Veterans' Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1)

Administered by Department of Veterans' Affairs

Legislation au F2019L01189 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Veterans’ Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1)

This Determination amends Veterans’ Entitlements (Non-warlike Service) Determination 2019 made under subsection 5C(1) of the Veterans’ Entitlements Act 1986 (the Act). Subsection 5C(1) of the Act defines non-warlike service as meaning service in the Defence Force of a kind determined in writing by the Minister for Defence to be non-warlike service for the purposes of the Act.

 

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. A determination of non-warlike service under the Act allows the Repatriation Commission to apply a more beneficial standard of proof when assessing a claim for liability of a veteran’s injury, disease or death in relation to a period of non-warlike service. This beneficial standard of proof reflects an understanding of the unique nature of military service and the risks associated with service on warlike or non-warlike operations. A veteran with non-warlike service will also be eligible for treatment of malignant neoplasia and pulmonary tuberculosis on a non-liability basis.

 

This Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is exempt from disallowance pursuant to item 33 in Section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Regulations) and is also exempt from sunsetting pursuant to item 65 in Section 12 of the Regulations.

 

The purpose of this Determination is to amend Veterans’ Entitlements (Non-warlike Service) Determination 2019 by inserting an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

Section 1 of this Determination sets out the manner in which this Determination may be cited.

 

Section 2 provides that this Determination commences on the day after registration.

 

Section 3 identifies that this Determination is made under the definition of non-warlike service in

subsection 5C(1) of the Veterans’ Entitlements Act 1986.

 

Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.

 

Schedule 1 – Non-warlike Service

 

Section 1 omits and substitutes a table item into Veterans’ Entitlements (Non-warlike Service) Determination 2019. The table item inserts an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Consultation

The Department of Veterans’ Affairs were consulted during the classification process. It is noted that decisions about the nature of service are subject to bipartisan consultation through Government and do not impact business or competition.

 

Authority: Subsection 5C(1) of the

Veterans' Entitlement Act 1986


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Veterans’ Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1)

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

The purpose of this Determination is to amend Veterans’ Entitlements (Non-warlike Service) Determination 2019 by inserting an end date for Operation Okra. A new table item for Operation Okra has also been inserted which states the nature, area and further period of operation.

 

Human rights implications

This Determination engages the following human rights.

  • The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health (article 12(1) International Covenant on Economic, Social and Cultural Rights).
  • The right to social security requires a social security system be established and that a country must, within its maximum available resources, ensure access to a social security scheme (article 9 International Covenant on Economic, Social and Cultural Rights).
  • Live, take part and be included in the community (article 19 Convention on the Rights of Persons with Disabilities).

 

Legitimate objective: Defence members who become ill or injured in the course of duty may require special assistance and support on return from that duty. Whether an injury or illness is seen as arising out of duty may depend on the nature of the service that the member has been required to perform. The actual decision about whether the nature of service will be warlike or non-warlike is made by the Executive. This Determination ensures that the nature of service that a member provides is reflected in the level and type of benefits that they may be eligible for if they are ill or injured due to their Service.

 

The historical dates in this Determination do 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 this Determination is registered. It is a beneficial legislative instrument.

 

Reasonable, necessary and proportionate: Determining the nature of service that a member has provided allows the relevant level of additional support to be provided to assist the member with the health care and other needs that they may have as a member. Benefits may also be provided to a member's dependants, who are directly affected by the additional needs that a member may have as a result of their illness or injury. Although the application for benefits may require some provision of personal information and some limitation on the suppliers of health treatment and benefits that are provided, these restrictions are considered proportional.

 

  • The personal information is treated in accordance with legislated privacy protections.
  • The benefits are additional to those provided to the general public and address a special need arising out of a member's injury or illness.

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Darren Chester, Minister for Veterans and Defence Personnel

Overview

The Veterans’ Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1) was enacted to address the need for a clear and updated definition of non-warlike service under the Veterans’ Entitlements Act 1986. This determination was made by the Parliament of Australia and seeks to provide a precise delineation of the circumstances under which military service is classified as non-warlike, thereby affecting the benefits and support available to veterans who were injured or fell ill during such service. The policy objective behind this amendment is to ensure that veterans who were engaged in non-warlike operations receive appropriate recognition and support, reflecting the unique risks and nature of their service. This determination is crucial in providing a more beneficial standard of proof for veterans' claims related to their non-warlike service, ensuring they receive the necessary healthcare and social security benefits. This legislative instrument was designed to amend the previous Veterans’ Entitlements (Non-warlike Service) Determination 2019, specifically by inserting an end date for Operation Okra and providing a detailed description of the nature, area, and duration of the operation. The changes aim to accurately reflect the service conditions and to avoid any prejudicial impact on the rights of individuals affected by this determination. The determination is exempt from disallowance and sunsetting provisions, ensuring its stability and continued relevance in supporting veterans' entitlements. The retrospective application of this determination has been carefully considered to ensure it does not adversely affect any rights or impose liabilities on individuals other than the Commonwealth.

Scope and Application

The Veterans’ Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which itself is made under the Veterans’ Entitlements Act 1986. This Act governs the payment of pensions, benefits, and medical treatment for veterans and certain other persons, with specific provisions for those who have served in non-warlike capacities within the Defence Force. The Determination applies to veterans who have been classified as having performed non-warlike service, a determination that is made in writing by the Minister for Defence. The scope of the Act is federal, applying across Australia and affecting all veterans eligible under the Act’s provisions. Notably, the Determination is exempt from disallowance and sunsetting under the Legislation (Exemptions and Other Matters) Regulation 2015. The purpose of the Determination is to adjust the end date for Operation Okra and provide further details regarding its nature, area, and period of operation, ensuring that the benefits and support provided to veterans accurately reflect the nature of their service. This includes the application of a more beneficial standard of proof for claims related to non-warlike service and eligibility for treatment of specific conditions on a non-liability basis. The Determination does not adversely affect the rights of any person other than the Commonwealth and is designed to be a beneficial legislative instrument.

Key Provisions

The main operative sections of the Veterans’ Entitlements Amendment (Non-warlike Service) Determination 2019 (No. 1) (the Determination) are contained within Schedule 1. Section 1 of Schedule 1 amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 by inserting an end date for Operation Okra. Additionally, a new table item for Operation Okra is inserted, specifying the nature, area, and further period of operation. These changes provide clarity and additional details regarding the nature and duration of non-warlike service for Operation Okra, thereby influencing the eligibility criteria for veterans’ benefits. The Determination imposes several obligations and requirements on the parties it governs. For instance, it mandates the Repatriation Commission to apply a more beneficial standard of proof when assessing claims related to non-warlike service. This standard is intended to reflect an understanding of the unique nature of military service and the risks associated with such service. Furthermore, the Determination ensures that veterans with non-warlike service are eligible for treatment of malignant neoplasia and pulmonary tuberculosis on a non-liability basis, providing them with necessary medical treatment without the need to prove causation. Breach of the provisions in the Determination may lead to civil or administrative consequences. Although the Determination does not explicitly detail penalties, breaches of the Veterans’ Entitlements Act 1986 (the Act) may result in fines or other civil penalties as prescribed by the Act. Additionally, the Determination’s compatibility with human rights implies that any actions taken under it must be reasonable, necessary, and proportionate, and should not disproportionately impact the rights of individuals, including veterans and their dependants. Any failure to adhere to these principles could result in legal scrutiny or challenges. The Determination does not explicitly state maximum penalties for breaches, but it is linked to the broader legislative framework of the Veterans’ Entitlements Act 1986. Under the Act, penalties for non-compliance can include fines that vary based on the nature and severity of the breach. The Determination’s role in specifying the nature and duration of non-warlike service is critical in ensuring that the correct benefits are awarded, and any deviation from the prescribed provisions could lead to disputes or legal action regarding the rightful entitlements of veterans.

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