Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018

This legislative instrument, titled the Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 (Instrument No. M19 of 2018), declares three discrete classes of persons to be, for the purposes of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the Act), "members of the Defence Force" and specifies what constitutes their "employment" for those purposes. The instrument is made under subsection 5(3) of the Act (see cl 3) and comes into force on 1 October 2018 (cl 2). It was made by the Minister for Veterans’ Affairs, Darren Chester, dated 21 September 2018 (cover sheet).

Mechanically, the instrument operates by two linked steps set out in cl 4 and the Schedule. First, cl 4(a) declares that each class of persons listed in column 1 of the Schedule is "taken to be members of the Defence Force for the purposes of the Act". Second, cl 4(b) declares that the employment of each class of persons for those purposes is "taken to be constituted by the performance of the class of acts specified in column 2 of the Schedule" corresponding to that class. The Schedule then lists three numbered items (1-3), each pairing a class of persons with the class of acts that constitute their employment for the Act’s purposes.

Item 1 applies to persons who, before the "MRCA commencement date", held honorary rank in the Australian Defence Force; their employment for the Act’s purposes is taken to be acts "performed in connection with the activities of the Australian Defence Force" (Schedule, item 1). Item 2 applies to persons who, before the MRCA commencement date, were accredited representatives of certain approved philanthropic organisations listed in the Schedule, and again takes their employment to be acts performed in connection with ADF activities (Schedule, item 2). Item 3 applies to persons who, before the MRCA commencement date, were on discharge resettlement training under an arrangement made by the ADF; their employment for the Act’s purposes is taken to be acts performed in connection with that discharge resettlement training (Schedule, item 3).

The Schedule also references an external Department of Defence document, the Philanthropic Manual (PHILOMAN), and specifies that the version in force on the instrument’s commencement date is the First edition 2013 (note under Schedule and URL). The instrument therefore ties accreditation eligibility in item 2 to the PHILOMAN First edition 2013.

In short, the instrument is a targeted, time‑limited deeming declaration. It does not amend the Act itself; rather, it employs the s 5(3) power in the Act to treat specified non‑standard categories of persons as Defence Force members for the Act’s purposes, and to define what constitutes their employment for those purposes. The immediate legal operation is limited to the Act’s domain: this instrument declares status and employment for the purposes of the Act only (cl 4).

The instrument deploys a small number of legal concepts and mechanisms; each is narrowly expressed in the text.

Deeming declaration: The core mechanism is a deeming provision. Clause 4(a) and 4(b) direct that particular classes of persons are "taken to be members of the Defence Force for the purposes of the Act" and that their employment is "taken to be constituted by" the specified acts listed in the Schedule. The instrument therefore substitutes legal characterisation (member/employment) for factual characterisation in the limited context of the Act.

Temporal qualification: Each of the three Schedule items is prefaced by the phrase "before the MRCA commencement date". The instrument adopts that temporal threshold as a condition of inclusion. The instrument itself does not define "MRCA commencement date"; the Schedule repeatedly depends on that external temporal marker. The instrument’s own commencement date is 1 October 2018 (cl 2), and the PHILOMAN version is fixed to First edition 2013 as of that commencement (Schedule note).

Classes of persons: The Schedule specifies three classes:

• Item 1: persons who, before the MRCA commencement date, held honorary rank in the Australian Defence Force. The corresponding class of acts is "Acts performed in connection with the activities of the Australian Defence Force" (Schedule, item 1).

• Item 2: persons who, before the MRCA commencement date, were accredited representatives of certain approved philanthropic organisations described in PHILOMAN. The organisations are listed explicitly in the Schedule (Australian Red Cross Society (Field Force); Everyman’s Welfare Service; Salvation Army - Red Shield Defence Services; YMCA - Defence Forces Division; YWCA - Defence Forces Division; Returned Services League - Australian Forces Overseas Fund). The corresponding class of acts is again "Acts performed in connection with the activities of the Australian Defence Force" (Schedule, item 2).

• Item 3: persons who, before the MRCA commencement date, were on discharge resettlement training under an arrangement made by the ADF. The corresponding class of acts is "Acts performed in connection with discharge resettlement training under an arrangement approved by the Australian Defence Force" (Schedule, item 3).

Specification by external document: Item 2 links accreditation to the Department of Defence’s Philanthropic Manual (PHILOMAN). The Schedule contains a note that the PHILOMAN First edition 2013 is the version in force on commencement and gives a URL. That external document is therefore incorporated by reference for the purpose of identifying accredited representatives who qualify under item 2.

The instrument affects three discrete, defined cohorts of people, and indirectly affects administrators who process claims under the Act.

Affected cohorts

• Honoraried rank holders prior to the MRCA commencement date: The Schedule (item 1) identifies persons who "before the MRCA commencement date, held honorary rank in the Australian Defence Force." Those persons, as defined by the Schedule, are taken to be members of the Defence Force for the purposes of the Act and their employment is taken to be constituted by acts performed in connection with ADF activities. The instrument thus targets historical honorary officeholders rather than current or post‑MRCA persons.

• Accredited philanthropic representatives prior to the MRCA commencement date: Schedule, item 2 applies to persons who, before the MRCA commencement date, were accredited representatives of a set of approved philanthropic organisations that served the ADF as described in PHILOMAN. The Schedule lists six organisations by name and ties accreditation to the PHILOMAN as in force on the instrument’s commencement date (First edition 2013). Only persons who were accredited representatives of those listed organisations before the MRCA commencement date are included.

• Persons on discharge resettlement training prior to the MRCA commencement date: Schedule, item 3 applies to persons who, before the MRCA commencement date, were on discharge resettlement training under an arrangement made by the ADF. Their acts connected to that training are taken to constitute their employment for Act purposes.

Indirect and administrative effects

• Claimants under the Act: Because cl 4 takes these persons to be members of the Defence Force "for the purposes of the Act", each cohort is now within the definitional ambit of the Act for whatever substantive entitlements or processes the Act provides to "members". The instrument does not itself spell out benefits or claims procedures; it changes legal classification which will be applied by administering agencies and tribunals when assessing claims under the Act.

• Defence and veteran administration: Administrators who assess claims under the Act must apply the deeming in cl 4 and the Schedule. For item 2, that requires checking accreditation status against the PHILOMAN First edition 2013 (Schedule note). For item 3, administrators must verify that the person was on discharge resettlement training "under an arrangement made by the ADF" before the MRCA commencement date and that the acts were performed in connection with that training. That verification work imposes evidentiary requirements on the administering authority.

The instrument itself does not create freestanding duties or rights outside the framework of the Act; instead it alters legal characterisation so that duties and rights that the Act attaches to "members of the Defence Force" and to their "employment" become applicable to the specified classes. The instrument therefore operates as a definitional switch: the substantive duties and entitlements remain those conferred by the Act, but their scope is extended to include the declared classes. The instrument’s operative clauses that create this switch are cl 4(a) and 4(b) and the Schedule items. The following points set out what the instrument prescribes and the practical legal consequences to the extent they are implicit in that prescription.

Declarative prescription

• Deeming membership: Clause 4(a) prescribes that the classes in column 1 of the Schedule are "taken to be members of the Defence Force for the purposes of the Act." That is a qualification; the instrument does not say members for all legal purposes, only "for the purposes of the Act". Consequently, any statutory duty, entitlement or process in the Act that applies to "members" will be engaged where a person falls within a Schedule item. The instrument does not itself list those duties or entitlements; it delegates to the Act for substantive operation.

• Deeming employment: Clause 4(b) prescribes that the employment of each class is "taken to be constituted by" the class of acts specified in column 2 of the Schedule. That prescription ties the concept of "employment" under the Act to a set of acts,either "acts performed in connection with the activities of the Australian Defence Force" (items 1 and 2) or "acts performed in connection with discharge resettlement training under an arrangement approved by the ADF" (item 3). The effect is to treat such acts as employment for Act purposes even where no formal employment contract may exist.

Consequential rights and duties (by reference)

• Rights and duties under the Act: The instrument does not enumerate the Act’s substantive rights or duties. However, by bringing persons into the Act's definitional ambit, it activates whatever claim rights, obligations to notify, reporting requirements, or administrative procedures the Act sets out for members and their employment. Those substantive instruments are not reproduced in this instrument; the instrument’s legal effect is to make persons eligible to be assessed under the Act.

Evidential and proof duties

The instrument does not itself create penalties or criminal offences, nor does it specify enforcement mechanisms independent of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. Its enforcement impact is indirect: by deeming certain persons to be members and their acts to constitute employment for the purposes of the Act, it feeds into the enforcement and remedial framework that the Act provides. The instrument’s relevant provisions on this point are cl 4(a) and 4(b) and the Schedule.

No stand‑alone sanctions or enforcement powers

• The instrument contains no provisions establishing penalties, civil sanctions, or compliance notices. It does not amend procedural or enforcement provisions of the Act, nor does it purport to create a separate enforcement regime. Any sanction or remedy that follows from the application of this instrument thus derives from the Act itself; the instrument simply brings new persons and acts within the Act’s scope.

Enforcement through the Act

• Because the instrument operates "for the purposes of the Act" only (cl 4), any enforcement , including denial, acceptance, review, or appeal of claims , will occur pursuant to the Act and the administrative architecture set up under the Act. The instrument does not modify those enforcement or review mechanisms; it relies on them.

Administrative verification and disputes

• The instrument will give rise to administrative tasks for decision‑makers who must verify that a claimant falls within a Schedule item. Those tasks will include establishing the temporal threshold ("before the MRCA commencement date"), verifying honorary rank or PHILOMAN accreditation (item 2), and confirming participation in discharge resettlement training under an ADF arrangement (item 3). Disputes may arise where documentation is incomplete, where accreditation under PHILOMAN is contested, or where the connection between acts performed and "activities of the Australian Defence Force" or "discharge resettlement training" is contested. The instrument does not set evidentiary standards or adjudicative processes for those disputes; those will be handled under the Act’s procedures.

Potential for challenge to application (procedural risk)

• Because the instrument is a ministerial declaration made under s 5(3) of the Act (cl 3), its validity and application would, in principle, be susceptible to legal challenge under contestable administrative law doctrines. The instrument itself does not discuss review or appeal processes. Any challenge to the instrument’s application in an individual claim will be addressed by the Act’s review mechanisms and by broader administrative law remedies in the courts, subject to statutory bars or ouster provisions in the Act which are not set out in this instrument.

This instrument is subordinate legislation made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (see cl 3). Its interaction with other laws is thus primarily a matter of definitional impact: it changes who counts as a "member of the Defence Force" and what constitutes "employment" when applying the Act. The instrument also references an external Department of Defence document (PHILOMAN), which it incorporates by reference for accreditation purposes. The text itself provides the legal hooks for interaction; it does not purport to alter other statutes directly.

Primary statutory relationship

• Source authority: Clause 3 states the instrument is made under subsection 5(3) of the Act. The instrument therefore exists as an exercise of a statutory power conferred by that subsection. Its legal validity depends on that conferral. Any conflict between the instrument and the operative provisions of the Act would raise issues about the scope of the enabling power under s 5(3), but the instrument does not itself purport to contravene or override substantive provisions of the Act; it exercises a power to declare who is to be treated as a member for Act purposes.

Interaction with the Act’s substantive provisions

• The instrument operates exclusively "for the purposes of the Act" (cl 4). That means it modifies the definitions and factual predicates applied within the Act’s framework. For example, if the Act prescribes certain entitlements, duties, limitation periods or administrative pathways for "members", persons covered by the instrument will be treated as members when applying those provisions. The instrument does not, however, state how the Act’s other sections are to be interpreted; it simply changes the set of persons and acts that fall within the Act’s definitions.

Link to MRCA (external acronym)

• The Schedule uses the phrase "before the MRCA commencement date" as the temporal qualification for all three items. The instrument does not define "MRCA commencement date"; it therefore interacts with the external concept or instrument that establishes that date. The practical effect is that the reach of this instrument depends in part on that external milestone. The instrument does not purport to define MRCA or to set that date itself.

Reference to external non‑statutory document (PHILOMAN)

• Item 2 incorporates, for accreditation purposes, the content of the Department of Defence’s Philanthropic Manual (PHILOMAN). The Schedule expressly notes that the PHILOMAN First edition 2013 is the version in force on the instrument’s commencement date and provides a URL. This is an instance of subordinate legislation linking eligibility to criteria expressed in an external administrative manual. The legal interaction is that accreditation as described in PHILOMAN is the factual criterion for qualification under item 2. The instrument does not itself reproduce or restate PHILOMAN’s contents; it imports them by reference.

The instrument contains its own limited internal history and makes explicit information about the version of external material it relies upon. The text provides the following points relevant to amendment history.

Creation and commencement

• Title and instrument number: The instrument is titled Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 and carries the registration identifier Instrument No. M19 of 2018 (cover sheet).

• Date made: The cover sheet identifies the instrument as made by the Minister for Veterans’ Affairs, Darren Chester, and dated 21 September 2018 (cover sheet and signature block).

• Commencement date: Clause 2 provides that the instrument "commences on 1 October 2018." There is no saving provision or transitional wording in the instrument beyond the temporal qualifications built into the Schedule.

Statutory authority

• Clause 3 states that the instrument is made under subsection 5(3) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. The instrument does not amend that Act; it was made pursuant to an enabling power in the Act.

External material versions locked in by the instrument

• The Schedule contains a note that a copy of the PHILOMAN as in force on the date of commencement of this instrument is available at a specified URL, and expressly states that the PHILOMAN version in force on the instrument’s commencement date is the First edition 2013. That fixes the relevant edition of PHILOMAN for the instrument; if PHILOMAN is later revised, this instrument still refers to the version fixed on commencement.

No recorded amendments in the instrument

• The instrument text as provided contains no subsequent amending clauses, revocation clauses, or notes of replacement instruments. It does not state that it is revocable only on certain conditions. The instrument itself is silent as to any later modifications or repeals.

No express transitional or review clauses

• There are no provisions in the instrument requiring periodic review, reporting, or sunset, nor are there express transitional arrangements beyond the contingent temporal qualification "before the MRCA commencement date" used in the Schedule.

Practical implication for amendment tracking

The instrument itself does not record any litigation or judicial determination. The text as provided contains no references to case law, judicial review proceedings, or administrative appeals concerning its validity or application. The only items in the instrument are the formal heading, clauses 1-4 and the Schedule with its note; there is no annexation of case history or litigation record.

Implications of absence of recorded litigation

• No judicial decisions or reported disputes are referenced in the instrument. The instrument therefore contains no internal account of contested interpretations of "honorary rank", "accredited representatives", "acts performed in connection with the activities of the Australian Defence Force", or what counts as "discharge resettlement training under an arrangement made by the ADF". Where such disputes arise in practice, they would be litigated under the Act’s review and appeal mechanisms and through the ordinary channels of administrative law. The instrument itself does not preclude such litigation, nor does it provide guidance on likely points of contention.

Where to look for litigation

• Because the instrument operates under the Act and alters definitional reach for the Act’s purposes, any litigation relevant to the instrument’s effect will present in the context of claims under the Act. To identify litigation engaging this instrument, interested parties would need to search claims, tribunal decisions or court decisions that reference the instrument by title or that interpret cl 4 and the Schedule. The instrument text itself does not supply such references.

No internal dispute resolution clauses

• The instrument does not include any special dispute resolution or dispute avoidance mechanisms that would reduce the chance of litigation. It therefore leaves potential disputes to be resolved under the Act and general administrative and judicial review processes.

In short, the provided text contains no litigation history; it would be necessary to consult external judicial and tribunal records to determine whether and how the instrument has been contested or interpreted in court.

This instrument is short and tightly framed, but several practical traps and points of possible contention arise directly from its text. Each "gotcha" below is grounded in the instrument’s wording and the Schedule; none depends on external materials beyond what the instrument itself references.

Temporal cutoff is externally referenced and not defined in the instrument

• The Schedule repeatedly conditions each class on being "before the MRCA commencement date." The instrument does not define what the "MRCA commencement date" is. Without consulting the Act or other instruments, a reader cannot determine which persons are within the "before" window. That external dependency is a practical gotcha: eligibility hinges on identifying that date correctly.

PHILOMAN version locked at commencement; accreditation depends on that edition

• Item 2 ties accreditation to the PHILOMAN and the Schedule note fixes the relevant PHILOMAN to the First edition 2013 "as in force on the date of commencement of this instrument" with a URL. If PHILOMAN has been amended subsequently, the instrument nevertheless imports the First edition 2013. Claimants must prove accreditation as described in that specific edition. A person accredited under a later PHILOMAN edition or under an undocumented internal practice may not qualify. The instrument does not provide guidance on how to resolve ambiguities in PHILOMAN’s descriptions.

"Acts performed in connection with the activities of the Australian Defence Force" is open‑textured

• The Schedule repeatedly uses the phrase "Acts performed in connection with the activities of the Australian Defence Force" (items 1 and 2). The instrument does not define what "in connection with" means, nor does it limit the nature, temporal scope or causal degree of the connection required. That open texture creates scope for disputation about whether particular acts qualify as the "employment" that the instrument deems. Evidence standards and factual disputes about the relationship between acts and ADF activities are likely to arise.

Honorary rank is not defined in the instrument

• Item 1 applies to persons who "held honorary rank in the Australian Defence Force" before the MRCA commencement date. The instrument does not define "honorary rank" for its purposes. That raises questions about which categories of honorary appointment are included; for example, whether certain ceremonial titles, community awards, or temporary honorary designations qualify. Administrative decision‑makers will need to look to Defence records or other sources to determine what counts.

Compliance here involves two different constituencies: (1) individuals who believe they fall within a Schedule item and who wish to rely on the instrument when making claims under the Act, and (2) administrators and decision‑makers who must implement the instrument when assessing claims. The instrument itself contains no express procedural requirements; compliance therefore means assembling the factual evidence and documentary materials that will demonstrate the predicates in cl 4 and the Schedule. Below are concrete steps grounded in the instrument’s text.

Steps for individuals (claimants)

1. Identify which Schedule item (1, 2 or 3) you claim to fall within. The Schedule sets out three mutually distinct classes: (a) held honorary rank in the ADF before the MRCA commencement date (item 1); (b) were accredited representatives of one of the listed philanthropic organisations as described in PHILOMAN before the MRCA commencement date (item 2); or (c) were on discharge resettlement training under an arrangement made by the ADF before the MRCA commencement date (item 3).

2. Establish the relevant temporal benchmark. The Schedule conditions all three items on being "before the MRCA commencement date." You, or your representative, must identify what that date is in the external instrument or Act that defines the MRCA commencement date. The instrument itself does not define it (see cl 4 and Schedule).

3. Gather documentary evidence:

   • For item 1: obtain any official documentation or correspondence that shows you held an honorary rank in the ADF before the MRCA commencement date , appointment letters, Defence records, ceremonial appointment documents, or other records showing the honorary rank and the dates.

   • For item 2: obtain documentation evidencing accreditation as a representative of one of the listed philanthropic organisations in the PHILOMAN First edition 2013. The Schedule lists the approved organisations and fixes PHILOMAN to the First edition 2013 (Schedule note and URL). Examples include accreditation letters, Defence accreditation lists, membership or appointment documents from the philanthropic organisation referencing PHILOMAN, or contemporaneous Defence documentation recording the accreditation.

   • For item 3: obtain records demonstrating you were on discharge resettlement training "under an arrangement made by the ADF" before the MRCA commencement date. This could include training enrolment records, correspondence confirming the training arrangement, Defence orders, or administrative records documenting the arrangement and your attendance.