EXPLANATORY STATEMENT
Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 3) 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 include 1 new non-warlike operation of Operation INHERENT RESOLVE.
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Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.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 inserts a new item 45 into the table at section 1 of Schedule 1 of the Principal Determination which provides that from 13 February 2025 service in support of US operations against ISIS 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 and support the amendments made by this Determination.
The rule maker was satisfied that further external consultation was not required.
Authority: Subsection 5C(1) of the
Veterans’ Entitlements Act 1986
Overview
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 3) 2026 amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which was made under subsection 5C(1) of the Veterans’ Entitlements Act 1986. The Act, enacted in 1986, provides for the payment of pensions, other benefits, and medical treatment for veterans and certain other persons. The 2026 Determination aims to address the gap in recognising certain operations as non-warlike service for the purpose of applying a more beneficial standard of proof when assessing claims for injuries, diseases, or deaths related to military service. The Department of Veterans’ Affairs supports these amendments, recognising the need to update the list of non-warlike operations to ensure that veterans are not disadvantaged in their claims. This Determination was made under the authority of subsection 5C(1) of the Veterans’ Entitlements Act 1986 by the relevant body and is exempt from disallowance and sunsetting under the Legislation (Exemptions and Other Matters) Regulation 2015.
Scope and Application
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 3) 2026 amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019, which is made under subsection 5C(1) of the Veterans’ Entitlements Act 1986. This legislation pertains to the payment of pensions, other benefits, and medical treatment for veterans who have served in non-warlike capacities within the Defence Force, as determined in writing by the Defence Minister. The Determination applies to any individual who has provided non-warlike service, including service in support of US operations against ISIS from 13 February 2025, and aims to provide a more favourable standard of proof when assessing claims related to injuries, diseases, or deaths that may have occurred during such service. The Act has a national jurisdictional reach as it is a Commonwealth instrument, and its application is not restricted by state or territory boundaries. This Determination is exempt from disallowance and sunsetting provisions, ensuring its continued relevance and enforceability. The amendments made by this Determination do not adversely affect the rights of any person other than the Commonwealth and do not impose any new liabilities on them, with a specific provision to prevent any disadvantage to ADF members who may be claiming for injuries or diseases that occurred before the commencement of this Determination.
Key Provisions
The Veterans’ Entitlements (Non-warlike Service) Amendment Determination (No. 3) 2026 introduces specific provisions under the Veterans’ Entitlements Act 1986 (section 5C(1)). This Determination (section 3) amends the Veterans’ Entitlements (Non-warlike Service) Determination 2019 by including a new operation, Operation INHERENT RESOLVE, as a non-warlike operation (Schedule 1, item 1). This amendment aims to recognise the unique risks and circumstances associated with this operation, thereby enabling a more beneficial standard of proof for veterans seeking benefits related to their service during this period (subsection 5C(1)).
Under the new provisions, entities such as the Department of Veterans’ Affairs and the Repatriation Commission are required to apply the amended definition of non-warlike service to all relevant claims and assessments (Schedule 1, item 1). This includes ensuring that any service in support of US operations against ISIS from 13 February 2025 is treated as non-warlike service. The obligations extend to ensuring that all claims from veterans who served in this operation are evaluated under the new standards, which require a lower threshold of proof for claims related to injury, disease, or death (section 4). The retrospective application of this Determination ensures that no veteran is prejudiced if they commenced service before the commencement of this amendment (Schedule 1, item 1).
Breaching the requirements set out in this Determination may result in civil or administrative consequences for entities failing to comply with the amended provisions. Although specific penalties are not detailed in the text, non-compliance could lead to legal actions or penalties under the general legislative framework governing the administration of veterans' benefits. The Department of Veterans’ Affairs, which supports these amendments, ensures that the new provisions are implemented to protect the rights of veterans without imposing any new liabilities on them (Schedule 1, item 1).