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 19 July 2006 ("the 2006 Determination") by the Minister for Veterans’ Affairs, the Honourable Bruce Billson, in relation to service in Afghanistan. This Determination overcomes a minor administrative error recording an incorrect year of commencement in the 2006 Determination. The text of this Determination is the same as the 2006 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.
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 was enacted to provide pensions, benefits, and medical treatment to veterans and certain other individuals, addressing the need for support and recognition of their service. The Act covers a broad range of entitlements including treatment for specific conditions, access to counselling services, funeral benefits, and various allowances. To qualify for some of these benefits, service must be classified as "warlike," "non-warlike," or "hazardous." The 2006 Determination, which was later replaced by the 2007 Determination, aimed to clarify the conditions under which service in Afghanistan would be recognised as hazardous. This legislative instrument was introduced to correct a minor administrative error in the 2006 Determination and applies retrospectively to service from 8 June 1991, ensuring no veteran is disadvantaged in their claims for injuries or diseases incurred during this period. This Determination is subject to the Legislative Instruments Act 2003, ensuring it undergoes the necessary registration and scrutiny processes.
Scope and Application
The Veterans' Entitlements Act 1986 provides benefits and entitlements to veterans and certain other persons, including medical treatment, pensions, and funeral benefits, among others. This legislation applies to any person or entity involved in the provision or receipt of these benefits, particularly those who have rendered warlike, non-warlike, or hazardous service. The Act has a national jurisdictional reach, applying across Australia and governed by Commonwealth law. This Determination, which is a legislative instrument under the Legislative Instruments Act 2003, specifically addresses service in Afghanistan on or after 8 June 1991, correcting an administrative error in a previous determination. It ensures that no member of the Australian Defence Force is disadvantaged in their claims for death, injury, or disease related to their service in Afghanistan. The retrospective operation of this Determination is intended to maintain fairness and does not disadvantage any person other than the Commonwealth or its authorities.
Key Provisions
The main operative sections of this Determination, under the Veterans’ Entitlements Act 1986, relate to the identification and classification of service in Afghanistan as "hazardous service" (section 120(7)). This specific Determination, which revokes and replaces an earlier one made on 19 July 2006, applies to service on or after 8 June 1991, the date when Australian Defence Force (ADF) members were deployed in Afghanistan. This date marks the commencement of hazardous service in this region, and the Determination operates retrospectively from this date to ensure no ADF member is disadvantaged in their claims for death, injury, or disease. The text of this Determination remains unchanged from the 2006 version, correcting only a minor administrative error regarding the commencement year.
The Determination imposes obligations on ADF members and their legal personal representatives, ensuring they are recognised as having rendered hazardous service from 8 June 1991 onwards. This recognition is crucial for eligibility under the Veterans’ Entitlements Act 1986 for benefits such as pensions, medical treatment for specific conditions, access to the Veterans' Counselling Service, and funeral benefits. The retrospective application ensures that any service-related claims made since that date are valid and protected from administrative errors.
Breaches or non-compliance with the provisions of this Determination may lead to civil or criminal consequences. However, the Determination itself does not explicitly state the penalties for non-compliance. The primary focus of the Determination is to rectify an administrative error and ensure that ADF members and their representatives are not disadvantaged. The retrospective operation ensures that all claims made since the commencement of hazardous service in Afghanistan are legitimate and protected under the Act. Any further consequences or penalties for non-compliance would be governed by the general provisions of the Veterans’ Entitlements Act 1986 and related legislation.