Military Rehabilitation and Compensation (Members) Determination 2007

This legislative instrument, the Military Rehabilitation and Compensation (Members) Determination 2007, is an administrative deeming instrument made under subsection 8(1) of the Military Rehabilitation and Compensation Act 2004 (the MRCA). Its sole operative effect is to declare that certain classes of persons are, or have been, members for the purposes of the MRCA (see s 3). The Determination commenced on 1 February 2007 (s 2(1)) and, for the purpose identified in paragraph 8(2)(a) of the MRCA, it applies from that same date (s 2(2)).

Mechanically, the Determination achieves its effect by specifying the classes and acts in Schedule 1 and then providing in s 3 that those classes who perform, or have performed, the acts listed in the Schedule are taken to be, or to have been, members for MRCA purposes. Schedule 1 (as in force in this compilation) identifies a single class: persons commissioned by the Australian War Memorial (AWM) to provide original works in a range of media concerning Defence Force operations, and the acts covered are those performed in a Defence Force area of operations for the purpose of providing those commissioned works during a defined temporal window (see Schedule 1 Item 1).

The Determination does not itself create substantive compensation, rehabilitation, or remedial entitlements; it operates to import into the MRCA the legal status of “member” for the persons and acts it describes. Any substantive entitlements, liabilities, enforcement mechanisms, or procedures that flow from being a “member” are those set out in the MRCA and relevant subordinate instruments, not in this Determination. The Determination also contains a definition provision (s 2A) added in 2015 that identifies the SRCA Notice 2015 (the Safety, Rehabilitation and Compensation (Definition of Employee - War Artists and Entertainers) Notice 2015), which is used in Schedule 1 to fix the end of the temporal window for coverage.

Finally, the compilation and endnotes record a 2015 amendment (the Military Rehabilitation and Compensation (Members - War Artists and Entertainers - Service End Date) Amendment Determination 2015) that alters the Determination’s text by inserting s 2A and substituting Schedule 1; relevant amendment history is set out in the endnotes (Endnotes 3 and 4).

The Determination is short and conceptually narrow. Its main legal concepts are:

• Deeming under MRCA: The instrument is made under subsection 8(1) of the MRCA and operates to treat particular non‑members as if they were “members” for the purposes of that Act (s 3). The Deeming is the instrument’s core legal mechanism.

• Classes and acts: The instrument effects the deeming by reference to a Schedule that identifies a class of persons (Item 1, Schedule 1) and the specific acts those persons must have performed to qualify for the deeming. The class is “persons commissioned by the Australian War Memorial to provide original works in a range of media, including still photography, cinematography, paintings, drawings, and written work concerning the operations of the Defence Force” (Schedule 1, Item 1, column 2). The acts are “acts performed in a Defence Force area of operations for the purpose of providing works as commissioned by the Australian War Memorial” carried out during a defined period (Schedule 1, Item 1, column 3).

• Temporal delimitation: Coverage is limited to acts carried out “at any time during the period 1 February 2007 to the day immediately before the SRCA Notice 2015 commenced” (Schedule 1, Item 1, column 3). The Determination contains a note invoking s 36(1) of the Acts Interpretation Act 1901 about the usual rule that a period expressed to continue until a specified day includes that day; the note is attached to Schedule 1, implying a particular approach to calculating the end of the specified period.

• Cross‑instrument reference: The Determination explicitly references another administrative instrument, the SRCA Notice 2015, and defines that term in s 2A. The SRCA Notice 2015 is the Safety, Rehabilitation and Compensation (Definition of Employee - War Artists and Entertainers) Notice 2015. The commencement of that Notice is used to determine the end of the temporal window for coverage in Schedule 1.

• Amendment and compilation mechanics: The compilation’s endnotes show that the Determination was originally registered in January 2007 and commenced 1 February 2007, and that it was amended by a 2015 Determination which added s 2A and substituted Schedule 1 (see Endnotes 3 and 4). The Determination therefore must be read in the form shown together with its amendment history as compiled to 17 December 2015.

These concepts combine to make the Determination a targeted instrument that imports a narrow class of cultural/creative contributors (AWM‑commissioned war artists and similar) into the MRCA’s membership definition for a specified operational period and geography. The Determination does not itself define “member”, “Defence Force area of operations”, or set out procedural rules for claims; it merely creates the legal status needed to engage the MRCA’s provisions for those persons who satisfy the Schedule’s criteria.

The Determination affects three identifiable groups directly and several categories of administrative stakeholders indirectly, according to the text:

• Primary individuals affected: Item 1 of Schedule 1 describes the class of persons directly taken to be members: those “commissioned by the Australian War Memorial” to supply original works across a defined list of media and subject matter (still photography, cinematography, paintings, drawings, and written work concerning Defence Force operations). The core filter is commission by the AWM. The acts that must be performed are acts “in a Defence Force area of operations for the purpose of providing works as commissioned by the Australian War Memorial” during the specific period (Schedule 1, Item 1, column 3). In short, AWM‑commissioned war artists and similar contributors who were physically present and performing in a Defence Force area of operations within the temporal window are the persons who the Determination treats as members for MRCA purposes (s 3; Schedule 1).

• The Australian War Memorial (AWM) as commissioning entity: The instrument operates by reference to commissions issued by the AWM. The AWM’s commissioning practices therefore determine who can fall within the class. The Determination’s scope depends on whether the individual can demonstrate AWM commission and that their acts were directed to fulfilling that commission.

• Indirect administrative and legal actors: Decision‑makers under the MRCA (not named in this Determination) will be required to accept the deemed status created by this instrument when adjudicating MRCA rights and obligations. Similarly, those administering the SRCA Notice 2015 (which determines, by reference, the service end date) influence the temporal cut‑off that limits who falls within the Determination’s scope (s 2A; Schedule 1).

The instrument does not purport to affect persons who were not commissioned by the AWM, or who provided works outside the specified range of media or outside a Defence Force area of operations, or whose acts fall outside the stated date range. The Schedule’s use of “including” when listing media (Schedule 1, Item 1, column 2) signals that the list is illustrative rather than exhaustive, but the statutory test remains commission by the AWM and performance of the specified acts in the specified operational area and period.

Practically, the persons most likely to be impacted are those who produced original, commissioned documentary or artistic material in theatres of military operations during the stated period and who later seek to access rights or privileges under the MRCA that hinge on having been a “member”. The Determination changes an eligibility threshold: it converts the factual state “commissioned civilian contributor” into the legal status “member” for MRCA purposes, but only where the Schedule’s conditions are met.

The Determination itself contains no express duties, monetary entitlements, or procedural rights. Instead, it performs a legal classification task: s 3 declares that classes of persons and acts specified in Schedule 1 are “taken to be, or to have been, members for the purposes of” the MRCA. Therefore, the Determination’s practical effect on duties and rights is mediated entirely through the MRCA. The text establishes a rule of attribution, not substantive entitlements.

From the Determination text the following points about duties and rights (in procedural and structural terms) can be drawn:

• Status conferral only: The Determination confers the legal status “member” as a matter of statutory construction (s 3). Any duties owed to or by those persons, and any rights they can assert, derive from how the MRCA defines and attaches consequences to the status of “member.” The Determination does not itself create benefit schedules, rehabilitation obligations, or procedural claim rights; those are functions of the MRCA.

• Evidence and eligibility gate: Because the Determination predicates the deeming on performance of specified acts while commissioned by the AWM and in a Defence Force area of operations during the temporal window, persons seeking to rely on the Determination will need to establish those factual elements. That implies a claim‑stage evidentiary burden: a person must show (a) a valid commission by the AWM, (b) that the acts were performed in a Defence Force area of operations, (c) that the acts were performed for the purpose of providing the commissioned works, and (d) that the acts occurred in the specified period (Schedule 1, Item 1). The Determination does not prescribe the documentary form of that proof; those procedures will be governed by the MRCA decision framework.

• No additional statutory duties on AWM set out here: The Determination does not impose duties or obligations on the Australian War Memorial in its text. The AWM is used as the reference point for commission status. Any operational or recordkeeping duties the AWM has in practice to support claims are not set out in this Determination but will be relevant in implementation.

• Interaction with SRCA Notice 2015: The Determination’s rights/duties window is tied to the commencement of the SRCA Notice 2015 (s 2A and Schedule 1). That linkage affects the temporal reach of rights under the MRCA for the specified class: the date on which the SRCA Notice 2015 commenced sets the outer bound on acts covered by the Determination. Consequently, determining the exact cut‑off date is necessary to establish whether acts fall within the period that gives rise to MRCA membership status under this Determination.

The Determination contains no penal provisions, fines, criminal offences, or administrative sanctions. Its form and language reflect a declaratory and classificatory function: it “takes” particular classes of persons to be members for MRCA purposes (s 3), rather than establishing compliance obligations enforced by new penalties.

The instrument’s enforcement architecture is therefore indirect and rests with the MRCA. Any enforcement mechanisms, remedies, sanctions, claim procedures, decision‑making powers, review rights, or penalties that might apply to persons whose status is affected by this Determination are those located in the MRCA and relevant subordinate instruments. The Determination does not attempt to replicate or modify MRCA enforcement provisions; it simply extends the statutory category of “member” to the specified persons in relation to the Acts and period described.

Administratively, enforcement in practice will involve MRCA administrators recognising the deemed status when assessing claims, entitlements, or obligations. If disputes arise about whether a person falls within the Schedule’s class or time and place conditions, resolution will occur via the MRCA’s decisionmaking and review processes (not set out in this Determination). The Determination itself does not prescribe the process by which a person asserts the deeming or how evidentiary disputes are resolved.

Finally, the compilation and endnotes show an amendment in 2015 that substituted Schedule 1 and added the s 2A definition (Endnotes 3 and 4). That amendment mechanism is the statutory route by which the legislative executive adjusts the scope of the deeming; it is an administrative control rather than an enforcement mechanism directed at individuals. Any consequences of amendment (for example, narrowing the window of coverage) will affect who can make claims under the MRCA but are applied by administrative decision in accordance with the MRCA and the Determination as amended.

This Determination is expressly linked to several other legal instruments and statutory provisions, and those linkages determine its operative boundaries:

• Military Rehabilitation and Compensation Act 2004: The Determination is made under subsection 8(1) of the MRCA and operates to confer MRCA “member” status on specified classes (s 3). It also states it applies for paragraph 8(2)(a) of the MRCA from 1 February 2007 (s 2(2)). The Determination therefore modifies how the MRCA’s membership threshold is to be applied to the persons in Schedule 1; the MRCA remains the primary source of substantive rights, duties, claim processes and review mechanisms.

• Acts Interpretation Act 1901: The Schedule contains a note referring to subsection 36(1) of the Acts Interpretation Act 1901, which addresses how a period expressed to continue until a specified day is to be calculated (Schedule 1, note). That interpretative rule bears directly on calculating the temporal window of coverage stated in Schedule 1. The Determination therefore relies on standard interpretative rules in the Acts Interpretation Act when construing its time limits.

• Safety, Rehabilitation and Compensation (Definition of Employee - War Artists and Entertainers) Notice 2015 (SRCA Notice 2015): The Determination defines the SRCA Notice 2015 in s 2A and uses the commencement of that Notice to set the end date for the period in Schedule 1. Thus, a separate SRCA instrument,part of the Safety, Rehabilitation and Compensation framework,serves as the temporal trigger for the Determination’s coverage. The cross‑reference ties this Determination’s temporal reach to the administrative timetable of another statutory instrument.

• Amendment instruments: The endnotes identify the Military Rehabilitation and Compensation (Members - War Artists and Entertainers - Service End Date) Amendment Determination 2015 as having amended this Determination, inserting s 2A and substituting Schedule 1 (Endnotes 3 and 4). The Determination therefore interacts procedurally with the legislative instruments framework: it was itself amended by a subsequent determination and is compiled with amendment history as at 17 December 2015.

• MRCA procedural and definitional provisions (implicit interaction): While not reproduced in this Determination, the instrument assumes the existence of MRCA definitions (for example, “member” and “Defence Force area of operations”) and MRCA procedures for claims and reviews. The Determination’s legal effect is wholly dependent on how those MRCA provisions operate, meaning that its real‑world effect will track the MRCA’s definitions, administrative practices, and legal tests.

The compilation and its endnotes identify a clear amendment history, confined to the original Determination and a 2015 amendment:

• Original instrument: The Military Rehabilitation and Compensation (Members) Determination 2007 was registered on 31 January 2007 (F2007L00230) and commenced on 1 February 2007 (s 2(1); Endnote 3). The original text as made in 2007 is reflected in the compiled instrument up to the point where subsequent amendments alter it. The compilation date is 17 December 2015.

• 2015 amendment: The Determination was amended by the Military Rehabilitation and Compensation (Members - War Artists and Entertainers - Service End Date) Amendment Determination 2015, registered 15 December 2015 (F2015L02004) and with Schedule (Part B) commencing on 17 December 2015 (Endnote 3). The 2015 amendment specifically added s 2A (the definition of SRCA Notice 2015) and replaced Schedule 1 (Endnote 4 records that s 2A was added and Schedule 1 was repealed and substituted). The compilation indicates it includes amendments up to F2015L02004 as at the compilation date 17 December 2015.

• Effect of amendment: The 2015 amendment appears targeted to fix the service end date by reference to the SRCA Notice 2015; s 2A was inserted to give an explicit definition to that cross‑reference. The consequential change was a substitution of Schedule 1 to modify the temporal scope of the deeming (Schedule 1 shown in the compilation reflects the substituted text). The endnotes do not indicate other substantive alterations beyond the insertion of the definition and the Schedule substitution.

• Compilation notes: The compilation contains standard explanatory material noting that uncommenced amendments are not shown in the text, that modifications by other laws may not amend the text, and that self‑repealing provisions are noted in endnotes if applicable. The endnotes included here record only the 2015 amendment and the original 2007 registration and commencement dates; no other amending instruments are recorded in the compilation.

The amendment history therefore shows a single, targeted post‑enactment modification in 2015 that adjusted the Determination’s temporal mechanics by referring to the SRCA Notice 2015 and substituting the Schedule accordingly. Users should read the Determination together with the endnotes to understand the instrument in its amended form as at 17 December 2015.

This compilation does not record any litigation history. The Determination text as compiled contains no references to judicial or tribunal decisions, and the endnotes and legislation history (Endnotes 3 and 4) list only the original instrument and a single amending Determination in 2015. There are no cases cited in the instrument, and no judicial interpretation or court decisions are recorded in the compilation.

Because this Determination is a subordinate instrument that operates by conferring a legal status under the MRCA, disputes arising from its operation,for example, disagreements about whether a particular person falls within the Schedule’s class, whether acts were performed in a Defence Force area of operations, or when the SRCA Notice 2015 commenced,would ordinarily be addressed through the MRCA’s administrative and review channels and, if litigated, through the courts or tribunals with jurisdiction over MRCA decisions. However, none of those proceedings or outcomes are recorded in this compilation.

Readers should note that the absence of recorded litigation in this compilation does not mean that no disputes have ever arisen in practice; it simply reflects the content of this compiled instrument and its endnotes. The Determination itself contains no procedural guidance as to dispute resolution or evidentiary standards; therefore, if litigation or tribunal matters are relevant to a factual situation, the MRCA’s procedural provisions and external legal records would be the appropriate sources to consult. Those materials are not reproduced in this compilation.

The Determination is concise, but several practical pitfalls and risk points arise from its drafting and cross‑references. These are matters of legal mechanics and implementation risk drawn directly from the text:

• Commission requirement: The Schedule limits coverage to persons “commissioned by the Australian War Memorial.” That is a binary criterion: if a person was not commissioned by the AWM, the Determination does not apply. The text does not specify what form the commission must take (written contract, oral commission, purchase order), nor does it set evidentiary standards. Practitioners should note that establishing commission will be a threshold factual inquiry in any MRCA claim that relies on this Determination (Schedule 1, Item 1).

• Purpose requirement: The acts covered must be “for the purpose of providing works as commissioned by the Australian War Memorial.” This introduces a purposive filter: even if an artist was commissioned by the AWM, acts they performed while in a Defence Force area of operations will only be covered if they were performed for the purpose of fulfilling the AWM commission. Acts performed for other clients or personal purposes while in theatre may therefore fall outside the deeming.

• Territorial test: The requirement that acts be “performed in a Defence Force area of operations” creates a territorial element. The Determination does not define that term; MRCA definitions and administrative practice will be decisive. Ambiguity about what constitutes a “Defence Force area of operations” at particular times or in particular locations could create disputes and delay claims.

• Temporal window tied to SRCA Notice 2015: Coverage is strictly time‑bounded: acts must have occurred “at any time during the period 1 February 2007 to the day immediately before the SRCA Notice 2015 commenced” (Schedule 1, Item 1). The Determination links the end of the period to the commencement of a separate instrument, the SRCA Notice 2015 (s 2A). Determining the precise cutoff therefore requires ascertaining when that separate Notice commenced. The compilation’s endnotes show a 2015 amendment with a commencement date, but users must confirm the actual commencement date of the SRCA Notice 2015 to calculate the exact end of the covered period.

• Interpretative note on inclusion of specified day: The Schedule includes a note referencing subsection 36(1) of the Acts Interpretation Act 1901 about periods expressed to continue until a specified day including that day. The note may affect how the end date is calculated, depending on how the period and the SRCA Notice 2015’s commencement day are described in practice. This interpretative detail could have material consequences when the SRCA Notice’s commencement date and the phrase “the day immediately before” are worked through; parties and decision‑makers should apply the Acts Interpretation Act rules carefully.

Compliance with the Determination’s requirements is primarily a matter of establishing the factual predicates the Schedule sets out and then engaging the MRCA processes that deal with membership and entitlements. The Determination itself does not prescribe a compliance regime, so compliance steps are procedural and evidentiary. From the text, the following practical compliance checklist can be inferred:

1. Establish AWM commission: Secure documentary proof of commission by the Australian War Memorial. Because the Schedule requires that the person be “commissioned by the Australian War Memorial,” a claimant should obtain contracts, written commission letters, purchase orders, emails, or other documentary evidence that the AWM commissioned the work. The Determination does not specify form or content of the commission, so robust documentary evidence will reduce disputes over the commission criterion (see Schedule 1, Item 1).

2. Demonstrate the acts were for the commissioning purpose: Collect contemporaneous material showing that the acts performed in theatre were carried out for the purpose of providing works to the AWM. This may include project briefs, field logs, captions, drafts, invoices to the AWM, or correspondence confirming that the in‑theatre activities were directed to the AWM commission (Schedule 1, Item 1).

3. Prove presence in a Defence Force area of operations: Assemble evidence that the acts were performed in a Defence Force area of operations. Because the Determination requires acts to be performed in such an area and does not define that term, claimants should compile travel records, deployment orders (if any), AWM travel authorisations, support agency records, and geolocation or timestamped materials that corroborate presence in the operational area at the relevant times (Schedule 1, Item 1).

4. Verify the temporal window: Confirm that the acts were performed within the period specified: from 1 February 2007 up to the day immediately before the SRCA Notice 2015 commenced. The Determination ties the outer limit to the commencement of the SRCA Notice 2015 (s 2A). A claimant should confirm the SRCA Notice 2015’s official commencement date and ensure their acts fall strictly within the covered window.

5. Retain originals and provenance: Keep original source files, negatives, raw footage, drafts, metadata, and other provenance material that links the works to the in‑theatre activity and to the AWM commission. Because the Determination predicates the legal status on acts done in theatre for a commission, provenance material will assist MRCA decision‑makers assessing the claim.