ADF members with certain types of service are precluded from compensation under the SRC Act because provision has been made for their compensation under the Veterans' Entitlements Act 1986 (VEA). In some cases, members may be able to elect between VEA and SRC Act coverage.
The relevant Subsections of the SRC Act are:
5(10) Subject to Subsections (10A), (10B) and (10C), 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.
5(10A) Subsection (10) does not apply in relation to a veteran:
a)who has rendered operational service on or after the day on which the Military Compensation Act 1994 commences, and
b)for whom provision for the payment of pension in respect of service rendered by the person is made by Part II of the Veterans' Entitlement Act 1986.
5(10B) Subsection (10) does not apply in relation to a member of the Defence Force who has rendered service in respect of which provision for the payment of pension is made by Part IV of the Veterans' Entitlement Act 1986.
5(10C) Despite Subsection (10), this Act applies to a claim lodged before the commencement of this subsection for compensation in respect of an injury of a member of the Defence Force that arose out of, or in the course of, any service that:
a)the member rendered before 13 May 1997, but
b)only became on that day service in respect of which provision for the payment of pension is made by the Veterans' Entitlements Act 1986 (because of the amendments made to that Act by Part 1 or 8 of Schedule 1 to the Veterans' Affairs Legislation Amendments (Budget and Compensation Measures) Act 1997.
A person with operational, peacekeeping or hazardous service is entitled to compensation (Disability Compensation Payment and treatment) under the VEA for any disease or injury resulting from that service. This compensation scheme operates in a very beneficial manner because the VEA sets a low threshold for the onus of proof for determining whether a particular disease or injury has resulted from operational service (i.e. that a 'reasonable hypothesis' exists).
Operational service can essentially be described as service overseas by a member of the Australian Defence Force in a time of war, or during war-like operations within a defined operational area.
'Operational service' is defined in Ss6A – 6F of the Veterans' Entitlements Act 1986 (the VEA). Section 6 of the VEA sets out a convenient summary:
S6A |
Operational service – world wars |
S6B |
Operational service – Australian mariners |
S6C |
Operational service – post World War 2 service in operational areas |
S6D |
Operational service – other post World War 2 service |
S6E |
Operational service – Korean demilitarised zone and Vietnam |
S6F |
Operational service – warlike and non-warlike service |
In broad terms, these categories of operational service can be described in the following terms:
Section 6B relates to Australian mariners who served outside Australia or faced actual combat within Australian waters.
Section 6C relates to members of the Defence Force who were allotted for duty in an 'operational area' in the period after World War 2 to the present day. Operational areas are listed in Schedule 2 to the Veterans' Entitlements Act 1986 and (broadly) comprise:
Section 6D relates to certain service in Singapore, Japan, North East Thailand and with the Far East Strategic Reserve.
Section 6F relates to a member of the ADF rendering operational service during 'warlike service' or 'non-warlike service', which essentially is service declared as such by the Minister for Defence.
These terms are defined in VEA S5C(1):
This is a new classification introduced by the Veterans' Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 commencing on 13 May 1997 to cover operations of higher risk than normal peace-time service. The intention is to give service personnel greater certainty about their eligibility under the VEA before they commence future overseas deployments and to minimise the potential for anomalies to occur in the future.
Service will be declared as 'warlike service' when the military activities involve the authorised application of force and there is an expectation of casualties. These operations can encompass, but are not limited to:
Ministerial Determinations have been made in respect of service in East Timor and adjacent waters:
OPERATION FABER (19/6/99 – 15/9/99)
OPERATION SLIPPER (6/9/99 – 19/9/99)
OPERATION TANAGER (from 20/2/00)
OPERATION STABILISE (16/9/99 – 23/2/00)
OPERATION FABER (16/9/99 – 23/2/00)
OPERATION WARDEN (16/9/99 – 10/4/00)
The Minister made a Declaration of Warlike Service on 7 December 2001 covering members of the ADF who were allotted for service on or after 11 October 2001 with OPERATION SLIPPER in one of two Specified Areas. Specified Area 1 is a large geographical area covering Afghanistan, Pakistan, the Middle East and parts of Africa, Russia, India and the Central Asian Republics. Specified Area 2 is an area covering Diego Garcia and a radius of 250 nm out from that island.
Hazardous service involves activities exposing individuals or units to a degree of hazard above and beyond that of normal peacetime duty; it could include mine avoidance and clearance, weapons inspections and destruction, Defence Force aid to civil power, Service protected or assisted evacuations and other operations requiring the application of minimum force to effect the protection of personnel or property.
'Hazardous service' is defined and applied in the Veterans' Entitlements Act 1986:
68(1) ...hazardous service has the same meaning as in Subsection 120(7).
[Part IV – Pensions for Members of Defence Force or Peacekeeping Force and their Dependants]
69A(1) This Part applies to a person who has rendered or is rendering hazardous service as a member of the Defence Force
69A(2) This Part so applies whether the hazardous service is rendered before or after the terminating date.
120(7) In this section:
(b) a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section.
Essentially, 'hazardous service' is service which the Minister for Defence has declared, in writing, to be hazardous. Refer to Declarations of hazardous service under the Veterans' Entitlements Act 1986 for a complete list of declared hazardous service.
** This page is out of date and may contain revoked determinations and incorrect information. See Chapter 1.2.2 Service requirements for the disability pension in the Compensation and Support Policy Library for more. **
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Area | Date of Declaration | Date of Commencement |
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Iran/Iraq – service in the waters of Gulf of Iran and the Gulf of Oman west of line joining Rass-El-Hadd and the southern end of the Iran Pakistan border, and the countries littoral to those waters, to a maximum distance inland of 50 km from the high water mark. | 25 September 1992 | Between: |
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Gulf War – transit from last port of call in Australia to Operational Area | 17 May 1991 | From and including: |
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Gulf War – transit from last port of deployment to Operational Area | 17 May 1991 | From and including: |
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Gulf War in Iraq and Turkey – service with Allied Forces providing humanitarian aid to Kurdish refugees in Iraq and in the area of Turkey south of latitude 38º north | 22 October 1991 | Service commencing on the day of arrival in the area specified, and ending on the day of departure from the specified area. |
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Gulf War – service in former operational area after cessation of period of operational service. | 22 October 1991 | After 8 June 1991 |
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Iraq – service with UN Special Commission for the destruction of Weapons of Mass Destruction in Iraq, whilst in Iraq. | 22 October 1991 | Service commencing on the day of arrival and ending on the day of departure. |
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Afghanistan – service with the United Nations Office for Coordinating Assistance to Afghanistan (UNOCA) or the United Nations Mine Clearance Training Team (UNMCTT) in Afghanistan. | 25 September 1992 | From 8 June 1991 |
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Cambodia – service in the area comprising Cambodia and the areas in Laos and Thailand that are not more than 50 kilometres from the border with Cambodia. | 9 November 1993 | On or after: |
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Mozambique – service as part of United Nations humanitarian operations while in the in area comprising Mozambique | 1 August 1994 | On or after: |
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Rwanda – service as part of the United Nations Assistance Mission for Rwanda (UNAMIR) while in the area comprising Rwanda and the areas in Uganda, Zaire, Burundi and Tanzania that are not more than 50 kilometres from the border with Rwanda. | 5 August 1994 | On or after: |
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Haiti – service while in the area comprising Haiti, as part of the United States of America led Multi-national force operating in that area. | 21 November 1994 | On or after: |
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Employees who served between 7 December 1972 and 6 April 1994 were allowed to claim for injuries incurred in peacetime under both compensation and repatriation legislation. This is commonly known as having dual entitlements.
Should any claims under both pieces of legislation be accepted, the employee could access benefits under both schemes. However, 'double dipping' of benefits i.e. being 'compensated' twice for the same medical condition, was not allowed.
Whilst no formal election needs to be made, processes exist to prevent double dipping. Employees basically have the choice of which benefit they wish to access. When seeking MRCC benefits, a clearance is sought to ensure overpayments don't occur.
In simple terms, when the MRCC proposes to pay a benefit to an employee with claims accepted under the DRCA (or its predecessors) and the VEA (and its predecessor), contact is made with the Disability Compensation Payment and if appropriate Income Support areas of the respective DVA State Office.
Standard Letters are available for this purpose.
As a general rule, if MRCC makes incapacity payments or pays a lump sum for permanent impairment, any payment made under the VEA for the same condition is limited. The actual amount by which payments are affected varies and any information on impact of MRCC payments should be provided by the appropriate delegate in the Disability Compensation Payment area of DVA.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/19506%23comment-form
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[9] https://clik.dva.gov.au/user/login?destination=node/19456%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/19469%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/19496%23comment-form
[12] https://clik.dva.gov.au/user/login?destination=node/19513%23comment-form
[13] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-63-veterans-entitlements-act-1986/636-hazardous-service
[14] https://clik.dva.gov.au/user/login?destination=node/19572%23comment-form
[15] https://clik.dva.gov.au/user/login?destination=node/19566%23comment-form
[16] https://clik.dva.gov.au/user/login?destination=node/19548%23comment-form
[17] https://clik.dva.gov.au/user/login?destination=node/19560%23comment-form
[18] https://clik.dva.gov.au/user/login?destination=node/19528%23comment-form
[19] https://clik.dva.gov.au/user/login?destination=node/19480%23comment-form