C17/2012 Defining periods of VEA service for the purposes of subsection 5(10) SRCA

Amends DI No.

N/A

Replaces DI No.

N/A

Purpose

To provide advice on the application of subsection 5(10) of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for:

• veterans who only have World War 2 (WW2) service;
• veterans with WW2 service and post-WW2 service; and
• veterans with only post-WW2 service, with some periods of operational service.

WW2 service  under the VEA

All WW2 service until 3 January 1949 and in certain cases until 1 July 1951

Service that is not operational service during WW2 is eligible war service for the purposes of the VEA. Sections 6, 6A and 6B of the VEA define the periods of operational war service during WW2, while section 7 of the VEA defines the periods of eligible war service.

Post-WW2 service

From 1 July 1951, any periods of operational service continue to be covered by the VEA.

All non-operational service after 1 July 1951 is covered by the SRCA and its antecedents until 7 December 1972.

Subsection 5(10) SRCA

Subsection 5(10) of the SRCA prevents access to compensation under the SRCA for a person's period of service if the VEA provides for the payment of a pension for that same period of service.

5 (10) Subject to subsections (10A), (10B), (10C) and (10D), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:

  (a) the Veterans' Entitlements Act 1986; or

  (b) the Papua New Guinea (Members of the Forces Benefits) Act 1957.

Meaning of “provides for payment of a pension”

The requirement in s5(10) SRCA that provision must exist for payment under the VEA does not mean that a finding must be made that an injury or death is war-caused (and therefore, pension is payable under the VEA).

Provision for the payment of pension is made by the VEA for periods of WW2 operational service, WW2 eligible service and post-WW2 operational service. Therefore, the SRCA does not apply in respect of these periods and types of service, unless an exclusion applies.

Exclusions

Subsection 5(10) refers to a number of exclusions, which allow the SRCA to apply to a period of service which would otherwise be excluded because of subsection 5(10) SRCA. These exclusions allow access to the SRCA for:

• a veteran who rendered operational service on or after the commencement of the Military Compensation Act 1994 on 7 April 1994 and for whom provision for payment of pension in respect of service rendered by the person is made by Part II of the VEA;
• a member of the Defence Force who has rendered Peacekeeping or Defence service in the period 7 December 1972 - 7 April 1994;
• a veteran who lodged a claim before the commencement of subsection 5(10C) for compensation in respect of an injury that arose out of, or in the course of, any service that the member rendered before 13 May 1997 but which only became covered by the Veterans' Entitlements Act 1986 because of amendments effective from that date; and
• a veteran who lodged a claim before the commencement of subsection 5(10D) for compensation in respect of an injury of a member of the Defence Force that arose out of, or in the course of, service rendered by the member on certain submarine special operations in the period 1978 - 1992; (covered under section 6DB of the VEA as operational service).

It should be noted that none of these exclusions apply to service in WW2, or more generally, service prior to 3 January 1949.

Kirk and MRCC

In the AAT case of Kirk and MRCC [2008], the Tribunal found that subsection 5(10) “only applies to...“VE Act 1986 covered service”, and not to the totality of a member's service...where part of the member's service is covered and part is not”.

Mr Kirk was a RAAF veteran who served from 1963-67, with a period of operational service at Ubon in 1964. While his operational service at Ubon was covered by the VEA, and was therefore subject to the exclusion, his other service did not meet the definition of operational or eligible war service under the VEA.

Accordingly, as Mr Kirk had operational service under the VEA as well as periods of non-operational service only covered by the 1930 Act, he was entitled to claim under both Acts, specifically, under the VEA only in relation to his operational service, and under the 1930 Act only in respect of the rest of his other 'peacetime' service with the RAAF.

Conclusion

Delegates should not concede any liability or entitlements under the SRCA or its predecessor Acts where the claim involves service by a veteran who only served prior to the extension of the 1930 Act to members of the Defence Force on 3 January 1949 (or, where a WW2 veteran served past this date without a break in service, 1 July 1951).

WW2 veterans should be considered only to have coverage under the VEA, and claims should be decided accordingly.

Similarly, a veteran with post-World War 2 operational service (before the commencement of the Military Compensation Act 1994) is eligible to lodge a claim in respect of that period under the VEA only.  Any period of non-operational service rendered by such a veteran is covered under the SRCA or its antecedents.

Contact

The contact officer is Martin Page, A/g Director Liability and Service Eligibility, on (02) 6289 6309.