EXPLANATORY STATEMENT
Veterans' Entitlements Act 1986
Determination of non-warlike service (Operation SPIRE)
The Veterans' Entitlements Act 1986 (VEA) 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. While some of these require warlike service, others only require non-warlike service for Veterans' Entitlements Act eligibility.
The purpose of this Determination is to declare service with the United Nations Mission of Support in East Timor, on Operation SPIRE, as non-warlike service for the purpose of the VEA.
This Determination applies to service on 20 May 2004, the day that members of the Australian Defence Force (ADF) commenced non-warlike service in Operation SPIRE.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The day after it is registered on the Federal Register of Legislative Instruments, the instrument is taken to have effect retrospective to 20 May 2004.
The retrospective effect of the Determination 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 day after the date that this instrument is registered under the LIA. The retrospective application of this 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.
The Rule Maker has noted that even though this Determination is beneficial in nature and consultation in respect of this instrument may not be required, consultation did take place between the Department of Veterans' Affairs and Defence and both parties support the measure. In making this decision the Rule-Maker also noted that the Determination related to the service of members of the ADF (service instrument) and paragraph 18(g) of the LIA states that service instruments are the kind of instruments in respect of which consultation may be inappropriate.
Authority: Subsection 5C(1) of the Veterans' Entitlements Act 1986
Overview
The Veterans' Entitlements Act 1986, as supplemented by the Determination of non-warlike service (Operation SPIRE) in 2005, aims to clarify and extend the scope of eligibility for veterans' benefits, specifically addressing the classification of service during Operation SPIRE in East Timor. This legislative instrument was enacted to ensure that service personnel who participated in the United Nations Mission of Support in East Timor on Operation SPIRE are recognised as having undertaken non-warlike service, thereby qualifying for certain entitlements under the VEA. This determination was made by the relevant authority in accordance with subsection 5C(1) of the VEA, and its enactment was overseen by the Parliament of Australia. The policy objective behind this Determination is to provide comprehensive support to veterans without disadvantaging them due to the timing of the legislative recognition of their service. The retrospective effect of the Determination ensures that no member of the Australian Defence Force is prejudiced in their claims for death, injury, or disease resulting from their service on Operation SPIRE.
Scope and Application
The Veterans' Entitlements Act 1986 Determination of non-warlike service (Operation SPIRE) applies to members of the Australian Defence Force who provided service in the United Nations Mission of Support in East Timor, specifically on Operation SPIRE, from 20 May 2004. This legislative instrument aims to classify their service as non-warlike for the purposes of eligibility under the VEA. The retrospective effect of the Determination, which takes effect from the date the instrument is registered on the Federal Register of Legislative Instruments, ensures that no ADF member is disadvantaged if they are claiming for death, injury, or disease that occurred between the commencement of their duty on the operation and the day after the Determination is registered. This approach safeguards the rights of ADF members and the Commonwealth, without imposing liabilities on other persons or entities for actions taken prior to the registration of the Determination. While the Determination is beneficial and consultation was deemed unnecessary, it was supported by both the Department of Veterans' Affairs and Defence following consultation.
The scope of this Determination is limited to service in Operation SPIRE, and it does not extend to other operations or military engagements. The Determination is a legislative instrument under the Legislative Instruments Act 2003 and is specifically crafted to address the service of ADF members in this particular operation, thereby clarifying their eligibility for certain benefits under the VEA. The Act does not impose any new liabilities or disadvantage any persons other than the Commonwealth, ensuring that the rights and obligations of all parties are preserved in accordance with the legislative intent.
Key Provisions
The main operative sections of this Determination are found in the Veterans' Entitlements Act 1986 (VEA), specifically in subsection 5C(1) (section 5C(1)). This section empowers the rule-maker to determine whether certain services qualify as non-warlike service, thereby affecting eligibility for various veterans' entitlements. The Determination specifies that service with the United Nations Mission of Support in East Timor, on Operation SPIRE, from 20 May 2004, is classified as non-warlike service for the purposes of the VEA. This legal instrument ensures that veterans who served on this operation are eligible for benefits that only require non-warlike service, such as certain cancers treatment, post-traumatic stress disorder support, and funeral benefits, without needing to have participated in warlike activities.
The Act imposes certain obligations on the relevant parties, primarily the Department of Veterans' Affairs and the Australian Defence Force (ADF). The Department of Veterans' Affairs must recognise and process claims for entitlements based on the non-warlike service determination, ensuring that veterans who served on Operation SPIRE are not disadvantaged when making such claims. The ADF, on the other hand, must provide accurate service records and support the determination to facilitate the processing of these claims. The rule-maker, in this case, has ensured that consultation took place between the Department of Veterans' Affairs and Defence, reflecting a commitment to transparency and collaboration in implementing this Determination.
Failure to comply with the provisions of this Determination could lead to civil or administrative consequences for the parties involved. For instance, if the Department of Veterans' Affairs does not recognise the non-warlike service of veterans from Operation SPIRE, it could result in veterans being denied their entitled benefits. The ADF, if found to be non-compliant, might face repercussions such as the inability to provide accurate service records, potentially hindering veterans' claims. The retrospective nature of the Determination ensures that no veteran is disadvantaged for claims made before the Determination was registered; however, any breach of the Act's provisions could lead to legal actions seeking redress for affected veterans. The penalties for non-compliance are not explicitly stated in the Determination but would generally follow the legislative framework under which the VEA operates.