Introduction
Service in the Armed Forces is unlike any other service or employment in New Zealand. Whereas all other employees can refuse to perform excessively dangerous tasks, for a member of the Armed Forces to do so in the face of the enemy may amount to the offence of cowardice which is punishable by imprisonment for life. The NZDF is also unique in being able to prevent members of the Armed Forces from terminating their service at will in certain circumstances, including during war or like emergency, while on overseas service, or when there is a state of critical manning. Furthermore the service of some former Service members will have been initiated by conscription or compulsory military service rather than their own free will, a legal power which still remains available to Parliament in times of emergency.
The War Pensions Act 1954 as enacted recognised that service with the NZDF exposes Service members to these unique circumstances by providing coverage for all disabilities that are aggravated or attributable to service. The NZDF recommends that this recognition of service be maintained as a fundamental consideration in the drafting of a new Act.
Civilian eligibility
As referred to in the Guiding Principles, a key element of service is the requirement for the NZDF to place its personnel in harm’s way in the service of New Zealand. Although the current Act was intended to apply only to Service members when it was enacted in 1954, an amendment in 2001 appears to extend the application of the Act to members of the Civil Staff of the NZDF. The NZDF recognises that the changing nature of operations has increasingly required civilian personnel to deploy on NZDF operations. The risks faced by civilians accompanying a force may differ from those faced by Service members. Generally speaking civilians are only required to perform the duties set out in their employment agreement and will not be required to do any task that is excessively dangerous. Although they will be made subject to the Armed Forces Discipline Act 1971, subject to certain modifications, they cannot be used to take a direct part in hostilities. It must be recognized however, that civilians when they are deployed on operations may be exposed to most of the same harm and uncontrolled risks as their military counterparts. Consequently, the NZDF recommends that the new Act provide coverage for civilians directly employed by the NZDF who deploy on qualifying operations.
This could be administered by the Chief of Defence Force certifying coverage under the new act for members of the Civil Staff prior to deployment on a qualifying operation.
Question 10
What type of service do you think should qualify a person for veterans’ entitlements? Why?
To align coverage under the new Act with ACC, as well as the intent of the original legislation before 1974, the NZDF recommends that the limits to coverage under the War Pensions Act as a result of the introduction of the ACC legislation be explored. This will ensure that any unforeseen limits on the War Pensions Act 1954, that were imposed with the introduction of the ACC legislation in 1974, are identified and properly considered in context of the new Act.
Question 10 Personnel Feedback
Focus Groups The majority of participants agreed that all service, routine, domestic and operational, deserved eligibility for entitlements as a ‘recognition of service’. While many also argued that the increased risk of operational service warranted additional recognition above routine service, most discussions settled on the concept that non-operational service could pose as much risk as operational service.
Question 11
Is the phrase “war or emergency” appropriate in the context of modern deployments? If not, what terms should be used instead?
The NZDF does not view the term “War or Emergency” as appropriate in the context of modern deployments. Generally, the expression “war” is not used in current legal documents due to its limited technical meaning. Many armed conflicts and other dangerous operations do not legally qualify as a war. The expression “emergency” also has particular connotations of an event that is unexpected or sudden which may not be entirely appropriate to the types of operation in which NZDF has recently been involved and is likely to be involved in the future.
The NZDF favours an expression such as ‘qualifying operational service’ to replace ‘war and emergency service’.
Question 11 Personnel Feedback
Focus Groups expressed a strong preference for a tiered approach. Some groups saw the division as being between operational and non-operational, whereas others felt that operational service needed to be further tiered, to recognize the difference between ‘warlike’, peacekeeping’ and other operations.
Question 12
Should the legislation specify the type of qualifying service, (for example all overseas service; a particular type of operational service) or provide for a decision to be made in relation to each deployment?
The exact nature of the qualifying service will engage significant policy issues, including those of affordability. These are issues in respect of which NZDF cannot act or advise on in isolation. NZDF considers that criteria should be established for identifying the aspects of service that will make it appropriate for entitlement to apply. These may include features such as the known and likely dangers of the deployment or service, the environmental hazards and the extent to which the service differs from ordinary incidents of risk or discomfort shared by all other employees in the work place.
There should, however, also be flexibility to deal effectively with new situations not anticipated in those criteria.
Question 13
If new legislation provides for a decision to be made in relation to each deployment, what factors should be taken into consideration before the decision is made? What procedural safeguards should there be?
NZDF considers that the types of factors likely to be appropriate are those set out in response to question 12. All decision-making will, of course, be subject to public law principles and may, therefore, be the subject of judicial review. Consideration should be given to the issue of whether it is necessary or appropriate to have mechanism for re-examining decisions without the need to engage a formal legal challenge which is apt to be very expensive for the claimant.
Question 13 Personnel Feedback
Focus Groups expressed the view that operations should be classified by the level of uncontrolled risk, to include physical, psychological and environmental threats.
Question 14
Who should be responsible for a decision on the status of a deployment for the purposes of veterans’ entitlements? Once a declaration is made, should it be able to be amended?
Principal options include the Chief of Defence Force (alone or in consultation) or the Minister of Defence.
However, once a declaration is made, there should be the option to amend it. It is the experience of the NZDF that circumstances can change during the course of an operation, and that facts may come to light that change the validity of a decision after it is made. A decision of this nature should be amenable to change for good reason.
Question 14 Personnel Feedback
Focus Groups agreed with the need to amend the status of a deployment, especially in cases where disabling conditions or exposure were discovered after the completion of an operation, such as known exposure to asbestos or depleted uranium. They summed it up by saying, “Everywhere is safe until it’s dangerous.”
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