EXPLANATORY STATEMENT
Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (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 two new non-warlike operations 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Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.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 39A into Schedule 1 of the Principal Determination which provides that from 21 December 2020 to 11 February 2021 service on support operations in Somalia is non-warlike service for the purposes of the definition of non-warlike service in subsection 5C(1) of the Act.
Section 2 inserts item 41 into Schedule 1 of the Principal Determination which provides that from 18 June 2022 to 3 July 2022 service on ADF reconnaissance tasks and support to the Prime Minister’s visit in Ukraine 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 2024 (No. 1) was enacted to address a gap in the definition of non-warlike service under the Veterans’ Entitlements Act 1986. This legislation amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which was made under subsection 5C(1) of the Act, to include two new non-warlike operations. The objective of the Amendment Determination is to ensure that veterans who served in these newly classified operations receive the appropriate benefits and support, reflecting the risks inherent in their service. The determination was made by the relevant authority under the Act and is exempt from disallowance and sunsetting provisions as specified in the Legislation (Exemptions and Other Matters) Regulation 2015. The Department of Veterans’ Affairs was consulted during the classification process, ensuring that the amendment aligns with broader policy objectives and does not adversely affect the rights of individuals or businesses.
Scope and Application
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (No. 1) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, made under subsection 5C(1) of the Veterans’ Entitlements Act 1986. This Act provides for the payment of pensions and other benefits to, and medical treatment for, veterans and certain other persons. The amendment adds two new operations to the table in the Principal Determination, specifying the nature, area, and period of non-warlike service, which will apply a more beneficial standard of proof when assessing claims for liability of a veteran's injury, disease, or death in relation to these periods of service. The new operations include service on support operations in Somalia from 21 December 2020 to 11 February 2021, and ADF reconnaissance tasks and support to the Prime Minister’s visit in Ukraine from 18 June 2022 to 3 July 2022. The Determination applies to veterans who served during these periods, and the retrospective application ensures that no member of the Australian Defence Force is disadvantaged in their claims for death, injury, or disease. This Determination is exempt from disallowance and sunsetting, and its provisions are applicable nationally under the Commonwealth's jurisdiction.
Key Provisions
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (No. 1) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 (subsection 5C(1) of the Veterans’ Entitlements Act 1986). This Determination specifically identifies additional periods and locations of service that are classified as non-warlike service, thereby altering the conditions under which veterans may claim benefits related to their service. Section 4 of this Determination outlines the changes to the Principal Determination, where it amends the table in Schedule 1 to include two new entries, item 39A and item 41, defining specific periods of service in Somalia and Ukraine as non-warlike.
The obligations and requirements imposed by this Determination pertain to the recognition and classification of service as non-warlike, which in turn affects the standard of proof for claims related to service-connected injuries, diseases, or deaths. Specifically, by classifying certain operations as non-warlike, the Repatriation Commission is mandated to apply a more lenient standard of proof when assessing claims from veterans who served during these periods. This adjustment is intended to reflect the understanding of the unique nature and risks of military service, both in warlike and non-warlike operations.
Breach of the provisions outlined in the Veterans’ Entitlements Act 1986, including any amendments made by this Determination, could result in civil or criminal penalties. However, the Explanatory Statement does not explicitly detail the specific offences, penalties, or consequences for breach of the Act. It is implied that the penalties for non-compliance could be severe, given the nature of the legislation and its purpose to support veterans. The overarching legal framework under which this Determination operates would dictate the enforcement and penalties for any violations, which would likely include fines or imprisonment, depending on the severity of the breach.