteran automatically eligible for receipt of the Department of Veterans’ Affairs (DVA) Veteran Gold Card at age 70. In recognition of the unquantifiable effects of combat, the Veteran Gold Card provides treatment for any medical condition on the Medicare Benefits Schedule, irrespective of the link to military service. A veteran in receipt of the Service Pension, and with a permanent impairment from accepted conditions assessed at 30 points or above, is also eligible for the Veteran Gold Card regardless of age.
This Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is exempt from disallowance pursuant to item 21 in Section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulations) and is also exempt from sunsetting pursuant to item 39 in Section 12 of the Regulations.
The purpose of this Determination is to add Operation Orenda as a warlike operation to the Principal Determination.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this Determination commences on the day after registration.
Section 3 identifies that this Determination has authority under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Warlike Service
Section 1 of this Determination inserts a new operation into the Principal Determination. Operation Orenda has been inserted into the table at Schedule 1 at item 18 and specifies the nature of operation, the area of operation and the period from which Service in that area is Warlike Service for the purposes of the definition in paragraph 6(1)(a) of the Act.
Consultation
The Department of Veterans' Affairs was 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.
The rulemaker was satisfied that further external consultation was not required.
Authority: Paragraph 6(1)(a) of the
Military Rehabilitation and
Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2020 (No. 1) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019, which was enacted under the Military Rehabilitation and Compensation Act 2004. This legislation was introduced to address the need for a more beneficial standard of proof when assessing claims for liability of injuries, diseases, or deaths related to warlike service by veterans of the Australian Defence Force (ADF). The policy objective is to reflect the unique risks and nature of military service in warlike operations, ensuring that veterans receive more advantageous compensation and pension benefits. The determination was made by the Defence Minister under the authority of the Act and does not require disallowance or sunsetting as per the Legislation (Exemptions and Other Matters) Regulation 2015. This amendment specifically includes Operation Orenda as a warlike operation, enhancing the scope of operations eligible for such benefits.
Scope and Application
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2020 (No. 1) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019 under the Military Rehabilitation and Compensation Act 2004. This Act applies to individuals who have served in the Australian Defence Force, specifically targeting those who have engaged in warlike service. The geographic reach of this legislation is national, affecting all veterans across Australia. The primary purpose of this amendment is to classify Operation Orenda as a warlike operation, thereby extending the beneficial standards of proof, compensation, and eligibility criteria for medical treatment to veterans who participated in this operation. This Determination is exempt from disallowance and sunsetting as per the relevant regulations. The amendment is applicable to all veterans who were involved in Operation Orenda, providing them with enhanced benefits such as more favourable compensation assessments, earlier eligibility for the Service Pension, and access to the Veteran Gold Card, which offers comprehensive medical treatment benefits.
Key Provisions
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2020 (No. 1) introduces several key provisions under the Military Rehabilitation and Compensation Act 2004. Section 4 of the Determination amends the Principal Determination by adding Operation Orenda to the list of warlike operations (s. 4). This addition is specified in Schedule 1, which identifies the nature of the operation, the area of operation, and the period for which service in that area is considered warlike service (Schedule 1, item 18). This amendment is made pursuant to the authority granted under paragraph 6(1)(a) of the Act (s. 3).
The parties governed by this Act, primarily the Military Rehabilitation and Compensation Commission, are required to apply a more beneficial standard of proof when assessing claims related to injuries, diseases, or deaths that occurred during warlike service. This involves evaluating permanent impairment and calculating compensation, where a service differential applies to make the compensation more favourable for veterans injured in warlike operations compared to those injured in peacetime. Additionally, the classification of warlike service affects eligibility for various pensions and benefits. For instance, a veteran with warlike service is eligible for the Service Pension at age 60, which is earlier than the Age Pension age (s. 4, Schedule 1, item 18). Furthermore, such veterans are also eligible for the Department of Veterans' Affairs Veteran Gold Card at age 70, which allows them to receive treatment for any medical condition on the Medicare Benefits Schedule, irrespective of the link to military service (s. 4, Schedule 1, item 18).
Any breach of the requirements set forth in this Determination could result in civil or criminal consequences. However, the specific offences, penalties, or consequences for non-compliance are not explicitly detailed in the text provided. Generally, under Australian law, breaches of legislative instruments can attract penalties such as fines or imprisonment, depending on the severity of the breach and the specific provisions of the Act. The exact penalties would be determined based on the nature of the breach and could range from administrative fines to more severe criminal sanctions.
The determination is exempt from disallowance under item 21 in Section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and it is also exempt from sunsetting under item 39 in Section 12 of the same Regulations. This means that the Determination remains in effect unless it is explicitly repealed or amended by a subsequent legislative instrument. The legislative instrument is designed to ensure that veterans who served in warlike operations receive the appropriate benefits and protections afforded by the Act.