EXPLANATORY STATEMENT
Veterans’ Entitlements (Warlike Service – Operation HERRICK) 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 HERRICK, the
United Kingdom contribution to the International Security Assistance Force mission in Afghanistan, 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 1 September 2004.
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 HERRICK) Determination 2014 establishes that service by ADF personnel on a Third Country Deployment to Operation HERRICK, the United Kingdom contribution to the International Security Assistance Force mission in Afghanistan, 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 HERRICK) Determination 2014 was enacted to address the gap in recognising service by Australian Defence Force (ADF) personnel on a Third Country Deployment to Operation HERRICK as warlike service under the Veterans’ Entitlements Act 1986. This Determination was made by the Executive to ensure that ADF members who served in this operation are not disadvantaged when claiming benefits for death, injury, or disease that may have occurred during their service. The objective is to provide appropriate support to veterans based on the nature of their service, thereby ensuring that they receive the correct level of benefits. The Determination is compatible with human rights as it ensures that the restrictions on personal information and service providers are reasonable, necessary, and proportionate, and are aligned with the social security rights and the right to health as recognised in international human rights instruments.
This legislative instrument was developed under the authority of subsection 5C(1) of the Veterans’ Entitlements Act 1986 and is exempt from disallowance and sunsetting provisions. The policy objective is to provide a legitimate and necessary classification of warlike service to ensure that ADF members receive the appropriate support and benefits as veterans. The Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs were consulted during the classification process to ensure that the Determination aligns with human rights and does not impact business or competition.
Scope and Application
The Veterans’ Entitlements (Warlike Service – Operation HERRICK) Determination 2014 applies to Australian Defence Force (ADF) personnel who served on a Third Country Deployment to Operation HERRICK, which is the United Kingdom's contribution to the International Security Assistance Force mission in Afghanistan. This Determination classifies the service rendered by these ADF personnel as "warlike service" for the purposes of the Veterans’ Entitlements Act 1986. This classification ensures that such service is recognised under the Act, thereby entitling the ADF personnel and their dependents to specific benefits and support that are provided to veterans. The Determination applies to individuals who served in this capacity from 1 September 2004, the date of its commencement, and has retrospective effect to safeguard the rights of ADF members who may have suffered injury, illness, or death during their service. It is important to note that the Determination is a legislative instrument exempt from disallowance and sunsetting provisions, reinforcing its legal standing and ongoing relevance. The objective of this Determination is to ensure that ADF members receive appropriate support and benefits commensurate with the nature of their service, which is determined by the Executive, thereby aligning with the principles of the Veterans’ Entitlements Act 1986.
Key Provisions
The Veterans’ Entitlements (Warlike Service – Operation HERRICK) Determination 2014 (the Determination) specifies that service by Australian Defence Force (ADF) personnel on a Third Country Deployment to Operation HERRICK, which is the United Kingdom's contribution to the International Security Assistance Force mission in Afghanistan, qualifies as "warlike service" under subsection 5C(1) of the Veterans’ Entitlements Act 1986 (the Act) (Clause 5). This determination was made to ensure that ADF members and their legal personal representatives are not disadvantaged when claiming for death, injury, or disease that may have occurred before the determination was registered on the Federal Register of Legislative Instruments. Clause 2 stipulates that the Determination commences on 1 September 2004, while Clause 3 outlines the authority under which this determination is made, and Clause 4 provides definitions for certain acronyms used throughout the document.
The obligations and requirements imposed by this Determination are primarily to ensure that ADF personnel who served in Operation HERRICK are recognised as having performed warlike service, thereby qualifying them for the benefits and entitlements outlined in the Veterans’ Entitlements Act 1986. This includes eligibility for automatic treatment for certain cancers, post-traumatic stress disorder, and other prescribed conditions, access to the Veterans and Veterans Families Counselling Service, funeral benefits, Service pension, access to the gold card, and the Victoria Cross Allowance. The retrospective application of the Determination aims to protect the rights of ADF members without disadvantaging any other parties or imposing new liabilities on anyone except the Commonwealth.
The Determination also outlines the consequences for non-compliance or breach of the provisions set out within it. Given that this is a legislative instrument for the purposes of the Legislative Instruments Act 2003, it is exempt from disallowance under item 10 of Schedule 2 of the Legislative Instruments Regulations 2004 and from sunsetting under item 47 of Schedule 3 of the Regulations. The Statement of Compatibility with Human Rights assures that the Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. It engages with the right to health, the right to social security, and the prohibition on interference with privacy and attacks on reputation. The limitations imposed by the Determination are deemed reasonable, necessary, and proportionate, and it was developed through bipartisan consultation, ensuring that it does not impact business or competition.