EXPLANATORY STATEMENT
Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 1) 2026
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 amend the period of operation for the non-warlike operation in Libya.
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Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.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
Item 1 amends table item 38 of the table at section 1 of Schedule 1 of the Principal Determination to provide for the reopening of the operation in Libya. The table item was originally closed on 5 June 2019, but the operation has continued past those dates and needs to be reopened.
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 (No. 1) 2026 amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which was made under 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, and aims to address issues related to the classification of military service. The Amendment Determination is intended to rectify a gap by reopening the non-warlike service operation in Libya, which was previously closed on 5 June 2019, but has since continued. Enacted by the relevant authority under subsection 5C(1) of the Veterans’ Entitlements Act 1986, this legislative instrument seeks to ensure that no member of the Australian Defence Force or their legal personal representatives are disadvantaged in claims related to death, injury, or disease arising from service in Libya.
Scope and Application
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 1) 2026 amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, providing specific adjustments to the classification and benefits associated with non-warlike service. This Determination applies to veterans and other eligible individuals who have served in non-warlike operations, specifically extending the period of service in Libya to ensure that all claims related to that service are appropriately assessed. The amendment is made under subsection 5C(1) of the Veterans’ Entitlements Act 1986, which allows the Defence Minister to define non-warlike service. This Determination is exempt from disallowance and sunsetting provisions, ensuring its continued applicability and relevance. The changes made by this Determination do not affect the rights or liabilities of individuals, other than the Commonwealth, and aim to prevent any disadvantage to those who may have experienced injury, disease, or death during their service. The amendments reflect the ongoing nature of certain operations and ensure that the Repatriation Commission can apply a more beneficial standard of proof when assessing claims related to non-warlike service.
Key Provisions
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 1) 2026 (the Determination) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 (the Principal Determination) under subsection 5C(1) of the Veterans’ Entitlements Act 1986 (the Act). This amendment is primarily focused on the re-opening of the non-warlike operation in Libya, which was previously closed on 5 June 2019 but has continued beyond that date (Schedule 1, Item 1). The Principal Determination outlines provisions for the payment of pensions and other benefits to veterans, as well as the provision of medical treatment, and this amendment ensures that veterans who have served in Libya since the closure date can continue to access these benefits.
The Determination imposes obligations on the Repatriation Commission to apply a more beneficial standard of proof when assessing claims related to veterans' injuries, diseases, or deaths that occurred during non-warlike service. This beneficial standard of proof acknowledges the unique risks and nature of military service and aims to ensure that veterans are fairly compensated for any harm suffered during their service (subsection 5C(1) of the Act). Additionally, the Determination requires that the historical dates specified do not adversely affect the rights of any person other than the Commonwealth and do not impose any liabilities on such individuals (Schedule 1).
The Determination also sets out the manner in which it may be cited (Section 1), specifies that it commences on the day after registration (Section 2), and clarifies that it is made under the definition of non-warlike service in subsection 5C(1) of the Veterans’ Entitlements Act 1986 (Section 3). Section 4 explains that the instruments specified in the Schedule are amended or repealed as outlined in the applicable items, with any other items having effect according to their terms. This ensures clarity in how the amendments are applied and interpreted.
Regarding potential breaches of the Determination, the Act does not specify explicit offences, penalties, or civil/criminal consequences for non-compliance. However, any failure to adhere to the provisions of the Determination could potentially lead to disputes over entitlements and benefits for veterans, which may be resolved through administrative or judicial processes. Given the nature of the Determination, which is focused on ensuring equitable treatment of veterans, breaches could be subject to review and correction by relevant authorities to rectify any disadvantages to affected veterans.