This Act may be cited as the Military Rehabilitation and Compensation Act 2004.
s 2Commencement
(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent.
27 April 2004
2. Sections 3 to 359
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
1 July 2004
(seeGazette 2004, GN22)
3. Sections 360 to 385
The day on which this Act receives the Royal Assent.
27 April 2004
4. Sections 386 to 440
At the same time as the provision(s) covered by table item 2.
1 July 2004
Note:
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
s 3Simplified outline of this Act
This Act provides rehabilitation, compensation and other entitlements for veterans and other members of the Defence Force (referred to in this Act as members and formers members) and for members of their families.
In particular, this Act provides for:
(a)
compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease; and
(aa)
rehabilitation programs for current or former members of the Defence Force (including some who have made a claim for acceptance of liability by the Commission for a service injury or disease and some who have not made such a claim and who need not have a service injury or disease); and
(b)
compensation and other benefits to be provided for the dependants of some deceased members; and
(c)
certain assistance (such as child care, counselling and household services) to members or former members or to related persons of members, former members or deceased members.
From the date of commencement, the benefits and assistance provided for by this Act cover all members and former members, regardless of when they rendered service or the nature of that service, and this is the only Act under which a claim for such benefits and assistance can be made.
Note 1:
Part 2 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 deals with the application of this Act on and after the date of commencement.
Note 2:
Part IA of the DRCA and Part IA of the VEA deal with the closure of those Acts to certain new claims on and after the date of commencement.
Before most benefits can be paid or provided, the Commission must accept liability for an injury, disease or death of a current or former member under Chapter 2. Chapters 3, 4, 5 and 6 set out what the benefits are. Assistance or benefits under Chapter 5A can be provided before the Commission has accepted such liability.
The procedure for dealing with claims under this Act is dealt with under Chapters 7 and 8. The Veterans’ Review Board is dealt with in Chapter 8A. The Repatriation Commission, the Repatriation Medical Authority, the Specialist Medical Review Council and the administration of the Act are dealt with in Chapters 9 to 11.
Provisions in this Act might be affected by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.
A person who is entitled to a benefit under this Act might also be entitled to a pension, allowance or other benefit under the VEA. This might include the following:
(a)
a service pension under Part III of that Act;
(b)
treatment under Part V of that Act;
(c)
veterans supplement or Income Support Supplement;
(d)
a funeral benefit.
Note:
Under section 203 of the VEA, the Minister may enter into an arrangement with a foreign country providing for the making of payments that are, or the provision of treatment or rehabilitation that is, comparable to payments or treatment or rehabilitation under this Act.
s 4Extension to external Territories
This Act extends to every external Territory.
s 4ASecretary may arrange for use of computer programs to make decisions or determinations
(1)
The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Commission may, or must, under this Act or a legislative instrument made for the purposes of this Act:
(a)
make a decision or determination; or
(b)
exercise any power or comply with any obligation; or
(c)
do anything else related to making a decision or determination or exercising a power or complying with an obligation.
(1A)
Subsection (1) does not apply to the following:
(a)
a decision or determination that the death of a person is not a service death;
(b)
a decision or determination that an injury sustained by a person is not a service injury;
(c)
a decision or determination that a disease contracted by a person is not a service disease.
(2)
For the purposes of this Act or the legislative instrument, the Commission is taken to have:
(a)
made a decision or determination; or
(b)
exercised a power or complied with an obligation; or
(c)
done something else related to the making of a decision or determination or the exercise of a power or the compliance with an obligation;
that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under subsection (1).
Substituted decisions or determinations
(3)
The Commission may, under a provision of this Act or of the legislative instrument, make a decision or determination in substitution for a decision or determination the Commission is taken to have made under paragraph (2)(a) if the Commission is satisfied that the decision or determination made by the operation of the computer program is incorrect.
Note:
For review of a determination made in substitution, see Chapter 8.
(4)
Subsection (3) does not limit Chapter 8 (about reconsideration and review of determinations).
s 6Defence service
(1A)
For the purposes of this Act, the following kinds of service are defence service:
(a)
warlike service;
(b)
non‑warlike service;
(c)
British nuclear test defence service;
(d)
hazardous service;
(e)
peacetime service.
Note:
This Act applies in relation to operational service as if it were warlike service or non‑warlike service (see section 443).
(1)
In this Act:
(a)
warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)
non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act, or service that is peacekeeping service; and
(c)
peacetime service means service with the Defence Force that is not any of the following:
(i)
warlike service;
(ii)
non‑warlike service;
(iii)
British nuclear test defence service;
(iv)
hazardous service.
Note:
The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
(2)
For the purposes of subsection (1), service with the Defence Force means:
(a)
for a cadet—participation in the activities of the Australian Defence Force cadets; and
(b)
for a declared member—engagement in, or performance of, activities or acts specified in the determination under section 8 that applies to the member.
s 7Reference to service injury sustained or service disease contracted includes reference to aggravation etc
To avoid doubt, a reference to a service injury being sustained, or a service disease being contracted, at a particular time includes a reference to an injury or disease that is aggravated, or materially contributed to, by defence service at such a time.
s 6AMeanings of peacekeeping service and Peacekeeping Force
(1)
Peacekeeping service means service rendered by a person with a Peacekeeping Force outside Australia, and includes:
(a)
any period after the person’s appointment or allocation to the Peacekeeping Force during which the person was travelling outside Australia for the purpose of joining the Peacekeeping Force; and
(b)
any period (not exceeding 28 days) of authorised travel by the person outside Australia after the person has ceased to serve with the Peacekeeping Force.
(2)
For the purposes of subsection (1):
(a)
a person who has travelled from a place in Australia to a place outside Australia is taken to have commenced to travel outside Australia when the person departed from the last port of call in Australia; and
(b)
a person who has travelled to Australia from a place outside Australia is taken to have been travelling outside Australia until the person arrived at the first port of call in Australia.
(3)
A Peacekeeping Force described in column 1 of an item of the following table is a Peacekeeping Force for the purposes of this Act on and from the initial date specified in column 2 of the item.
Peacekeeping Forces
Item
Column 1
Description of Peacekeeping Force
Column 2
Initial date as a Peacekeeping Force
1
Security Council Commission of Investigation on the Balkans
29 January 1947
2
Committee of Good Offices
25 August 1947
3
United Nations Special Commission on the Balkans
26 November 1947
4
United Nations Commission on Korea
1 January 1949
5
United Nations Military Observer Group in India and Pakistan
1 January 1949
6
United Nations Commission for Indonesia
28 January 1949
7
United Nations Truce Supervision Organisation
1 June 1956
8
United Nations Operations in the Congo
1 August 1960
9
United Nations Yemen Observation Mission
1 January 1963
10
United Nations Force in Cyprus
14 May 1964
11
United Nations India‑Pakistan Observation Mission
20 September 1965
12
United Nations Disengagement Observer Force
1 January 1974
13
United Nations Emergency Force Two
1 July 1976
14
United Nations Interim Force in Lebanon
23 March 1978
15
Commonwealth Monitoring Force in Zimbabwe
24 December 1979
16
Sinai Multinational Force and Observers established by the Protocol between the Arab Republic of Egypt and the State of Israel dated 3 August 1981
18 February 1982
17
United Nations Iran/Iraq Military Observer Group
11 August 1988
18
United Nations Border Relief Operation in Cambodia
1 February 1989
19
United Nations Transition Assistance Group Namibia
18 February 1989
20
United Nations Mission for the Referendum in Western Sahara (Mission des Nations Unies pour un Referendum au Sahara Occidental)
27 June 1991
21
The Australian Police Contingent of the United Nations Transitional Authority in Cambodia
18 May 1992
22
The Australian Police Contingent of the United Nations Operation in Mozambique
27 March 1994
23
Australian Defence Support to a Pacific Peacekeeping Force for a Bougainville Peace Conference
21 September 1994
24
The Australian Police Contingent of the Multi‑National Force in Haiti
10 October 1994
25
The Australian Police Contingent of the United Nations Mission in East Timor
21 June 1999
26
The Australian Police Contingent of the United Nations Transitional Administration in East Timor
25 October 1999
27
The Australian Police Contingent of the United Nations Mission of Support in East Timor
20 May 2002
28
The Australian Police Contingent of the Regional Assistance Mission to Solomon Islands
24 July 2003
29
The Australian Police Contingent of the United Nations Mission in Sudan
1 January 2006
s 6BBritish nuclear test defence service
(1)
A person has rendered British nuclear test defence service if, while the person was a member of the Defence Force, the person rendered service in an area mentioned in an item of the following table during the period mentioned in the item.
British nuclear test defence service in an area within a period
Item
Area
Period
1
The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago
The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 June 1958
2
The area within 25 kilometres of the Totem test sites at Emu Field
The period:
(a) starting at the start of 15 October 1953; and
(b) ending at the end of 25 October 1955
3
The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 April 1965
(2)
A person has rendered British nuclear test defence service if, while the person was a member of the Defence Force:
(a)
the person was involved in the transport, recovery, maintenance or cleaning of a vessel, vehicle, aircraft or equipment at any time during a period mentioned in an item of the following table; and
(b)
the vessel, vehicle, aircraft or equipment was contaminated as a result of its use in the area mentioned in the item.
British nuclear test defence service relating to work on contaminated things
Item
Period in which involvement occurred
Area where thing was contaminated
1
The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 July 1956
The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago
2
The period:
(a) starting at the start of 15 October 1953; and
(b) ending at the end of 25 November 1953
The area within 25 kilometres of the Totem test sites at Emu Field
3
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 May 1963
The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga
(3)
A person has rendered British nuclear test defence service if, while the person was a member of the Defence Force and at a time between the start of 3 October 1952 and the end of 31 October 1957, the person flew in an aircraft of the Royal Australian Air Force or the Royal Air Force that was at that time:
(a)
used in measuring fallout from nuclear tests conducted in an area described in the table in subsection (1); and
(b)
contaminated by the fallout.
(4)
A person has rendered British nuclear test defence service if:
(a)
the service was rendered while the person was a member of the Defence Force; and
(b)
the person satisfies the requirements specified in an instrument under subsection (5).
(5)
The Commission may, by legislative instrument, specify requirements for the purposes of subsection (4).
s 7AClasses of members
For the purposes of paragraph (ba) of the definition of member in subsection 5(1), this section applies to the following:
(a)
a person who holds an honorary rank or appointment in the Defence Force and who performs acts at the request or direction of the Defence Force;
(b)
a person who performs acts at the request or direction of the Defence Force as an accredited representative of a registered charity (where the accreditation is by the Defence Force);
(c)
a person who is receiving assistance under the Career Transition Assistance Scheme established under a determination under section 58B of the Defence Act 1903 and who performs acts in connection with the scheme.
s 6CHazardous service
Hazardous service is service with the Defence Force, before 1 July 2004, that is of a kind determined by the Defence Minister, by legislative instrument, to be hazardous service for the purposes of this section.
s 8Ministerial determinations that other people are members
(1)
The Defence Minister may make a written determination that a person, or a class of persons, who engage, or have engaged, in activities, or who perform, or have performed, acts:
(a)
at the request or direction of the Defence Force; or
(b)
for the benefit of the Defence Force; or
(c)
in relation to the Defence Force, under a requirement made by or under a Commonwealth law;
are taken to be, or to have been, members for the purposes of this Act.
Note:
The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
(2)
The determination must specify:
(a)
the date (which may be retrospective) from which the determination applies; and
(b)
the person, or class of persons, to whom the determination applies; and
(c)
the activities or acts, or classes of activities or acts, to which the determination applies.
(3)
The date referred to in paragraph (2)(a) must be, or be after, the date on which this section commences.
(4)
A determination, or a variation or revocation of a determination, is a legislative instrument.
