EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2022 (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 provide a cessation date of 8 October 2021 for Operation Highroad.
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 omits and substitutes item 15 of Schedule 1 of the Principal Determination which provides that service on Operation Highroad is warlike Service for the purposes of the definition in paragraph 6(1)(a) of the Act. The item has been amended to provide that Operation Highroad ceased on 8 October 2021.
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 2022 (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, addresses the need to provide enhanced rehabilitation and compensation for Australian Defence Force members who are injured or contract diseases during warlike operations. The Military Rehabilitation and Compensation Commission, operating under the authority of the Defence Minister, determines what constitutes warlike service, which allows for a more beneficial standard of proof when assessing claims related to such service. This beneficial standard acknowledges the unique risks and nature of military service. The amendment introduced by this Determination specifically alters the cessation date for Operation Highroad, setting it at 8 October 2021, and reflects the ongoing commitment to ensure that veterans receive appropriate support and compensation based on their service.
Scope and Application
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2022 (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 persons who are veterans of the Australian Defence Force, particularly those who have engaged in warlike service as defined by the Defence Minister. The primary focus of the Act is to ensure that veterans who have served in warlike operations receive more favourable standards of proof and compensation for injuries, diseases, or deaths related to their service. This includes eligibility for the Service Pension at an earlier age and access to the Department of Veterans’ Affairs Veteran Gold Card, which provides broader Medicare coverage for veterans. The scope of this Act is national, applying across all states and territories of Australia, and it does not restrict or extend its application through subordinate instruments. The Act exempts this Determination from disallowance and sunsetting provisions under the Legislation (Exemptions and Other Matters) Regulation 2015. This amendment specifically addresses the cessation date of Operation Highroad, clarifying that it concluded on 8 October 2021, thus affecting the classification of service related to this operation under the Act.
Key Provisions
The Military Rehabilitation and Compensation (Warlike Service) Amendment Determination 2022 (No. 1) (the Determination) amends the Military Rehabilitation and Compensation (Warlike Service) Determination 2019 (the Principal Determination) to update the definition of warlike service under the Military Rehabilitation and Compensation Act 2004 (the Act). Specifically, Section 1 of the Determination provides for its citation, Section 2 states that the Determination comes into effect the day after registration, and Section 3 confirms its authority under paragraph 6(1)(a) of the Act. Section 4 of the Determination outlines the amendments to the Principal Determination, which are detailed in Schedule 1.
Schedule 1 of the Determination amends the definition of warlike service by removing the reference to Operation Highroad and specifying that it ceased on 8 October 2021. This change reflects the cessation of Operation Highroad and ensures that the benefits and protections available to veterans who served in warlike conditions are accurately applied. The Act requires the Military Rehabilitation and Compensation Commission to apply a more beneficial standard of proof when assessing claims for liability of a veteran's injury, disease, or death in relation to warlike service. This beneficial standard of proof acknowledges the unique risks and nature of military service and ensures that veterans receive fair compensation for injuries and diseases related to their service.
The Determination imposes obligations on the Military Rehabilitation and Compensation Commission and the Department of Veterans' Affairs (DVA) to assess claims under the updated definition of warlike service. This includes applying the beneficial standard of proof and determining compensation factors for permanent impairments. Veterans with warlike service are entitled to a Service Pension at age 60, or at any age if they are permanently incapacitated for work, and are eligible for the DVA Veteran Gold Card at age 70, which provides comprehensive medical coverage on the Medicare Benefits Schedule. The DVA was consulted during the classification process, and the rule maker determined that further external consultation was not necessary.
Breaches of the provisions in the Determination may have civil or criminal consequences depending on the nature and severity of the violation. While specific penalties are not detailed in the Explanatory Statement, penalties for breaches of the Military Rehabilitation and Compensation Act 2004 can include fines and imprisonment for serious offences. For example, misleading or deceptive conduct under section 23 of the Act can result in fines up to $1,650,000 for corporations and $330,000 for individuals, along with imprisonment for up to five years. The Determination, being a legislative instrument, is exempt from disallowance and sunsetting under the Legislation (Exemptions and Other Matters) Regulation 2015, ensuring its continued application until further legislative action is taken.