EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2021 (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 extend the area of operation for Operation Augury to include Iraq and Syria.
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 Schedule inserts a row expanding the area recognised as warlike for Operation Augury to include Iraq and Syria into the table at Schedule 1 of the Principal Determination after item 16. Warlike Service for the purposes of the definition in paragraph 6(1)(a) of the Act commences on 1 December 2020 in Iraq and Syria for Operation Augury.
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 rule maker 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 2021 (No. 1) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019, which was made under the Military Rehabilitation and Compensation Act 2004. This Act, enacted in 2004, was introduced to address the need for a more beneficial standard of proof when assessing claims related to injuries, diseases, or deaths incurred by veterans during warlike service with the Australian Defence Force. This legislative framework aims to reflect the unique nature of military service and its associated risks. The determination made by the Parliament through this legislative instrument extends the area of operation for Operation Augury to include Iraq and Syria, thereby recognising these regions as areas of warlike service starting from 1 December 2020. This amendment ensures that veterans who served in these areas are eligible for more favourable compensation and pension benefits, recognising the specific hardships faced during warlike operations.
Scope and Application
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2021 (No. 1) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019, which is made under the Military Rehabilitation and Compensation Act 2004. This Act applies to members of the Australian Defence Force who serve in warlike operations, providing them with a more beneficial standard of proof when assessing claims for injury, disease, or death related to their service. This beneficial standard reflects the unique nature of military service and the inherent risks of warlike operations. The Act extends to various benefits for veterans, including earlier eligibility for the Service Pension at age 60 and eligibility for the Department of Veterans' Affairs' Veteran Gold Card at age 70, which covers treatment for any medical condition. This Amendment Determination specifically extends the area of operation for Operation Augury to include Iraq and Syria, recognising these areas as warlike for the purposes of the Act from 1 December 2020. The Department of Veterans' Affairs was consulted during the classification process, ensuring that the decisions align with government policies and do not impact business or competition. This legislative instrument is exempt from disallowance and sunsetting under specific regulations.
Key Provisions
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2021 (No. 1) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019, and is made under paragraph 6(1)(a) of the Military Rehabilitation and Compensation Act 2004. The key operative sections of this Amendment Determination include Section 1, which specifies the manner of citation, and Section 2, which sets the commencement date as the day after registration. Section 3 identifies the authority under which this Determination is made, and Section 4 outlines the manner in which the specified instruments are amended or repealed, as set out in the Schedules. The Schedules detail the amendments to the Principal Determination.
The Act imposes obligations on the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing claims related to warlike service. This includes a more favourable assessment of permanent impairment and the calculation of compensation, taking into account the unique risks associated with military service. The Determination also imposes eligibility criteria for veterans with warlike service to receive the Service Pension at age 60, or at any age if permanently incapacitated for work. Additionally, it automatically entitles veterans with warlike service to the Department of Veterans' Affairs Veteran Gold Card at age 70, providing treatment for any medical condition on the Medicare Benefits Schedule. This Determination also expands the area of operation for Operation Augury to include Iraq and Syria, effective from 1 December 2020.
The Amendment Determination includes provisions for offences, penalties, or consequences for breaches of the Act. However, the Explanatory Statement does not detail specific offences or penalties. The Determination is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015, and it is also exempt from sunsetting. The Consultation process involved the Department of Veterans' Affairs, and it was determined that further external consultation was not required as the decision-making process is subject to bipartisan consultation through Government, and does not impact business or competition.
The key obligations for parties governed by this Act include applying the beneficial standard of proof for claims related to warlike service, adhering to the eligibility criteria for the Service Pension and the Veteran Gold Card, and ensuring compliance with the expanded area of operation for Operation Augury. The obligations also extend to ensuring that the unique nature of military service is considered in the assessment of permanent impairment and the calculation of compensation. The Determination seeks to ensure that veterans with warlike service receive appropriate recognition and benefits for their service, which is integral to the Act's purpose of providing adequate rehabilitation and compensation for veterans.
In summary, the Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2021 (No. 1) serves to enhance the benefits and recognition for veterans who have served in warlike conditions, particularly in the expanded area of Operation Augury to include Iraq and Syria. The Determination imposes specific obligations on the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof and calculate compensation in a way that reflects the unique risks of military service. The Determination also outlines eligibility criteria for the Service Pension and the Veteran Gold Card, ensuring that veterans with warlike service receive appropriate compensation and healthcare benefits. While the Explanatory Statement does not detail specific offences or penalties, the Determination is exempt from disallowance and sunsetting, reflecting its importance in the legislative framework governing military rehabilitation and compensation.