EXPLANATORY STATEMENT
Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (No. 2)
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. Members with non-warlike service can also receive treatment for any malignant neoplasms and pulmonary tuberculosis, whether or not they are related to service.
The purpose of this Determination is to add 2 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Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.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 adds items 42 and 43 into the table at section 1 of Schedule 1 of the Principal Determination which provide the following.
- That on and after 13 October 2023 service supporting Operation BEECH is non-warlike service for the purposes of the definition of non-warlike service in subsection 5C(1) of the Act.
- That on and after 15 February 2024 service supporting Operation HYDRANTH is a non-warlike operation 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. 2) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 under subsection 5C(1) of the Veterans’ Entitlements Act 1986. The principal aim of this legislation is to enhance the benefits and entitlements for veterans engaged in non-warlike operations by incorporating two additional operations into the existing framework of non-warlike service. This amendment ensures that veterans serving in these operations receive the same benefits and a more favourable standard of proof for claims related to injuries, diseases, or deaths that may occur during their service. The Determination is exempt from disallowance and sunsetting under the relevant regulations, and it does not adversely affect the rights of non-Commonwealth persons or impose liabilities on them. The policy objective is to provide fair and equitable treatment for veterans by recognising the unique risks and challenges associated with non-warlike military operations.
Scope and Application
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (No. 2) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which is made under the Veterans’ Entitlements Act 1986. This Act governs the payment of pensions and other benefits, as well as medical treatment for veterans and certain other individuals. The Amendment Determination is applicable to the Commonwealth and extends to any service defined by the Defence Minister as non-warlike under the Act. It includes veterans who have served in specific operations, now classified as non-warlike, and it provides these individuals with a more beneficial standard of proof when assessing claims related to injuries, diseases, or deaths that may have occurred during their service. The Determination also ensures that these veterans can receive treatment for malignant neoplasms and pulmonary tuberculosis, regardless of whether these conditions are service-related. The Amendment Determination specifies two new operations, Operation BEECH and Operation HYDRANTH, which are now recognised as non-warlike service. The provisions of this Determination are retrospective, ensuring that no veteran or their legal personal representative is disadvantaged in claiming for injuries, diseases, or deaths that occurred before the commencement of this Amendment Determination.
Key Provisions
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination 2024 (No. 2) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 (Principal Determination) by expanding the definition of non-warlike service under subsection 5C(1) of the Veterans’ Entitlements Act 1986. The key provision of this Amendment Determination is the addition of two new non-warlike operations, as outlined in Section 4, which amends the table in Schedule 1 of the Principal Determination. Specifically, item 42 specifies that service supporting Operation BEECH on and after 13 October 2023 is considered non-warlike service, while item 43 states that service supporting Operation HYDRANTH on and after 15 February 2024 is also non-warlike service. These additions aim to provide more comprehensive coverage for veterans who have served in these operations, ensuring they can access the benefits and treatments that come with non-warlike service recognition.
This Determination imposes specific obligations on the parties it governs, primarily the Department of Veterans’ Affairs and the Repatriation Commission. The Department of Veterans’ Affairs must ensure that the new operations are correctly identified as non-warlike service and that all relevant changes are implemented within their systems. The Repatriation Commission is required to apply the beneficial standard of proof for assessing claims related to these operations, acknowledging the unique risks and circumstances associated with non-warlike service. Both entities must also ensure that veterans who served in these operations are informed about the changes and how they can access the benefits they are entitled to.
The Amendment Determination also outlines the potential consequences for non-compliance. Although specific offences, penalties, or criminal consequences are not detailed in the text, breaches of the requirements set out in the Veterans’ Entitlements Act 1986 or the regulations could lead to civil or administrative penalties. For instance, failure to correctly classify service as non-warlike could result in veterans not receiving the benefits they are entitled to, leading to potential legal challenges or administrative reviews. The text does not specify maximum penalties, but they would typically align with the general provisions of the Act and related regulations, which could include fines or other corrective actions to ensure compliance.