EXPLANATORY STATEMENT
Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2022 (No. 1)
This Determination amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 (the Principal Determination) made under subsection 5C(1) of the Veterans’ Entitlements Act 1986 (the Act), which provides for the payment of pensions and other benefits to, and medical treatment for, veterans and certain other persons, and for other purposes.
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.
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 Defence Minister to be non-warlike service.
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.
The purpose of this Determination is to add a new non-warlike operation, Operation Lilia, into the table which states the nature, area and 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Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.
The historical dates in this Determination do 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 a person (other than the Commonwealth). The retrospective application of this Determination is required to ensure that no ADF member (or their legal personal representative) is disadvantaged if claiming for death, injury or disease that may have occurred between the period when they commenced service on the operation and the commencement of this Determination.
Schedule 1 –Non-warlike Service amendment
Section 1 inserts item 40 into Schedule 1 of the Principal Determination provides that on and after 25 November 2021 service on Operation Lilia in the Solomon Islands is non-warlike service for the purposes of the definition of non-warlike service in subsection 5C(1) of the Act.
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’ Entitlements Act 1986
Overview
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2022 (No. 1) was enacted to amend the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which itself is made under subsection 5C(1) of the Veterans’ Entitlements Act 1986. This Act, enacted in 1986, is designed to provide pensions and other benefits to veterans and certain other individuals, as well as medical treatment. The 2022 Amendment Determination aims to address a gap by incorporating a new non-warlike operation, Operation Lilia in the Solomon Islands, into the existing list of operations that qualify for special consideration under the Act. This legislative amendment ensures that veterans who served in Operation Lilia, which commenced on 25 November 2021, can claim benefits without facing disadvantage due to the timing of the legislation's enactment. The determination was made by the relevant authority under the Act and is exempt from disallowance and sunsetting provisions as stipulated in the Legislation (Exemptions and Other Matters) Regulation 2015.
Scope and Application
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2022 (No. 1) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which was made under the Veterans’ Entitlements Act 1986. This legislation is concerned with the payment of pensions, benefits, and medical treatment for veterans and others who have participated in non-warlike service within the Australian Defence Force. The amendment specifically identifies service on Operation Lilia in the Solomon Islands from 25 November 2021 onwards as non-warlike service, thereby extending the scope of the Principal Determination to include this new operation. This Determination is applicable to all persons and entities affected by the Act, particularly those who may have served on Operation Lilia and are seeking benefits under the Act. It has a national reach and applies across Australia, ensuring that the rights and entitlements of affected individuals are recognised and protected. The Determination is exempt from disallowance and sunsetting, thereby maintaining its legislative force without the need for parliamentary scrutiny in these respects. Subordinate instruments may further extend or clarify the application of this Determination.
Key Provisions
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2022 (No. 1) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019. Specifically, section 1 of the Amendment Determination allows for its citation, while section 2 ensures that the changes come into effect the day after registration. Section 3 clarifies that this Amendment Determination operates under the definition of non-warlike service as outlined in subsection 5C(1) of the Veterans’ Entitlements Act 1986. The primary alteration introduced by section 4 of the Amendment Determination is the addition of "Operation Lilia" in the Solomon Islands, which is identified as non-warlike service, thereby extending the scope of benefits and protections to those who served in this operation.
The obligations imposed by this Amendment Determination on the relevant parties, primarily the Department of Veterans' Affairs and the Repatriation Commission, include ensuring that the newly designated non-warlike operation, Operation Lilia, is acknowledged in all relevant assessments and claims. The Repatriation Commission must apply a more beneficial standard of proof when assessing claims related to veterans who served in Operation Lilia, reflecting an understanding of the unique nature of military service and the risks associated with such operations. This requires that the Commission reviews past and future claims with the understanding that service in Operation Lilia is non-warlike, thereby potentially affecting the outcomes of claims for injury, disease, or death related to this operation.
The Amendment Determination does not explicitly outline specific offences or penalties for breach; however, any failure to adhere to the newly defined non-warlike service could lead to legal challenges regarding the validity of claims and the retrospective application of benefits. Such breaches could result in disputes over the application of the beneficial standard of proof or the validity of claims made under the amended definition. While the Amendment Determination itself does not detail specific penalties, any failure to comply with the legislative requirements could be addressed under the general provisions of the Veterans’ Entitlements Act 1986 or other relevant legislation, potentially leading to civil or administrative consequences.