You may have entitlements under an Australian military compensation or veterans’ entitlements scheme if you are:
- A current or former member of the Australian Defence Force (ADF) (Permanent or Reserves)
- A current or former Cadet, or an Officer or Instructor of Cadets
- A current or former member of the Australian Federal Police with approved overseas service
- An Australian participant involved in British nuclear tests in Australia
- A dependant of any of the above persons.
You or your dependants may have multiple entitlements for the same injury, disease or death under more than one scheme in addition to entitlements under one or more Government ex gratia schemes, a Commonwealth-funded superannuation policy and/or a personal insurance policy.
Offsetting provisions apply and some choices you will be asked to make are irrevocable (that is, you cannot later change your mind even if your chosen benefit option does not suit your personal circumstances).
There are strict timeframes for the provision of certain requested information or documentation and for challenging decisions. Failure to comply with prescribed timeframes may result in the suspension of your entitlements or extinguishment of your rights.
It is highly recommended that you obtain comprehensive and independent advice from a qualified legal practitioner about your obligations, rights and entitlements, especially in the following circumstances:
- If you have been, or will be, medically discharged from the ADF
- If your claim has taken more than 3 months to be determined or reconsidered
- If your claim has been rejected or you have been told you are entitled to nothing
- If you have been asked to make an irrevocable Common Law election.
The following is a brief overview of the current schemes, other common entitlements and frequently asked questions.
Military Rehabilitation and Compensation Scheme
The Military Rehabilitation and Compensation Act 2004 (MRCA) provides treatment, benefits, allowances and compensation in respect of injury, disease or death related to all Defence Service rendered on or after 1 July 2004 (that is, all Warlike Service, Non-Warlike Service and Peacetime Service).
Military Compensation Scheme
The Safety, Rehabilitation and Compensation Act 1988 (SRCA) provides treatment, benefits and compensation in respect of injury, disease or death related to the following service up to 30 June 2004:
- Peacetime Service (from 3 January 1949)
- Peacekeeping Service (from 7 December 1972)
- Hazardous Service (from 22 May 1986)
- Operational Service (from 7 April 1994).
Additional compensation may also be paid under the Defence Act 1903 for severe injury or compensable death.
Veterans’ Entitlements Scheme
The Veterans’ Entitlements Act 1986 (VEA) provides treatment, benefits, allowances and pensions in respect of war-caused or defence-caused injury, disease or death related to the following declared service:
- Operational, Peacekeeping and Hazardous Service up to 30 June 2004
- Peacetime Service from 7 December 1972 to 6 April 1994 (after completion of a 3-year qualifying period, unless medically discharged)
- Peacetime Service from 22 May 1986 to 30 June 2004 (if enlisted before 22 May 1986 and served continuously until after 6 April 1994).
You may also be eligible for benefits under the VEA if the injury, disease or death is a result of service rendered:
- in the Australian Merchant Navy during World War 2
- as a United Nations Peacekeeper representing Australia overseas before 1 July 2004
- as one of certain civilians who assisted the ADF in wartime before 1 July 2004.
You may also be entitled to benefits under the VEA if you served with a Commonwealth or allied country and you lived in Australia before you enlisted.
Ex Gratia Schemes
The follow are examples of current ex gratia schemes:
- British Nuclear Test Participants – ADF personnel and Australian Public Servants (APS) who participated in the British nuclear tests are covered by the SRCA. A separate Administrative Scheme provides equivalent compensation to certain third party civilian contractors, pastoralists and Indigenous Australians who were in a test area at the relevant time. In addition, non-liability health care treatment is available to ADF personnel, APS and third party civilian contractors for all cancers, irrespective of causation. Commonwealth Police and Australian Federal Police who patrolled the Maralinga nuclear test area up to 30 June 1988 also have access to non-liability health care treatment. From 1 July 2010, certain ADF personnel who participated in the tests will have access to benefits under the VEA (subject to passing of legislation).
- F-111 Deseal/Reseal Participants – F-111 deseal/reseal and other fuel tank maintenance personnel (whose work involved fuel tank entry) may be eligible to claim health care and counselling in addition to compensation under the SRCA and/or the VEA. Certain personnel involved in formal deseal/reseal programs may also be entitled to ex gratia lump sum payments.
- Defective Administration – The Compensation for Detriment caused by Defective Administration Scheme allows Australian Government agencies to provide compensation where there is a moral rather than a legal obligation to do so. The aim is to restore a person to the position they would have been in if there had been no defective administration. ‘Defective administration’ broadly means an agency’s unreasonable failure to comply with its own administrative procedures, institute appropriate administrative procedures, or give proper advice.
Which Scheme Applies to Me?
Generally, for injury, disease or death related to service before 1 July 2004, you are likely to be covered under the SRCA or the VEA. For injury, disease or death related to service on or after 1 July 2004, you will be covered under the MRCA.
The VEA and the SRCA were not repealed as a consequence of the passage of the MRCA. It is therefore possible for some members of the ADF with service before and after 1 July 2004 to be covered by all 3 schemes, in addition to one or more of the Government’s ex gratia schemes.
A member or dependant who would otherwise be entitled to a benefit under the VEA or the SRCA and a similar benefit under the MRCA is generally only entitled to receive that benefit under the MRCA.
If the Department of Veterans’ Affairs (DVA) insists that your claim should be determined under the MRCA rather than the SRCA and/or the VEA (if either or both Acts apply), you should seek independent legal advice. In some cases, your entitlements will be much less under the MRCA than under either or both of the SRCA and the VEA.
In some circumstances, it is possible for a person to institute an action or proceeding for Common Law damages against the Commonwealth, another member of the ADF or a third party.
A dependant is not prevented from suing the Commonwealth or another member of the ADF in respect of a service death even if the deceased member chose not to sue the Commonwealth for non-economic loss for a service injury or disease that resulted in the death.
Time limits apply to all Common Law damages claims. In addition, there are strict-liability notice requirements concerning commencement and resolution of Common Law damages claims.
If a member of the ADF retires or discharges (whether voluntarily or compulsorily) and they receive a pension or a lump sum benefit (or both) under a Commonwealth-funded superannuation policy, the amount of certain periodic compensation payments may be reduced according to a specific formula to take into account the superannuation pension or benefit.
A member may be deemed to have received a pension or benefit if they in any way access or handle their Commonwealth-funded superannuation. Time limits also apply in relation to superannuation claims.
For advice in relation to a potential superannuation claim, including a death benefit claim, under the Military Superannuation and Benefits Scheme (MSBS) or Defence Force Retirement and Death Benefits (DFRDB) Scheme call our Legal Help Line on 1800 555 777.
When Should I Lodge a Claim?
The DVA has published the following advice in relation to lodging a claim on its website:
If you are a serving member and you incur an injury or contract a disease which you think could be related to your ADF service on or after 1 July 2004, it is important that you lodge a claim with the [DVA] as soon as possible. Do not wait until you are discharging from the ADF. Concealing an injury or disease can often make the condition worse or endanger others by putting them at risk when injuries compromise your ability to do your job.
Lodging a claim shortly after the incident will also mean your claim will be processed sooner. Following a decision on your claim, any payments you may be entitled to will also start sooner. The claim process will also be simpler because incident and medical records are easier to locate for recent events. Details such as dates, injuries and symptoms are still fresh in your mind and the minds witnesses and medical staff.
Are the DVA’s Medical Assessors Independent?
In some cases, a doctor or specialist is actually contracted to the DVA.
In most cases, medical assessors will be asked to provide an opinion that is designed to limit the Commonwealth’s liability rather than take into account the beneficial intention of the legislative schemes.
You should always obtain an independent medical opinion before accepting any decision or offer of compensation.
What Are My Entitlements?
Your legal entitlements will depend on the relevant scheme or schemes, subject to any applicable offsetting provisions. In summary, entitlements can be categorised broadly as follows:
- Rehabilitation programs (medical, psychosocial and vocational)
- Reasonable medical expenses
- Incapacity payments (compensation for economic loss)
- Permanent impairment (compensation for non-economic loss)
- Disability pensions (compensation for non-economic and in some case economic loss)
- Aids and appliances
- Household and attendant care services
- Alterations to place of work, education and residence
- Pharmaceutical and telephone allowances.
You may also have access to one or more of the following ancillary schemes:
- Education and Training Scheme
- Motor Vehicle Compensation Scheme
- Veterans and Veterans Families Counselling Service
- Veterans Vocational Rehabilitation Scheme
- Defence Home Ownership Assistance Scheme
- Defence Homeowners Scheme
- Defence Services Homes Scheme.
Slater and Gordon’s Military Compensation Department is ready to take up the fight for you.
The federal government recently announced details of the Defence Abuse Reparation Scheme for victims of sexual and other abuse in the defence force. If you would like more information on what you might be entitled to, please contact us online or call us.