EXPLANATORY STATEMENT

Veterans’ Entitlements (Participants in British Nuclear Tests – Extension of Eligibility) Instrument 2012

EMPOWERING PROVISION

Subsection 69B(6) of the Veterans’ Entitlements Act 1986 (the Act).

PURPOSE

The purpose of the attached instrument (R7/2012) is to establish another class of person who is taken to have rendered British nuclear test defence service for the purposes of the Act. 

A person who renders British nuclear test defence service is taken to have rendered “defence service” under the Act and as such is eligible for pension and treatment in the circumstances set out in the Act.

The instrument sets out the requirements a person must satisfy in order to have rendered British nuclear test defence service under subsection 69B(5) of the Act.  Generally speaking, the requirements are as follows:

• the person must have been involved in the transport, recovery, maintenance or cleaning of an aircraft contaminated by nuclear fallout as a result of its use in a nuclear test.

• the person’s involvement must have been at a time during a specific period and in relation to a specific nuclear test (within Australia).

• at the relevant time the person must have been a member of the Australian Defence Force.

It is not necessary that the contaminated aircraft was in the relevant nuclear test area, merely that it was contaminated by a nuclear test in that area.  Any equipment on or attached to the contaminated aircraft is taken to be part of the aircraft.

CONSULTATION

Not directly but claims have been received from people seeking to be covered by the Act for being involved with contaminated aircraft during a relevant period.  Direct consultation in respect of the instrument was not undertaken because it may have caused delays and exacerbated any anguish currently being experienced by claimants.

Human rights implications

The attached legislative instrument does engage an applicable right or freedom.  It relates to the right to social security.  The right to social security requires, among other things, the right to a minimum essential level of benefits for all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

In the 1950’s and 1960’s members of the Defence Force rendered service in connection with British nuclear tests in Australia.  In particular the personnel recovered, transported and cleaned aircraft that had been contaminated in the nuclear tests. 

As a result of being in contact with contaminated material it may be that the relevant personnel develop health conditions e.g. malignant neoplasia.

The attached instrument enables the personnel in question to obtain compensation and health care benefits if a link can be established between a medical condition the person may have and the person’s service in connection with the British nuclear tests.

This compensation would be in accordance with Australia’s social security obligations under the International Covenant on Economic, Social and Cultural Rights.

The UN Committee on Economic Social and Cultural Rights has stated that qualifying conditions for benefits must be reasonable, proportionate and transparent.

The attached legislative instrument appears to satisfy these criteria.  The qualifying conditions for rendering the service in question, which could result in benefits, are prescriptive, not discretionary. 

Conclusion

The legislative instrument in question is compatible with human rights because it complements the right to social security (health care) and the qualifying conditions it imposes on the grant of the relevant benefit are considered appropriate in the circumstances.

Repatriation Commission

Rule-Maker

DOCUMENTS INCORPORATED-BY-REFERENCE

No.

FURTHER EXPLANATION

Attachment A.

Attachment A

Items    Explanation

1. sets out the name of the instrument.

2. provides that the instrument commences on the day after the day it is registered on the Federal Register of Legislative Instruments.

Note 1 indicates that the prohibition in the Act on a relevant claim being backdated earlier than the date when eligibility for the benefit in the claim is established under the Act (subsection 20(3)) does not apply in relation to a claim in respect of British nuclear test defence service under the attached instrument.

Note 2 indicates that a claim referred to in Note 1 may be made before, on or after, the commencement of the item in the Veterans’ Affairs Legislation Amendment (Participants in British Nuclear Tests) Act 2011 that provides that the prohibition in subsection 20(3) does not apply to such claims.

3. is a definition section.

4. sets out the requirements a person must satisfy in order to have rendered British nuclear test defence service under subsection 69B(5) of the Act namely:

• the person was involved in the transport, recovery, maintenance or cleaning of an aircraft that was contaminated as a result of its use in a nuclear test conducted in a nuclear test area, being involvement that occurred at any time during:

(i) if the area was the Monte Bello Islands area—the period from the beginning of 3 October 1952 to the end of 19 July 1956; or

(ii) if the area was the Emu Field area—the period from the beginning of 15 October 1953 to the end of 15 May 1956; or

(iii) if the area was the Maralinga area—the period from the beginning of 27 September 1956 to the end of 30 May 1963; and

• the person was, at that time a member of the Australian Defence Force.

To avoid doubt, the aircraft in question does not have to have been in the nuclear test area at the time it was contaminated.  Further, the reference to the aircraft includes any equipment on or attached to the aircraft.