EXPLANATORY STATEMENT
Veterans’ Entitlements (Warlike Service – Operation ENDURING FREEDOM: Afghanistan) Determination 2014
The Veterans’ Entitlements Act 1986 (the Act) provides for the payment of pensions and other benefits to, and medical treatment for, veterans and certain other persons, and for other purposes. In particular, it provides for automatic treatment for certain cancers, post traumatic stress disorder and some other prescribed conditions, access to the Veterans and Veterans Families Counselling Service, funeral benefits, Service pension, access to gold card and the Victoria Cross Allowance.
The purpose of this Determination is to declare service by Australian Defence Force (ADF) personnel on a Third Country Deployment to Operation ENDURING FREEDOM: Afghanistan, part of the US Global War on Terror, as warlike service for the purpose of the Act.
Clause 1 sets out the manner in which this Determination may be cited.
Clause 2 provides that the Determination commences on 7 October 2001.
Clause 3 provides the authority under which this determination is made..
Clause 4 makes clear the definition of certain acronyms used throughout the Determination
Clause 5 specifies that service in an operation as described in table 1 is warlike service for the purposes of subsection 5C (1) of the Act.
The retrospective operation of this Determination is required to ensure that no ADF member (or his or her legal personal representative as the case may be) 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 date that this Determination is registered on the Federal Register of Legislative Instruments. The retrospective application of this Determination does not affect the rights of any persons (other than the Commonwealth) so as to disadvantage those persons, nor does it impose liabilities (other than on the Commonwealth) in respect of anything done before the date the Determination is registered.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is exempt from disallowance pursuant to item 10 of Schedule 2 of the Legislative Instruments Regulations 2004 (the Regulations) and is also exempt from sunsetting pursuant to item 47 of Schedule 3 of the Regulations.
Statement of Compatibility with Human Rights
This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
This Determination engages the following human rights:
- The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health (article 12(1) International Covenant on Economic, Social and Cultural Rights),
- The right to social security requires a social security system be established and that a country must, within its maximum available resources, ensure access to a social security scheme (article 9 International Covenant on Economic, Social and Cultural Rights),
- The prohibition on interference with privacy and attacks on reputation (article 17 of the International Covenant on Civil and Political Rights).
The Veterans’ Entitlements (Warlike Service – Operation ENDURING FREEDOM: Afghanistan) Determination 2014 establishes that service by ADF personnel on a Third Country Deployment to Operation ENDURING FREEDOM: Afghanistan, part of the US Global War on Terror, is within the definition of “warlike service” in section 5C(1) of the Veterans’ Entitlements Act 1986.
Legitimate objective: Defence members who perform duty on operations may require special assistance and support on return from that duty. The requirement for support may increase as members age. Different levels of support are available depending on the nature of the service that the member has been required to perform. The actual decision about whether the nature of service will be warlike or non-warlike is made by the Executive. This declaration simply ensures that the nature of service that a member provides is reflected in the level and type of benefits that they may be eligible for as a veteran.
Reasonable, necessary and proportionate: Determining the nature of service that a member has provided allows the relevant level of additional support to be provided to assist the member with the health care and other needs that they may have as a veteran. Benefits may also be provided to a member’s dependant partner, who is directly affected by the additional needs that a member may have as a result of their status as a veteran.
Although the application for benefits may require some provision of personal information and some limitation on the suppliers of health treatment and benefits that are provided, these restrictions are considered proportional:
- The personal information is treated in accordance with legislated privacy protections, and
- The benefits are additional to those provided to the general public to address veterans’ special needs.
This Determination is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Department of the Prime Minister and Cabinet and 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 (Warlike Service – Operation ENDURING FREEDOM: Afghanistan) Determination 2014 was enacted to address the need for clarification regarding the eligibility of Australian Defence Force (ADF) personnel who served in Afghanistan as part of Operation ENDURING FREEDOM for veterans' benefits under the Veterans’ Entitlements Act 1986. This Determination was made by the executive branch to ensure that ADF personnel who served in warlike conditions in Afghanistan are recognised as such for the purpose of receiving appropriate benefits. The policy objective of this Determination is to provide ADF members with the necessary support and benefits as they age, based on the nature of their service, thereby ensuring they receive the appropriate level of assistance and care. This Determination is retrospective to 7 October 2001, ensuring that ADF members are not disadvantaged if they claim for death, injury, or disease occurring between the start of their service and the registration of this Determination.
This Determination aligns with human rights by ensuring that any limitations on rights are reasonable, necessary, and proportionate. The right to health, social security, and protection from privacy interference are considered, with the Determination ensuring that any personal information is handled under existing privacy laws and that the benefits provided are additional to those available to the general public. The Determination was subject to consultation between the Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs, and its compatibility with human rights was confirmed.
Scope and Application
The Veterans’ Entitlements (Warlike Service – Operation ENDURING FREEDOM: Afghanistan) Determination 2014 applies to Australian Defence Force (ADF) personnel who served on a Third Country Deployment to Operation ENDURING FREEDOM: Afghanistan, which is part of the US Global War on Terror. The primary objective of this Determination is to classify the service of these ADF personnel as "warlike service" under section 5C(1) of the Veterans’ Entitlements Act 1986. This classification is essential to ensure that veterans are eligible for appropriate pensions, medical treatment, and other benefits as stipulated in the Act. The Determination is designed to provide automatic treatment for certain conditions such as specific cancers, post-traumatic stress disorder, and other prescribed conditions, along with access to various services and allowances including the Veterans and Veterans Families Counselling Service, funeral benefits, Service pension, gold card access, and the Victoria Cross Allowance. The Determination is retrospective to 7 October 2001, ensuring that ADF members are not disadvantaged in claiming for any injuries, diseases, or deaths occurring between their service commencement and the registration date of the Determination on the Federal Register of Legislative Instruments. It is important to note that this retrospective application does not disadvantage any parties other than the Commonwealth nor does it impose liabilities on entities other than the Commonwealth for actions prior to the Determination’s registration.
Key Provisions
The Veterans’ Entitlements (Warlike Service – Operation ENDURING FREEDOM: Afghanistan) Determination 2014 outlines the criteria under which service by Australian Defence Force (ADF) personnel on a Third Country Deployment to Operation ENDURING FREEDOM: Afghanistan is classified as warlike service for the purposes of the Veterans’ Entitlements Act 1986 (section 5). This determination is crucial for ensuring that ADF members who have served in Afghanistan under these conditions are eligible for the full range of benefits and support services provided by the Act. It is important to note that this determination is retrospective, meaning it applies to all ADF members who have served on Operation ENDURING FREEDOM: Afghanistan from the commencement date of the determination, which is 7 October 2001 (Clause 2).
Under the provisions of this determination, ADF personnel who have served in Afghanistan as part of Operation ENDURING FREEDOM are entitled to various benefits, including pensions, medical treatment, and counselling services (section 5). These benefits are designed to address the specific needs of veterans who have been exposed to warlike conditions and may be suffering from conditions such as post-traumatic stress disorder or certain cancers. The determination also ensures that the rights and entitlements of ADF members are not compromised, and it clarifies the obligations of the Commonwealth in providing support to veterans and their families.
The obligations imposed by this determination on the Commonwealth include the provision of appropriate financial, medical, and counselling support to eligible ADF members. The Commonwealth must ensure that these services are accessible and that they meet the specific needs of veterans who have served in warlike conditions. This includes ensuring that the benefits provided are adequate and that the process for accessing these benefits is straightforward and efficient. The determination also imposes an obligation on the Commonwealth to respect the privacy and reputation of veterans, ensuring that any personal information collected is handled in accordance with privacy laws.
Failure to comply with the provisions of this determination may result in legal consequences for the Commonwealth. Although the determination itself does not specify penalties for non-compliance, the Veterans’ Entitlements Act 1986 provides a framework for addressing breaches of the Act. Under the Act, penalties for non-compliance can include fines and other civil or criminal penalties, depending on the nature and severity of the breach. The specific penalties are outlined in the Act and may vary based on the circumstances of the case.