EXPLANATORY STATEMENT
Veterans’ Entitlements Act 1986
Determination of Hazardous Service – Afghanistan
The Veterans’ Entitlements Act 1986 (the Act) provides for the payment of pensions and other benefits to, and medical treatment for, veterans and certain other persons, and for other purposes. In particular, it provides for automatic treatment for certain cancers, post traumatic stress disorder and some other prescribed conditions, access to the Veterans' Counselling Service, funeral benefits, Service pension, access to gold card and the Victoria Cross Allowance. Some of these entitlements and benefits require a member to have rendered "warlike service"; others only require "non-warlike service" or “hazardous service” for eligibility under the Act.
The purpose of this Determination is to revoke and replace the Determination made on 25 September 1992 ("the 1992 Determination") by then Minister of State for Defence Science and Personnel, the Honourable Gordon Bilney, in relation to service in Afghanistan. This Determination also remakes the 1992 Determination to overcome minor administrative impediments associated with mandatory registration requirements under the Legislative Instruments Act 2003. The text of this Determination is in similar terms to the 1992 Determination. This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA) and is therefore subject to the registration and Parliamentary scrutiny regime outlined in the LIA.
This Determination applies to service on or after 8 June 1991, the date that members of the Australian Defence Force (ADF) were deployed on hazardous service in Afghanistan with the United Nations Office for Co-ordinating Assistance to Afghanistan (UNOCA) or the United Nations Mine Clearing Training Team (UNMCTT). This Determination is expressed to commence retrospectively, from 8 June 1991, which is the date specified in the instrument (and the date of commencement of the 1992 Determination).
The retrospective operation of this Determination is required to ensure that no ADF member (or his or her legal personal representative as the case may be) is disadvantaged if claiming for death, injury or disease that occurred between the period when they commenced service on the Operation and the date that this Determination is registered on the Federal Register of Legislative Instruments. The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) so as to disadvantage that person nor does it impose liabilities on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date this Determination is registered.
Consultation was considered inappropriate and unnecessary pursuant to section 18 of the LIA because the Determination relates to the service of members of the ADF.
Authority: Paragraph 120(7) of the Veterans’ Entitlements Act 1986
Overview
The Veterans’ Entitlements Act 1986, enacted by the Australian Parliament, was established to provide pensions, benefits, and medical treatment to veterans and certain other persons, addressing the need for support and recognition of the sacrifices made by military personnel. One of the specific issues this Act seeks to resolve is the determination of what constitutes hazardous service for the purpose of eligibility for certain benefits. To this end, the Veterans' Entitlements Act 1986 Determination of Hazardous Service – Afghanistan was introduced to provide clarity and support for ADF members who served in Afghanistan from 8 June 1991 onwards. This Determination not only revokes and replaces the 1992 version but also rectifies minor administrative issues associated with the Legislative Instruments Act 2003. Its retrospective operation ensures that ADF members are not disadvantaged in their claims for benefits related to service in Afghanistan, thereby upholding the policy objective of providing timely and fair support to those who have served.
Scope and Application
The Veterans' Entitlements Act 1986 (VEA) provides a framework for the payment of pensions and other benefits to veterans and certain other persons, including medical treatment and funeral benefits. This Act applies to both warlike and hazardous service, with certain entitlements and benefits contingent on the nature of the service rendered. The Determination of Hazardous Service – Afghanistan is a legislative instrument designed to ensure that service in Afghanistan from 8 June 1991 onwards is recognised as hazardous service under the VEA, thereby entitling eligible persons to certain benefits and entitlements. This Determination revokes and replaces a previous determination made in 1992, addressing administrative issues under the Legislative Instruments Act 2003. It is applicable to members of the Australian Defence Force who were deployed in Afghanistan on or after the specified date, ensuring that their service is acknowledged for the purposes of the VEA. The retrospective application of this Determination aims to protect the rights of ADF members and their representatives, ensuring they are not disadvantaged in claims for death, injury, or disease arising from their service. However, it does not affect the rights of any other person nor impose liabilities for actions taken before the Determination was registered.
Key Provisions
The main operative sections of the Veterans' Entitlements Act 1986 (the Act) in this Determination, particularly section 120(7), establish the criteria for determining when service in Afghanistan is considered hazardous. This is crucial for veterans seeking benefits under the Act, as eligibility for certain pensions, medical treatment, and other benefits often hinges on the nature of the service rendered. This Determination applies retrospectively to service from 8 June 1991, the date Australian Defence Force (ADF) members were deployed in Afghanistan, to ensure that veterans are not disadvantaged in their claims for death, injury, or disease occurring during their service. This retrospective application does not affect the rights of individuals other than the Commonwealth or its authorities, nor does it impose liabilities on such individuals for actions taken before the Determination's registration.
The Act imposes several obligations on ADF members, the Department of Defence, and other relevant authorities. ADF members must provide accurate information about their service to qualify for benefits under the Act. The Department of Defence and other authorities must process claims efficiently and ensure that veterans receive the benefits to which they are entitled. Additionally, the Act mandates the registration of the Determination on the Federal Register of Legislative Instruments, ensuring it is legally recognised and enforceable. These obligations are designed to streamline the process for veterans seeking benefits and to ensure that the provisions of the Act are applied correctly and consistently.
Failure to comply with the requirements of the Act or the Determination can lead to various civil and criminal consequences. For example, providing false information to obtain benefits can result in penalties, including fines and imprisonment. The maximum penalties for such offences are specified in the Act, although the exact penalties are not detailed in the Determination. These consequences are intended to deter fraudulent claims and ensure that the benefits system operates fairly and efficiently. The Act also provides mechanisms for the review and appeal of decisions related to entitlements, ensuring that veterans have recourse if they believe their claims have been unfairly handled.