Military Rehabilitation and Compensation (Warlike Service) Determination 2009/3

Overview

The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/3 was enacted in 2009 under the authority of the Military Rehabilitation and Compensation Act 2004. This legislation was introduced to address the need to clarify and update the definition of warlike service for members of the Australian Defence Force (ADF). Specifically, the Act was intended to ensure that ADF personnel engaged in operations recognised as warlike service were eligible for the benefits and compensation provided under the Act. The enacting body for this Determination was the Defence Minister, who determined the nature of warlike service for the purposes of the Act. The policy objective was to provide clarity and ensure that ADF members were appropriately recognised and compensated for their service in defined operations. The Determination serves to replace and update the previous list of warlike operations, ensuring that the ADF's current and evolving engagements are accurately reflected within the legislative framework.

Scope and Application

The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/3, made under the Military Rehabilitation and Compensation Act 2004, serves to revise and update the criteria for what constitutes warlike service within the Australian Defence Force (ADF). This Determination specifically replaces the earlier Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2, and its purpose is to modify the list of operations considered as warlike service. Notably, it introduces an end date for Operation SLIPPER in its original area of operations, while simultaneously adding a new Operation SLIPPER with revised operational parameters. This Determination applies to ADF personnel who serve in operations outlined in the accompanying schedule, thereby qualifying their service as warlike for the purposes of the Act. The Determination commenced on 31 July 2009, the date when ADF members first deployed on warlike service in the amended area of Operation SLIPPER, and it applies retrospectively to ensure no ADF member is disadvantaged in claims for death, injury, or disease that occurred before the instrument was registered. The Determination is exempt from disallowance and sunsetting provisions under the Legislative Instruments Regulations 2004, and consultation was deemed unnecessary as it pertains directly to ADF service members.

Key Provisions

The Military Rehabilitation and Compensation (Warlike Service) Determination 2009/3 (the Determination) provides specific details regarding what constitutes warlike service for the purposes of the Military Rehabilitation and Compensation Act 2004. Clause 4 of the Determination specifies that service in an operation described in Schedule 1 is deemed to be warlike service, as defined in paragraph 6(1)(a) of the Act. This means that any service undertaken in an operation listed in Schedule 1 is recognised as warlike service, which carries particular rights and benefits under the Act. The Determination replaces the earlier Military Rehabilitation and Compensation (Warlike Service) Determination 2009/2, updating the list of operations considered to be warlike service. Specifically, it adds an end date to Operation SLIPPER in its current area of operations and introduces a new Operation SLIPPER with an amended area of operations. The Determination imposes several obligations on the parties it governs. Firstly, it requires that the Defence Minister determine in writing whether specific military service qualifies as warlike service. This is crucial for members of the Australian Defence Force (ADF) who may seek rehabilitation and compensation under the Act. Furthermore, the Determination mandates that any service in the operations listed in Schedule 1 is automatically recognised as warlike service, simplifying the process for ADF members to claim benefits. The retrospective commencement of the Determination ensures that ADF members who were deployed prior to the registration of the instrument are not disadvantaged in their claims for death, injury, or disease related to their service. Failure to comply with the provisions of the Determination can lead to various consequences. While the Determination does not explicitly list specific offences, breaches of the Military Rehabilitation and Compensation Act 2004 can result in both civil and criminal penalties. For instance, knowingly providing false information in a claim can lead to criminal charges under the Act, with penalties including fines and imprisonment. Civil penalties can also apply, such as the recovery of overpayments made to claimants who provided incorrect information. The Determination itself is exempt from disallowance and sunsetting, ensuring its continued application without the need for periodic renewal or parliamentary scrutiny. The Determination also outlines the commencement date, which is 31 July 2009, the day that ADF members were first approved to deploy on warlike service on Operation SLIPPER in the amended area of operations. This retrospective commencement ensures that ADF members are not disadvantaged if they incurred death, injury, or disease before the instrument was registered. Importantly, the retrospective application does not affect the rights of any persons other than the Commonwealth or impose liabilities on anyone other than the Commonwealth for actions taken before the instrument was registered. The Determination is exempt from disallowance and sunsetting, meaning it remains in effect without the need for periodic review or parliamentary approval.