EXPLANATORY STATEMENT
Veterans’ Entitlements Act 1986
Determination of Hazardous Service – Haiti
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 21 November 1994 ("the 1994 Determination") by then Minister for Defence Science and Personnel, the Honourable Gary Francis Punch, in relation to service in Haiti. This Determination also remakes the 1994 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 1994 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 17 September 1994, the date that members of the Australian Defence Force (ADF) were deployed on hazardous service in Haiti as part of the United Sates of America led multi-national force. This Determination is expressed to commence retrospectively, from 17 September 1994, which is the date specified in the instrument (and the date of commencement of the 1994 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, aims to provide pensions, benefits, and medical treatment to veterans and certain other individuals, addressing the needs of those who have served in the defence force. To further specify the conditions under which veterans are eligible for these benefits, the Act includes provisions for "warlike service," "non-warlike service," and "hazardous service." The "Determination of Hazardous Service – Haiti" was introduced to clarify and update the criteria for hazardous service related to Australian Defence Force (ADF) operations in Haiti. This legislative instrument, issued under the authority of the Veterans’ Entitlements Act 1986, revokes and replaces an earlier determination made in 1994 to align with current legislative requirements and to ensure that ADF members are not disadvantaged in their claims for benefits related to their service in Haiti.
The 2006 Determination was made to address administrative issues arising from the Legislative Instruments Act 2003 and to ensure that ADF members are not disadvantaged in their claims for benefits. It applies retrospectively to service on or after 17 September 1994, the date when ADF members were deployed in Haiti. The retrospective application ensures that claims for death, injury, or disease occurring between the deployment date and the date of registration are not prejudiced. This Determination was registered on the Federal Register of Legislative Instruments and does not adversely affect the rights of individuals other than the Commonwealth or its authorities.
Scope and Application
The Veterans' Entitlements Act 1986 Determination of Hazardous Service – Haiti applies to Australian Defence Force (ADF) members who were deployed on hazardous service in Haiti on or after 17 September 1994, the date of deployment as part of the United States of America-led multinational force. This legislation ensures that ADF members and their legal personal representatives are not disadvantaged in claiming for death, injury, or disease that occurred from the commencement of their service up until the determination's registration on the Federal Register of Legislative Instruments. The Determination operates retrospectively from 17 September 1994, the same date as the original 1994 Determination, and is subject to the registration and scrutiny regime outlined in the Legislative Instruments Act 2003. Its purpose is to revoke and replace the previous determination to address minor administrative impediments and to ensure the continued eligibility of ADF members for benefits and entitlements under the Veterans' Entitlements Act 1986.
Key Provisions
The main sections of this Determination clarify that service in Haiti on or after 17 September 1994 is considered hazardous service under the Veterans’ Entitlements Act 1986 (VEA). This is significant because it ensures that any Australian Defence Force (ADF) member who served in Haiti from this date is eligible for certain benefits and pensions under the Act, which would otherwise require warlike or hazardous service to qualify (sections 1 and 2). The Determination also ensures that the service is recognised for any claims related to death, injury, or disease that may arise from that service, providing these claims can be traced back to the period of service specified.
The obligations under this Determination require ADF members who served in Haiti from 17 September 1994 to meet the same criteria for eligibility for benefits as those who served in other hazardous conditions. This includes providing evidence of their service to the Repatriation Commission or the Department of Veterans’ Affairs, as necessary (section 3). The Determination also imposes an obligation on the Commonwealth to recognise and process claims for benefits that are directly related to service in Haiti from this date, ensuring no member is disadvantaged due to the timing of their claims relative to the Determination's registration.
There are no specific offences outlined in this Determination; however, any breach of the provisions related to the eligibility for benefits or the processing of claims could lead to civil consequences for the Commonwealth if it fails to recognise valid claims or imposes improper restrictions on eligibility. The maximum penalty for non-compliance with the Act's provisions concerning benefits would be determined by the court based on the nature and severity of the breach, potentially including compensation for any financial loss incurred by the affected ADF member or their representatives. It is important to note that the retrospective application of this Determination does not disadvantage any non-Commonwealth person and does not impose liabilities on such individuals for actions taken prior to its registration.