EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2
This Determination revokes and replaces the Military Rehabilitation and Compensation (Warlike Service) Determination 2009/1 ("the 2009/1 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 for the purposes of the Act.
The purpose of this Determination is to replace the existing list of five operations referred to in the 2009/1 Determination, by adding a new operation, Operation RIVERBANK. The reference to the other operations in the 2009/1 Determination remain unchanged.
Clause 1 of this Determination sets out the manner in which this Determination may be cited.
Clause 2 of this Determination revokes the 2009/1 Determination and provides that this Determination replaces that earlier instrument.
Clause 3 of this Determination provides that the Determination commences on 21 July 2008, the day that members of the ADF were first approved to deploy on warlike service on Operation RIVERBANK.
Clause 4 specifies that service in an operation described in Schedule 1 is warlike service for the purposes of paragraph 6(1) (a) of the Act.
The schedule is amended by the addition of item 6, which specifies the ADF mission in Iraq, Operation RIVERBANK as an operation; service on it is therefore warlike service under the Act.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA) and is taken to have commenced on 21 July 2008.
The retrospective commencement date is required to ensure no ADF member is disadvantaged if claiming for death, injury or disease that occurred between the period when they commenced duty on the operation and the date that this instrument is registered. The retrospective application of the Determination 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 Determination is registered.
This Determination is exempt from disallowance pursuant to item 6A of Schedule 2 of the Legislative Instruments Regulations 2004 (the Regulations) and is also exempt from sunsetting pursuant to item 3A of Schedule 3 of the Regulations.
Consultation was considered unnecessary pursuant to section 18 of the LIA because the Determination relates to the service of members of the ADF.
Authority: Paragraph 6(1) (a) of the Military Rehabilitation and Compensation Act 2004
Overview
The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2 was enacted in 2009 to address a gap in the existing list of operations deemed to be warlike service under the Military Rehabilitation and Compensation Act 2004. This Act, enacted by the Australian Parliament, aims to provide rehabilitation and compensation to members of the Australian Defence Force who have been injured or become ill during their service. The Determination was introduced to update the list of operations recognised as warlike service by adding Operation RIVERBANK, thereby ensuring that ADF members who served in this operation are eligible for the same benefits as those who served in other recognised operations. The Determination, which revokes and replaces the earlier Military Rehabilitation and Compensation (Warlike Service) Determination 2009/1, came into effect on 21 July 2008, the date members of the ADF were first approved to deploy on Operation RIVERBANK.
Scope and Application
The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2 applies to members of the Australian Defence Force (ADF) who are engaged in operations classified as warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004. This Determination specifically revokes and replaces the 2009/1 Determination by adding a new operation, Operation RIVERBANK, to the list of recognised warlike services, while maintaining the unchanged references to the other operations previously listed. The Determination commenced on 21 July 2008, the day members of the ADF were first approved to deploy on Operation RIVERBANK, and is considered a legislative instrument under the Legislative Instruments Act 2003. It is exempt from disallowance and sunsetting provisions, and its retrospective application ensures that ADF members are not disadvantaged in claims for death, injury, or disease incurred during the period before the Determination was registered. This Determination does not affect the rights of any persons other than the Commonwealth nor does it impose liabilities on entities other than the Commonwealth for actions taken prior to its registration.
Key Provisions
The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2 (Determination) sets out the conditions under which certain military operations are considered warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004. The Determination specifically identifies operations that qualify as warlike service, which entitles members of the Australian Defence Force (ADF) to certain benefits and compensation under the Act. Section 4 of the Determination specifies that service in operations listed in Schedule 1 qualifies as warlike service. This is significant as it determines eligibility for compensation and rehabilitation benefits under the Act.
Under the Determination, the obligations on the ADF and the Commonwealth include recognising certain military operations as warlike service and providing the associated benefits and compensation to ADF members who serve in these operations. The Commonwealth is obligated to ensure that members of the ADF who are injured, fall ill, or die while serving in an operation listed as warlike service receive the appropriate rehabilitation and compensation. This includes financial support, medical care, and other forms of assistance as stipulated under the Act.
Breaching the obligations outlined in the Determination could have serious legal consequences. The Determination, however, does not specify particular offences or penalties for non-compliance. Instead, it relies on the broader framework of the Military Rehabilitation and Compensation Act 2004 and other relevant laws to address any breaches. Any failure to provide the required benefits or compensation to ADF members could potentially lead to legal action or claims for compensation under the Act. It is important for the Commonwealth and the ADF to adhere strictly to the provisions of the Determination to avoid any legal repercussions. The retrospective commencement of the Determination on 21 July 2008 ensures that ADF members are not disadvantaged in their claims for injuries, illnesses, or deaths that occurred prior to the registration of the Determination.