Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to the rehabilitation and treatment of, and compensation for, members of the Defence Force, and for related purposes
Administered by: Veterans' Affairs
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 09 Nov 2016
Introduced HR 09 Nov 2016

2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (DEFENCE FORCE) BILL 2016

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs,

 The Honourable Dan Tehan MP)


 

 


SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (DEFENCE FORCE) BILL 2016

 

OUTLINE AND FINANCIAL IMPACT

The Bill will create the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act), which will be a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) that is modified to apply only to members of the Defence Force and their dependants.  The Bill will also amend the SRC Act to remove cover for members of the Defence Force and their dependants from that Act. 

 

The DRC Act will maintain the existing entitlements of the SRC Act for members of the Defence Force and their dependants. 

 

FINANCIAL IMPACT STATEMENT

 

The Bill is expected to have no financial impact.

 

 


 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (DEFENCE FORCE) BILL 2016

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Background

 

The amendments made by the Bill will create the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA), which will be a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA) that is modified to apply only to members of the Defence Force and their dependants.

 

As a consequence the Bill will also amend the SRCA to remove cover for members of the Defence Force and their dependants from that Act.

 

The DRCA will apply in relation to an injury, disease, death, loss or damage that relates to certain employment in the Defence Force that occurred before the commencement of the Military Rehabilitation and Compensation Act 2004 (Military Rehabilitation and Compensation Act) on 1 July 2004.

 

The DRCA will provide Defence Force members with access to a “military specific” compensation and rehabilitation scheme and will enable the Military Rehabilitation and Compensation Commission (MRCC) to bring the newly enacted DRCA into closer alignment with the Military Rehabilitation and Compensation Act as part of future amendments to these Acts.

 

Details of the measures included in the various Schedules of the Bill and their human rights implications are set out below.

 

Schedule 1 – Part 1 - Enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

The amendments made by Part 1 of Schedule 1 are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the amendments

 

Item 1 of Part 1 of Schedule 1 provides for the enactment of the DRCA as the re-enactment of the SRCA as in force at the time set out in that Part.  It also provides that the DRCA is to be regarded as having been passed in 1988 as Act number 156 of that year.

 

Item 2 of Part 1 of Schedule 2 is applicable for the purposes of administering the DRCA for the determination of a claim, the application of the Act or an instrument made under the Act.  It provides that the version of the DRCA or the instrument that is applicable at that time will be taken to be the same as the version of the SRCA, or the relevant instrument made under the SRCA that was applicable at that same time.  It also provides that any transitional, application or saving provision in any Act or instrument that amended the SRCA that was applicable for the purposes of the SRCA at that time will also apply for the purposes of administering the DRCA.

 

The effect of Items 1 and 2 is that the determination of the eligibility of Defence Force members for compensation under the DRCA during the period from the commencement of the SRCA until the excision of the coverage of those members following the enactment of the DRCA will in practical terms be done by referring to the published version of the SRCA that applied at the time while taking into account any transitional, application or saving provision that also applied to the Defence Force member at the time for which eligibility is being determined.

 

Human rights engaged but not advanced or limited

 

As the Bill is effectively the re-enactment of the SRCA it will engage all of the rights that the SRCA engages under International Law.  While those human rights will be engaged by the proposed re-enactment the provision enabling the enactment will not make any amendments to the existing provisions.  The human rights of those covered by the Act will neither be advanced nor limited by the proposed re-enactment.

 

Conclusion

 

Part 1 of Schedule 1 of the Bill is compatible with human rights as it does not raise any human rights issues.

 

Schedule 1 – Part 2 – Main amendments of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

The amendments made by Part 2 of Schedule 1 are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the amendments

 

The amendments made by Part 2 of Schedule 1 are mostly minor and consequential amendments to the DRC Act created in Part 1 which repeal redundant definitions, include consequential references to the SRC Act and repeal provisions and Parts that are not relevant to the administration of the DRC Act by the MRCC.

 

Included in Part 2 are two substantial provisions which concern the application of the DRC Act to employees with defence service.

 

Human rights engaged but not advanced or limited

 

Item 23 repeals and substitutes section 4AA.  Section 4AA of the SRC Act had provided for the closure of the application of the Act to Defence Force members after the commencement of the Military Rehabilitation and Compensation Act on 1 July 2004.  Compensation for an injury or disease attributable to service on or after that date is provided under the Military Rehabilitation and Compensation Act.  Compensation for the loss of or damage to the property of Defence Force members that occurs after that date will also be provided under the Military Rehabilitation and Compensation Act.

 

New subsections 4AA(1) and (2) provide (subject to Part X - the transitional provisions which provide for the payment of compensation under the preceding worker’s compensation Acts) that the DRC Act will apply to an injury or an ailment, or the aggravation of such an injury or ailment when all of the following circumstances apply:

  • the injury or aggravation arises out of or in the course of the employee’s employment or the ailment or aggravation is contributed to, to a significant degree by the employee’s employment as a member of the Defence Force; and
  • the employment occurs on or after 1 December 1988 and before 1 July 2004, but not for a continuous period that commences before 1 July 2004 and concludes on or after, 1 July 2004.

 

New subsection 4AA(3) provides (subject to Part X - the transitional provisions which provide for the payment of compensation under the preceding worker’s compensation Acts) that the

DRC Act will apply in relation to the loss of or damage to the property of a member of the Defence Force when all of the following circumstances apply:

  • the loss or damage resulted from an accident that arose out of, and in the course of the employee’s employment as a member of the Defence Force; and
  • the employment occurs on or after 1 December 1988 and before 1 July 2004.

 

New subsection 4AA(4) provides (subject to Part X - the transitional provisions which provide for the payment of compensation under the preceding worker’s compensation Acts) that the

DRC Act will apply in accordance with section 6A to an injury suffered by a member of the Defence Force when all of the following circumstances apply:

  • the injury is suffered as an unintended consequence of medical treatment provided at the Commonwealth’s expense; and
  • the treatment was provided on or after 1 December 1988; and
  • section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act was not applicable in relation to the injury.

 

Section 6A provides a Defence Force member with coverage under the DRC Act for the unintended consequences of medical treatment provided at Commonwealth expense at any time after the commencement of the SRC Act regardless of whether there was negligence or the original condition for which treatment was provided was compensable.  It continues to apply after the MRCA commencement date in the circumstances where the Military Rehabilitation and Compensation Act does not apply because the original treatment is not related to defence service.

 

Section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act provides that treatment will be provided under the Military Rehabilitation and Compensation Act where the service injury is sustained on or after 1 July 2004 as an unintended consequence of treatment of the kind referred to in section 29 of the Military Rehabilitation and Compensation Act and that treatment was provided on or after 1 July 2004 or during a continuous period which began before and continued until on or after 1 July 2004.

Section 29 of the Military Rehabilitation and Compensation Act defines the terms service injury, service disease and service death that arise from treatment provided by the Commonwealth under the Military Rehabilitation and Compensation Act or the Defence Regulations.  The terms all depend on the injury being sustained or the disease contracted while the member was rendering defence service.

 

The effect of the amendments that insert new section 4AA into the DRC Act is that the human rights of Defence Force members for the period from 1 December 1988 to 1 July 2004 will in all cases be covered by the DRC Act.

As there are no changes to the coverage provided for, or the entitlements of, Defence Force members the human rights of Defence Force members will neither be advanced nor limited under new section 4AA.

 

Human rights engaged but not advanced or limited

 

Item 24 repeals and substitutes section 5.  Repealed section 5 was an extensive provision setting out the different classes of persons who were considered or not considered to be an employee for the purposes of coverage under the SRC Act.

 

New section 5 provides that, for the purposes of the DRC Act, an employee is a member of the Defence Force.  The new section renumbers and restates all of the existing provisions applicable to Defence Force members which include:

  • the power of the Minister (by legislative instrument) to declare that persons holding an honorary rank in the Defence Force, persons who were members of a philanthropic organisation or who had undertaken resettlement training were to be taken to be members of the Defence Force;
  • the power of the Minister (by legislative instrument) to declare that certain persons who have engaged in activities or performed acts at the request or direction, for the benefit, or under a requirement by law, in relation to the Defence Force, are for the purposes of the SRC Act to be taken to have been employed by the Commonwealth;
  • a reference to an employee can also include a person who has ceased to be an employee; and
  • the exclusion of coverage under the DRC Act to persons in receipt of a disability pension under Part II or Part IV of the Veterans’ Entitlements Act 1986 or the Papua New Guinea (Member of the Forces Benefits) Act 1957.

 

The human rights of Defence Force members or other persons will neither be advanced nor limited under new section 5.

 

Conclusion

 

Part 2 of Schedule 1 of the Bill is compatible with human rights as it does not raise any human rights issues.


 

Schedule 1 - Part 3 – Amendments relating to pension age

 

The amendments made by Part 3 of Schedule 1 are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the amendments

 

The amendments made by Part 3 implement the Government’s 2016-17 Budget measure to improve support for injured or ill former Defence Force members by increasing the incapacity cut-off age to align with increases in age pension eligibility which will enable the former members to continue to receive incapacity payments up until the day they may become eligible for the age pension.

The Social Security Act has been amended so that the age pension age of 65 years will increase by increments of six months starting from 1 July 2017.  The age pension age will increase in those increments over a period until age pension age will be 67 years from 1 January 2024.

 

The amendments to the DRC Act include the provisions according to which incapacity compensation payments will cease when an injured employee reaches his or her ‘pension age’ as defined in the Social Security Act.

 

The DRC Act provides for an exception to this when an employee who suffers an injury is aged 63 or above and less than 65 years. That employee will be entitled to a maximum of 104 weeks of weekly incapacity payments from the date of their injury.

 

To ensure that some incapacity payment recipients are not disadvantaged when the age pension age increases while they are in receipt of incapacity payments to which a cap of a maximum of 104 weeks applies, Part 3 includes an application provision which will extend the period of payment beyond the maximum of 104 weeks until the recipient reaches ‘pension age’.

 

The amendments promote the right to social security by enabling an injured former member to receive weekly compensation until their pension age.  Additionally, former members who are injured at any time after two years prior to their pension age are entitled to receive weekly incapacity payments for a period of 104 weeks.

Human rights implications

 

Part 3 of Schedule 1 engages the following human right:

 

Social Security

 

The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights.

 

The amendments promote the right to social security by providing for the payment of incapacity payments until age pension age and, in some cases, beyond age pension age.


 

Conclusion

 

Part 3 of Schedule 1 of the Bill is compatible with human rights as the measures which engage human rights do so on the basis that the rights are advanced.

 

Schedule 2 – Amendment of the Safety, Rehabilitation and Compensation Act 1988

 

The amendments made by Schedule 2 are compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the amendments

 

Schedule 2 provides for the consequential amendments to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to remove the entitlement to compensation under that Act for, or in respect of, members of the Defence Force.  The enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRC Act) will provide entitlement to compensation for, or in respect of, members of the Defence Force for defence service previously covered by the SRC Act.

 

Human rights engaged but not advanced or limited

 

The amendments to the SRC Act made by Schedule 2 of the Bill are the consequence of the amendments made by Schedule 1 which enacts the DRC Act.  The combined effect of Schedules 1 and 2 is the enactment of the DRC Act which as a re-enacted SRC Act engages all of the rights that the SRC Act engages under International Law.  While those human rights will be engaged by both the enactment of the DRC Act and the consequential amendments to the SRC Act the combined effect is that there will not be any impact on the eligibility of Defence Force members for compensation and other benefits under the newly enacted DRC Act.  The human rights of those covered under either of the DRC Act or the SRC Act will neither be advanced nor limited by amendments.

 

Conclusion

 

Schedule 2 of the Bill is compatible with human rights as it does not raise any human rights issues.

 

Schedule 3 – Amendments of other Acts

 

The amendments made by Schedule 3 are compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the amendments

 

The amendments made by Schedule 3 are consequential amendments to the existing references to the SRC Act in various other Acts.  Most of the amendments that are made by Schedule 3 insert references to the DRC Act into those Acts where it is appropriate, either as a substitute to a reference to the SRC Act, or in addition to such a reference.

The amendments by Schedule 3 to Veterans’ Affairs portfolio legislation are more substantial as they deal with the interactions between compensation and other benefits provided to members of the Defence Force and their dependants under each of the three primary compensation and income support Acts administered by the Department being the Veterans’ Entitlements Act 1986, the Military Rehabilitation and Compensation Act 2004 and the DRC Act.

 

Human rights engaged but not advanced or limited

 

The amendments made by Schedule 3 of the Bill are the consequence of the amendments made by Schedules 1 and 2 which provide for the enactment of the DRC Act and the consequential amendments to the SRC Act that flow from that enactment.  While those human rights will be engaged by both the enactment of the DRC Act and the consequential amendments to the SRC Act the combined effect is that there will not be any impact on the eligibility of Defence Force members for compensation and other benefits under the newly enacted DRC Act.  The human rights of those covered under either of the DRC Act or the SRC Act will neither be advanced nor limited by the amendments made by Schedule 3.

 

Conclusion

 

Schedule 3 of the Bill is compatible with human rights as it does not raise any human rights issues.

 

 

.


SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (DEFENCE FORCE) BILL 2016

 

 

Short Title                  Clause 1 provides for the short title of the Act to be Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2016.

 

 

Commencement            Clause 2 sets out the commencement date of the provisions of the Act.

 

 

Schedules                   Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

This explanatory memorandum uses the following abbreviations:

 

“DRC Act” means the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988;

 

“Military Rehabilitation and Compensation Act” means the Military Rehabilitation and Compensation Act 2004;

 

“Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act” means the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004;

 

“MRCC” means the Military Rehabilitation and Compensation Commission;

 

“SRC Act” means the Safety, Rehabilitation and Compensation Act 1988;

 

“SRCC” means the Safety, Rehabilitation and Compensation Commission; and

 

“Veterans’ Entitlements Act” means the Veterans’ Entitlements Act 1986.


 

Schedule 1 – Enactment and amendment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Overview

 

Part 1 of Schedule 1 creates the DRC Act, which will be a re-enacted version of the SRC Act that is modified by the amendments made by Part 2 of Schedule 1 to apply only to members of the Defence Force and their dependants. 

 

The DRC Act will maintain the existing entitlements of the SRC Act for current and former members of the Defence Force and their dependants.

 

Background

 

Pensions, compensation, rehabilitation, treatment and other benefits for veterans, members of the Defence Force and their dependants are currently provided under three separate Acts, the Veterans’ Entitlements Act, the Military Rehabilitation and Compensation Act, and the SRC Act. 

 

In broad terms, the SRC Act provides compensation, rehabilitation and treatment for defence-related injuries or diseases or deaths attributable to defence service rendered between 1988 and 2004.

 

Injuries, diseases or deaths related to war and defence service rendered outside this period are covered by the Military Rehabilitation and Compensation Act and the Veterans’ Entitlements Act.   Certain periods of war and peace-time service have dual coverage under both the SRC Act and the Veterans’ Entitlements Act.

 

When the Military Rehabilitation and Compensation Act took effect in relation to defence service on or after 1 July 2004 (or for a continuous period that began before and concluded on or after 1 July 2004), responsibility for determining and managing defence-related claims under the SRC Act, was given to the MRCC from Comcare by virtue of the addition of Part XI to the SRC Act.

 

The modifications made by Part XI of the SRC Act, which was inserted by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act, will, as amended by this Bill, continue to operate in the DRC Act and provide the legislative authority for the MRCC in its ongoing responsibility for defence-related claims.

 

The implementation of the proposed DRC Act will provide for a complete separation of the legislative framework for defence-related claims from the Comcare Scheme under the SRC Act and will provide the Minister for Veterans’ Affairs with the responsibility for all three of the separate compensation Acts that cover Defence Force members.

 

It will also be a significant step in the broader reform being undertaken by the Department to significantly improve services for veterans and their families in the

re-engineering of the Department’s business processes.  To enable this veteran-centric reform to occur, it is essential that policy responsibility for all of the relevant legislation sits with the Minister for Veterans’ Affairs.

 

The enactment of the DRC Act will also allow for consultation in the future between the Department and the veteran and Defence communities on areas of potential alignment with the Military Rehabilitation and Compensation Act 2004 once the DRC Act commences.

 

Part 1 – Enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Explanation of the Items

 

Item 1 - Enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Subitem 1(1) re-enacts the SRC Act, as in force at the time the item commences as the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Note 1 at the end of the subitem explains that the item creates a second version of the SRC Act as amended by Schedule 1 of this Bill.  The modified version of the SRC Act will apply only in relation to an injury, disease, death, loss or damage that relates to certain employment as a member of the Defence Force that occurred before the Military Rehabilitation and Compensation Act commencement date. 

 

Note 2 provides that if Item 1 commences on 1 July 2017, the version of the Safety, Rehabilitation and Compensation Act 1988 that is re-enacted will also include the amendments made to that Act by the Seafarers and Other Legislation Amendment Act 2016 that also commence on that day.

 

Subitem 1(2) provides that, for the purposes of subparagraph 40(1A)(a)(ii) of the Acts Interpretation Act 1901, which relates to the citation of Acts, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 is taken to have passed in 1988 and its number is taken to be 156.

 

The Note to subitem 1(2) makes it clear that the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 may be cited as Act No. 156 of 1988.

 

Subitem 1(3) provides that subitem (2) has effect despite section 39 of the Acts Interpretation Act 1901 which refers to the numbering of an Act in the year in which it receives Royal Assent.  The amendment is a technical amendment to provide for an exception to that section as required for the amendment made by subitem1(2).

 

Item 2 refers to the application of the re-enacted Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and any instrument made under the Act in relation to matters which have occurred before the Act commences.

 

Subitem 2(1) states that Item 2 will apply retrospectively to the administration of the DRC Act in relation to a claim made before, the Act that applied or any instrument that was regarded as having been made under the Act before the Act commenced.

 

Subitem 2(2) provides that the DRC Act or the instrument that was made under the DRC Act that will be retrospectively applicable at the time referred to in subitem 2(1) will be the same as the version of the SRC Act or the version of the instrument made under that Act that applied at that same time.

 

Subitem 2(2) also provides that any transitional, application or saving provision that applied for the purposes of the SRC Act or any instrument made under that Act will also be applicable to the version of DRC Act or any instrument made under that Act that applied at the time referred to in subitem 2(1).

 

Subitem 2(3) provides that Item 2 will not prevent a provision of a later Act or instrument from overriding the provisions of the item (whether that intent has been expressly stated or implied).

 

Items 1 and 2 of Part 1 of Schedule 1 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill enact the DRC Act which is expected to be enacted some time in 2017.

 

The DRC Act is to be regarded as having been made in 1988 in the form of a duplicate of the SRC Act that has, in the intervening period until the commencement of its enactment, been subject to all of the subsequent amendments that were made to that Act or were applicable to the Act up until its re-enactment as the DRC Act.

 

The effect of Items 1 and 2 is that the determination of the eligibility of Defence Force members for compensation under the DRC Act during the period from the commencement of the SRC Act until the excision of the coverage of those members following the enactment of the DRC Act will in practical terms be done by referring to the published version of the SRC Act that applied to the Defence Force member at the time for which eligibility is being determined (for most cases with the exceptions that are related to the effect of transitional, application and saving provisions that may arise as discussed below).

 

When providing a description of the applicable legislation when it is retrospective the reference to the legislation under which the member was eligible would refer to the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 “which subsequently the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988”.

 

Subitem 2(2) also makes it clear that, for the purposes of determining eligibility under the DRC Act, a Defence Force member will also have the benefit of any saving, application or transitional provision that had been included in an Act which amended the SRC Act and which would have applied at the time for which eligibility is being determined.

 

In some cases the effect of the application, transitional or saving provisions is that the published version of the SRC Act that is applicable at that time will not be applicable to a Defence Force member because of the effect of one or more of those provisions.

 

A reference to a particular saving, application or transitional provision which applies for the purpose of determining the eligibility of a Defence Force member for the period before the commencement of the re-enacted Act will need to refer to the amending Act in which the provision was located and also refer to the subsequent

re-enactment of the “Safety, Rehabilitation and Compensation Act 1988 as the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988”.

 

An example of the beneficial effect that Item 2 will have for the purposes of the application of the DRC Act is provided in relation to an injury which occurred during a journey from a Defence Force member’s residence and his or her usual place of work which occurred in 1999.

 

Under the provisions of subparagraph 6(1)(b)(ii) of the SRC Act that applied at the time an injury would, for the purposes of the Act, be treated as having arisen in the course of his or her employment if it was sustained while “travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment”.

 

Following amendments made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the 2007 amending Act) compensation for an injury suffered in similar circumstances on or after 13 April 2007 was precluded by the operation of new subsection 6(1C).  That subsection provides that “travel between the employee’s residence and the employee’s usual place of work is not taken to be at the direction or the request of the Commonwealth or a licensee” for the purposes of paragraph 6(1)(d).

 

The amendment had inserted paragraph 6(1)(d) under which compensation would be payable for an employee who is injured while he or she “was, at the direction or request of the Commonwealth or a licensee travelling for the purposes of that employment”.

 

The 2007 amending Act included an application provision (Item 44 of Part 2 of Schedule 1) which was applicable for the purposes of the amendments to section 6 of the SRC Act that were made by the 2007 amending Act.  It provides that the amendments to section 6 were to apply only in relation to an injury that was sustained on or after the day the 2007 amending Act received Royal Assent.  In effect, that day was 13 April 2007.

 

If a Defence Force member was delayed in making a claim for an injury suffered during his or her journey between home and his or her usual place of employment until after the commencement of the newly enacted DRC Act and Item 2 was not applicable, the newly enacted version of the DRC Act would apply the current version of the SRC Act to the claim and it would be precluded by the operation of subsection 6(1C).

However, the provisions of Item 2 would apply the version of the SRC Act that applied in 1999 to the claim as if it were an earlier version of the DRC Act and would also ensure that the application provision set out in Item 44 of the 2007 amending Act which applied for the purposes of the SRC Act to claims for compensation for an injury suffered before 13 April 2007, would also apply for the purposes of the DRC Act for a claim made in respect of the same period.

 

Commencement

 

Clause 2 provides that the items included in Part 1 of Schedule 1 will commence on the later of the start of the day after this Act receives Royal Assent or the start of 1 July 2017.

 

Part 2 – Amendment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Division 1 - Amendments

 

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Item 3 amends the long title of the Act so that instead of referring to the “employees of the Commonwealth and certain corporations and to worker’s compensation for those employees and certain other persons” it will refer to the provision of “treatment of, and compensation for, members of the Defence Force”.

 

Subsection 4(1) of the DRC Act contains definitions of the terms that are commonly used throughout the Act.  With the enactment of the DRC Act many of those definitions will not be relevant for the purpose of administering defence-related claims and other matters as the provisions in which they are used are being repealed or the references are redundant.

 

Item 4 repeals the definitions of ACT enactment, ACT Self-Government Act and administering authority from subsection 4(1) as the definitions are not relevant to the administration of defence-related claims.

 

Item 5 repeals and substitutes the definition of approved program provider in subsection 4(1) to make it clear that the references to sections 34F and 34H are references to sections 34F and 34H of the SRC Act.  Sections 34F and 34H are located in Division 2 of Part III and those provisions of the DRC Act are repealed by Item 33 of this Part.  Sections 34F and 34H of the SRC Act provide for the approval by Comcare of rehabilitation program providers.

 

Item 6repeals the definition of Chief Executive Officer from subsection 4(1) as the definition is not relevant to the administration of defence-related claims.

 

Item 7 amends the definition of Comcare in section 4(1) to provide that the reference to section 68 is a reference to section 68 of the SRC Act.  Section 68 provides for the establishment of the body referred to as “Comcare” and is located in Part VII.  Parts VII and VIII of the DRC Act are repealed by Item 42 of this Part.

Item 8 amends the definition of Commission in section 4(1) to provide that the reference to section 89A is a reference to section 89A of the SRC Act.  Section 89A is located in Part VII and provides for the establishment of the body referred to as the “Safety, Rehabilitation and Compensation Commission”.  Parts VII and VIII of the DRC Act are repealed by Item 42 of this Part.

 

Item 9 repeals the definitions of Commissioner and Commonwealth from subsection 4(1) as the definitions are not relevant to the administration of defence-related claims.

 

Item 10 makes a technical amendment to the definition of Commonwealth authority in subsection 4(1) to replace the reference to “an ACT enactment or law” with the preferred term “a law of the Australian Capital Territory”.

 

Item 11 repeals the note which refers to the repealed provisions of Division 4A of Part VII at the end of the definition of Commonwealth authority as it is not relevant to the administration of defence-related claims.

 

Item 12 repeals the definitions of corporation, Deputy Chief Executive Officer and eligible corporation from subsection 4(1) as the definitions are not relevant to the administration of defence-related claims.

 

Item 13 amends the definition of exempt authority in section 4(1) to provide that the reference to section 35 is a reference to section 35 of the SRC Act which refers to determinations by the Minister for Employment that an entity or a Commonwealth authority is an “exempt authority” for the purposes of Part III of the SRC Act.  Section 35 of the DRC Act is repealed by Item 35 of this Part.

 

Item 14 repeals the definitions of exit contribution and Finance Minister from subsection 4(1) as the definitions are not relevant to the administration of

defence-related claims.

 

Item 15 amends the definitions of license, licensed corporation and licensee in subsection 4(1) to make it clear that the references in the definitions to “Part VIII” is to the Part VIII that is located in the SRC Act.

 

Item 16 repeals the definition of member, which had referred to a member of the Safety, Rehabilitation and Compensation Commission, from subsection 4(1) as the definition is not relevant to the administration of defence-related claims.

 

Item 17 inserts a definition for the MRCC, being the Military Rehabilitation and Compensation Commission.

 

Item 18 repeals the definitions of premium, previous Commission and special premium from subsection 4(1) as the definitions are not relevant to the administration of defence-related claims.

 

Item 19 inserts in subsection 4(1), a definition for SRC Act, being the Safety, Rehabilitation and Compensation Act 1988.

 

Item 20 repeals subsections 4(10) and 4(10A) as the provisions relate to employees of a licensed authority or a licensed corporation and are not relevant to the administration of defence-related claims.

 

Items 21 and 22 are a technical amendment to subsection 4(14) and the repeal of subsection 4(15).  The amendments reverse amendments made by the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Act 2016.  The recent amendments are not relevant to the administration of

defence-related claims.

 

Item 23 repeals section 4AA and substitutes a new section 4AA which concerns the application of the DRC Act.

 

Section 4AA was inserted as one of the consequential amendments to the SRC Act that were made by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.

 

Section 4AA provided for the closure of the application of the SRC Act from the Military Rehabilitation and Compensation Act commencement date of 1 July 2004 to the payment of compensation to those Defence Force members serving on or after that date who suffer an injury on or after that date.  From the Military Rehabilitation and Compensation Act commencement date those Defence Force members would be provided with compensation coverage under the Military Rehabilitation and Compensation Act instead of the SRC Act.

 

New subsection 4AA(1) provides that, subject to Part X of the DRC Act, the DRC Act applies to an injury, that is not an ailment, or the aggravation of an injury that is not an ailment, suffered by an employee if all of the following circumstances apply:

  • the injury or aggravation arises out of, or in the course of, the employee’s employment as a member of the Defence Force; and
  • that employment occurred on or after 1 December 1988 and before 1 July 2004, but not for a continuous period that commenced before and which continued on or after, 1 July 2004.

 

Note 1 informs the reader that section 4AA of the SRC Act provides that Comcare and the Safety, Rehabilitation and Compensation Commission “do not have any liability in respect of injuries, losses, damage or deaths that relate to defence service”.

 

Note 2 at the end of new subsection 4AA(1) explains that compensation is provided under the Military Rehabilitation and Compensation Act for members of the Defence Force for an injury or aggravation of an injury that relates to defence service that occurs after 1 July 2004.

 

Note 3 at the end of new subsection 4AA(1) explains that subsection 6A(2A) of the DRC Act is also relevant to defence-related claims.  Section 6A provides coverage for Defence Force members for the unintended consequences of medical treatment provided at Commonwealth expense.  Coverage is provided regardless of whether there was negligence or the original condition for which treatment was provided was compensable.

 

Note 4 at the end of new subsection 4AA(1) explains that the SRC Act, which previously covered members of the Defence Force, was originally called the Commonwealth Employees Rehabilitation and Compensation Act 1988.

 

New subsection 4AA(2) provides that, subject to Part X of the DRC Act, the DRC Act applies to an ailment, or the aggravation of an ailment, suffered by an employee if all of the following circumstances apply:

  • the ailment or aggravation of the ailment is contributed to, to a significant degree by the employee’s employment as a member of the Defence Force; and
  • that employment occurred on or after 1 December 1988 and before 1 July 2004, but not for a continuous period which began before and continued until or after 1 July 2004.

 

The Note at the end of new subsection 4AA(2) explains that compensation for members of the Defence Force is provided for under the Military Rehabilitation and Compensation Act, for an ailment or aggravation that relates to defence service that occurred after 1 July 2004.

 

New subsection 4AA(3) provides that subject to Part X of the DRC Act, the DRC Act applies to the loss of, or damage to, property used by an employee if all of the following circumstances apply:

  • the loss or damage resulted from an accident arising out of, and in the course of, the employee’s employment as a member of the Defence Force; and
  • that employments occurred on or after 1 December 1988 and before 1 July 2004.

 

The Note at the end of new subsection 4AA(3) explains that compensation for members of the Defence Force is provided under the Military Rehabilitation and Compensation Act for loss or damage that relates to defence service that occurs after on or after 1 July 2004.

 

New subsection 4AA(4) provides that the DRC Act applies, subject to Part X, in accordance with section 6A, in relation to any injury suffered by an employee as an unintended consequence of medical treatment of an injury to which the DRC Act applies that was received by the employee and paid for by the Commonwealth.

 

Section 6A provides a Defence Force member with coverage under the DRC Act for the unintended consequences of medical treatment provided at Commonwealth expense at any time after the commencement of the SRC Act regardless of whether there was negligence or the original condition for which treatment was provided was compensable.  It continues to apply after the Military Rehabilitation and Compensation Act commencement date in the circumstances where the Military Rehabilitation and Compensation Act does not apply because the treatment was not related to defence service.

 

Subsection 4AA(4) is applicable to medical treatment:

·         provided during the period that commenced on or after 1 December 1988; and

·         which was not provided for the purposes of section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.

 

Section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act provides that treatment will be provided under the Military Rehabilitation and Compensation Act where the service injury is sustained on or after 1 July 2004 as an unintended consequence of treatment of the kind referred to in section 29 of the Military Rehabilitation and Compensation Act and that treatment was provided on or after 1 July 2004 or during a continuous period which began before and continued until on or after 1 July 2004.

 

Section 29 of the Military Rehabilitation and Compensation Act defines the terms service injury, service disease and service death that arise from treatment provided by the Commonwealth under the Military Rehabilitation and Compensation Act or the Defence Regulations.  The terms all depend on the injury being sustained or the disease contracted while the member was rendering defence service.

 

In broad terms, Part X of the Act preserves a Defence Force member’s entitlement to compensation in respect of an injury, loss or damage suffered before the commencement date of the SRC Act, being 1 December 1988, if compensation was, or would have been payable in respect of that injury under a preceding compensation Act.

 

The need to provide coverage under subsection 4AA(4) from the commencement of the SRC Act and beyond the Military Rehabilitation and Compensation Act  commencement date is to enable compensation to be provided under the DRC Act for the unintended consequences of medical treatment provided at any time after the commencement of the SRC Act which did not arise out of the rendering of defence service by the member.

 

New subsection 4AA(5) makes it clear that employment occurs, before, and on or after, the Military Rehabilitation and Compensation Act commencement date of

1 July 2004, whether the employment spans the commencement date or occurs during separate periods before and on or after that date.

 

Item 24 repeals section 5 which sets out the definition of an employee and substitutes a new section to limit the application of the DRC Act to an employee who is a member of the Defence Force.

 

New subsection 5(1) provides that, for the purposes of the DRC Act, employee means a member of the Defence Force.

 

New subsection 5(2) makes it clear that, for the purposes of the Act, a person who is a member of the Defence Force is taken to be employed by the Commonwealth and the person’s employment is taken to be constituted by the person’s performance of duties as such a member of the Defence Force.

 

The Note at the end of new subsection 5(2) explains that members of the Defence Force with service after the Military Rehabilitation and Compensation Act commencement date of 1 July 2004 might only be entitled to compensation under the Military Rehabilitation and Compensation Act and not the DRC Act (section 4AA and subsection 6A(2A) may be applicable).

 

Persons taken to be members of the Defence Force

 

New subsection 5(3) provides an instrument making power authorising the Minister for Veterans’ Affairs to declare certain persons specified in a declaration to be taken to be members of the Defence Force for the purposes of the DRC Act and that such persons’ employment is, for the purposes of the DRC Act, taken to be constituted by the performance of those persons of such acts as are specified in the declaration.  Such a declaration has effect accordingly.

 

Persons who may be specified in a notice are persons who:

  • hold an honorary rank in the Defence Force before 1 July 2004; 
  • are, before 1 July 2004, members of a philanthropic organisation that provides services to the Defence Force; or
  • undertake resettlement training, before 1 July 2004, under an arrangement made by the Defence Force.

 

The Note at the end of new subsection 5(3) explains that similar declarations can be made under section 8 of the Military Rehabilitation and Compensation Act for service after 1 July 2004.

 

New subsection 5(4) provides an instrument making power authorising the Minister for Veterans’ Affairs to declare that persons specified in a declaration are for the purposes of the DRC Act, taken to be employed by the Commonwealth and that such persons’ employment is, for those purposes, taken to be constituted by the performance of those persons of such acts as are specified in the declaration.

 

Persons who may be specified in the declaration are persons who, before 1 July 2004, engaged in activities or performed acts at the request or direction, for the benefit of, or under a requirement made by or under a law, of the Commonwealth in relation to the Defence Force.

 

Former employees

 

New subsection 5(5) provides that a reference in the DRC Act to an employee at a time after the MRCC has incurred a liability in relation to that employee, includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.  Paragraph 147(1)(c) of the DRC Act provides that the Act applies as if a reference to Comcare in section 5, is a reference to the MRCC.

 

Act not to apply to certain members of the Defence Force

 

New subsection 5(6) provides that, subject to subsections (7) and (8), the DRC Act does not apply in relation to service of a member of the Defence Force if a disability pension is payable in respect of that service under either the Veterans’ Entitlements Act or the Papua New Guinea (Members of the Forces Benefits) Act 1957.

 

The Note at the end of new subsection 5(6) explains that compensation and other benefits may also be available under the Military Rehabilitation and Compensation Act.

 

New subsection 5(7) specifies that the prohibition imposed by new subsection 5(6) will not apply in relation to a veteran:

 

  • if the veteran has rendered operational service on or after the day on which the Military Compensation Act 1994 commences (7 April 1994); and
  • a disability pension is payable in respect of that service under Part II of the Veterans’ Entitlements Act.

 

New subsection 5(8) also specifies that the prohibition imposed by new subsection 5(6) does not apply in respect of defence service for which a disability pension is also payable under Part IV of the Veterans’ Entitlements Act.

 

The effect of subsections 5(7) and (8) is to ensure that Defence Force members with operational service, hazardous service or peacekeeping service will continue to have the option of seeking compensation under either of the Veterans’ Entitlements Act or the DRC Act as they had under the provisions that have been repealed.

 

The repealed provisions had broadened the eligibility provisions of the SRC Act to allow coverage for periods of operational service after the commencement of the Military Compensation Act 1994 on 7 April 1994.  Effectively, this created a period of “dual eligibility”, giving clients the option of claiming under either the SRC Act or the Veterans’ Entitlements Act (or both Acts) depending on their period of service.

 

Item 25 makes a technical amendment to paragraph 6A(1)(e) to update a reference to a subsection renumbered by Item 24 of this Part.

 

Item 26 repeals paragraph 6A(2A)(a) as the paragraph is no longer relevant to the administration of defence-related claims.

 

Item 27 amends paragraph 6A(2A)(b) to require that the injury or aggravation is first suffered by the Defence Force member on or after the commencement of the Military Rehabilitation and Compensation Act.

 

Item 28 amends paragraph 7(9)(c) by omitting a redundant reference to a provision that was repealed by Item 24 of this Part.

 

Item 29 makes a technical amendment to paragraph 8(8)(a) to remove a redundant reference to a provision that was repealed by Item 24 of this Part.

 

Item 30 makes a technical amendment to the note at the end of subsection 15(1) to update a reference to a section renumbered by Item 23 of this Part.

 

Item 31 repeals section 15A which has been replaced by new subsection 4AA(3) (inserted by Item 23 of this Part).

 

Item 32 amends subsection 23A(4) by omitting the words “(other than section 90C)” as section 90C of the SRC Act is not relevant to the administration of defence-related claims and has been repealed from the DRC Act by Item 42 of this Part.

 

Item 33 repeals Divisions 1 and 2 of Part III of the re-enacted DRC Act.  The Divisions relate to the approval process for rehabilitation program providers.  Under section 148 of the DRC Act the MRCC may continue to use rehabilitation program providers approved under Division II of Part III of the SRC Act and does not require a separate approval process under the DRC Act.

 

Item 34 makes a formatting amendment to repeal the heading of Division 3 of Part III of the re-enacted DRC Act as a consequence of the repeal of Divisions 1 and 2 of Part III by Item 33 of this Part.

 

Item 35 repeals section 35 of the re-enacted DRC Act.  Section 35 refers to determinations by the Minister for Employment that an entity or a Commonwealth authority is an “exempt authority” for the purposes of Part III of the SRC Act.  The section has been repealed as it is not relevant to the administration of defence-related claims.

 

Item 36 amends paragraph 41A(1)(b) to clarify that the reference to “Part VIII” is a reference to Part VIII of the SRC Act.

 

Item 37 repeals sections 41B to 41D.  The amendment reverses amendments made by Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Act 2016.  The recent amendments are not relevant to the administration of

defence-related claims.

 

Item 38 repeals subsection 60(4) of the re-enacted DRC Act as it is not relevant to the administration of defence-related claims.

 

Item 39 amends subsection 62(2A) to clarify that the reference to “Part VIII” is a reference to “Part VIII” of the SRC Act.

 

Item 40 amends paragraph 64(1)(d) to clarify that the reference to “Part VIII” is a reference to “Part VIII” of the SRC Act.

 

Item 41 amends paragraphs 67(1A)(b) and (c) to clarify that the references in those paragraphs to “Part VIII” are references to “Part VIII” of the SRC Act.

 

Item 42 repeals Parts VII and VIII from the re-enacted DRC Act.

 

Part VII of the SRC Act relates to the administration and certain financial arrangements of Comcare while Part VIII of the SRC Act relates to license arrangements for Commonwealth authorities and certain corporations to enable them to accept liabilities and manage claims. 

 

Parts VII and VIII are not relevant to the administration of defence-related claims.

 

Item 43 amends subsections 112A(5) and 112B(5) by omitting the words “(other than section 90C)” as it has been repealed from the re-enacted DRC Act by Item 42 of this Part.

 

Item 44 amends subparagraphs 114A(1)(a)(ii) and (iii) of the re-enacted DRC Act to clarify that the references in those subparagraphs to “Part VIII” is a reference to “Part VIII” of the SRC Act.

 

Item 45 inserts new section 121B.

 

New section 121B provides for a new regulation making power (of a type which is referred to as a “Henry VIII clause”). The regulations to be made under new section 121B may require a retrospective application and are intended to operate in a purely beneficial way to deal with any anomalies that may arise where there is a retrospective application of the DRC Act which will need to refer to the earlier version of the SRC Act that applied at the time for which eligibility is being determined.

 

That limitation is expressed in subsection 121B(2).  The Minister must seek only to make the regulations to protect the entitlements of those covered by the DRC Act and to ensure that “no person is disadvantaged by the enactment of this Act”.  This clause is expressly for the benefit of those persons covered by the DRC Act and is not to be read to provide any advantage to the Commonwealth.

 

The inclusion of this provision provides the flexibility required to deal with any disadvantage that may otherwise occur to a Defence Force member in the application (for the purposes of the DRC Act) of an earlier version of the SRC Act and any application, saving or transitional provisions which were applicable to that earlier version of the SRC Act.

 

It may be instructive for the purpose of considering the validity of the proposed amendment to refer to the decision of the High Court in ADCO Constructions Pty Limited v Goudappel [2014] HCA 18.  In that case the effect of the inclusion of a “Henry VIII” provision which could adversely affect the existing rights of workers covered by the Workers Compensation Act 1987 (NSW) was considered.  The provision had been inserted by the NSW Parliament in 2012 into that Act.

 

The High Court unanimously upheld the validity of the transitional regulation that applied to extinguish the respondent’s right to permanent impairment compensation.

 

New section 121B is intended to operate only to alleviate any disadvantage suffered by a Defence Force member who would be disadvantaged by the application as the DRC Act of an earlier version of the SRC Act.

 

The provision has been included on the basis that any regulations made under this provision may be subject to disallowance.

 

Item 46 repeals from section 141 of the re-enacted DRC Act, the definitions of MRCC, Veterans’ Affairs Department and Veterans’ Affairs Minister.  The definition of MRCC has been relocated in subsection 4(1) (by Item 17 of this Part) and the other definitions will not be required as references in the DRC Act to the ‘Department’ or the ‘Minister’ will, by virtue of section 19A of the Acts Interpretation Act 1901, be references to the Department of Veterans’ Affairs and the Minister for Veterans’ Affairs.

 

Item 47 makes a technical amendment to paragraph 142(1)(b) as a consequence of the repeal of paragraphs 142(1)(c) and (d) by Item 48 of this Part.

 

Item 48 repeals paragraphs 142(1)(c) and (d) from the re-enacted DRC Act.  Paragraph 142(1)(c) required the MRCC to ensure that, as far as practicable, its administrative practices and procedures do not result in different outcomes to those of Comcare and the SRCC.  With the separation of defence-related claims from the Comcare legislative framework, this requirement is no longer practicable.

 

Paragraph 142(1)(d) required the MRCC, in performing its functions under the SRC Act, to do anything which would be required of Comcare if Comcare had responsibility for that function.  With the separation of defence-related claims from the Comcare legislative framework, this requirement is no longer practicable.

 

Item 49 repeals subsection 142(3) and (5) from the re-enacted DRC Act.  Subsection 142(3) prevented the MRCC from making a submission to a court or tribunal if Comcare or the SRCC had requested that that submission not be made.  With the separation of defence-related claims from the Comcare legislative framework, this requirement is no longer practicable.

 

Subsection 142(5) required the SRCC to, as far as practicable, ensure equity of outcomes as a result of administrative practices and procedures used by Comcare, a licensee and the MRCC.  With the separation of defence-related claims from the Comcare legislative framework, this requirement is no longer practicable.

 

Items 50 amends paragraph 147(1)(a) to remove the reference to section 28 of the SRC Act from the paragraph.  Subsection 147(1) includes provisions which modify the references to Comcare in the DRC Act so that they are to be regarded as references to the MRCC or the Commonwealth in some instances.

 

References in section 28 to ‘Comcare’ are currently, under the SRC Act, exempt from this substitution.

 

Section 28 provides for the preparation of the “Guide to the Assessment of the Degree of Permanent Impairment” (the Guide) by Comcare.  Under the re-enacted DRC Act, the MRCC will be able to prepare, amend, vary or revoke such a Guide if required.

 

A Guide prepared by the MRCC will be a legislative instrument and must be approved by the Minister for Veterans’ Affairs.  However, initially, Item 63 of this Part will enable the MRCC to continue to use the existing Guide as prepared by Comcare.

 

Item 51 omits references to Division 2 of Part III and Parts VII and VIII of the SRC Act from paragraph 147(1)(c) of the re-enacted DRC Act.

 

Divisions 1 and 2 of Part III and Parts VII and VIII of the SRC Act are repealed from the re-enacted DRC Act by Items 33 and 42 of this Part.

 

Item 52 makes a technical amendment to section 148 as a consequence of the repeal of subsection 148(2) by Item 53 of this Part.

 

Item 53 repeals subsection 148(2) from the re-enacted DRC Act.  Subsection 148(2) required the MRCC or the Chief of the Defence Force to consult with Comcare about any proposed nomination of a person to provide a rehabilitation program under

Part XI of the SRC Act.  With the separation of defence-related claims from the Comcare legislative framework, this requirement is no longer practicable.

 

Item 54 repeals section 150 from the re-enacted DRC Act.  Section 150 provides that the SRCC may make a legislative instrument that makes general policy guidelines in relation to the operation of Part XI of the SRC Act.  With the separation of

defence-related claims from the Comcare legislative framework, this provision is no longer practicable.

 

Item 55 omits the words “Veterans’ Affairs” from paragraph 151(1)(b) of the re-enacted DRC Act.  Upon enactment of the DRC Act, the reference in paragraph 151(1)(b) will be a reference to the Department of Veterans’ Affairs by virtue of section 19A of the Acts Interpretation Act 1901.

 

Item 56 repeals section 156.  Section 156 was relevant only for the purposes of the SRC Act and had provided that Comcare and the Safety, Rehabilitation and Compensation Commission would not have any liability under the SRC Act in respect of “an injury, loss, damage or death that relates to defence service (whenever it occurred).”

 

The equivalent of repealed section 156 now appears as new section 4AA of the SRC Act (as inserted by Item 7 of Schedule 2).

 

Item 57 amends subsection 157(1) to provide that the reference to sections 97, 97A, 97B, 97C and 97D is a reference to sections 97, 97A, 97B, 97C and 97D of the SRC Act.  Sections 97, 97A, 97B, 97C and 97D of the re-enacted DRC Act are repealed by Item 42 of this Part.

 

Item 58 amends subsection 157(2) to provide that the reference to section 97H is a reference to section 97H of the SRC Act.  Section 97H of the re-enacted DRC Act is repealed by Item 42 of this Part.

 

Item 59 amends subsection 157(2) to provide that the reference to section 97D is a reference to section 97D of the SRC Act.  Section 97D of the re-enacted DRC Act is repealed by Item 42 of this Part.

 

Item 60 repeals sections 158 and 159. 

 

Section 158 had provided that Comcare must make a determination of the regulatory contribution that is payable by the Defence Department for employees engaged in defence service for each successive financial year commencing 1 July 2004.

Section 159 had referred to the modification of sections 97E to 97P of the SRC Act so that they apply to the Defence Department.

 

The requirement for Comcare to continue to make determinations of the regulatory contributions that are payable by the Defence Department for financial years after the commencement of the DRC Act is set out in new sections 97DAA and 97DAB of the SRC Act (inserted by Item 25 of Schedule 2).

 

Item 61 repeals subsection 161(2) and substitutes a new subsection.  New subsection 161(2) requires the Annual Report to include particulars of any directions given by the Minister under section 149 to the Chair of MRCC concerning the performance of its powers and functions under the DRC Act.

 

Division 2 – Application and transitional provisions

 

Item 62 defines the terms first commencement time and second commencement time for the purposes of the application and transitional provisions set out in Division 2 (specifically Items 63 and 64).

 

The “first commencement time” is the time that Part 1 of Schedule 1 commences which is the later of the start of the day after this Act receives Royal Assent or the start of 1 July 2017.  The DRC Act at it stands at the “first commencement time” will not contain any of the amendments which are to be made by Part 2 of Schedule 1.

 

The “second commencement time” is the time when Part 2 of Schedule 1 commences which is immediately after the commencement of Part 1 and after the amendments to the DRC Act that are made by Part 2 of Schedule 1.

 

Instruments under the Safety, Rehabilitation and Compensation Act 1988

 

Item 63 provides for the continuity under the DRC Act of legislative and any non‑legislative instruments that were made under the SRC Act prior to the first commencement time.

 

Subitem 63(1) is applicable to a legislative instrument or a non-legislative instrument made under or for the purposes of the SRC Act that is in force immediately before the first commencement time, if there is a corresponding provision in the amended DRC Act for making a similar instrument, immediately after the second commencement time.

 

It should be noted that the corresponding provision may not have the same section number but any instrument made under it will have the same purpose.  The DRC Act as it will stand at the second commencement time will have only one corresponding provision under which an instrument can be made which does not have the same section number as the SRC Act.  That corresponding provision is subsection 5(3) under which instruments can be made which will be the equivalent of those that were made under subsection 5(6A) of the SRC Act.

 

Subitem 63(2) provides that, after the second commencement time, the instrument is taken to have been made under or for the purposes of the DRC Act.

Subitem 63(3) makes it clear that to avoid doubt, after the second commencement time, any SRC Act instrument that has been applied to the DRC Act by virtue of Item 63 may be varied, amended or revoked by the making of an instrument under the corresponding provision of the DRC Act.

 

Claims, applications, requests and other processes begun under the Safety, Rehabilitation and Compensation Act 1988

 

Item 64 has the effect of transferring any process, including but not limited to claims, applications or requests that began under the SRC Act before the first commencement time and that was not completed, to the corresponding provision under the DRC Act after the second commencement time.

 

This will mean that all claims, applications, requests and other processes that began under the SRC Act can be completed under the DRC Act as long as there is a corresponding provision without the clients’ needing to resubmit claims or other documents.  Other processes transferred to the DRC Act will include but not be limited to:

  • rehabilitation assessments under section 36;
  • a determination under section 37 that an employee should undertake a rehabilitation program; and
  • own motion reviews initiated under section 62.

 

Payments of compensation made under the Safety, Rehabilitation and Compensation Act 1988

 

Item 65 applies in relation to a payment of compensation to, or in respect of, a member of the Defence Force under a provision of the SRC Act made before this item commences in relation to any injury, disease or death of the member, or any loss of, or damage to, property used by the member.

 

Any such payment is taken, after the commencement of this item, to have been made under the corresponding provision of the DRC Act in relation to that injury, disease or death of the member, or loss of, or damage to, property used by the member.

 

This item will ensure that payments made under the SRC Act may be offset or taken into account, where required, under the DRC Act.

 

Application of section 23A of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Item 66 provides that section 23A of the DRC Act applies in relation to the offsetting and recovery of compensation payable under the SRC Act or DRC Act of any salary, wages or pay paid before or after this item commences and to any determination made by the MRCC before or after this item commences.

 

This means that section 23A of the DRC Act will apply to the recovery of any amounts that must be repaid to the Commonwealth.


 

Application of offences

 

Item 67 will continue the effect of sections 46 to 48 of the SRC Act under the corresponding provisions of the DRC Act in relation to the obligations of the member of the Defence Force or their dependant under the circumstances specified in the provisions.

 

Sections 46 and 47 concern the requirement of a Defence Force member or a dependent to advise the MRCC of actions taken against a third party or the Commonwealth to recover damages and the penalty (of 5 penalty units) that may apply if the MRCC is not informed as required within 7 days.

 

Section 48 concerns the requirement of an employee or a dependent to advise the MRCC of the receipt of a payment for damages and the penalty that may apply if the MRCC is not informed within 28 days.  Section 48 also provides how the receipt of a payment for damages is to be treated for the purposes of the Act.

 

The Item is not applicable in the circumstances where the MRCC has been notified of the claim or damages before the item commences.

 

Transitional rules

 

Subitem 68(1) authorises the Minister, by legislative instrument, to make rules prescribing matters of a transitional nature, including prescribing any saving or application provisions, relating to the amendments or repeals made by the amending Act.

 

Subitem 68(2) makes it clear that the Minister may not make rules under subitem 65(1) that do any of the following:

  • create an offence or civil penalty;
  • provide powers of arrest, detention, entry, search or seizure;
  • impose a tax;
  • set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act; or
  • directly amend the text of this Act.

 

Subitem 68(3) provides that, except for subitem 68(2), the DRC Act does not limit the rules that may be made for the purposes of subitem 68(1).

 

Commencement

 

Clause 2 provides that the items included in Part 2 of Schedule 1 will commence immediately after Part 1 commences which is the later of the start of the day after this Act receives Royal Assent or the start of 1 July 2017.


 

Part 3 – Amendments relating to pension age

 

Overview

 

Part 3 of Schedule 1 amends the DRC Act to make consequential amendments relevant to the increase in the pension age as defined under the Social Security Act.  The amendments will ensure that incapacity payments under the DRC Act will continue for those former Defence Force members who are the subject of an increase in their age pension age while in receipt of incapacity payments.

 

Background

 

Under the newly enacted DRC Act compensation in the form of incapacity payments will cease when a former Defence Force member reaches 65 years of age or, if the injury occurred on or after the age of 63, after a maximum of 104 weeks of incapacity entitlements have been received.

 

The rationale is that an injured worker should not continue to receive payments intended to replace lost earnings when they would ordinarily have retired from the workforce, and that the age pension is available from age 65.

 

However, the DRC Act needs to be amended to keep pace with the scheduled age pension increases under the Social Security Act, otherwise injured employees may be without adequate means of financial support upon reaching 65 years of age once the age pension eligibility changes take effect.

 

These amendments will align with the changes proposed to the Military Rehabilitation and Compensation Act by the Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Bill 2016 and the SRC Act by the Seafarers and Other Legislation Amendment Bill 2016 and will ensure the continuity of benefits until such time as the person becomes eligible to access the age pension.

 

Explanation of the changes

 

The amendments made by this Part will align the cut-off age for incapacity payments to the “pension age” as defined in the Social Security Act.  That definition provides for a phased increase by six months every two years, starting from July 2017 until age pension age reaches 67 in July 2023.

 

Rather than defining a set age for the purposes of the DRC Act, the proposed approach will mean that the incapacity payment cut-off will remain in alignment with age pension eligibility age into the future.

 

The amendments will also ensure that former Defence Force members in receipt of incapacity payments will continue to receive those payments when they would otherwise be adversely impacted by a legislated increase in the age pension age.


 

Explanation of the items

 

Item 69 inserts a new definition of “pension age” into subsection 4(1) that states that it has the same meaning as subsections 23(5A), (5B), (5C) or (5D) of the Social Security Act.  This is necessary to keep pace with the scheduled age pension increases that start on 1 July 2017, otherwise injured employees may be without adequate means of financial support upon reaching 65 years of age once the age pension eligibility changes take effect.

 

Item 70 amends subsection 23(1) which provides that compensation is not payable under sections 19, 20, 21, 21A or 22 to an employee who has reached “65”.  The reference to “65” is replaced with a reference to “pension age” (as defined under subsection 4(1) and inserted by Item 69 of this Part).

 

Items 71 and 72 amend subsections 23(1A) and (1B). Both refer to an employee who has “reached 63” and who “suffers an injury”.  Subsection 23(1A) is amended by omitting the words “63 suffers an injury (whether before or after the commencement of this subsection)” and substituting the words “the age that is 2 years before pension age suffers an injury”.

 

The changes are necessary to keep pace with the scheduled age pension increases that start on 1 July 2017, otherwise injured employees may be without adequate means of financial support upon reaching 65 years of age once the age pension eligibility changes take effect.

 

Subsection 23(1B) is not relevant to defence service and is repealed.

 

Items 73 and 74 amend section 30 which provides for the conversion of small weekly amounts of compensation into a lump sum.  In determining the value of the lump sum the formula used will need to include a determination of the relevant “number of days” being the remaining number of days that the person will be eligible to receive the incapacity payment.

 

The “number of days” is defined in subsection 30(3) to commence on the day after the determination to pay the lump sum was made and to end the day before the person turns 65 years of age or for those persons who do not become incapacitated until after 63 years of age, the day on which the person is no longer entitled to compensation for incapacity for work.

 

As a consequence of the legislated increase in the age pension age there is a need to amend the definitions used in the formula to take account of the changes otherwise injured employees may be without adequate means of financial support upon reaching 65 years of age once the age pension eligibility changes take effect.

 

Paragraph (a) of the definition has been replaced by Item 73 with “if the employee is injured before reaching the age that is 2 years before pension age - on the day immediately before the day on which the employee reaches pension age; and”.

 

Paragraph (b) of the definition is amended by Item 74 by replacing the reference to “63 years of age” with the words “the age that is 2 years before the pension age”.

Item 75 amends section 137 which provides for the conversion of small weekly amounts of compensation into a lump sum for a “former employee” (defined as being a person who was receiving compensation under legislation that applied prior to the commencement of the SRC Act in 1988.)  In determining the value of the lump sum the formula used includes the “number of days”, being the remaining number of days that the person will be eligible to receive the incapacity payment.

 

The “number of days” is defined in subsection 137(5) as commencing on the day after the relevant authority has made the determination to pay the lump sum and to end the day on which the person turns 65 years of age.

 

The definition is amended to replace the reference to “65 years of age” with a reference to “pension age” which will ensure that injured employees will be able to receive a lump sum that accurately reflects all of the compensation payments the former employee would be entitled to.

 

Item 76 is an application provision.  Subject to subitem 76(4) (described below), subitem 76(1) states that the amendments to section 23 of the DRC Act made by this Part apply to a payment of compensation for a week that begins or or after 1 July 2017.

 

Subitem 76(2) provides that if a person suffered an injury or a disease before subitem 76(1) commences, a week can still be counted as part of the 104 weeks of compensation payable for incapacity under subparagraph 23(1A)(b)(ii) of the DRC Act, even if the week began before subitem 76(1) commences on 1 July 2017.

 

Subsection 23(1A) currently provides that when a person aged 63 or older is injured or suffers a disease, they are entitled to a maximum of 104 weeks of compensation for their incapacity.  The maximum period of 104 weeks can extend beyond age 65 (the current pension age.).

 

Subitem 76(3) is applicable in the circumstances where a person would be disadvantaged when the maximum 104 weeks of incapacity payments cease before the person has reached pension age.

 

Those circumstances arise when the person in receipt of incapacity payments which commenced a full two years before what was the current pension age will not be subsequently eligible for an age pension at that age because they will be eligible for an age pension at an age that results from a legislated six month increase in the age pension age.

 

Subitem 76(3) ensures that a person in those circumstances will not be disadvantaged by extending the number of weeks beyond the maximum of 104 weeks so that the last week will end when the person becomes eligible for an age pension.

 

This will mean that, in some instances, depending on a person’s age at the time of injury or disease and the scheduled date of the age pension age increase, a person may actually receive up to a maximum of 130 weeks of compensation for their incapacity, rather than the 104 weeks provided in subsection 23(1A) of the DRC Act.

 

The application provision will have continued application during the period in which the age pension age increases have been legislated as it will continue to be applicable to extend incapacity payments to certain incapacity payment recipients who would otherwise be disadvantaged by the scheduled amendments to the “pension age” under the DRC Act and the Social Security Act.

 

Subitem 76(4) states that the amendments made to section 137 of the DRC Act (Item 75) only apply to determinations made by the relevant authority after this item commences on 1 July 2017.

 

Commencement

 

Clause 2 sets out the commencement time for Part 3 of Schedule 1 and provides that it will commence on the later of the start of the day after this Act receives Royal Assent or the start of 1 July 2017.

 

The amendments are contingent in the sense that they will not need to be made if the equivalent amendments that are being made to the SRC Act by Division 2 of Part 4 of Schedule 2 of the Seafarers’ and Other Legislation Amendment Act 2016 commence before that time.  In those circumstances the amendments to be made by Part 3 of Schedule 1 of this Bill will not be required as they will already be included in the version of the SRC Act that is to be used for re-enactment as the DRC Act.


Schedule 2 – Amendment of the Safety, Rehabilitation and Compensation Act 1988

 

Overview

 

Schedule 2 amends the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to remove the entitlement to compensation under that Act for, or in respect of, members of the Defence Force.  The DRC Act will provide entitlement to compensation for, or in respect of, members of the Defence Force for defence service previously covered by the SRC Act.

 

Background

 

When the Military Rehabilitation and Compensation Act took effect in relation to injuries, diseases or deaths or loss of or damage to property, relating to defence service rendered on or after 1 July 2004 (or for a continuous period that began before and continued until on or after 1 July 2004), responsibility for determining and managing defence-related claims under the SRC Act was given to the Military Rehabilitation and Compensation Commission by virtue of the addition of Part XI to the SRC Act.

 

The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act), creates a legislative framework for Defence-related claims that is separate from the Comcare Scheme under the SRC Act.

 

Part 1 – Amendments

 

Item 1 amends the definition of Defence Department to replace the reference to “MRCA” with an expanded reference to the Military Rehabilitation and Compensation Act.  The reference is used in the definition of “defence service” being inserted by Item 2 of this Part.

 

Item 2 inserts a definition of defence service in subsection 4(1) as having the meaning given by the Military Rehabilitation and Compensation Act.  The insertion of the definition is a consequence of the repeal of Part XI (by Item 26 of this Part) and the inclusion of new sections 97DAA and 97DAB (by Item 25 of this Part).

 

Item 3 repeals the definitions of MRCA and MRCA commencement date from subsection 4(1) as the definitions were previously relevant to the administration of defence-related claims.

 

Item 4 amends paragraph (c) of the definition of rehabilitation authority to make a technical amendment to paragraph (c) to reflect the repeal of paragraph (d) by Item 5.

 

Item 6 repeals the note at the end of subsection 4(3), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 7 repeals section 4AA, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

A new section 4AA is substituted which provides that Comcare and the Safety, Rehabilitation and Compensation Commission will not have any liability under the SRC Act in respect of “an injury, loss, damage or death that relates to defence service (whenever it occurred).”

 

Item 8 repeals paragraph 5(2)(b) to remove “a member of the Defence Force” from the definition of an “employee” for the purposes of the SRC Act. 

 

Item 9 amends subsection 5(2) by omitting the words “, by the person’s performance of duties as such a member of the Defence Force”.

 

The amendments made by Items 8 and 9 effectively remove from the SRC Act, entitlement to compensation under that Act for a member of the Defence Force by removing references to such members and the performance of duties by such members as being taken to have been employed by the Commonwealth.

 

Item 10 repeals the note at the end of subsection 5(2), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 11 repeals subsections 5(6A) and subsections 5(10) to (10D), as they apply only in relation to a member of the Defence Force or a declared member of the Defence Force and are no longer relevant to the SRC Act. 

 

Item 12 inserts new subsection 5(17) to make it clear that, for the purposes of the SRC Act a member of the Defence Force is not an employee.  The note inserted after the subsection refers the reader to the DRC Act for members of the Defence Force.

 

Item 13 repeals section 6A, as it relates only to members of the Defence Force, including cadets and declared members, and is no longer relevant to the SRC Act.

 

Item 14 repeals the note at the end of subsection 15(1), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 15 repeals section 15A, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 16 repeals the note at the end of subsection 16(1), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 17 repeals paragraph 33(2)(b) and (d) from the SRC Act as they relate only to members of the Defence Force and are no longer relevant to the SRC Act.

 

Item 18 repeals the note at the end of subsection 37(2), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Items 19 and 20 amend section 41A with a technical amendment to subsection 41A(1) which reflects the repeal of subsection 41A(2).  The repeal of subsection 41A(2) is required as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 21 repeals section 43 of the SRC Act, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 22 omits from the definition of prescribed dependant  in subsection 49(4) a reference to repealed section 43 (Item 21 of this Part refers) which relates only to members of the Defence Force and is no longer relevant to the SRC Act.

 

Item 23 repeals and substitutes subsection 54(4).  New subsection 54(4) requires Comcare to provide a copy of a claim for compensation to the principal officer of the entity, Commonwealth authority or licensed corporation.

 

The revised subsection removes the reference for Comcare to provide a copy of a claim for compensation to the Secretary, Department of Defence for a person who is or was a member of the Defence Force.

 

With all claims related to defence service being made under the DRC Act the reference is redundant.

 

Item 24 inserts a note to the end of subsection 97D(1) to refer to the need for Comcare to continue to make a determination under new section 97DAA (inserted by Item 25 of this Part) of the regulatory contributions for each financial year to be made by the Defence Department for employees engaged in defence service.

 

Item 25 inserts new sections 97DAA and 97 DAB. 

 

New sections 97DAA and 97DAB replicate the requirements previously set out in sections 157 to 159 (from Part XI of this Act as repealed by Item 26 of this Part).

 

New subsection 97DAA(1) requires Comcare to make a determination of the amount of a regulatory contribution for each financial year that is payable by the Defence Department for employees engaged in defence service.

 

New subsection 97DAA(2) provides that the determination is to be made in accordance with the guidelines issued under section 97E with the amount of the regulatory contribution for each financial year being the sum of:

·         the estimated costs incurred by the Safety, Rehabilitation and Compensation Commission and Comcare in carrying out their respective functions under the SRC Act that are referable to the Defence Department in relation to defence service employees; and

·         the part of the estimated costs incurred by the Safety, Rehabilitation and Compensation Commission and Comcare in carrying out their respective functions under the repealed Occupational Health and Safety Act 1991, Work Health and Safety Act 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 that are referable to the Defence Department in relation to defence service employees.

 

New section 97DAB provides that sections 97E to 97P of the SRC Act are applied to the Defence Department in relation to defence service employees but only to the extent that the determinations are made under new section 97DAA.

The regulatory contributions represent cost recovery by Comcare for activities and functions carried out under the SRC Act and the Work Health and Safety Act 2011 on behalf of Australian Government agencies, the Defence Force, the ACT Government and other entities.  To ensure that cost recovery is applicable to all of the activities and functions of Comcare the reference to the repealed Occupational Health and Safety Act 1991 has been retained.

 

Those regulatory activities and functions include setting premium and regulatory contribution guidelines and support for research, the provision of information and statistics management.  Policy and regulatory practice advice and support and the preparation of the Permanent Impairment guide.

 

The regulatory contributions also cover the costs of the participation of Comcare in multi-jurisdiction forums: Safe Work Australia, Technical Advisory Groups and Special Interests Groups.

 

Item 26 repeals Part XI.  Part XI is now redundant as it was applicable to the administration by the MRCC of defence-related claims under the SRC Act.  With the enactment of the DRC Act the MRCC will have complete responsibility for the administration of defence-related claims.

 

Part 2 – Application and transitional provisions

 

Application of amendments of section 33

 

Item 27 provides that, despite the amendment of paragraph 33(2)(b) of the SRC Act made by this Schedule, that paragraph, as in force immediately before the amendment, continues in effect in relation to an amount paid or payable in respect of a period of leave of absence granted, or in lieu, before the time of the amendment.

 

Paragraph 33(2)(b) refers to an amount of pay in respect of a leave of absence or a grant in respect of such under the regulations in force under the Naval Defence Act 1910, the Defence Act 1903 or the Air Force Act 1923.

 

Subsection 33(2) sets out the amounts which are not to be regarded as amounts payable to an employee for the purposes of subsection 33(1).  Subsection 33(1) provides for the offsetting of compensation payable to an employee for a day under sections 19, 20, 21, 21A, 22 or 31 where the employee is in receipt of salary, wages or pay for that day.

 

Item 28 is an application provision applicable to new sections 97DAA and 97DAB of the SRC Act as inserted by Item 25 of this Schedule.  It provides in the circumstances where the determination by Comcare of the regulatory contribution to be made by the Defence Department under section 158 of the SRC Act has not been made before this Item commences, then the amendments are to apply from the financial year in which the Item commences and later financial years.


 

Commencement

 

Clause 2 sets out the commencement time for Parts 1 and 2 of Schedule 2 and provides that it will commence on the later of the start of the day after this Act receives Royal Assent or the start of 1 July 2017.


Schedule 3 – Amendments of other Acts

 

Overview

 

The DRC Act is being created by Schedule 1 of this Bill.  The Act is a re-enacted version of the SRC Act, modified to apply only to members of the Defence Force and their dependants.

 

There are numerous references to the SRC Act in other Acts.  Most of the amendments that would be made by Schedule 3 of this Bill are consequential amendments to insert references to the DRC Act into those Acts where it is appropriate, either as a substitute to a reference to the SRC Act, or in addition to such a reference.

 

The amendments required for Veterans’ Affairs portfolio legislation are more substantial as they deal with the interactions between compensation and other benefits provided to members of the Defence Force and their dependants under each of the three Acts administered by the Department.

 

Age Discrimination Act 2004

 

Item 1 amends paragraph 41(1)(fc) of the Age Discrimination Act 2004 by replacing the reference to the SRC Act with a reference to the DRC Act.  This will mean that anything done by a person in direct compliance with the DRC Act is not unlawful for the purposes of the Age Discrimination Act 2004.

 

The amendment ensures the existing exemption that applied to defence-related claims under the SRC Act is maintained for defence-related claims under the DRC Act.

 

Item 2 inserts a reference to the DRC Act as new item 43A into the table in

Schedule 1 of the Age Discrimination Act 2004.  The table in Schedule 1 sets out the legislation for which an exemption is provided from the application of subsection 39(1) of the Age Discrimination Act 2004.

 

The exemption is provided for legislative acts which would otherwise be unlawful under the age discrimination provisions of the Age Discrimination Act 2004.

The exempted legislation usually targets particular age groups for assistance or imposes appropriate age restrictions, such as in the case of the age of criminal responsibility.

 

Australian Participants in British Nuclear Tests (Treatment) Act 2006

 

Item 3 amends subparagraph 7(2)(b)(i) to insert a reference to the DRC Act after the reference to the SRC Act. 

 

Section 7 of the Australian Participants in British Nuclear Tests (Treatment) Act 2006 sets out those persons who are and who are not eligible for assistance under that Act.  Subsection 7(2) lists those persons who are provided with treatment and assistance under other Acts who are not eligible.

Defence Act 1903

 

Item 4 amends paragraph 58B(1)(b) to replace the reference to the SRC Act with a reference to the DRC Act.

 

Under section 58B of the Defence Act 2003, the Defence Minister may make a determination concerning the payment of additional compensation to or for members, cadets and including members of the Reserves to whom compensation is payable under the SRC Act.

 

Item 5 is a transitional provision applicable to the Defence Determination 2016/19.  The Defence Determination 2016/19 sets out conditions of service for Defence Force members and cadets.  It also sets out the compensation payable to members, cadets, dependants and other eligible persons.

 

For the period of service prior to the commencement of the Military Rehabilitation and Compensation Act, Defence Force members are entitled to certain additional benefits in the event of compensable death or serious injury that were payable in addition to those payable under the SRC Act.

 

The effect of the transitional provision is to ensure that the reference to the SRC Act in the Determination is to be regarded as a reference to the DRC Act.  Subitem 5(2) provides that the transitional provision will not prevent the amendment or the revocation of the Determination.

 

Item 6 amends the definition of salary in subsection 120B(16) to replace the reference to SRC Act with a reference to the DRC Act.  Section 120B refers to the attachment of the salary of a Defence Force member as a consequence of the enforcement of a judgement to collect a debt.

 

Item 7 is an application provision concerning the amendment to the definition of salary in subsection 120B(16) made by Item 6.  It provides that the amended definition is applicable to payments of compensation made after the commencement of the amendment.

 

Defence Force (Home Loans Assistance) Act 1990

 

Item 8 inserts new paragraph (aa) into the definition of compensable disability in section 3.  New paragraph (aa) lists the DRC Act as one of the Acts under which compensation will be able to be paid.

 

Item 9 inserts new subparagraph 24(4)(b)(iaa) listing the DRC Act as one of the Acts under which compensation will be able to be paid for the purpose of defining a prescribed member.


 

Defence Force Home Ownership Assistance Scheme Act 2008

 

Item 10 inserts new paragraph (aa) into the definition of compensable condition in section 3.  New paragraph (aa) lists the DRC Act as one of the Acts under which compensation will be able to be paid.

 

Disability Discrimination Act 1992

 

Item 11 repeals and substitutes paragraph 51(1)(j) replacing the listing of the

SRC Act in respect of defence-related claims under Part XI with a reference to the DRC Act.

 

The section refers to the exemption provided to the payment of pensions, benefits and allowances under various Acts from the prohibitions against disability discrimination under the Disability Discrimination Act 1992.

 

Income Tax Assessment Act 1997

 

Item 12 amends paragraphs 51-32(1)(a), 51-32(4)(a) and 51-33(1)(a) to replace references to the SRC Act with references to the DRC Act.  The amendments would maintain the tax exemption applicable to compensation payments under the DRC Act, that replace deployment allowances and other payments.

 

Military Rehabilitation and Compensation Act 2004

 

Item 13 replaces the reference to the SRC Act in section 278 with a reference to the DRC Act.  Section 278 provides a simplified outline of Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act which provides treatment for current and former Defence force members and the dependants of deceased members.

 

Items 14 to 16 amend section 280A by replacing references to the SRC Act in the heading, in subsection 280A(1) and in note 2 to subsection 280A(1) with references to the DRC Act.

 

The amended section 280A provides that treatment will be provided under the Military Rehabilitation and Compensation Act to certain DRC Act employees who are not already entitled to treatment under the Veterans’ Entitlements Act or the Military Rehabilitation and Compensation Act.

 

Items 17 and 18 amend the definition of compensable treatment in section 289 by replacing the reference to “SRCA injuries” with a reference to injuries covered by the DRC Act in paragraph (b) of the definition and by substituting the reference to the SRC Act in the note to the definition with a reference to the DRC Act.

 

Section 289 defines the term compensable treatment for the purpose of providing compensation for travel expenses.  The note refers to compensation for travel expenses being payable under section 16 of the DRC Act for persons entitled to treatment under section 280A of the Military Rehabilitation and Compensation Act.

 

Item 19 replaces the reference to the SRC Act in note 2 to section 300 with a reference to the DRC Act.

 

Section 300 provides that a person will be eligible for the MRCA Supplement if the person is entitled to treatment under Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act.  Note 2 refers to the MRCA supplement payable to persons who are eligible for treatment under section 280A being paid from money appropriated under subsection 160(2) of the DRC Act.

 

Items 20 and 21 amend section 423 by replacing the reference to “SRCA injuries” in paragraph 423(c) with a reference to the injuries to be covered by the DRC Act and by substituting the reference to the SRC Act in note 2 to section 423 with a reference to the DRC Act.

 

Section 423 provides that the Consolidated Revenue Fund will be appropriated for the purposes of paying the various costs of treatment and benefits payable under the Military Rehabilitation and Compensation Act.  Note 2 refers to the MRCA supplement payable to persons who are eligible for treatment under section 280A being paid from money appropriated under subsection 160(2) of the DRC Act.

 

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004

 

Item 22 inserts the definition of DRCA in subsection 4(1), being the DRC Act.

 

Item 23 repeals the notes to subsections 7(1), 7(2), 8(1) and 8(2).

 

Section 7 enables the Military Rehabilitation and Compensation Act to apply to injury, disease or death if this occurred on or after the commencement of the Act and relates to service rendered on or after that date or periods of service which spanned a period before commencement and on or after commencement.  The Act also applies in the cases of the aggravation of a condition or the material contribution to a

pre-existing condition.

 

Section 8 applies to injury, disease or death which is an unintended consequence of treatment provided to the member or former member by the Commonwealth as described in section 29 of the Military Rehabilitation and Compensation Act.  The Act also applies in the cases of the aggravation of a condition or the material contribution to a pre-existing condition.

 

All of the repealed notes were similar and referred to the cessation of benefits under the Veterans’ Entitlements Act and/or the SRC Act after the commencement of the Military Rehabilitation and Compensation Act on 1 July 2004.

 

With the replacement of the SRC Act by the DRC Act, the notes are redundant.

 

Items 24 to 26 amend section 10 by substituting references to the SRC Act with references to the DRC Act and by repealing the note to section 10.

 

The amended section 10 provides that subsection 7(4) of the DRC Act does not apply for the purposes of sections 7 and 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.

 

The exclusion means that where a person’s disease can be traced back to service covered under the DRC Act but the disease does not manifest in impairment, incapacity for work or death until on or after the commencement of the Military Rehabilitation and Compensation Act (or treatment is not sought until then), the person’s eligibility for compensation remains under the DRC Act.

 

Item 27 repeals the note to section 11.

 

Section 11 provides that the Military Rehabilitation and Compensation Act can apply to any loss or damage to medical aids which results from something that happened on or after commencement of the Act.

 

With the replacement of the SRC Act by the DRC Act the note is redundant.

 

Item 28 repeals and substitutes the heading to Part 3 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act to include a reference to the DRC Act.

 

Items 29 and 30 amend section 13 by replacing the heading and the reference to the SRC Act with references to the DRC Act.

 

Section 13 is applicable when a claim is made under the Military Rehabilitation and Compensation Act for someone who also has an entitlement under the Veterans’ Entitlements Act or the DRC Act for an injury or disease (the old injury or disease).

 

Subsection 13(3) provides that the impairment rating for the old injury or disease, derived from the application of section 67 of the Military Rehabilitation and Compensation Act, will be taken to have been made under that Act for the purpose of determining any permanent impairment compensation under the Military Rehabilitation and Compensation Act.

 

Items 31 and 32 amend section 14 by replacing the heading and references to the SRC Act with references to the DRC Act.

 

Section 14 ensures that a person will not be entitled to dual compensation by receiving the full rate of Special Rate Disability Pension under the Military Rehabilitation and Compensation Act and disability pension under the Veterans’ Entitlements Act or compensation payable under the DRC Act.

 

The amount of Special Rate Disability Pension is reduced under section 14 by offsetting disability pension payments made under the Veterans’ Entitlements Act and compensation payments made under the DRC Act.

 

Item 33 amends sections 15 and 16 by replacing references to the SRC Act with references to the DRC Act.

 

Sections 15 and 16 also ensure that persons will not be entitled to dual compensation.  Section 15 provides that certain benefits payable for an injury or disease which are similar in nature, are only payable under the Military Rehabilitation and Compensation Act instead of the Veterans’ Entitlements Act or the DRC Act.

 

Section 16 refers to the offsetting of payments of Commonwealth superannuation under both the Military Rehabilitation and Compensation Act and the DRC Act.

 

Item 34 is an application provision concerning the amendments made to sections 14, 15 and 16 by Items 31 to 33.  It provides that the amendments are applicable to benefits and amounts paid after the commencement of the amendments.

 

Items 35 and 36 amend section 17 by replacing the heading and references to the SRC Act with references to the DRC Act.

 

Section 17 ensures that a person will not be entitled to dual compensation by receiving the full rate of compensation under the Military Rehabilitation and Compensation Act and lump sum compensation under section 30 of the DRC Act.

 

The amount of compensation is reduced under section 17 by deducting the weekly amount of compensation redeemed under section 30 of the DRC Act from the weekly amount of compensation payable under the Military Rehabilitation and Compensation Act.

 

Item 37 is an application provision concerning the amendments made to section 17.  It provides that the amendments are applicable to amounts redeemed under section 30 of the DRC Act after the commencement of the amendments.

 

Item 38 and 39 amend section 18 by replacing the heading and the reference to the SRC Act with references to the DRC Act.

 

Section 18 is applicable when a person who undertakes a rehabilitation program under the Military Rehabilitation and Compensation Act is also undertaking a rehabilitation program under the Veterans’ Entitlements Act or the DRC Act.

 

Subsection 18(2) provides that the rehabilitation authority may determine that the old rehabilitation program will stop being provided under the Veterans’ Entitlements Act or the DRC Act and that it may be incorporated into the new program under the Military Rehabilitation and Compensation Act

 

Item 40 repeals the note to section 22.

 

Section 22 provides that, for the purposes of the Military Rehabilitation and Compensation Act, a declaration in force under subsection 5(6A) of the SRC Act (concerning persons determined to be employed by the Commonwealth) immediately before the commencement of the Military Rehabilitation and Compensation Act will be taken to have been made on that date under section 8 of that Act.

 

With the replacement of the SRC Act by the DRC Act the note is redundant.

 

Item 41 amends the note to section 23 by removing the references to the review process for decisions made under amendments to the Veterans’ Entitlements Act or the SRC Act that were contained in Schedules 1 and 2 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.

 

Section 23 provides (with the exception of the Schedules referred to previously) that a decision made under the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act will be regarded as an original determination and therefore reviewable under Chapter 8 of the Military Rehabilitation and Compensation Act.

 

With the passage of time and the replacement of the SRC Act by the DRC Act the reference to Schedules 1 and 2 in the note is redundant.

 

Item 42 substitutes a reference in paragraph 24(3)(a) to the SRC Act with a reference to the DRC Act.

 

Section 24 provides that the regulations made under the DRC Act may provide for transitional issues that arise from the enactment of the Act or the Military Rehabilitation and Compensation Act.

 

Subsection 24(3) now refers to the inclusion in those issues of the cessation of benefits under the Veterans’ Entitlements Act or the DRC Act where a person is entitled to compensation under the Military Rehabilitation and Compensation Act.

 

Superannuation Act 1976

 

Item 43 amends paragraph 51(2)(d) by including a reference to the DRC Act.

 

Section 51 generally provides that a superannuation fund contributor who has been granted leave without pay for a period exceeding 12 weeks is not permitted to make superannuation contributions during that period.

 

Subsection 51(2) provides for an exception during a period referred to as an “excluded period”.  Paragraph 51(2)(d) refers to compensation leave under the

SRC Act and the DRC Act.

 

Item 44 amends paragraph (a) of the definition of compensation leave in section 54A to include a reference to the DRC Act.

 

Section 54A defines terms used in Part IVA of the Superannuation Act 1976 which provides for the retirement of superannuation fund members on the basis of invalidity.

 

Item 45 amends subsections 54G(2) and 54JA(6A) by including references to the DRC Act.

 

Sections 54G and 54JA are provisions which form part of the assessment process for retirement on the grounds of invalidity.

 

Subsection 54G(2) is amended so that it is applicable where an employee is eligible for compensation under the Military Rehabilitation and Compensation Act or the DRC Act and refers to the requirement for the Commonwealth Superannuation Corporation to seek the views of the Military Rehabilitation and Compensation Commission concerning the retirement of the employee on the grounds that he or she is totally and permanently incapacitated.

 

Subsection 54JA(6A) is amended so is applicable where an employee is eligible for compensation under the Military Rehabilitation and Compensation Act or the DRC Act and refers to the requirement for the Commonwealth Superannuation Corporation to obtain the views of the Military Rehabilitation and Compensation Commission concerning the retirement of the employee on the grounds that he or she is totally and permanently incapacitated.

 

Item 46 amends subsection 78A(1) to include a reference to the DRC Act.

 

Section 78A provides that a partial invalidity pension, or an increase in the rate of the pension will not be payable under section 78 of the Superannuation Act 1976 if the person is entitled to compensation under the SRC Act, the DRC Act or the Military Rehabilitation and Compensation Act.

 

Veterans’ Entitlements Act 1986

 

Items 47 and 48 amend section 25A by replacing the heading and references to the SRC Act with references to the DRC Act.

 

Section 25A ensures that a person will not be entitled to dual compensation by receiving compensation under sections 23, 24 or 25 or temporary incapacity or loss of earnings allowances under the Veterans’ Entitlements Act and compensation under sections 24, 25 or 27 of the DRC Act.

 

The amount of compensation or allowance is reduced by deducting the weekly amount of compensation determined under subsection 25A(2) from the compensation or allowance payable under the Veterans’ Entitlements Act.

 

Item 49 amends the definition of damages in subsection 30B(3) by omitting the reference to the SRC Act and substituting a reference to the DRC Act.

 

For the purposes of sections 30G and 30H, damages does not include an amount paid under a notice issued under section 51 of the DRC Act.

 

Items 50 to 53 amend section 30C by replacing subsection headings and other references to the SRC Act with references to the DRC Act.

 

Section 30C ensures that a person will not be entitled to dual compensation by receiving compensation under Part II of the Veterans’ Entitlements Act and a lump sum from another source or under sections 30 or 137 of the DRC Act.

 

The amount of pension payable under Part II of the Veterans’ Entitlements Act is reduced by taking into account the amount of compensation as determined under subsections 30C(8), (9) or (10).

 

Item 54 replaces the references to the SRC Act in the notes to subsections 30G(1) and 30H(1) with references to the DRC Act.

 

Both notes refer to damages being defined under subsection 30B(3) as not including certain payments under the DRC Act for the purposes of the sections.

 

Item 55 replaces the references to the SRC Act in paragraphs 74(3A)(a) and 74(3B)(a) with references to the DRC Act.

 

Section 74 ensures that a person will not be entitled to dual compensation by receiving compensation under Part IV of the Veterans’ Entitlements Act and a lump sum from another source or under sections 30 or 137 of the DRC Act.

 

The amount of pension payable under Part IV of the Veterans’ Entitlements Act is reduced by taking into account the amount of compensation as determined under subsections 30C(8), (9), (10) or (11).

 

Item 56 replaces the references to the SRC Act in subsections 76(6) and 85(2A) with references to the DRC Act.

 

Subsection 76(6) provides that damages for the purposes of the section, does not include an amount paid under a notice issued under section 51 of the DRC Act.

 

Subsection 85(2A) provides that treatment will be provided under the Veterans’ Entitlements Act to persons entitled under the DRC Act who are not already entitled to treatment under the Veterans’ Entitlements Act.

 

Item 57 is an application provision concerning the amendments to be made to sections 25A, 30B, 30C, 74 and 76 by items of this Schedule.  It provides that those amendments are applicable to payments made or received after the commencement of the amendments.

 

Items 58 and 59 amend subsection 110(3A) and the note to the subsection by replacing the references to the SRC Act references to the DRC Act.

 

Subsection 110(3A) provides that travelling expenses are not payable under the section in respect of treatment obtained under subsection 85(2A) (as described by Item 56 of this Schedule).

 

Item 60 is an application provision concerning the amendment to be made to section 110 by Items 58 and 59 of this Schedule.  It provides that the amendments are applicable to treatment obtained after the commencement of the amendment.


 

Commencement

 

Clause 2 provides that the amendments in Schedule 3 commence immediately after the commencement of the amendments made by Part 1 of Schedule 1.