Contents
Chapter 1—Introduction 1
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
3............ Simplified outline of this Act.............................................................. 2
4............ Extension to external Territories.......................................................... 3
4A......... Secretary may arrange for use of computer programs to make decisions or determinations 3
5............ Definitions.......................................................................................... 4
6............ Kinds of service to which this Act applies........................................ 17
7............ Reference to service injury sustained or service disease contracted includes reference to aggravation etc. 18
7A......... Classes of members.......................................................................... 18
8............ Ministerial determinations that other people are members................. 18
9............ Definition of duty for cadets and declared members.......................... 19
10.......... Determinations for part‑time Reservists and cadets who are unlikely to return to defence service 19
11.......... Ministerial determination of pay‑related allowances.......................... 20
12.......... Deceased members whose dependants are entitled to benefits under this Act 21
13.......... Definition of treatment...................................................................... 21
14.......... Definition of Commonwealth superannuation scheme for a person who has chosen a Special Rate Disability Pension.......................................................................................................... 22
15.......... Definition of dependant.................................................................... 22
16.......... Certain relationships.......................................................................... 23
17.......... When partners and eligible young persons are wholly dependent on a member 24
18.......... Child of a member born or adopted after the member’s death........... 24
19.......... Ascertaining whether persons receiving family tax benefits etc. are dependent 25
20.......... Some references to members include references to former members 25
Chapter 2—Accepting liability for service injuries, diseases and deaths 26
Part 1—Simplified outline of this Chapter 26
21.......... Simplified outline of this Chapter...................................................... 26
Part 2—When the Commission must accept liability for service injuries, diseases and deaths 28
22.......... Simplified outline of this Part............................................................ 28
23.......... Commission’s acceptance of liability for service injuries and diseases 29
24.......... Commission’s acceptance of liability for service deaths.................... 31
25.......... Limited effect of acceptance of liability............................................. 32
Part 3—Definitions of service injury, service disease and service death 33
26.......... Simplified outline of this Part............................................................ 33
27.......... Main definitions of service injury and service disease...................... 33
28.......... Main definition of service death........................................................ 35
29.......... Definitions of service injury, service disease and service death arising from treatment provided by the Commonwealth.......................................................................................................... 36
30.......... Definitions of service injury and service disease for aggravations etc. of signs and symptoms 38
Part 4—When the Commission is prevented from accepting liability for service injuries, diseases and deaths 39
31.......... Simplified outline of this Part............................................................ 39
32.......... Exclusions relating to serious defaults or wilful acts etc................... 39
33.......... Exclusions relating to reasonable counselling about performance etc. 42
34.......... Exclusions of injuries, diseases and deaths relating to certain false representations 43
35.......... Exclusions relating to travel.............................................................. 44
36.......... Exclusion relating to use of tobacco products................................... 46
Chapter 3—Rehabilitation 47
Part 1—General provisions 47
Division 1—Simplified outline of this Chapter 47
37.......... Simplified outline of this Chapter...................................................... 47
Division 2—Aim of rehabilitation 48
38.......... Aim of rehabilitation......................................................................... 48
Division 3—Definitions 49
39.......... Definition of rehabilitation authority................................................ 49
40.......... Rule if rehabilitation authority for a person changes......................... 49
41.......... Other definitions............................................................................... 50
Part 2—Rehabilitation programs 52
Division 1—Application of Part 52
42.......... Simplified outline of this Part............................................................ 52
43.......... Persons to whom this Part applies.................................................... 52
Division 2—Assessment of a person’s capacity for rehabilitation 54
44.......... When an assessment may or must be carried out.............................. 54
45.......... What may be done as part of an assessment...................................... 54
46.......... Requirements for examinations......................................................... 55
47.......... Compensation for journey and accommodation costs....................... 55
48.......... Amount of compensation for journey and accommodation costs...... 56
49.......... Whom the compensation is payable to.............................................. 56
50.......... Consequences of failure to undergo an examination......................... 57
Division 3—Provision of rehabilitation programs 58
51.......... Rehabilitation authority may determine that a person is to undertake a rehabilitation program 58
52.......... Consequences of failure to undertake a rehabilitation program......... 59
53.......... Cessation or variation of a rehabilitation program............................. 60
Part 3—Alterations, aids and appliances relating to rehabilitation 61
Division 1—Preliminary 61
54.......... Simplified outline of this Part............................................................ 61
55.......... Persons to whom Part applies........................................................... 61
Division 2—Alterations, aids and appliances relating to rehabilitation 62
56.......... Alterations, aids and appliances relating to rehabilitation.................. 62
57.......... Amount of compensation for alterations, aids and appliances........... 62
58.......... Matters to be considered in determining matters relating to alterations, aids and appliances 63
59.......... Whom compensation for alterations etc. is payable to....................... 63
Part 4—Assistance in finding suitable work 65
60.......... Simplified outline of this Part............................................................ 65
61.......... Assistance in finding suitable work for full‑time members............... 65
62.......... Assistance in finding suitable work for other members and former members 66
Part 5—Transition management 67
63.......... Simplified outline of this Part............................................................ 67
64.......... Transition management..................................................................... 67
Chapter 4—Compensation for members and former members 68
Part 1—Simplified outline of this Chapter 68
65.......... Simplified outline of this Chapter...................................................... 68
Part 2—Permanent impairment 69
66.......... Simplified outline of this Part............................................................ 69
67.......... Guide to determining impairment and compensation......................... 69
68.......... Entitlement to compensation for permanent impairment.................... 70
69.......... No compensation for less than the threshold impairment points....... 71
70.......... Compensation for aggravations etc................................................... 71
71.......... Additional compensation................................................................... 72
72.......... Additional compensation for aggravations etc................................... 74
73.......... Deciding whether an impairment is likely to continue indefinitely.... 74
74.......... Amount of compensation.................................................................. 74
75.......... Interim compensation........................................................................ 75
76.......... Notifying the claimant....................................................................... 76
77.......... When weekly compensation becomes payable.................................. 77
78.......... Choice to take lump sum................................................................... 78
79.......... When lump sum is payable............................................................... 80
80.......... Additional amounts payable if maximum compensation paid............ 80
81.......... Compensation for cost of financial advice and legal advice............... 81
82.......... Amount of financial advice and legal advice compensation............... 82
83.......... Whom the compensation is payable to.............................................. 83
83A....... Energy supplement for compensation under this Part....................... 83
Part 3—Compensation for incapacity for service or work for members 85
Division 1—Entitlement to compensation 85
84.......... Simplified outline of this Part............................................................ 85
85.......... Compensation for incapacitated full‑time members........................... 86
86.......... Compensation for incapacitated part‑time Reservists........................ 86
87.......... Compensation for incapacitated cadets and declared members.......... 87
88.......... No compensation in certain cases relating to aggravations etc. of injuries or diseases 88
89.......... Amount of compensation for current members................................. 88
89A....... Amount of compensation for persons receiving a Commonwealth superannuation benefit 89
89B....... Payments before a person receives a Commonwealth superannuation benefit 90
Division 2—Working out normal and actual earnings for full‑time members 92
90.......... Simplified outline of this Division.................................................... 92
91.......... Working out normal earnings............................................................ 92
92.......... Working out actual earnings.............................................................. 93
Division 3—Working out normal and actual earnings for part‑time Reservists 94
Subdivision A—Simplified outline of this Division 94
93.......... Simplified outline of this Division.................................................... 94
Subdivision B—Working out normal earnings for part‑time Reservists 95
94.......... Application of this Division to part‑time Reservists.......................... 95
95.......... Working out normal earnings............................................................ 95
Subdivision C—Working out the ADF component of normal earnings 96
96.......... Working out the ADF component for an incapacitated Reservist who is incapacitated for service 96
97.......... Working out the ADF component for an incapacitated Reservist who is not incapacitated for service 97
Subdivision D—Working out the civilian component of normal earnings 98
98.......... Working out the civilian component for an incapacitated Reservist who is incapacitated for work 98
99.......... Definition of example period for the civilian component of normal earnings 100
100........ Working out the civilian component for an incapacitated Reservist who is not incapacitated for work 100
Subdivision E—Working out actual earnings 100
101........ Working out actual earnings............................................................ 100
Division 4—Working out normal and actual earnings for part‑time Reservists who were previously Permanent Forces members 102
102........ Simplified outline of this Division.................................................. 102
103........ Application of this Division to part‑time Reservists who were previously Permanent Forces members 102
104........ Working out normal earnings.......................................................... 103
105........ Working out actual earnings............................................................ 104
Division 5—Working out normal and actual earnings for part‑time Reservists who were previously continuous full‑time Reservists 105
Subdivision A—Simplified outline of this Division 105
106........ Simplified outline of this Division.................................................. 105
Subdivision B—Working out normal earnings for part‑time Reservists who were previously continuous full‑time Reservists 106
107........ Application of this Division to part‑time Reservists who were previously continuous full‑time Reservists 106
108........ Working out normal earnings.......................................................... 106
Subdivision C—Working out full‑time ADF earnings 107
109........ Working out full‑time ADF earnings.............................................. 107
Subdivision D—Working out pre‑CFTS earnings 108
110........ Simplified outline of this Subdivision............................................. 108
111........ Working out pre‑CFTS earnings..................................................... 108
112........ Working out pre‑CFTS pay............................................................ 109
113........ Definition of example period for pre‑CFTS pay............................. 111
114........ Working out reserve pay................................................................. 111
114A..... Example periods for those injured as continuous full‑time Reservists 113
Subdivision E—Working out actual earnings 113
115........ Working out actual earnings............................................................ 113
Division 6—Working out normal and actual earnings for cadets and declared members 115
116........ Regulations may prescribe methods for working out normal and actual earnings for cadets and declared members........................................................................................................ 115
Division 7—Amount of compensation where a Commonwealth superannuation benefit is received 116
116A..... Simplified outline of this Division.................................................. 116
116B..... Amount of compensation for person receiving only Commonwealth superannuation pension 116
116C..... Amount of compensation for person who has received only Commonwealth superannuation lump sum 117
116D..... Amount of compensation for person receiving both superannuation pension and lump sum 118
116E...... No compensation if amount worked out is nil or a negative amount 119
Part 4—Compensation for incapacity for work for former members 120
Division 1—Entitlement to compensation 120
117........ Simplified outline of this Part.......................................................... 120
118........ Compensation for incapacitated former members............................ 121
119........ No compensation in certain cases relating to aggravations etc. of injuries or diseases 122
120........ Compensation for those over 65..................................................... 122
121........ Compensation for those over 63..................................................... 122
122........ Persons who are imprisoned........................................................... 122
Division 2—Amount of compensation (other than for those who have chosen to receive a Special Rate Disability Pension) 123
Subdivision A—Simplified outline of this Division 123
123........ Simplified outline of this Division.................................................. 123
Subdivision B—Amount of compensation generally 123
124........ Simplified outline of this Subdivision............................................. 123
125........ Amount of compensation for former members............................... 124
126........ Amount of compensation for retired persons receiving a Commonwealth superannuation benefit 124
126A..... Payments before a retired person receives a Commonwealth superannuation benefit 125
127........ Amount of compensation for former members who are maintained in hospital etc. 126
Subdivision C—Amount of compensation where no Commonwealth superannuation benefit is received 128
128........ Simplified outline of this Subdivision............................................. 128
129........ Amount of compensation for maximum rate weeks........................ 128
130........ Amount of compensation for the week whose hours exceed 45 times the normal weekly hours 129
131........ Amount of compensation after 45 weeks........................................ 130
132........ Definitions of actual earnings, normal earnings and normal weekly hours 131
Subdivision D—Amount of compensation where a Commonwealth superannuation benefit is received 133
133........ Simplified outline of this Subdivision............................................. 133
134........ Amount of compensation for retired person receiving only Commonwealth superannuation pension 134
135........ Amount of compensation for retired person who has received only Commonwealth superannuation lump sum 135
136........ Amount of compensation for retired person receiving both superannuation pension and lump sum 136
Subdivision E—Small amounts of compensation 136
137........ Simplified outline of this Subdivision............................................. 136
138........ Converting small amounts of weekly compensation into lump sum compensation 136
139........ Weekly compensation following conversion of weekly amounts to a lump sum 138
Division 3—Working out normal earnings for certain former Permanent Forces members 140
140........ Simplified outline of this Division.................................................. 140
141........ Working out normal earnings.......................................................... 140
Division 4—Working out normal earnings and normal weekly hours for certain former continuous full‑time Reservists 142
Subdivision A—Simplified outline of this Division 142
142........ Simplified outline of this Division.................................................. 142
Subdivision B—Working out normal earnings 142
143........ Working out normal earnings.......................................................... 142
Subdivision C—Working out ADF earnings 143
144........ Working out ADF earnings............................................................ 143
Subdivision D—Working out pre‑CFTS earnings 144
145........ Simplified outline of this Subdivision............................................. 144
146........ Working out pre‑CFTS earnings..................................................... 145
147........ Working out pre‑CFTS pay............................................................ 145
148........ Definition of example period for former continuous full‑time Reservists 147
149........ Working out reserve pay................................................................. 147
Subdivision E—Working out normal weekly hours for persons who have chosen pre‑CFTS earnings 149
150........ Working out normal weekly hours for persons who have chosen pre‑CFTS earnings 149
Division 5—Working out normal earnings and normal weekly hours for former part‑time Reservists who were engaged in civilian work 151
Subdivision A—Simplified outline of this Division 151
151........ Simplified outline of this Division.................................................. 151
Subdivision B—Working out normal earnings of former part‑time Reservists who were engaged in civilian work 152
152........ Application of this Division to former part‑time Reservists who were engaged in civilian work 152
153........ Working out normal earnings.......................................................... 152
Subdivision C—Working out the ADF component of normal earnings 153
154........ Working out the ADF component of normal earnings.................... 153
155........ Definition of example period for ADF component of normal earnings 154
Subdivision D—Working out the civilian component of normal earnings 155
156........ Working out the civilian component of normal earnings................. 155
157........ Definition of example period for the civilian component of normal earnings 156
Subdivision E—Working out normal weekly hours 157
158........ Working out normal weekly hours.................................................. 157
Division 6—Working out normal earnings for former part‑time Reservists who were not engaged in civilian work 158
159........ Simplified outline of this Division.................................................. 158
160........ Application of this Division to former part‑time Reservists who were not engaged in civilian work 158
161........ Working out normal earnings.......................................................... 159
Division 7—Working out normal earnings for former part‑time Reservists who were previously Permanent Forces members 161
162........ Simplified outline of this Division.................................................. 161
163........ Application of this Division to former part‑time Reservists who were previously Permanent Forces members 161
164........ Working out normal earnings.......................................................... 162
Division 8—Working out normal earnings and normal weekly hours for former part‑time Reservists who were previously continuous full‑time Reservists 164
Subdivision A—Simplified outline of this Division 164
165........ Simplified outline of this Division.................................................. 164
Subdivision B—Working out normal earnings for former part‑time Reservists who were previously continuous full‑time Reservists 165
166........ Application of this Division to former part‑time Reservists who were previously continuous full‑time Reservists 165
167........ Working out normal earnings.......................................................... 165
Subdivision C—Working out full‑time ADF earnings 166
168........ Working out full‑time ADF earnings.............................................. 166
Subdivision D—Working out pre‑CFTS earnings 167
169........ Simplified outline of this Subdivision............................................. 167
170........ Working out pre‑CFTS earnings..................................................... 168
171........ Working out pre‑CFTS pay............................................................ 168
172........ Definition of example period for the pre‑CFTS pay....................... 170
173........ Working out reserve pay................................................................. 170
173A..... Example periods for those injured as continuous full‑time Reservists 172
Subdivision E—Working out normal weekly hours for persons who have chosen pre‑CFTS earnings 173
174........ Working out normal weekly hours for persons who have chosen pre‑CFTS earnings 173
Division 9—Working out normal and actual earnings and normal weekly hours for persons who were cadets or declared members 174
175........ Regulations may prescribe methods for working out normal and actual earnings and normal weekly hours for cadets and declared members............................................................................ 174
Part 5—Adjusting the amount of compensation for incapacity for service or work 175
Division 1—Introduction 175
176........ Simplified outline of this Part.......................................................... 175
177........ Definitions of normal earnings and actual earnings...................... 175
Division 2—General rules relating to normal and actual earnings etc. 176
178........ Simplified outline of this Division.................................................. 176
179........ Normal earnings that are less than the minimum wage.................... 176
180........ Amounts that are excluded when working out normal and actual earnings 176
181........ Matters to be considered in determining actual earnings................. 177
182........ Indexation of pre‑CFTS pay and civilian daily earnings................. 178
183........ Indexation of $100 in ADF pay...................................................... 179
Division 3—Adjusting ADF pay and pay‑related allowances 180
184........ Simplified outline of this Division.................................................. 180
185........ Increases in pay and allowances...................................................... 180
186........ Increases in pay and allowances due to actual promotions.............. 181
187........ Commission must determine category of defence work when defence work abolished 182
188........ Commission may determine pay‑related allowances when defence work abolished 182
189........ Amount of pay and allowances for those undergoing initial training 184
190........ No other adjustments to be taken into account................................ 185
Division 4—Adjusting other pay 186
191........ Simplified outline of this Division.................................................. 186
192........ Definitions of civilian daily earnings, example period and pre‑CFTS pay 186
193........ Variations during the example period.............................................. 186
194........ Civilian daily earnings or pre‑CFTS pay if working them out is impracticable 187
Division 5—Working out compensation for parts of weeks 188
195........ Simplified outline of this Division.................................................. 188
196........ Working out compensation for parts of weeks................................ 188
Part 6—Choice to receive a Special Rate Disability Pension 190
197........ Simplified outline of this Part.......................................................... 190
198........ What is a Special Rate Disability Pension?..................................... 190
199........ Persons who are eligible to make a choice under this Part.............. 191
200........ Choice to receive Special Rate Disability Pension........................... 191
201........ When the choice is to be made........................................................ 192
202........ Other requirements for the choice................................................... 192
203........ Determinations by Commission...................................................... 192
204........ Offsets............................................................................................ 193
204A..... Overpayment if payment of lump sum under section 138............... 195
205........ Compensation for cost of financial advice and legal advice............. 195
206........ Amount of financial advice and legal advice compensation............. 196
207........ Whom the compensation is payable to............................................ 196
208........ Persons who are imprisoned........................................................... 197
209........ Ceasing to meet certain criteria........................................................ 197
209A..... Energy supplement for Special Rate Disability Pension.................. 197
210........ Return to work scheme................................................................... 198
Part 7—Other types of compensation for members and former members 199
Division 1—Simplified outline of this Part 199
211........ Simplified outline of this Part.......................................................... 199
Division 2—Motor Vehicle Compensation Scheme 200
212........ Motor Vehicle Compensation Scheme............................................ 200
Division 3—Compensation for household and attendant care services 201
213........ Definitions of attendant care services and household services....... 201
214........ Compensation for household services............................................. 201
215........ Matters to be considered in household services compensation claims 202
216........ Amount of household compensation............................................... 202
217........ Compensation for attendant care services........................................ 203
218........ Matters to be considered in attendant care compensation claims..... 203
219........ Amount of compensation for attendant care services...................... 204
220........ Whom household and attendant care compensation is payable to.... 204
Division 4—MRCA supplement for members and former members 205
221........ Eligibility for MRCA supplement................................................... 205
222........ MRCA supplement not payable in some circumstances.................. 205
223........ Rate of MRCA supplement............................................................. 207
224........ Payment of MRCA supplement...................................................... 207
Division 5—Compensation for loss of, or damage to, medical aids 209
226........ Compensation for loss of, or damage to, medical aids.................... 209
227........ Exclusions relating to serious defaults etc....................................... 209
228........ Exclusions relating to travel............................................................ 210
229........ Amount of medical aid compensation............................................. 211
230........ Whom medical aid compensation is payable to............................... 212
Chapter 5—Compensation for dependants of certain deceased members, members and former members 213
Part 1—Simplified outline of this Chapter 213
231........ Simplified outline of this Chapter.................................................... 213
Part 2—Compensation for member’s death for wholly dependent partners 215
Division 1—Simplified outline of this Part 215
232........ Simplified outline of this Part.......................................................... 215
Division 2—Compensation for member’s death for wholly dependent partners 216
233........ Compensation for member’s death for wholly dependent partners. 216
234........ Amount of compensation for wholly dependent partners................ 216
235........ Notifying the partner....................................................................... 217
236........ Choice to take lump sum................................................................. 217
238........ Whom the compensation is payable to............................................ 219
238A..... Energy supplement for compensation for wholly dependent partners of deceased members 219
Division 3—Compensation for cost of financial advice and legal advice for wholly dependent partners 221
239........ Compensation for cost of financial advice and legal advice............. 221
240........ Amount of financial advice and legal advice compensation............. 222
241........ Whom the compensation is payable to............................................ 222
Division 4—Continuing permanent impairment and incapacity etc. compensation for wholly dependent partners 223
242........ Continuing permanent impairment and incapacity etc. compensation for wholly dependent partners 223
243........ Amount of permanent impairment and incapacity etc. compensation 223
244........ Whom permanent impairment and incapacity etc. compensation is payable to 224
Division 5—MRCA supplement for wholly dependent partners 225
245........ Eligibility for MRCA supplement................................................... 225
246........ MRCA supplement not payable in some circumstances.................. 225
247........ Rate of MRCA supplement............................................................. 226
248........ Payment of MRCA supplement...................................................... 226
Part 3—Compensation for eligible young persons dependent on certain deceased members, members or former members 229
Division 1—Simplified outline of this Part 229
250........ Simplified outline of this Part.......................................................... 229
Division 2—Lump sum compensation for member’s death for certain eligible young persons 230
251........ Lump sum compensation for member’s death for certain eligible young persons 230
252........ Amount of compensation for dependent eligible young persons..... 230
Division 3—Weekly compensation for certain eligible young persons 231
253........ Weekly compensation for certain eligible young persons................ 231
254........ Amount of weekly compensation.................................................... 231
Division 4—Continuing permanent impairment and incapacity etc. compensation for certain eligible young persons 232
255........ Continuing permanent impairment and incapacity etc. compensation for certain eligible young persons 232
256........ Amount of permanent impairment and incapacity etc. compensation 233
Division 5—Whom compensation under Divisions 2 to 4 is payable to 234
257........ Whom the compensation is payable to............................................ 234
Division 6—Education scheme for certain eligible young persons dependent on members, former members and deceased members 235
258........ Education scheme for certain eligible young persons...................... 235
259........ Completing courses begun before turning 25 years old.................. 236
Division 7—Exclusion of Part for wholly dependent partners 237
260........ Exclusion of Part for wholly dependent partners............................ 237
Part 4—Compensation for dependants other than wholly dependent partners and eligible young persons 238
261........ Simplified outline of this Part.......................................................... 238
262........ Compensation for dependants other than wholly dependent partners and eligible young persons 238
263........ Amount of compensation for other dependants............................... 239
264........ Whom the compensation is payable to............................................ 239
Part 5—Compensation for funeral expenses 240
265........ Simplified outline of this Part.......................................................... 240
266........ Compensation for cost of funeral.................................................... 240
267........ Amount of funeral compensation.................................................... 240
268........ Whom funeral compensation is payable to...................................... 241
Chapter 6—Treatment for injuries and diseases 242
Part 1—Simplified outline of this Chapter 242
269........ Simplified outline of this Chapter.................................................... 242
Part 2—Compensation for treatment costs 243
270........ Simplified outline of this Part.......................................................... 243
271........ Compensation for treatment for service injuries and diseases etc.... 244
272........ Compensation for members entitled to treatment under the Defence Force Regulations 245
273........ Compensation for those entitled to treatment under Part 3.............. 245
274........ Relationship of this Part with other compensation provisions......... 246
275........ No compensation if aggravated injury or disease ceases to be aggravated etc. 246
276........ Amount of treatment compensation................................................. 247
277........ Whom treatment compensation is payable to................................... 247
Part 3—Entitlement to provision of treatment 248
Division 1—Simplified outline of this Part 248
278........ Simplified outline of this Part.......................................................... 248
Division 2—Treatment for some members and former members 250
279........ Treatment for members entitled to treatment under the Defence Force Regulations 250
280........ Treatment for service injuries and diseases of former members and part‑time Reservists etc. 250
280A..... Treatment for certain SRCA injuries............................................... 251
281........ Treatment for persons with 60 impairment points........................... 252
282........ Treatment for persons who are eligible for a Special Rate Disability Pension 252
283........ No treatment for aggravated injury or disease if aggravation ceases 253
Division 3—Treatment for certain dependants of deceased members 254
284........ Treatment for certain wholly dependent partners and eligible young persons 254
Division 4—Administration of the provision of treatment 255
285........ Treatment at hospitals and other institutions etc.............................. 255
286........ Determination for providing treatment............................................ 255
287........ Provision of treatment..................................................................... 257
Part 4—Other compensation relating to treatment 259
Division 1—Simplified outline of this Part 259
288........ Simplified outline of this Part.......................................................... 259
Division 2—Compensation for patients’ and attendants’ journey and accommodation costs 260
289........ Definition of compensable treatment.............................................. 260
290........ Compensation for journey costs relating to treatment...................... 260
291........ Compensation for accommodation relating to treatment.................. 262
292........ No compensation for journeys or accommodation outside Australia 263
293........ Amount of compensation for journeys............................................ 263
294........ Amount of compensation for accommodation................................. 264
295........ Matters to be considered in journey and accommodation compensation claims 264
296........ Whom compensation is payable to.................................................. 264
Division 3—Compensation for transportation costs 266
297........ Compensation for other person’s transportation costs.................... 266
298........ Amount of transportation costs....................................................... 266
299........ Whom compensation is payable to.................................................. 266
Division 4—MRCA supplement for members, former members and dependants 267
300........ Eligibility for MRCA supplement................................................... 267
301........ MRCA supplement not payable in some circumstances.................. 267
302........ Rate of MRCA supplement............................................................. 268
303........ Payment of MRCA supplement...................................................... 269
Part 5—Offences relating to treatment under this Chapter 271
304........ Simplified outline of this Part.......................................................... 271
305........ Definitions...................................................................................... 272
306........ Offence for false or misleading statements or documents relating to treatment 273
307........ Offence for medical service providers causing detriment to others. 274
308........ Offence for medical service providers threatening detriment........... 274
309........ Offence for bribery by medical service providers........................... 275
310........ Offence for practitioners receiving bribes etc.................................. 275
311........ Offence for pathology practitioners making payments to requesting practitioners 276
312........ Offence for pathology practitioners providing pathology services to persons with whom they have arrangements 277
313........ Offence for providing staff to be used in pathology services.......... 278
314........ Counselling statements inadmissible as evidence............................ 278
315........ Recovery of amounts paid because of false or misleading statements 279
316........ Interest payable on amounts paid because of false or misleading statements 279
317........ Reduction in payments because of previous overpayments............. 281
Chapter 7—Claims 282
Part 1—Making a claim 282
Division 1—Simplified outline of this Part 282
318........ Simplified outline of this Part.......................................................... 282
Division 2—Making a claim 284
319........ Making a claim................................................................................ 284
320........ Who may make a claim................................................................... 285
321........ Survival of claims and of right to claim........................................... 286
322........ No new claim before earlier claim finally determined...................... 287
323........ Giving claims and documents to the Commission........................... 288
Division 3—What happens after a claim is made 290
Subdivision A—Investigation of claims 290
324........ Investigation by the Commission.................................................... 290
Subdivision B—Needs assessments 290
325........ When the Commission may or must carry out a needs assessment. 290
326........ Assessment of a person’s needs..................................................... 290
327........ Treatment path................................................................................. 291
Subdivision C—Medical examinations 292
328........ Power to require medical examination............................................. 292
329........ Consequences of failure to undergo an examination....................... 292
Subdivision D—Obligations of claimants and Commission 293
330........ Power to request the provision of information................................ 293
331........ Certain documents to be supplied on request.................................. 294
Part 2—Determination of claims 295
332........ Simplified outline of this Part.......................................................... 295
333........ Determination of claims.................................................................. 296
334........ Commission not bound by technicalities......................................... 296
335........ Standard of proof for Commission and Chief of the Defence Force 297
336........ Commission not entitled to make certain presumptions................... 298
337........ No onus of proof............................................................................ 298
338........ Reasonableness of hypothesis to be assessed by reference to Statement of Principles 299
339........ Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles 300
340........ Determination by Commission overriding Authority’s decision in relation to Statements of Principles 302
341........ Current Statement of Principles to be applied on review of a decision 305
342........ Determination of the onset date for an incapacity for service or work 306
343........ Determination of the date of death................................................... 306
Chapter 8—Reconsideration and review of determinations 307
Part 1—Preliminary 307
344........ Simplified outline of this Chapter.................................................... 307
345........ Definitions...................................................................................... 307
345A..... Application of this Chapter to decisions about clean energy payments 309
Part 2—Notifying original determinations 310
346........ Notifying original determinations.................................................... 310
Part 3—Reconsideration of determinations 311
347........ Commission or Chief of the Defence Force initiating reconsideration of original determinations 311
347A..... Reconsideration of permanent impairment compensation................ 312
348........ Varying determinations made by the Board.................................... 313
349........ Chief of the Defence Force initiating reconsideration of determinations.. 313
350........ Reconsideration............................................................................... 314
351........ Notifying reviewable determinations............................................... 314
Part 4—Review by the Board of original determinations 315
352........ Applications to the Board for review.............................................. 315
353........ Application of the Veterans’ Entitlements Act 1986........................ 315
Part 5—Review by the Tribunal 319
354........ Applications to the Tribunal for review........................................... 319
355........ Modifications of the Administrative Appeals Tribunal Act 1975.... 321
356........ Evidence.......................................................................................... 322
357........ Costs of proceedings before the Tribunal........................................ 322
358........ Costs where proceedings rendered abortive.................................... 325
359........ Certain provisions not to apply to review of determinations of the Board 326
Chapter 9—The Military Rehabilitation and Compensation Commission 327
Part 1—Simplified outline of this Chapter 327
360........ Simplified outline of this Chapter.................................................... 327
Part 2—Establishment of the Commission 328
361........ Establishment.................................................................................. 328
Part 3—Functions 329
362........ Functions........................................................................................ 329
Part 4—Constitution of the Commission 331
363........ Constitution..................................................................................... 331
Part 5—Membership 332
364........ Membership.................................................................................... 332
365........ Appointment of Commission members........................................... 333
366........ Acting appointments for the member described in subparagraph 364(1)(b)(i) 333
367........ Acting appointment for the members described in subparagraph 364(1)(b)(ii) or (iii) 335
369........ Remuneration and allowances......................................................... 336
370........ Commission members may be granted leave of absence................. 336
371........ Resignation of appointed Commission members............................ 336
372........ Termination of appointment of appointed Commission members... 336
Part 6—Meetings and resolutions 339
373........ Convening meetings........................................................................ 339
374........ Presiding at meetings...................................................................... 339
375........ Quorum........................................................................................... 339
376........ Voting at meetings.......................................................................... 339
377........ Commission resolutions without meetings...................................... 340
378........ Conduct of meetings....................................................................... 340
379........ Commission member to disclose any interest in claims etc............. 340
380........ Minister may direct Commission member not to take part in consideration or review 341
Part 7—Other matters 343
382........ Staff................................................................................................ 343
383........ Consultants..................................................................................... 343
384........ Delegation....................................................................................... 343
385........ Annual report.................................................................................. 344
Chapter 10—Liabilities arising apart from this Act etc. 345
Part 1—Preliminary 345
386........ Simplified outline of this Chapter.................................................... 345
387........ Interpretation................................................................................... 345
Part 2—Liability of the Commonwealth to other actions 346
388........ Action for damages not to lie against Commonwealth etc. in certain cases 346
389........ Choice to institute action for damages against the Commonwealth etc. for non‑economic loss 347
390........ Notice of common law claims against the Commonwealth etc........ 348
Part 3—Liability of third parties 349
Division 1—Notice of common law claims against third parties 349
391........ Notice of common law claims against third parties......................... 349
Division 2—Commission may institute proceedings or take over claims against third parties 350
392........ Application of this Division to common law claims against third parties 350
393........ Commission may make the claim or take over the claim................. 350
394........ Commonwealth liable to pay costs of claim.................................... 351
395........ Commission may conclude claim.................................................... 351
396........ Plaintiff must sign documents as required....................................... 351
397........ Plaintiff must do as the Commission requires................................. 352
398........ What happens when damages are awarded..................................... 353
Division 3—Effect of recovering damages on entitlements under this Act 354
399........ When Division applies.................................................................... 354
400........ Notifying damages.......................................................................... 354
401........ Repaying compensation paid under this Act after damages recovered 354
402........ No compensation under this Act after damages recovered.............. 355
Division 4—Payment of damages by persons to the Commonwealth 357
403........ Payment of damages by persons to the Commonwealth................. 357
Chapter 11—Miscellaneous 359
Part 1—Indexation 359
404........ Indexation of amounts..................................................................... 359
Part 2—Obtaining and giving information etc. 361
405........ Power to obtain information............................................................ 361
406........ Commission may obtain information etc......................................... 362
407........ Self‑incrimination............................................................................ 364
408........ Offence for selling etc. goods provided under this Act without consent 365
408A..... Manner of giving notice or other document.................................... 365
409........ Giving information.......................................................................... 366
410........ Judicial notice to be taken of certain matters.................................... 367
411........ Evidence.......................................................................................... 367
412........ Providing tax file numbers.............................................................. 369
413........ How to satisfy the request under section 412.................................. 369
414........ Compensation when request is not satisfied initially....................... 371
Part 3—Recovering overpayments 372
Division 1—Recovery generally 372
415........ Recovery of overpayments.............................................................. 372
Division 2—Recovery of overpayments to persons receiving a Commonwealth superannuation benefit 373
416........ Notice to Commission of retirement of person................................ 373
417........ Application of section 418.............................................................. 373
418........ Commission may give a notice to the administrator of the scheme.. 374
419........ Commission to give notice to incapacitated person......................... 375
420........ What happens if the incapacitated person has not received any Commonwealth superannuation benefit in respect of his or her cessation of employment........................................................... 375
421........ Administrator must pay the amount of overpayment to the Commonwealth 377
422........ Compliance by the administrator..................................................... 377
Part 4—Appropriation 379
423........ Appropriation.................................................................................. 379
Part 5—Special assistance 380
424........ Special assistance............................................................................ 380
Part 5A—Clean energy payments 381
Division 1—Eligibility for clean energy advances 381
424A..... Recipient of compensation for permanent impairment..................... 381
424B..... Recipient of Special Rate Disability Pension................................... 382
424C..... Recipient of compensation for wholly dependent partner of deceased member 383
424D..... One advance for each clean energy underlying payment................. 384
Division 2—Amount of a clean energy advance 385
424E...... Amount of a clean energy advance.................................................. 385
424F...... Clean energy advance daily rate..................................................... 385
424G..... Number of advance days................................................................. 386
Division 3—Top‑up payments of clean energy advance 387
424H..... Top‑up payments of clean energy advance...................................... 387
Division 4—Payment of clean energy advance 389
424J...... Payment of clean energy advance.................................................... 389
Division 5—Debts 390
424K..... Debts relating to clean energy advances.......................................... 390
Division 6—Multiple entitlement exclusions 392
424L...... Multiple entitlement exclusions....................................................... 392
Part 6—General 393
425........ Assignment, set‑off or attachment of compensation........................ 393
426........ Payments to Commissioner of Taxation.......................................... 393
427........ Jurisdiction of courts with respect to extraterritorial offences......... 394
428........ Commission may write off a debt................................................... 394
429........ Commission may waive a debt........................................................ 395
430........ Payment into bank account etc........................................................ 395
430A..... Use and disclosure of account details.............................................. 397
431........ Payments at person’s request.......................................................... 398
432........ Trustees for persons entitled to compensation................................. 398
433........ Powers of the trustee generally....................................................... 399
434........ Powers of Commonwealth etc. trustee to invest trust funds............ 400
435........ Powers of investment for non‑Commonwealth trustee................... 401
436........ Provisions applicable on death of person........................................ 401
437........ Amounts of compensation.............................................................. 401
438........ Delegation by Chief of the Defence Force...................................... 401
Part 7—Regulations 403
439........ Regulations may modify effect of Chapter 2 and Parts 3 and 4 of Chapter 4 403
440........ Regulations..................................................................................... 403
Endnotes 404
Endnote 1—About the endnotes 404
Endnote 2—Abbreviation key 406
Endnote 3—Legislation history 407
Endnote 4—Amendment history 414
An Act to provide rehabilitation, compensation and other entitlements for veterans, members and former members of the Defence Force, and for other purposes
Chapter 1—Introduction
1 Short title
This Act may be cited as the Military Rehabilitation and Compensation Act 2004.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 27 April 2004 |
| 2. Sections 3 to 359 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 July 2004 (see Gazette 2004, GN22) |
| 3. Sections 360 to 385 | The day on which this Act receives the Royal Assent. | 27 April 2004 |
| 4. Sections 386 to 440 | At the same time as the provision(s) covered by table item 2. | 1 July 2004 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Simplified outline of this Act
This Act provides for compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease. The Act also provides for compensation and other benefits to be provided for the dependants of some deceased members.
Before most benefits can be paid or provided, the Commission must accept liability for an injury, disease or death of a current or former member under Chapter 2. Chapters 3 to 6 set out what the benefits are.
The procedure for dealing with claims under this Act is dealt with under Chapters 7 and 8. The Military Rehabilitation and Compensation Commission and the administration of the Act are dealt with in Chapters 9 to 11.
Provisions in this Act might be affected by the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.
A person who is entitled to a benefit under this Act might also be entitled to a pension, allowance or other benefit under the Veterans’ Entitlements Act 1986. This might include the following:
(a) a service pension under Part III of that Act;
(b) treatment under Part V of that Act;
(c) veterans supplement, a Victoria Cross allowance or Income Support Supplement;
(d) a funeral benefit.
4 Extension to external Territories
This Act extends to every external Territory.
4A Secretary may arrange for use of computer programs to make decisions or determinations
(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Commission may, or must, under this Act or a legislative instrument made for the purposes of this Act:
(a) make a decision or determination; or
(b) exercise any power or comply with any obligation; or
(c) do anything else related to making a decision or determination or exercising a power or complying with an obligation.
(1A) Subsection (1) does not apply to the following:
(a) a decision or determination that the death of a person is not a service death;
(b) a decision or determination that an injury sustained by a person is not a service injury;
(c) a decision or determination that a disease contracted by a person is not a service disease.
(2) For the purposes of this Act or the legislative instrument, the Commission is taken to have:
(a) made a decision or determination; or
(b) exercised a power or complied with an obligation; or
(c) done something else related to the making of a decision or determination or the exercise of a power or the compliance with an obligation;
that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under subsection (1).
Substituted decisions or determinations
(3) The Commission may, under a provision of this Act or of the legislative instrument, make a decision or determination in substitution for a decision or determination the Commission is taken to have made under paragraph (2)(a) if the Commission is satisfied that the decision or determination made by the operation of the computer program is incorrect.
Note: For review of a determination made in substitution, see Chapter 8.
(4) Subsection (3) does not limit Chapter 8 (about reconsideration and review of determinations).
5 Definitions
(1) In this Act:
actual earnings:
(a) in Part 3 of Chapter 4—has the meaning given by subsection 89(3); and
(b) in Part 4 of Chapter 4—has the meaning given by subsection 132(1).
aggravated injury or disease means an injury or disease that is a service injury or disease because of paragraph 27(d), subsection 29(2) or section 30 (aggravations etc.) (and only because of that paragraph, subsection or section).
appointed Commission member means a Commission member described in paragraph 364(1)(b).
approved program provider has the meaning given by section 41.
approved rehabilitation program has the meaning given by section 41.
attendant care services has the meaning given by section 213.
Australian Defence Force Cadets has the meaning given by the Defence Act 1903.
Board means the Veterans’ Review Board constituted under the Veterans’ Entitlements Act 1986.
cadet means a member of the Australian Defence Force cadets.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
civilian work means work other than as a member of the Defence Force.
claimant means a person who has made a claim under section 319.
clean energy advance means an advance described in Division 1 or 3 of Part 5A of Chapter 11.
clean energy bonus under an Act or scheme means any of the following that is provided for by the Act or scheme:
(a) a payment known as a clean energy advance;
(b) a payment known as an energy supplement or a quarterly energy supplement;
(c) an increase that is described using the phrase “energy supplement” and affects the rate of another payment that is provided for by the Act or scheme.
clean energy payment means clean energy advance or energy supplement.
clean energy underlying payment means:
(a) compensation under Part 2 of Chapter 4 (whether weekly compensation or a lump sum); or
(b) Special Rate Disability Pension; or
(c) compensation under Division 2 of Part 2 of Chapter 5 (whether weekly compensation or a lump sum).
Comcare means the body corporate established by section 68 of the Safety, Rehabilitation and Compensation Act 1988.
Commission means the Military Rehabilitation and Compensation Commission established by section 361.
Commission Chair means the Chair of the Commission.
Commission member means a member of the Commission (including the Commission Chair).
Commonwealth superannuation scheme means:
(aa) for the purposes of the following provisions:
(i) sections 89A and 89B;
(ii) Division 7 of Part 3 of Chapter 4;
(iii) sections 416 to 418 (to the extent to which they relate to compensation under Part 3 of Chapter 4);
any superannuation scheme under which or to which, or retirement savings account to which, the Commonwealth or a Commonwealth authority makes contributions on behalf of employees (other than members of the Defence Force) and includes a superannuation scheme established or maintained by the Commonwealth or a Commonwealth authority and the Australian Defence Force Cover Act 2015; or
(a) if a person’s normal earnings are worked out (or would be worked out if the person had not chosen a Special Rate Disability Pension) under:
(i) Subdivision D of Division 4 of Part 4 of Chapter 4; or
(ii) Division 5 of Part 4 of Chapter 4; or
(iia) sections 126 and 126A;
(iii) Subdivision D of Division 8 of Part 4 of Chapter 4;
any superannuation scheme under which or to which, or retirement savings account to which, the Commonwealth or a Commonwealth authority makes contributions on behalf of employees (other than members of the Defence Force) and includes a superannuation scheme established or maintained by the Commonwealth or a Commonwealth authority and the Australian Defence Force Cover Act 2015; or
(b) otherwise—any superannuation scheme under which the Commonwealth makes contributions on behalf of members of the Defence Force or the Australian Defence Force Cover Act 2015.
Note: Section 14 affects the operation of paragraph (a) of this definition.
compensable treatment has the meaning given by section 289.
compensation means compensation under this Act, including the following:
(a) alterations provided, or aids and appliances provided or repaired, under section 56;
(b) a Special Rate Disability Pension under Part 6 of Chapter 4;
(c) MRCA supplement under section 221, 245 or 300;
(d) education or training provided under the education scheme mentioned in Division 6 of Part 3 of Chapter 5;
(e) treatment provided under Chapter 6;
(f) clean energy payments.
continuous full‑time Reservist means a member of the Reserves on continuous full‑time service.
continuous full‑time service (CFTS) means defence service of a continuous nature that is rendered by a member of the Reserves.
date of the member’s death for a deceased member means the date determined under section 343 for the member.
deceased member means a person:
(a) who has died; and
(b) who was a member or former member before his or her death.
declared member means a person to whom a determination under section 8 applies.
Defence Department means the Department of State that deals with defence and that is administered by the Defence Minister.
Defence Force means:
(a) the Permanent Forces; and
(b) the Reserves.
Defence Minister means the Minister administering section 1 of the Defence Act 1903.
defence service has the meaning given by paragraph 6(1)(d).
dental practitioner means a person registered or licensed as a dental practitioner or dentist under a law of a State or Territory that provides for the registration or licensing of dental practitioners or dentists.
dependant has the meaning given by section 15.
dependent means dependent for economic support.
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
duty, for a cadet or a declared member, has the meaning given by section 9.
Note: Duty has its ordinary meaning for other kinds of members.
eligible young person means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25; and
(ii) is receiving full‑time education at a school, college, university or other educational institution; and
(iii) is not in full‑time employment or engaged in work full‑time on his or her own account.
energy supplement means energy supplement payable under section 83A, 209A or 238A.
expense allowance means an allowance paid in respect of any expense incurred, or likely to be incurred, by a person in respect of the person’s work.
former member means a person who has ceased to be a member.
Note: A cadet or a part‑time Reservist who is unlikely to be able to perform his or her duties in the future as a result of an incapacity might be taken to be a former member (see section 10).
full‑time service means defence service as:
(a) a Permanent Forces member; or
(b) a continuous full‑time Reservist.
hospital or other institution includes the following:
(a) a home;
(b) a hostel;
(c) a medical centre;
(d) an out‑patient clinic;
(e) a rehabilitation or training establishment.
household services has the meaning given by section 213.
impairment, in relation to a person, means the loss, the loss of the use, or the damage or malfunction, of any part of the person’s body, of any bodily system or function, or of any part of such a system or function.
impairment points of a person means the points worked out for the person using the guide determined under section 67.
incapacitated person:
(a) in Division 5 of Part 4 of Chapter 4—has the meaning given by section 152; and
(b) in Division 6 of Part 4 of Chapter 4—has the meaning given by section 160; and
(c) in Division 7 of Part 4 of Chapter 4—has the meaning given by section 163; and
(d) in Division 8 of Part 4 of Chapter 4—has the meaning given by section 166.
incapacitated Reservist:
(a) in Division 3 of Part 3 of Chapter 4—has the meaning given by section 94; and
(b) in Division 4 of Part 3 of Chapter 4—has the meaning given by section 103; and
(c) in Division 5 of Part 3 of Chapter 4—has the meaning given by section 107.
incapacity for service, in relation to a person who has sustained an injury or contracted a disease, means an incapacity of the person to engage in the defence service that he or she was engaged in before the onset of the incapacity, at the same level at which he or she was previously engaged.
Note: For example, a person might be unable to engage in defence service at the same level at which he or she was engaged before the incapacity because the person is unable to perform all of his or her previous duties or is unable to work his or her normal weekly hours.
incapacity for service or work means incapacity for service or incapacity for work.
incapacity for work, in relation to a person who has sustained an injury or contracted a disease, means:
(a) an incapacity of the person to engage in the work that he or she was engaged in before the onset of the incapacity, at the same level at which he or she was previously engaged; or
(b) if the person was not previously engaged in work, an incapacity of the person to engage in any work that it is reasonably likely that he or she would otherwise be engaged in.
Note: For example, a person might be unable to engage in work at the same level at which he or she was engaged before the incapacity because the person is unable to perform all of his or her previous duties or is unable to work his or her normal weekly hours.
indexation year means the financial year commencing on 1 July 2003, and each subsequent financial year.
initial training for a person means:
(a) for an officer (other than a non‑commissioned officer)—training undertaken to become a commissioned officer; and
(b) otherwise—recruit training and initial employment training undertaken to allocate the person to a category of defence work.
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
legal personal representative means:
(a) the executor of the will, or the administrator of the estate, of a deceased person; or
(b) the trustee of the estate of a person under a legal disability; or
(c) a person who holds an enduring power of attorney granted by another person; or
(d) a person who, by order of a court or otherwise, has the legal administration or control of the affairs of another person.
medical aid of a person means an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, that is used by the person.
medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
member means:
(a) a member of the Defence Force; or
(b) a cadet; or
(ba) a person to whom section 7A applies; or
(c) a declared member.
non‑warlike service has the meaning given by paragraph 6(1)(b).
normal earnings:
(a) in Part 3 of Chapter 4—has the meaning given by subsection 89(3);
(b) in Part 4 of Chapter 4—has the meaning given by subsection 132(2).
normal weekly hours has the meaning given by subsection 132(2).
onset date, for a person’s incapacity for service or work, means the date determined under section 342 for the person.
overtime includes:
(a) time spent performing duties on shifts or on Saturdays, Sundays or other holidays; and
(b) excess travelling time;
that does not count towards the average number of hours worked.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this subsection.
partner of a member means a person in respect of whom at least one of the following applies:
(a) if the member is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands—the person is recognised as the member’s husband or wife by the custom prevailing in the tribe or group to which the member belongs;
(b) the person is legally married to the member;
(ba) a relationship between the person and the member (whether the person and the member are the same sex or different sexes) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(c) the person (whether of the same sex or a different sex to the member):
(i) is, in the Commission’s opinion (see subsection (2)), in a de facto relationship with the member; and
(ii) is not an ancestor, descendant, brother, sister, half‑brother or half‑sister of the member (see subsection (3)).
Note: This section also applies to former members (see section 20).
part‑time Reservist means a member of the Reserves who is not on continuous full‑time service.
pay‑related allowance means an allowance specified in a determination under section 11.
peacetime service has the meaning given by paragraph 6(1)(c).
Permanent Forces has the same meaning as in the Defence Act 1903.
Permanent Forces member means a member of the Permanent Forces.
pharmaceutical benefits has the same meaning as in section 91 of the Veterans’ Entitlements Act 1986.
practising lawyer means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory and who holds a practising certificate (however described) entitling the person to practise that profession.
practitioner means a person:
(a) who is a medical practitioner; or
(b) who is a dental practitioner.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
rehabilitation authority has the meaning given by section 39.
rehabilitation program has the meaning given by section 41.
Repatriation Commission means the body corporate continued in existence by section 179 of the Veterans’ Entitlements Act 1986.
Repatriation Medical Authority means the body corporate established under section 196A of the Veterans’ Entitlements Act 1986.
Reserves has the same meaning as in the Defence Act 1903.
retirement savings account means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997.
Secretary means Secretary of the Department.
service death has the meaning given by section 28 and subsection 29(3).
service disease has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note: A reference to a service disease being contracted includes a reference to a disease being aggravated by defence service (see section 7).
service injury has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note: A reference to a service injury being sustained includes a reference to an injury being aggravated by defence service (see section 7).
service injury, disease or death means a service injury, a service disease or a service death.
service injury or disease means a service injury or a service disease.
Special Rate Disability Pension has the meaning given by section 198.
SRC Minister means the Minister administering Division 3 of Part VII of the Safety, Rehabilitation and Compensation Act 1988.
Statement of Principles means a Statement of Principles made under section 196B of the Veterans’ Entitlements Act 1986.
stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a partner of the person is the stepchild of the person, if he or she would be the person’s stepchild except that the person is not legally married to the partner.
step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a partner of a parent of the person is the step‑parent of the person, if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.
suitable work for a person means work for which the person is suited having regard to the following:
(a) the person’s age, experience, training, language and other skills;
(b) the person’s suitability for rehabilitation or vocational retraining;
(c) if work is available in a place that would require the person to change his or her place of residence—whether it is reasonable to expect the person to change his or her place of residence;
(d) any other relevant matter.
treatment has the meaning given by section 13.
Tribunal means the Administrative Appeals Tribunal.
trust funds, in respect of a trustee of payments of compensation, means the following:
(a) the amounts of compensation received by the trustee;
(b) interest on those amounts;
(c) investments of the compensation or interest;
(d) returns received on those investments.
Veterans’ Affairs Minister means the Minister administering the Veterans’ Entitlements Act 1986.
vocational assessment and rehabilitation has the meaning given by section 41.
warlike service has the meaning given by paragraph 6(1)(a).
wholly dependent partner of a deceased member means a person:
(a) who was the partner of the member immediately before his or her death; and
(b) who was wholly dependent on the member at that time.
Note: A partner who was living with a deceased member immediately before the member’s death is taken to have been wholly dependent on the partner (see section 17).
work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
(2) For the purposes of subparagraph (c)(i) of the definition of partner in subsection (1), section 11A of the Veterans’ Entitlements Act 1986 applies to the forming of the Commission’s opinion about whether a person and a member are in a de facto relationship.
(3) For the purposes of subparagraph (c)(ii) of the definition of partner in subsection (1), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.
6 Kinds of service to which this Act applies
(1) In this Act:
(a) warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b) non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c) peacetime service means any other service with the Defence Force; and
(d) defence service means warlike service, non‑warlike service or peacetime service.
Note: The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
(2) For the purposes of subsection (1), service with the Defence Force means:
(a) for a cadet—participation in the activities of the Australian Defence Force cadets; and
(b) for a declared member—engagement in, or performance of, activities or acts specified in the determination under section 8 that applies to the member.
7 Reference to service injury sustained or service disease contracted includes reference to aggravation etc.
To avoid doubt, a reference to a service injury being sustained, or a service disease being contracted, at a particular time includes a reference to an injury or disease that is aggravated, or materially contributed to, by defence service at such a time.
7A Classes of members
For the purposes of paragraph (ba) of the definition of member in subsection 5(1), this section applies to the following:
(a) a person who holds an honorary rank or appointment in the Defence Force and who performs acts at the request or direction of the Defence Force;
(b) a person who performs acts at the request or direction of the Defence Force as an accredited representative of a registered charity (where the accreditation is by the Defence Force);
(c) a person who is receiving assistance under the Career Transition Assistance Scheme established under a determination under section 58B of the Defence Act 1903 and who performs acts in connection with the scheme.
8 Ministerial determinations that other people are members
(1) The Defence Minister may make a written determination that a person, or a class of persons, who engage, or have engaged, in activities, or who perform, or have performed, acts:
(a) at the request or direction of the Defence Force; or
(b) for the benefit of the Defence Force; or
(c) in relation to the Defence Force, under a requirement made by or under a Commonwealth law;
are taken to be, or to have been, members for the purposes of this Act.
Note: The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
(2) The determination must specify:
(a) the date (which may be retrospective) from which the determination applies; and
(b) the person, or class of persons, to whom the determination applies; and
(c) the activities or acts, or classes of activities or acts, to which the determination applies.
(3) The date referred to in paragraph (2)(a) must be, or be after, the date on which this section commences.
(4) A determination, or a variation or revocation of a determination, is a legislative instrument.
9 Definition of duty for cadets and declared members
In this Act:
duty:
(a) for a cadet—means participation in an activity mentioned in paragraph 6(2)(a); and
(b) for a declared member—means engagement in or performance of an activity or act specified in the determination that applies to the member, as mentioned in paragraph 6(2)(b).
Note: Duty has its ordinary meaning for other kinds of members.
10 Determinations for part‑time Reservists and cadets who are unlikely to return to defence service
Determination that part‑time Reservist unlikely to return to defence service
(1) If a claim for compensation has been made under section 319 in respect of a part‑time Reservist, the Chief of the Defence Force may advise the Commission in writing if the Reservist is unlikely to be able to perform the duties of a part‑time Reservist in the future as a result of his or her incapacity.
Determination that cadet unlikely to return to defence service
(2) If a claim for compensation has been made under section 319 in respect of a cadet, the commanding officer of the cadet’s unit (within the meaning of the Cadet Forces Regulations 1977) may advise the Commission in writing if the cadet is unlikely to be able to perform the duties of a cadet in the future as a result of his or her incapacity.
Person taken to have ceased to be a member
(3) If the Commission is given an advice in respect of a person under subsection (1) or (2), the person is taken to have ceased to be a member for the purposes of this Act.
Advice to specify the date
(4) The advice must specify the date (which must not be retrospective) from which the person is taken to have ceased to be a member for the purposes of this Act.
11 Ministerial determination of pay‑related allowances
(1) The Defence Minister must make a written determination specifying which allowances that are paid under a determination made under section 58B or 58H of the Defence Act 1903 are pay‑related allowances for the purposes of this Act.
Note: The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
(2) A determination, or a variation or revocation of a determination, is a legislative instrument.
12 Deceased members whose dependants are entitled to benefits under this Act
Deceased member whose death was a service death
(1) This section applies in respect of a deceased member if the Commission has accepted liability for the member’s death.
Note: A dependant of a deceased member in respect of whom this section applies might be entitled to compensation under Chapter 5 or 6.
Deceased members eligible for Special Rate Disability Pension
(2) This section applies in respect of a deceased member if the member satisfied the eligibility criteria in section 199 (persons who are eligible for Special Rate Disability Pension) during some period of his or her life.
Deceased members with 80 impairment points
(3) This section applies in respect of a deceased member if the Commission has determined under Part 2 of Chapter 4 that the impairment suffered by the deceased member before the member’s death, as a result of one or more service injuries or diseases, constituted 80 or more impairment points.
13 Definition of treatment
(1) In this Act:
treatment means treatment provided, or action taken, with a view to:
(a) restoring a person to physical or mental health or maintaining a person in physical or mental health; or
(b) alleviating a person’s suffering; or
(c) ensuring a person’s social well‑being.
(2) For the purposes of subsection (1), treatment includes:
(a) providing accommodation in a hospital or other institution, or providing medical procedures, nursing care, social or domestic assistance or transport; and
(b) supplying, renewing, maintaining and repairing artificial replacements, medical aids and other aids and appliances; and
(c) providing diagnostic and counselling services;
for the purposes of, or in connection with, any treatment.
14 Definition of Commonwealth superannuation scheme for a person who has chosen a Special Rate Disability Pension
For the purposes of paragraph (a) of the definition of Commonwealth superannuation scheme in section 5, the normal earnings of a person who has chosen a Special Rate Disability Pension would be worked out under Subdivision D of Division 4 or 8 of Part 4 of Chapter 4 if the amount worked out under that Subdivision is greater than the amount worked out under Subdivision C of Division 4 or 8 of Part 4 of Chapter 4.
15 Definition of dependant
(1) A dependant of a member means any person mentioned in subsection (2):
(a) who is wholly or partly dependent on the member; or
(b) who would be wholly or partly dependent on the member but for an incapacity of the member that resulted from an injury or disease or an aggravation of an injury or disease.
Note 1: Sections 17 and 18 set out some examples of when a person is wholly dependent on a member.
Note 2: This section also applies to former members (see section 20).
(2) These are the persons who can be a dependant of a member for the purposes of subsection (1):
(a) any of the following persons:
(i) the member’s partner;
(ii) a parent or step‑parent of the member;
(iii) a parent or step‑parent of the member’s partner;
(iv) a grandparent of the member;
(v) a child or stepchild of the member;
(vi) a child or stepchild of the member’s partner;
(vii) a grandchild of the member;
(viii) the member’s brother, sister, half‑brother or half‑sister; or
Note: This paragraph is affected by section 16.
(b) a person in respect of whom the member stands in the position of a parent; or
(c) a person who stands in the position of a parent to the member.
16 Certain relationships
(1) For the purposes of paragraph 15(2)(a), if one person is the child of another person because of:
(a) adoption; or
(b) the definition of child in this Act;
relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of paragraphs 215(f) and 218(g), the relatives of a person are taken to include the following (without limitation):
(a) a partner of the person;
(b) a stepchild or an adopted child of the person, or someone of whom the person is a stepchild or an adopted child;
(c) someone who is a child of the person, or someone of whom the person is a child, because of the definition of child in this Act;
(d) anyone else who would be a relative of the person if someone mentioned in paragraph (a), (b) or (c) is taken to be a relative of the person.
17 When partners and eligible young persons are wholly dependent on a member
Partners
(1) For the purposes of this Act, the partner of a member is taken to be wholly dependent on the member if:
(a) the partner lives with the member; or
(b) the Commission is of the opinion that the partner would be living with the member but for a temporary absence of the member or partner or but for an absence of the member or partner due to illness or infirmity.
Note: This subsection also applies to former members (see section 20).
Eligible young persons
(2) For the purposes of this Act, an eligible young person is taken to be wholly dependent on a member if:
(a) either:
(i) the young person lives with the member; or
(ii) the Commission is of the opinion that the young person would be living with the member but for a temporary absence of the member or young person or but for an absence of the member or young person due to illness or infirmity; or
(b) the member is liable to provide child support under the Child Support (Assessment) Act 1989 for the young person.
Note: This subsection also applies to former members (see section 20).
18 Child of a member born or adopted after the member’s death
(1) For the purposes of this Act, a child of a deceased member who is born alive after the member’s death:
(a) is taken to have been wholly dependent on the member immediately before the member’s death; and
(b) is taken to have been an eligible young person immediately before the member’s death.
Note: A deceased member may be a member or former member at the time of his or her death (see the definition of deceased member in section 5).
(2) For the purposes of this Act, if, before a deceased member’s death, a member begins adoption proceedings to adopt a child, and the proceedings are finalised after the member’s death, the child:
(a) is taken to have been wholly dependent on the member immediately before the member’s death; and
(b) is taken to have been an eligible young person immediately before the member’s death.
Note: A deceased member may be a member or former member at the time of his or her death (see the definition of deceased member in section 5).
19 Ascertaining whether persons receiving family tax benefits etc. are dependent
For the purposes of ascertaining whether a person is or was dependent on a member, any amount of the following benefits must not be taken into account:
(a) family tax benefit worked out under Part 2 or 3 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an individual’s Part A rate);
(b) carer’s allowance under the Social Security Act 1991;
(c) double orphan pension under the Social Security Act 1991.
Note: This section also applies to former members (see section 20).
20 Some references to members include references to former members
For the purposes of the definition of partner in section 5, and for the purposes of sections 15, 17 and 19, a reference to a member includes a reference to a former member.
Chapter 2—Accepting liability for service injuries, diseases and deaths
Part 1—Simplified outline of this Chapter
21 Simplified outline of this Chapter
A condition for most benefits under this Act is that the Commission has accepted liability for an injury, disease or death. The Commission accepts liability if there is some connection between the injury, disease or death and defence service.
The process for deciding whether to accept liability is as follows:
(a) first, a person makes a claim under section 319 for acceptance of liability for an injury, disease or death (the rules for making claims are found in Chapter 7);
(b) then, the Commission decides whether the injury, disease or death is a service injury, disease or death under Part 3;
(c) then, the Commission decides whether it is prevented from accepting liability for the injury, disease or death because of an exclusion under Part 4 (for example, because the injury, disease or death resulted from a serious default or a wilful act).
The Commission must accept liability if the injury, disease or death is a service injury, disease or death, and none of the exclusions in Part 4 apply.
The effect of this Chapter in respect of cadets and declared members might be modified by the regulations (see section 439).
Part 2—When the Commission must accept liability for service injuries, diseases and deaths
22 Simplified outline of this Part
The Commission accepts liability for an injury, disease or death under this Part.
The Commission must accept liability if a claim for acceptance of liability has been made under section 319, the injury, disease or death is a service injury, disease or death, and none of the exclusions in Part 4 apply.
There are 2 standards of proof that the Commission applies in deciding matters under this Chapter (and the rest of the Act).
The more beneficial standard of proof (in subsections 335(1) and (2)) applies to some claims that an injury, disease or death is a service injury, disease or death that relates to warlike or non‑warlike service. The other standard of proof (in subsection 335(3)) applies to all other decisions under this Chapter.
For some claims for acceptance of liability for an injury, disease or death the standard of proof can only be met if the injury or disease, or the cause of death, is covered by a Statement of Principles (see sections 338 and 339). (Chapter 7 has more rules about the Statements of Principles.)
A Statement of Principles is an instrument made under the Veterans’ Entitlements Act 1986. The Statement sets out all factors related to defence service that have been found to cause specific injuries, diseases and deaths.
For other claims for acceptance of liability, the Statements of Principles are not relevant.
23 Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease under section 27; and
(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b) all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
When Commission must accept liability for service injuries and diseases arising from Commonwealth treatment
(2) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease under section 29 (arising from treatment provided by the Commonwealth); and
(b) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note: The standard of proof mentioned in subsection 335(3) applies to all claims:
(a) that an injury or disease is a service injury or disease under section 29; and
(b) when determining whether a person sustained a particular injury or contracted a particular disease.
When Commission must accept liability for service injuries and diseases arising from aggravations of signs and symptoms
(3) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease under section 30 (aggravations etc. of signs and symptoms); and
(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that an injury or disease is a service injury or disease that relates to peacetime service; and
(b) all claims when determining whether a sign or symptom was aggravated etc.; and
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Acceptance of liability for aggravations etc. of injuries and diseases
(4) A reference in this section to acceptance of liability for an injury or disease is taken to include a reference to acceptance of liability for an aggravation of an injury or disease.
Note: The definitions of injury and disease exclude aggravations (see section 5).
24 Commission’s acceptance of liability for service deaths
When Commission must accept liability for service deaths
(1) The Commission must accept liability for the death of a person if:
(a) the person’s death is a service death under section 28; and
(b) the Commission is not prevented from accepting liability for the death by subsection 34(4) or section 35 or 36; and
(c) a claim for acceptance of liability for the death has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the death is a service death that relates to warlike or non‑warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the death is a service death that relates to peacetime service;
(b) all claims when determining whether a person sustained or contracted a particular injury or disease;
(c) all claims when determining the cause of a person’s death;
(d) all claims when determining whether the Commission is prevented from accepting liability for the death by subsection 34(4) or section 35 or 36.
When Commission must accept liability for service deaths arising from Commonwealth treatment
(2) The Commission must accept liability for the death of a person if:
(a) the person’s death is a service death under section 29 (service death arising from treatment provided by the Commonwealth); and
(b) a claim for acceptance of liability for the death has been made under section 319.
Note: The standard of proof mentioned in subsection 335(3) applies to all claims:
(a) that a death is a service death under section 29; and
(b) when determining the cause of a person’s death.
Commission must accept liability for deaths after being prevented from accepting liability for the injury or disease that resulted in the death
(3) To avoid doubt, the Commission must accept liability for a service death even if the Commission was prevented by section 32 or 33 from accepting liability for a service injury or disease that resulted in the death.
Note: Sections 32 and 33 only prevent the Commission from accepting liability for a service injury or disease, and not a service death.
25 Limited effect of acceptance of liability
The Commission’s acceptance of liability for an injury, disease or death only has effect for the purposes of this Act.
Note: This means that a person cannot rely on the Commission’s acceptance of liability for an injury, disease or death in a common law action against the Commonwealth.
Part 3—Definitions of service injury, service disease and service death
26 Simplified outline of this Part
This Part defines service injury, service disease and service death.
An injury, disease or death is a service injury, disease or death if:
(a) it is related to defence service in the ways mentioned in section 27 or 28; or
(b) it resulted from certain treatment provided by the Commonwealth (see section 29); or
(c) an aggravation of, or a material contribution to, a sign or symptom of the injury or disease relates to defence service (see section 30).
However, even if an injury, disease or death is a service injury or disease under this Part, the Commission might be prevented from accepting liability for the injury, disease or death by an exclusion under Part 4.
27 Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e) the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
28 Main definition of service death
Definition of service death
(1) For the purposes of this Act, the death of a person is a service death if one or more of the following apply:
(a) the death resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the death arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission, the death was due to:
(i) an accident that would not have occurred; or
(ii) a disease that would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease from which the person died:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
(e) the injury or disease from which the person died is an injury or disease that has been determined under section 27, 29 or 30 to be a service injury or a service disease, as the case may be;
Note 1: The effect of this paragraph is that, if the person has died from an injury or disease that has already been determined by the Commission to be a service injury or disease, the death is a service death. Accordingly, the Commission is not required to relate the death to defence service rendered by the person and sections 338 and 339 do not apply.
Note 2: This paragraph does not apply to certain aggravations etc. of injuries and diseases (see subsection (2)).
(f) the death resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
Aggravations etc. that cease before death
(2) Paragraph (1)(e) does not apply if:
(a) the service injury or disease mentioned in that paragraph is an aggravated injury or disease; and
(b) immediately before the death, the injury or disease was no longer aggravated or contributed to in a material degree.
29 Definitions of service injury, service disease and service death arising from treatment provided by the Commonwealth
Liability for injuries and diseases caused by treatment
(1) For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) all of the following apply:
(i) the person receives treatment for an earlier service injury or service disease;
(ii) the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii) as a consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease; or
(b) the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and as an unintended consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease.
Liability for injuries and diseases aggravated by treatment
(2) For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) all of the following apply:
(i) the person receives treatment for an earlier service injury or service disease;
(ii) the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii) as a consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment; or
(b) the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and, as an unintended consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment.
Liability for deaths caused by treatment
(3) For the purposes of this Act, the death of a person is a service death if:
(a) either:
(i) the person receives treatment under this Act for a service injury or disease and the treatment is paid for or provided wholly or partly by the Commonwealth; or
(ii) the person receives any treatment under regulations made under the Defence Act 1903; and
(b) as a consequence of that treatment, the person dies.
30 Definitions of service injury and service disease for aggravations etc. of signs and symptoms
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:
(a) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
(b) in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
Part 4—When the Commission is prevented from accepting liability for service injuries, diseases and deaths
31 Simplified outline of this Part
Even if the Commission decides that an injury, disease or death is a service injury, disease or death, the Commission might be prevented from accepting liability for that injury, disease or death because of an exclusion under this Part.
There are 5 kinds of exclusions. They relate to the following:
(a) serious defaults or wilful acts etc.;
(b) reasonable counselling about a person’s performance as a member;
(c) false representations;
(d) travel during peacetime service;
(e) the use of tobacco products.
The Commission applies the standard of proof mentioned in subsection 335(3) in deciding whether the exclusions apply.
32 Exclusions relating to serious defaults or wilful acts etc.
Exclusion of injuries or diseases resulting from serious default or wilful acts etc.
(1) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the injury or disease resulted from the person’s serious default or wilful act while a member; or
(b) the injury or disease arose from:
(i) a serious breach of discipline committed by the person while a member; or
(ii) an occurrence that happened while the person was committing a serious breach of discipline while a member; or
(c) the injury or disease was intentionally self‑inflicted while the person was a member;
except if the injury or disease results in serious and permanent impairment.
(2) For the purpose of paragraph (1)(a), an injury or disease is taken to have resulted from a person’s serious default or wilful act if:
(a) the person consumed alcohol or took a drug (other than a drug administered by a person legally authorised to administer the drug or a drug legally obtained and taken in accordance with the directions provided with the drug); and
(b) the injury or disease resulted from being under the influence of the alcohol or drug.
This subsection does not otherwise limit paragraph (1)(a).
Exclusion of aggravations etc. resulting from serious default etc.
(3) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the injury or disease has been contributed to in a material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation:
(i) resulted from the serious default or wilful act of the person while a member; or
(ii) arose from a serious breach of discipline committed by the person while a member; or
(iii) arose from an occurrence that happened while the person was committing a serious breach of discipline while a member; or
(iv) was intentionally self‑inflicted while the person was a member;
except if the aggravation or material contribution results in serious and permanent impairment.
Exclusion of aggravations etc. of signs or symptoms resulting from serious default etc.
(4) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person if:
(a) a sign or symptom of the injury or disease has been contributed to in a material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation:
(i) resulted from the serious default or wilful act of the person while a member; or
(ii) arose from a serious breach of discipline committed by the person while a member; or
(iii) arose from an occurrence that happened while the person was committing a serious breach of discipline while a member; or
(iv) was intentionally self‑inflicted while the person was a member;
except if the aggravation or material contribution results in serious and permanent impairment.
(5) For the purpose of subparagraph (3)(b)(i) or (4)(b)(i), a material contribution or aggravation is taken to have resulted from a person’s serious default or wilful act if:
(a) the person consumed alcohol or took a drug (other than a drug administered by a person legally authorised to administer the drug or a drug legally obtained and taken in accordance with the directions provided with the drug); and
(b) the material contribution or aggravation results from being under the influence of the alcohol or drug.
This subsection does not otherwise limit subparagraph (3)(b)(i) or (4)(b)(i).
33 Exclusions relating to reasonable counselling about performance etc.
Injuries or diseases resulting from reasonable counselling about performance etc.
(1) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person if the injury or disease resulted from:
(a) reasonable and appropriate counselling in relation to the person’s performance as a member; or
(b) a failure to obtain a promotion, transfer or benefit in relation to the person’s service as a member.
Aggravations etc. of injuries or diseases resulting from reasonable counselling about performance etc.
(2) The Commission must not accept liability for an injury sustained, or a disease contracted, by a member if:
(a) the injury or disease was contributed to in a material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation resulted from:
(i) reasonable and appropriate counselling in relation to the person’s performance as a member; or
(ii) a failure to obtain a promotion, transfer or benefit in relation to the person’s service as a member.
Aggravations etc. of signs and symptoms of injuries or diseases resulting from reasonable counselling about performance etc.
(3) The Commission must not accept liability for an injury sustained, or a disease contracted, by a member if:
(a) a sign or symptom of the injury or disease was contributed to in a material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation resulted from:
(i) reasonable and appropriate counselling in relation to the person’s performance as a member; or
(ii) a failure to obtain a promotion, transfer or benefit in relation to the person’s service as a member.
34 Exclusions of injuries, diseases and deaths relating to certain false representations
Injuries or diseases
(1) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person, if the person made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that injury or disease.
Aggravations etc. of injuries or diseases
(2) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person, if:
(a) the injury or disease was contributed to in a material degree, or aggravated, by defence service; and
(b) the person made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that injury or disease.
Aggravations etc. of signs and symptoms of injuries or diseases
(3) The Commission must not accept liability for an injury sustained, or a disease contracted, by a person, if:
(a) a sign or symptom of the injury or disease was contributed to in a material degree, or aggravated, by defence service; and
(b) the person made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that injury or disease.
Deaths
(4) The Commission must not accept liability for the death of a person if the person made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from the injury or disease that resulted in his or her death.
35 Exclusions relating to travel
Commission not to accept liability for injuries etc. resulting from certain peacetime accidents
(1) This section only applies in respect of an injury, disease or death of a person that relates to peacetime service rendered by the person as a member.
Note: This section applies if the injury, disease or death is a service injury, disease or death because of the application of any of sections 27, 28 and 30 (not only paragraphs 27(e) and 28(1)(f)).
(2) The Commission must not accept liability for:
(a) an injury sustained, or a disease contracted, by a person, or the death of a person; or
(b) an injury or a disease that has been aggravated, or materially contributed to; or
(c) an injury or disease, a sign or symptom of which has been aggravated, or materially contributed to;
if the injury, disease, death, aggravation or material contribution resulted from the kinds of accidents mentioned in subsection (3), (4) or (5).
Substantial delay commencing journey
(3) The Commission must not accept liability if the injury, disease, death, aggravation or material contribution resulted from an accident that occurred while the person was a member travelling on a journey from the person’s place of duty if the person delayed commencing the journey for a substantial time after he or she ceased to perform duty at that place, unless:
(a) the delay was for a reason connected with the performance of the person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by that delay or by anything that happened during that delay.
Routes that are not reasonably direct
(4) The Commission must not accept liability if the injury, disease, death, aggravation or material contribution resulted from an accident that occurred while the person was a member travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(a) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by reason that the journey, or that part of the journey, was made by that route.
Substantial interruptions to journeys
(5) The Commission must not accept liability if the injury, disease, death, aggravation or material contribution resulted from an accident that occurred while the person was a member travelling on a part of a journey made after a substantial interruption of the journey, unless:
(a) the interruption was made for a reason connected with the performance of the person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by reason of that interruption.
36 Exclusion relating to use of tobacco products
The Commission must not accept liability for:
(a) an injury sustained, or a disease contracted, by a person, or the death of a person; or
(b) an injury or a disease that has been aggravated, or materially contributed to; or
(c) an injury or disease, a sign or symptom of which has been aggravated, or materially contributed to;
if the injury, disease, death, aggravation or material contribution is related to defence service only because of the person’s use of tobacco products.
Chapter 3—Rehabilitation
Part 1—General provisions
Division 1—Simplified outline of this Chapter
37 Simplified outline of this Chapter
This Chapter provides for the following for certain current and former members suffering a service injury or disease:
(a) rehabilitation programs;
(b) assistance in finding suitable defence or civilian work;
(c) assistance in moving from defence service to civilian life.
The capacity for rehabilitation of a person with a service injury or disease is assessed under Part 2. If the person is capable of rehabilitation, he or she may be required to undertake a rehabilitation program under that Part.
Under Part 3, a person who is undertaking a rehabilitation program, or a person who cannot undertake a program, can have his or her home or place of work etc. altered or an aid or appliance provided.
All members and former members who are incapacitated for service or work are assisted in finding suitable work under Part 4.
A case manager is appointed under Part 5 to assist a Permanent Forces member, a continuous full‑time Reservist or a part‑time Reservist move to civilian life if the person is likely to be discharged from the Defence Force.
Division 2—Aim of rehabilitation
38 Aim of rehabilitation
The aim of rehabilitation is to maximise the potential to restore a person who has an impairment, or an incapacity for service or work, as a result of a service injury or disease to at least the same physical and psychological state, and at least the same social, vocational and educational status, as he or she had before the injury or disease.
Division 3—Definitions
39 Definition of rehabilitation authority
(1) The Chief of the Defence Force is a rehabilitation authority for the purposes of this Chapter.
(2) The Commission is a rehabilitation authority for the purposes of this Chapter.
(3) The rehabilitation authority for a person at a time is:
(a) subject to paragraph (aa), the Chief of the Defence Force for a time when the person:
(i) is a Permanent Forces member, a continuous full‑time Reservist or a part‑time Reservist; and
(ii) has not been identified by or on behalf of the Chief of the Defence Force as being likely to be discharged from the Defence Force for medical reasons; or
(aa) if the Commission, after considering advice from the Chief of the Defence Force, determines, in writing, that the Commission is to be the rehabilitation authority for a specified person at a specified time—the Commission for that time; or
(b) the Commission for any other time.
(4) A determination made under paragraph (3)(aa) is not a legislative instrument.
40 Rule if rehabilitation authority for a person changes
(1) This section applies if a person’s rehabilitation authority (the original rehabilitation authority) changes to another rehabilitation authority (the new rehabilitation authority) because of section 39.
(2) If:
(a) under subsection 44(2), the person requests the original rehabilitation authority to carry out an assessment of the person’s capacity for rehabilitation; and
(b) the rehabilitation authority changes before the assessment begins;
the person’s request is taken to have been made to the new rehabilitation authority.
(3) A determination of the original rehabilitation authority that is in force immediately before the rehabilitation authority changes has effect as a determination of the new rehabilitation authority. The new rehabilitation authority is responsible for giving effect to the determination.
41 Other definitions
(1) In this Chapter:
approved program provider means:
(a) a person or body that is an approved program provider for the purposes of the Safety, Rehabilitation and Compensation Act 1988; or
(b) a person nominated in writing by a rehabilitation authority, being a person the rehabilitation authority is satisfied has appropriate skills and expertise to design and provide rehabilitation programs.
approved rehabilitation program means a rehabilitation program determined under section 51 for a person by the person’s rehabilitation authority.
rehabilitation program means a program that consists of or includes any one or more of the following:
(a) medical, dental, psychiatric and hospital services (whether on an in‑patient or out‑patient basis);
(b) physical training and exercise;
(c) physiotherapy;
(d) occupational therapy;
(e) vocational assessment and rehabilitation;
(f) counselling;
(g) psycho‑social training.
vocational assessment and rehabilitation consists of or includes any one or more of the following:
(a) assessment of transferable skills;
(b) functional capacity assessment;
(c) workplace assessment;
(d) vocational counselling and training;
(e) review of medical factors;
(f) training in resume preparation, job‑seeker skills and job placement;
(g) provision of workplace aids and equipment.
Part 2—Rehabilitation programs
Division 1—Application of Part
42 Simplified outline of this Part
This Part applies to a person who is incapacitated for service or work, or who is impaired, as a result of a service injury or disease.
Most decisions under this Part are made by the person’s rehabilitation authority. The rehabilitation authority is either the Chief of the Defence Force or the Commission.
The rehabilitation authority, either on its own initiative or on the person’s request, carries out an initial assessment of the person’s capacity for rehabilitation. The person might be required to undergo an examination (paid for by the Commonwealth) as part of the assessment. (Compensation can be paid for costs incurred in travelling to the examination.)
Once the assessment is done, the rehabilitation authority decides if the person should undertake a rehabilitation program (provided by an approved program provider). In certain cases, the rehabilitation authority can stop or vary the program once it has begun.
A person’s right to compensation can be suspended if the person fails to undergo an examination or fails to undertake the program as required.
43 Persons to whom this Part applies
(1) This Part applies to a person at a time if, at that time:
(a) the person is incapacitated for service or work, or has an impairment, as a result of a service injury or disease; and
(b) the Commission has accepted liability for the injury or disease.
(2) To avoid doubt, this Part applies to a person who is incapacitated or impaired as a result of an aggravated injury or disease even if the incapacity or impairment resulted from the original injury or disease and not from the aggravation or material contribution.
Division 2—Assessment of a person’s capacity for rehabilitation
44 When an assessment may or must be carried out
Assessments on rehabilitation authority’s initiative
(1) The rehabilitation authority for a person to whom this Part applies may, on its own initiative, carry out an initial assessment or a further assessment of the person’s capacity for rehabilitation.
Requests for assessments
(2) A person to whom this Part applies may request his or her rehabilitation authority to carry out an initial assessment or a further assessment of his or her capacity for rehabilitation.
(3) The rehabilitation authority:
(a) must carry out an initial assessment; and
(b) may carry out a further assessment;
if the person requests the rehabilitation authority to do so.
Requirement to carry out assessment before ceasing or varying a program
(4) The rehabilitation authority must carry out an assessment before ceasing or varying a rehabilitation program under section 53.
45 What may be done as part of an assessment
(1) This section applies if the person’s rehabilitation authority carries out an assessment under section 44 of the person’s capacity for rehabilitation.
(2) The rehabilitation authority may seek the assistance of a person the authority is satisfied has suitable qualifications or expertise to provide assistance.
(3) The rehabilitation authority may take into account any relevant information of which it is aware.
(4) The rehabilitation authority may require the person to undergo an examination under section 46.
46 Requirements for examinations
(1) This section applies if the person’s rehabilitation authority requires the person to undergo an examination.
(2) The examination is to be carried out by an examiner nominated by the rehabilitation authority whom the authority is satisfied has suitable qualifications or expertise to carry out the examination.
(3) The examiner must give a written report of the examination to the rehabilitation authority. The report must include:
(a) an assessment of the person’s capacity for rehabilitation; and
(b) if the person has a capacity for rehabilitation—the kinds of rehabilitation from which the person would benefit; and
(c) any other information relating to the provision of a rehabilitation program for the person that the rehabilitation authority requires.
(4) The Commonwealth is liable to pay the cost of conducting the examination.
47 Compensation for journey and accommodation costs
The Commonwealth is liable to pay compensation for any costs reasonably incurred if:
(a) the costs are incurred:
(i) in making a necessary journey in connection with the examination; or
(ii) in remaining, for the purpose of the examination, at a place to which the person has made a journey for that purpose; and
(b) a claim for compensation in respect of the person has been made under section 319.
Note: This section might be affected by section 50 or 52 (failure to undergo examination or rehabilitation program).
48 Amount of compensation for journey and accommodation costs
(1) The amount of compensation that the Commonwealth is liable to pay under section 47 is the amount determined by the rehabilitation authority to be the amount reasonably incurred in making the journey or remaining at the place.
(2) In determining the amount, the rehabilitation authority must have regard to:
(a) the means of transport available to the person for the journey; and
(b) the route or routes by which the person could have travelled; and
(c) the accommodation available to the person.
49 Whom the compensation is payable to
(1) Compensation under section 47 for costs reasonably incurred is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided services in connection with the journey or accommodation; or
(ii) any other person who incurred the cost of services in connection with the journey or accommodation.
Note: A special rule applies if a trustee is appointed under section 432.
(2) A payment under section 47 to a person who provided services in connection with the journey or accommodation discharges any liability of any other person for the cost of those services to the extent of the payment.
50 Consequences of failure to undergo an examination
(1) If the rehabilitation authority for a person requires the person to undergo an examination under section 45 and the person:
(a) refuses or fails to undergo the examination; or
(b) in any way obstructs the examination;
the rehabilitation authority may determine that the person’s right to compensation (but not the person’s right to treatment or compensation for treatment under Chapter 6) under this Act is suspended until the examination takes place.
(2) A determination under subsection (1) must not be made in relation to a refusal or failure to undergo the examination if, before the time fixed for the examination, the person gives to the rehabilitation authority evidence of a reasonable excuse for the refusal or failure.
(3) The rehabilitation authority must determine that the suspension under subsection (1) is terminated from a date determined by the rehabilitation authority if, within 14 days after the date fixed for the examination, the person gives to the rehabilitation authority evidence of a reasonable excuse for the refusal, failure or obstruction.
(4) If a determination under subsection (1) is made by a delegate of the rehabilitation authority, the rehabilitation authority must ensure that any determination terminating the suspension under subsection (3) also made by a delegate of the rehabilitation authority is made by a delegate other than a delegate who was involved in making the determination under subsection (1).
(5) If a person’s right to compensation is suspended under subsection (1), compensation is not payable during or in respect of the period of the suspension.
Division 3—Provision of rehabilitation programs
51 Rehabilitation authority may determine that a person is to undertake a rehabilitation program
(1) The rehabilitation authority for a person to whom this Part applies may determine that the person is to undertake a rehabilitation program specified in the determination if an assessment has been made under section 44 of the person’s capacity for rehabilitation.
(2) In making a determination under subsection (1) in respect of the person, the person’s rehabilitation authority is to have regard to the following:
(a) any written report in respect of the person under subsection 46(3);
(b) any reduction in the future liability of the Commonwealth to pay or provide compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the person’s opportunity to be engaged in work after completing the program;
(e) the person’s attitude to the program;
(f) the relative merits of any alternative and appropriate rehabilitation program;
(g) any other matter the rehabilitation authority considers relevant.
(3) If the rehabilitation authority for a person makes a determination under subsection (1) that a person is to undertake a rehabilitation program, the rehabilitation authority must make arrangements with an approved program provider for the provision of the program for the person.
Note: The person might also be entitled to have his or her home altered or aids or appliances provided under Part 3.
(4) For the purposes of designing or providing a rehabilitation program:
(a) the rehabilitation authority or approved program provider concerned may seek the assistance of persons with suitable qualifications or expertise in the design or provision of rehabilitation programs; and
(b) the rehabilitation authority or approved program provider concerned may take into account any relevant information of which it is aware or that is brought to its attention.
(5) The cost of a rehabilitation program provided for a person under this section is to be paid by the Commonwealth.
52 Consequences of failure to undertake a rehabilitation program
(1) If the rehabilitation authority for a person requires the person to undertake a rehabilitation program under section 51, and the person refuses or fails to undertake the rehabilitation program, the rehabilitation authority may determine that the person’s right to compensation (but not the person’s right to treatment or compensation for treatment under Chapter 6) under this Act is suspended until the person undertakes the rehabilitation program.
(2) A determination under subsection (1) must not be made in relation to a refusal or failure to undertake the rehabilitation program if, before the date fixed for starting the rehabilitation program, the person gives to the rehabilitation authority evidence of a reasonable excuse for the refusal or failure.
(3) The rehabilitation authority must determine that the suspension under subsection (1) is terminated from a date determined by the rehabilitation authority if, within 14 days after the date fixed for starting the rehabilitation program, the person gives to the rehabilitation authority evidence of a reasonable excuse for the refusal or failure.
(4) If a determination under subsection (1) is made by a delegate of the rehabilitation authority, the rehabilitation authority must ensure that any determination terminating the suspension under subsection (3) also made by a delegate of the rehabilitation authority is made by a delegate other than a delegate who was involved in making the determination under subsection (1).
(5) If a person’s right to compensation is suspended under subsection (1), compensation is not payable during or in respect of the period of the suspension.
53 Cessation or variation of a rehabilitation program
(1) This section applies if:
(a) the rehabilitation authority for a person has made a determination under subsection 51(1) that the person is to undertake a rehabilitation program; and
(b) an approved program provider has commenced providing the rehabilitation program.
(2) The rehabilitation authority may, on its own initiative or on written application by the person, determine that:
(a) the rehabilitation program cease; or
(b) the rehabilitation program be varied.
(3) Before making a determination under subsection (2), the rehabilitation authority must:
(a) undertake an assessment under section 44 of the person’s capacity for rehabilitation; and
(b) consult the person about the proposed determination.
Part 3—Alterations, aids and appliances relating to rehabilitation
Division 1—Preliminary
54 Simplified outline of this Part
This Part applies to a person with an impairment from a service injury or disease who is either undertaking a rehabilitation program or who cannot undertake a program.
If it is reasonably required for the person, the Commission can:
(a) alter the person’s home or work; or
(b) alter articles used by the person; or
(c) repair or provide aids or appliances for the person.
55 Persons to whom Part applies
(1) This Part applies to a person if:
(a) the person has an impairment as a result of a service injury or disease; and
(b) the Commission has accepted liability for the injury or disease; and
(c) the person:
(i) is undertaking, or has completed, an approved rehabilitation program in respect of the impairment; or
(ii) has been assessed under section 44 as not having the capacity for rehabilitation.
(2) To avoid doubt, this Part applies to a person who has an impairment as a result of an aggravated injury or disease even if the impairment resulted from the original injury or disease and not from the aggravation or material contribution.
Division 2—Alterations, aids and appliances relating to rehabilitation
56 Alterations, aids and appliances relating to rehabilitation
(1) The Commission may do the following for a person to whom this Part applies:
(a) alter the person’s place of residence, education, work or service, or articles used by the person;
(b) provide aids or appliances for use by the person; or
(c) repair or replace any aids or appliances for use by the person;
if the alterations, aids or appliances are reasonably required by the person.
Note: Section 58 sets out the matters that the Commission must consider in determining if an alteration, aid or appliance is reasonably required by the person.
(2) The Commonwealth is liable to pay compensation for any costs reasonably incurred by a person to whom this Part applies if the costs are incurred in respect of alterations, aids or appliances of a kind mentioned in subsection (1).
(3) A claim for compensation in respect of the person must have been made under section 319.
Note: This section might be affected by section 50 or 52 (failure to undergo examination or rehabilitation program).
57 Amount of compensation for alterations, aids and appliances
The amount of compensation that the Commonwealth is liable to pay under subsection 56(2) is the amount determined by the Commission to be the amount reasonably incurred in respect of the alterations, aids or appliances.
Note: Section 58 sets out the matters that the Commission must consider in determining the amount of compensation.
58 Matters to be considered in determining matters relating to alterations, aids and appliances
(1) This section applies for the purposes of:
(a) determining whether an alteration, aid or appliance is reasonably required by a person under section 56; and
(b) the amount of compensation under section 57.
(2) The Commission must have regard to:
(a) the likely period during which the alteration, article, aid or appliance will be required; and
(b) any difficulties faced by the person in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence, education, work or service; and
(c) whether arrangements can be made for hiring the article, aid or appliance concerned; and
(d) if the person has previously received compensation under this section in respect of an alteration of his or her place of residence and has later disposed of that place of residence—whether the value of that place of residence was increased as a result of the alteration; and
(e) if the person is a Permanent Forces member or a continuous full‑time Reservist:
(i) the length of time that the person is likely to continue to serve as a Permanent Forces member or a continuous full‑time Reservist; and
(ii) whether the provision of an alteration, article, aid or appliance would increase that length of time.
59 Whom compensation for alterations etc. is payable to
(1) Compensation under subsection 56(2) for costs reasonably incurred is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided services in connection with the alteration, aids or appliances; or
(ii) any other person who incurred the cost of services in connection with the alteration, aids or appliances.
Note: A special rule applies if a trustee is appointed under section 432.
(2) A payment under subsection 56(2) to a person who provided services in connection with the alteration, aids or appliances discharges any liability of any other person for the cost of the services to the extent of the payment.
Part 4—Assistance in finding suitable work
60 Simplified outline of this Part
All members and former members who are incapacitated for service or work from a service injury or disease are assisted in finding suitable work under this Part.
The work might be work in the Defence Force or civilian work.
61 Assistance in finding suitable work for full‑time members
(1) This section applies if:
(a) a person is a Permanent Forces member or a continuous full‑time Reservist; and
(b) the person is incapacitated for service or work as a result of a service injury or disease for which the Commission has accepted liability.
(2) To avoid doubt, this section applies to a person who is incapacitated as a result of an aggravated injury or disease even if the incapacity resulted from the original injury or disease and not from the aggravation or material contribution.
(3) The person’s rehabilitation authority must take all reasonable steps to:
(a) if the person is a Permanent Forces member who has not been identified by or on behalf of the Chief of the Defence Force as being likely to be discharged from the Permanent Forces for medical reasons—assist the person to find suitable work within the Permanent Forces; or
(b) if the person is a continuous full‑time Reservist who has not been identified by or on behalf of the Chief of the Defence Force as being likely to be discharged from the Reserves for medical reasons—assist the person to find suitable work as a continuous full‑time Reservist; or
(c) if the person has been identified by or on behalf of the Chief of the Defence Force as being likely to be discharged from the Defence Force for medical reasons—assist the person to find suitable civilian work.
Note: A person who has been identified as being likely to be discharged from the Defence Force is entitled to a case manager (see section 64).
62 Assistance in finding suitable work for other members and former members
(1) This section applies if:
(a) a person:
(i) is a part‑time Reservist, a cadet or a declared member; or
(ii) is a former member; and
(b) the person is incapacitated for service or work as a result of a service injury or disease for which the Commission has accepted liability.
(2) To avoid doubt, this section applies to a person who is incapacitated as a result of an aggravated injury or disease even if the incapacity resulted from the original injury or disease and not from the aggravation or material contribution.
(3) The person’s rehabilitation authority must take all reasonable steps to assist the person to find suitable civilian work.
Part 5—Transition management
63 Simplified outline of this Part
Under this Part, a case manager is appointed to assist a Permanent Forces member, a continuous full‑time Reservist or a part‑time Reservist move from the Defence Force to civilian life if the member or Reservist is likely to be discharged from the Defence Force for medical reasons (whether or not as a result of a service injury or disease).
64 Transition management
(1) This section applies to a person if:
(a) the person is a Permanent Forces member, a continuous full‑time Reservist or a part‑time Reservist; and
(b) the person has been identified by or on behalf of the Chief of the Defence Force as being likely to be discharged from the Defence Force for medical reasons.
(2) The Chief of the Defence Force must appoint a case manager for the person.
(3) The role of the case manager is to assist the person in the transition to civilian life, including by advising the person about entitlements and services for which the person may be eligible as a member or former member, and about how to obtain access to such entitlements and services.
Chapter 4—Compensation for members and former members
Part 1—Simplified outline of this Chapter
65 Simplified outline of this Chapter
This Chapter provides for compensation and other benefits to be provided for current and former members who suffer a service injury or disease.
Part 2 provides for compensation to be provided for current and former members who have suffered a permanent impairment.
Part 3 provides for compensation to be provided for current members who are incapacitated for service from a service injury or disease. Current part‑time Reservists, cadets and declared members who are incapacitated for work can also be paid compensation under that Part.
Part 4 provides for compensation to be provided for former members who are incapacitated for work from a service injury or disease.
Part 5 contains rules for adjusting the amount of compensation the Commonwealth is liable to pay under Parts 3 and 4.
Some former members who have suffered a serious impairment from an injury or disease can choose to be paid a Special Rate Disability Pension under Part 6 instead of compensation under Part 4.
Part 7 provides for additional compensation and benefits to be provided, such as compensation to modify vehicles, and compensation for household and attendant care services and damage to a member’s medical aid. Part 7 also provides for the payment of MRCA supplement.
Part 2—Permanent impairment
66 Simplified outline of this Part
Compensation is payable for permanent impairment that occurs as a result of one or more service injuries or diseases if the degree of that impairment is above a certain level.
The level of impairment is measured in impairment points according to a guide prepared by the Commission.
Interim compensation can be payable to a person whose condition has not stabilised.
The compensation is payable weekly unless the person chooses to convert some or all of the weekly amount to a lump sum.
A severely impaired person who has a dependent child is entitled to an additional lump sum.
67 Guide to determining impairment and compensation
(1) The Commission may determine, in writing, a guide setting out:
(a) criteria to be used in deciding the degree of impairment of a person resulting from a service injury or disease; and
(b) methods by which the degree of that impairment can be expressed in impairment points on a scale from 0 to 100; and
(c) criteria to be used in assessing the effect of a service injury or disease on a person’s lifestyle; and
(d) methods by which the effect of a service injury or disease on a person’s lifestyle can be expressed as a numerical rating; and
(e) methods by which the impairment points of a person, and the effect on a person’s lifestyle, from a service injury or disease can be used to determine the compensation payable to the person under this Part by reference to the maximum compensation that can be payable to a person under this Part.
(2) The guide must:
(a) specify different methods under paragraph (1)(e) for:
(i) service injuries or diseases that relate to warlike service or non‑warlike service; and
(ii) other service injuries or diseases; and
(b) specify a method for determining the compensation payable to a person who has both:
(i) a service injury or disease that relates to warlike service or non‑warlike service; and
(ii) another service injury or disease.
(3) The Commission may, from time to time, repeal or amend the guide in writing.
(4) The guide, and any repeal or amendment of the guide, is a legislative instrument.
68 Entitlement to compensation for permanent impairment
(1) The Commonwealth is liable to pay compensation to a person if:
(a) the Commission has accepted liability for one or more service injuries or diseases (the compensable condition) of the person; and
(b) the Commission is satisfied that:
(i) as a result of the compensable condition, the person has suffered an impairment; and
(ii) the impairment is likely to continue indefinitely; and
(iii) the person’s compensable condition has stabilised; and
(c) a claim for compensation in respect of the person has been made under section 319.
Note 1: The impairment must constitute a minimum number of impairment points for compensation to be payable (see sections 69 and 70). However, the impairment points from more than one service injury or disease can be combined to make up that minimum number.
Note 2: This subsection might also be affected by sections 73 (indefinite impairments) and 389 (choice to institute action for damages).
(2) The Commission must determine:
(a) the degree of impairment suffered by the person as a result of the compensable condition; and
(b) the date on which the person became entitled to compensation under this section by satisfying paragraph (1)(b) and sections 69 and 70 (if applicable).
69 No compensation for less than the threshold impairment points
The Commonwealth is liable to pay compensation to a person under section 68 only if:
(a) for an impairment resulting from a single service injury or disease consisting of:
(i) hearing loss; or
(ii) the loss, or the loss of the use, of a finger or toe; or
(iii) the loss of the sense of taste or smell;
the impairment suffered by the person constitutes at least 5 impairment points; and
(b) otherwise—the impairment suffered by the person from the compensable condition constitutes at least 10 impairment points.
Note: This section might be affected by section 70 (aggravations etc.).
70 Compensation for aggravations etc.
(1) The Commonwealth is liable to pay compensation under section 68 in respect of a single aggravated injury or disease only if:
(a) for an aggravation of, or a material contribution to:
(i) hearing loss; or
(ii) the loss, or the loss of the use, of a finger or toe; or
(iii) the loss of the sense of taste or smell;
the impairment suffered by the person as a result of the aggravation or material contribution constitutes at least 5 impairment points; and
(b) otherwise—the impairment suffered by the person as a result of the aggravation or material contribution constitutes at least 10 impairment points.
(2) The amount of compensation that the Commonwealth is liable to pay in respect of the person’s aggravated injury or disease is the amount payable in respect of the impairment points of the person, and the effect on the person’s lifestyle, from the aggravation or material contribution.
71 Additional compensation
Additional compensation for impairment from another service injury or disease
(1) The Commonwealth is liable to pay additional compensation to a person who has been paid, or is entitled to be paid, compensation under this Part (including interim compensation under section 75) if:
(a) the Commission has accepted liability for one or more additional service injuries or diseases of the person (other than the original compensable condition in respect of which the person is entitled to be paid compensation); and
(b) the Commission is satisfied that:
(i) as a result of the additional injuries or diseases, the person suffers additional impairment; and
(ii) the additional impairment is likely to continue indefinitely; and
(iii) the increase in the person’s overall impairment constitutes at least 5 impairment points; and
(iv) each of the person’s additional injuries or diseases have stabilised; and
(c) a claim for compensation in respect of the person has been made under section 319.
Note 1: The impairment points from more than one service injury or disease can be combined to make up the 5 impairment points needed for compensation to be payable.
Note 2: This subsection might also be affected by sections 72 (aggravations), 73 (indefinite impairments) and 389 (choice to institute action for damages).
Additional compensation for deterioration of original condition
(2) The Commonwealth is liable to pay additional compensation to a person who has been paid, or is entitled to be paid, compensation under this Part (including interim compensation under section 75) for the compensable condition if:
(a) the Commission is satisfied that:
(i) the person has suffered additional impairment as a result of a deterioration in the person’s compensable condition; and
(ii) the additional impairment is likely to continue indefinitely; and
(iii) the deterioration is directly related to the natural progression of the compensable condition; and
(iv) the increase in the person’s overall impairment constitutes at least 5 impairment points; and
(v) the person’s compensable condition has stabilised; and
(b) a claim for compensation in respect of the person has been made under section 319.
Note 1: This subsection might be affected by sections 72 (aggravations etc.) and 73 (indefinite impairments).
Note 2: The Commission must be notified of the deterioration (see paragraph 77(3)(a)).
Determination of date
(3) The Commission must determine the date on which:
(a) for additional compensation under subsection (1)—the person became entitled to compensation under this section by satisfying paragraph (1)(b) and section 72 (if applicable); and
(b) for additional compensation under subsection (2)—the person became entitled to compensation under this section by satisfying paragraph (2)(a).
72 Additional compensation for aggravations etc.
(1) The Commonwealth is liable to pay additional compensation under subsection 71(1) in respect of a single aggravated injury or disease only if the increase in the person’s overall impairment resulting from the aggravation or material contribution constitutes at least 5 impairment points.
(2) The amount of additional compensation that the Commonwealth is liable to pay under subsection 71(1) in respect of the aggravated injury or disease of a person is the amount payable in respect of the impairment points of the person, and the effect on the person’s lifestyle, from the aggravation or material contribution.
73 Deciding whether an impairment is likely to continue indefinitely
For the purposes of subparagraph 68(1)(b)(ii) and subparagraphs 71(1)(b)(ii) and (2)(a)(ii), in deciding whether an impairment suffered by a person is likely to continue indefinitely, the Commission must have regard to:
(a) the duration of the impairment; and
(b) the likelihood of improvement in the one or more service injuries or diseases concerned; and
(c) whether the person has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
74 Amount of compensation
(1) The maximum weekly amount of compensation payable to a person under this Part (including additional compensation under section 71) is $233.07.
Note: The amount of $233.07 is indexed under section 404.
(2) The Commission must, as soon as practicable after the Commonwealth becomes liable to pay compensation under section 68 or 71 to a person for an impairment resulting from one or more service injuries or diseases:
(a) assess the effect of the injuries or diseases on the person’s lifestyle; and
(b) determine the weekly amount of compensation to which the person is entitled under that section.
75 Interim compensation
(1) The Commonwealth is liable to pay interim compensation to a person if:
(a) the Commission is satisfied that the person will be entitled to compensation under section 68 or 71; and
(b) the Commission is not able to determine the degree of impairment suffered by the person because the one or more service injuries or diseases concerned have not stabilised; and
(c) the Commission is satisfied that the impairment suffered by the person as a result of the injuries or diseases constitutes at least the number of impairment points required for the person to become entitled to compensation under section 68 or 71; and
(d) a claim for compensation in respect of the person has been made under section 319.
Note 1: The impairment points from more than one service injury or disease can be combined to make up the impairment points needed for compensation to be payable.
Note 2: Compensation is not payable under this section if the person chooses under section 389 to institute a common law action.
(2) The weekly amount of the interim compensation is the amount the Commission determines to be reasonable having regard to the Commission’s estimate of the final degree of impairment that will be suffered by the person and after assessing the effect of the injuries or diseases on the person’s lifestyle.
(3) The Commission must determine the date on which the impairment suffered by the person constituted at least the number of impairment points required for the person to become entitled to compensation under section 68 or 71.
(4) The Commission must, when the Commission becomes satisfied that the one or more injuries or diseases concerned have all stabilised:
(a) determine the degree of impairment suffered by the person; and
(b) assess the effect of the injuries or diseases on the person’s lifestyle; and
(c) determine the weekly amount of compensation to which the person is entitled.
(5) If the weekly amount determined under subsection (4) is more than the weekly amount determined under subsection (2), the person is entitled to an additional weekly amount equal to the difference between those amounts.
76 Notifying the claimant
(1) If the Commission determines, under section 74, the weekly amount of compensation that is payable to a person under section 68 or 71, or determines the weekly amount of interim compensation payable to a person under subsection 75(2), the Commission must give the person a written notice:
(a) specifying that weekly amount; and
(b) specifying what percentage that weekly amount is of the maximum weekly amount of compensation that could be payable to a person under this Part; and
(c) advising the person that the person can choose, under section 78, to convert some or all of the weekly amount to a lump sum in accordance with that section.
Note 1: Section 74 sets the maximum weekly amount of compensation that could be payable to a person under this Part. That amount is indexed under section 404.
Note 2: If the Commission determines that no compensation is payable under this Part, the Commission is required to notify the person of that determination (see section 346).
(2) If the Commission determines under subsection 75(4) a weekly amount of compensation payable to a person that is more than the weekly amount determined for the person under subsection 75(2), the Commission must give the person a written notice:
(a) specifying the difference between those weekly amounts; and
(b) advising the person that the person can choose, under section 78, to receive a lump sum instead of the difference between those weekly amounts (whether or not the person has made a choice under that section in respect of the amount determined for the person under subsection 75(2)).
Note: The amount of the lump sum is worked out under subsection 78(5).
(3) The notice must specify the date on which it is given.
(4) The notice may be included in the notice given under section 346.
77 When weekly compensation becomes payable
(1) Weekly compensation payable to a person under section 68, to the extent the compensation is in respect of a service injury or disease, is payable from the later of:
(a) the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; and
(b) the date determined by the Commission under paragraph 68(2)(b).
(2) Additional weekly compensation payable to a person under subsection 71(1), to the extent that the compensation is in respect of a service injury or disease, is payable from the later of:
(a) the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; and
(b) the date determined by the Commission under paragraph 71(3)(a).
(3) Additional weekly compensation payable to a person under subsection 71(2), to the extent the compensation is in respect of a deterioration in a service injury or disease, is payable from the later of:
(a) the date on which the Commission was notified of the deterioration in the service injury or disease; and
(b) the date determined by the Commission under paragraph 71(3)(b).
(4) Interim weekly compensation payable to a person under section 75, to the extent the compensation is in respect of a service injury or disease, is payable from the later of:
(a) the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; and
(b) the date determined by the Commission under subsection 75(3).
(5) An additional weekly amount to which a person is entitled under subsection 75(5) is payable from the date on which the Commission becomes satisfied that all of the person’s service injuries or diseases have stabilised.
78 Choice to take lump sum
(1) A person who receives a notice under section 76 about a weekly amount payable to the person under section 68 or 71 or subsection 75(2) (the convertible amount) may choose:
(a) to convert 100% of the convertible amount to a lump sum; or
(b) if the convertible amount is at least 10%, but not more than 20%, of the maximum weekly amount of compensation that could be payable to a person under this Part—to convert 50% of the convertible amount to a lump sum; or
(c) if the convertible amount is more than 20% of the maximum weekly amount of compensation that could be payable to a person under this Part—to convert 25%, 50% or 75% of the convertible amount to a lump sum.
Note: Section 74 sets the maximum weekly amount of compensation that could be payable to a person under this Part. That amount is indexed under section 404.
(2) A person who makes the choice cannot change it.
(3) The choice must be made in writing and must be given to the Commission within 6 months after the date on which the person received the notice.
(4) The Commission may, either before or after the end of that period, extend the period within which the choice must be made if it considers there are special circumstances for doing so.
(5) The amount of the lump sum is worked out using the following formula:
where:
appropriate percentage means the percentage chosen by the person under subsection (1).
notice date means the date specified in the notice given to the person under section 76.
weekly amount converted to a lump sum means the appropriate percentage of the weekly amount payable to the person, as at the date of the notice given to the person under section 76, converted to a lump sum in accordance with advice from the Australian Government Actuary by reference to the person’s age at that date.
Note: Arrears of compensation are payable for the period between the date when compensation became payable and the notice date. These are not subtracted from the weekly amount converted to a lump sum.
(6) However, a lump sum that can be payable to a person must not exceed that worked out by reference to the conversion to a lump sum of a periodic payment payable to a male aged 30.
(7) The legal personal representative of a deceased person is not entitled to choose to convert any percentage of a weekly amount that was payable to the deceased person to a lump sum.
79 When lump sum is payable
(1) The lump sum is payable to the person within 30 days after the date on which the Commission became aware of the choice under section 78.
(2) The Commonwealth is liable to pay interest to the person on the amount of the lump sum if the lump sum is not paid to the person before the end of that period. The interest is payable in respect of the period starting at the end of that period of 30 days and ending on the day on which the lump sum is paid.
(3) The interest is payable at the rate from time to time determined by the Minister by legislative instrument.
80 Additional amounts payable if maximum compensation paid
(1) This section applies to a person (the impaired person) who has been paid, or is entitled to be paid, compensation under this Part if the Commission has determined that the degree of impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 80 impairment points.
(2) The Commonwealth is liable to pay the impaired person $60,000 for each person who is both a dependant of the impaired person and an eligible young person at the later of:
(a) the date determined by the Commission to be the date on which the impairment suffered by the impaired person constitutes at least 80 impairment points; or
(b) either:
(i) if the person has a single service injury or disease—the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; or
(ii) otherwise—the date on which the most recent claim was made under section 319 for acceptance of liability for one of the service injuries or diseases concerned.
Note: The amount of $60,000 is indexed under section 404.
(3) The amount specified in subsection (2) is also payable in respect of a child of the impaired person:
(a) who was born alive on or after the later of those times but who was conceived before that time; or
(b) who was adopted on or after the later of those times but in respect of whom adoption proceedings were begun before that time.
81 Compensation for cost of financial advice and legal advice
Financial advice
(1) The Commonwealth is liable to pay compensation for the cost of financial advice obtained by a person if:
(a) the Commonwealth is liable to pay compensation to the person under section 68, 71 or 75; and
(b) the Commission determines that the impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 50 impairment points; and
(c) the financial advice was obtained from a suitably qualified financial adviser after the Commission had made the determination; and
(ca) the financial advice was obtained in respect of the choice the person may make under subsection 78(1); and
(d) a claim for compensation in respect of the person has been made under section 319.
Legal advice
(2) The Commonwealth is liable to pay compensation for the cost of legal advice obtained by a person if:
(a) the Commonwealth is liable to pay compensation to the person under section 68, 71 or 75; and
(b) the Commission determines that the impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 50 impairment points; and
(c) the legal advice was obtained from a practising lawyer after the Commission had made the determination; and
(d) the legal advice was obtained in respect of the choice the person may make under subsection 78(1); and
(e) a claim for compensation in respect of the person has been made under section 319.
82 Amount of financial advice and legal advice compensation
Financial advice
(1) The Commission must determine an amount of compensation under subsection 81(1) for the cost of the financial advice that it considers reasonable.
Legal advice
(2) The Commission must determine an amount of compensation under subsection 81(2) for the cost of the legal advice that it considers reasonable.
Limit
(3) The sum of the total amount of compensation under subsections 81(1) and (2) in respect of the person must not exceed $2,400.
Note: The amount of $2,400 is indexed under section 404.
(4) The amount of $2,400 applies both to financial advice and legal advice under this Part for the person and financial advice and legal advice under Part 6 (Special Rate Disability Pension) for the person if the date specified in the first notice given to the person under section 76, and the date on which the offer under Part 6 was made, are the same.
83 Whom the compensation is payable to
(1) Compensation under section 81 for the cost of financial advice or legal advice is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who gave the advice; or
(ii) any other person who incurred the cost of the advice.
Note: A special rule applies if a trustee is appointed under section 432.
(2) An amount paid to the person who gave the advice discharges any liability of any other person for the cost of the advice to the extent of the payment.
83A Energy supplement for compensation under this Part
(1) The Commonwealth is liable to pay an energy supplement to a person for a day if:
(a) the condition in subsection (2) is met for the day; and
(b) the person is residing in Australia on the day; and
(c) on the day the person either:
(i) is in Australia; or
(ii) is temporarily absent from Australia and has been so for a continuous period not exceeding 6 weeks.
Note: Section 424L may affect the person’s entitlement to the energy supplement.
Condition—receipt of compensation under this Part
(2) The condition is that either or both of the following apply:
(a) weekly compensation under this Part (except this section):
(i) is payable to the person for the day; or
(ii) would be payable to the person for the day apart from paragraph 398(3)(b) (of this Act) and offsetting described in subsection 13(4) of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004;
(b) before the day the person received lump sum compensation under this Part.
Rate of energy supplement
(3) The daily rate of the supplement is 1/7 of $3.80.
Part 3—Compensation for incapacity for service or work for members
Division 1—Entitlement to compensation
84 Simplified outline of this Part
This Part provides for compensation to be provided for current members who are incapacitated for service as a result of a service injury or disease. The Part also provides for compensation for some current part‑time Reservists, cadets and declared members who are incapacitated for work as a result of a service injury or disease.
The Commission must have accepted liability for the injury or disease, and a claim must have been made in respect of the member, to be entitled to the compensation.
The amount of compensation a member receives for a week depends on the difference between the member’s normal and actual earnings for the week. The member’s normal earnings are a notional amount. The member’s actual earnings are based on how much the member actually earns for the week.
Normal earnings are worked out under Divisions 2 to 6, depending on the member’s current status (for example, as a Permanent Forces member or a Reservist) and their status at the time the service injury or disease occurred.
Division 7 deals with how to work out the amount of compensation a member receives for a week if the member receives or has received a benefit under a Commonwealth superannuation scheme. (However, the amount of compensation the member receives for a week might be worked out under Divisions 2 to 6 if the member has applied for the benefit, but has not begun to receive or has not received the benefit (see section 89B).)
Part 5 of this Chapter contains other important rules that apply in working out normal earnings, actual earnings and the amount of compensation generally.
85 Compensation for incapacitated full‑time members
(1) The Commonwealth is liable to pay compensation to a person for a week if:
(a) the person is a Permanent Forces member or a continuous full‑time Reservist for the week; and
(b) the Commission has accepted liability for a service injury or disease of the person; and
(c) the service injury or disease results in the person’s incapacity for service for the week; and
(d) a claim for compensation in respect of the person has been made under section 319.
Note: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part weeks).
(2) The amount of compensation that the Commonwealth is liable to pay is worked out under section 89 or 89A.
Note: The Commonwealth is not liable to pay compensation if the amount of compensation is nil or a negative amount.
86 Compensation for incapacitated part‑time Reservists
(1) The Commonwealth is liable to pay compensation to a person for a week if:
(a) the person is a part‑time Reservist for the week; and
(b) the Commission has accepted liability for a service injury or disease of the person; and
(c) either or both of the following applies:
(i) the service injury or disease results in the person’s incapacity for service for the week;
(ii) the service injury or disease results in the person’s incapacity for work for the week; and
(d) the Chief of the Defence Force has not advised the Commission under section 10 that the person is unlikely to be able to perform the duties of a part‑time Reservist in the future; and
(e) a claim for compensation in respect of the person has been made under section 319.
Note 1: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part weeks).
Note 2: If the Chief of the Defence Force has advised the Commission under section 10 that a person is unlikely to be able to perform the duties of a part‑time Reservist in the future, the person might be entitled to compensation under Part 4.
(2) The amount of compensation that the Commonwealth is liable to pay is worked out under section 89 or 89A.
Note: The Commonwealth is not liable to pay compensation if the amount of compensation is nil or a negative amount.
87 Compensation for incapacitated cadets and declared members
(1) The Commonwealth is liable to pay compensation to a person for a week if:
(a) the person is a cadet or a declared member for the week; and
(b) the Commission has accepted liability for a service injury or disease of the person; and
(c) the service injury or disease results in the person’s incapacity for work for the week; and
(d) if the person is a cadet—the commanding officer of the cadet’s unit (within the meaning of the Cadet Forces Regulations 1977) has not advised the Commission under section 10 that the person is unlikely to be able to perform the duties of a cadet in the future; and
(e) a claim for compensation in respect of the person has been made under section 319.
Note 1: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part weeks).
Note 2: A person whose commanding officer has advised the Commission under section 10 that the person is unlikely to be able to perform the duties of a cadet in the future might be entitled to compensation under Part 4.
(2) The amount of compensation that the Commonwealth is liable to pay is worked out under section 89 or 89A.
Note: The Commonwealth is not liable to pay compensation if the amount of compensation is nil or a negative amount.
88 No compensation in certain cases relating to aggravations etc. of injuries or diseases
The Commonwealth is only liable to pay compensation under section 85, 86 or 87 in respect of an aggravated injury or disease if it is because of the aggravation or material contribution (whether wholly or partly) that the service injury or disease results in the person’s incapacity for service or work for the week.
89 Amount of compensation for current members
(1) The amount of compensation that the Commonwealth is liable, under section 85, 86, or 87, to pay to a member for a week is worked out using the following formula:
Note: See subsection (4) for an exception.
(2) However, if an amount of compensation worked out using the formula is nil or a negative amount, then the Commonwealth is not liable to pay the compensation for the week.
(3) Use this table to work out a member’s actual earnings and normal earnings:
| Definitions of actual earnings and normal earnings |
| Item | For this type of member | actual earnings has the meaning given by... | normal earnings has the meaning given by... |
| 1 | A Permanent Forces member | section 92 | subsection 91(1) |
| 2 | A continuous full‑time Reservist | section 92 | subsection 91(1) |
| 3 | A part‑time Reservist to whom Division 3 applies | section 101 | subsection 95(1) |
| 4 | A part‑time Reservist to whom Division 4 applies | section 105 | subsection 104(1) |
| 5 | A part‑time Reservist to whom Division 5 applies | section 115 | subsection 108(1) |
| 6 | A cadet or a declared member | the regulations (see Division 6) | the regulations (see Division 6) |
Note 1: If a member’s normal earnings are less than the relevant minimum wage set by a national minimum wage order, then the member’s normal earnings are instead the relevant minimum wage (see section 179).
Note 2: Certain amounts (such as bonuses) are excluded from the calculation of normal and actual earnings under section 180.
(4) Subsection (1) does not apply if section 89A applies.
89A Amount of compensation for persons receiving a Commonwealth superannuation benefit
The amount of compensation that the Commonwealth is liable, under section 85, 86 or 87, to pay for a week to a person who receives either or both a pension or lump sum under a Commonwealth superannuation scheme is worked out in accordance with the following sections:
(a) if the person is receiving only a pension—section 116B;
(b) if the person has received only a lump sum—section 116C;
(c) if the person is receiving a pension and has received a lump sum—section 116D.
Note: The Commission may determine that this section does not apply if a person has applied for a benefit under a Commonwealth superannuation scheme, but has not begun to receive or has not received the benefit (see section 89B).
89B Payments before a person receives a Commonwealth superannuation benefit
(1) The Commission may, in writing, determine that section 89A does not apply to a person if:
(a) the person has applied for a benefit under a Commonwealth superannuation scheme on the basis of the person’s incapacity for service or work, and the application has not been withdrawn; and
(b) the person has not begun to receive or has not received the benefit (as the case requires); and
(c) the person has been notified, in writing:
(i) of the effect of section 89A and this section; and
(ii) that the person may be overpaid while section 89A does not apply to the person; and
(iii) that the overpayments may be recovered under Part 3 of Chapter 11; and
(d) the person has agreed, in writing:
(i) for section 89A not to apply; and
(ii) to notify the Commission if the person withdraws the application for the benefit; and
(iii) to notify the Commission if the person begins to receive or receives the benefit.
(2) The determination has effect according to its terms.
Revocation of determination
(3) The Commission may, in writing, revoke the determination if the Commission is satisfied that:
(a) the person has withdrawn the application for the benefit; or
(b) the person has begun to receive or has received the benefit; or
(c) the person has not complied with a requirement to provide information, or take any further action, in relation to the application for the benefit.
(4) After a determination is revoked in relation to a person who has begun to receive or has received a benefit under a Commonwealth superannuation scheme, section 89A is taken always to have applied to the person.
Status of instruments
(5) A determination under subsection (1), or a revocation under subsection (3), is not a legislative instrument.
Division 2—Working out normal and actual earnings for full‑time members
90 Simplified outline of this Division
This Division tells you how to work out the normal and actual earnings for a Permanent Forces member or a continuous full‑time Reservist who is incapacitated for service.
The normal earnings are based on how much the member would have earned for the week if the member were not incapacitated. Normal earnings worked out under this Division might be adjusted under Part 5.
Section 92 tells you how to work out actual earnings.
91 Working out normal earnings
(1) The normal earnings for a week for a Permanent Forces member, or a continuous full‑time Reservist, who is incapacitated for service means the amount worked out using the following formula:
(2) The member’s normal ADF pay for a week means the amount of pay that the member would have earned for the week as a member of the Defence Force if the member were not incapacitated for service.
Note: The member’s normal ADF pay might be adjusted under Part 5.
(3) The member’s normal pay‑related allowances for a week means the total amount of compensable pay‑related allowances that would have been paid to the member for the week if the member were not incapacitated for service.
Note: The member’s normal pay‑related allowances might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the member if the member were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for a member means a pay‑related allowance:
(a) that was being paid to the member immediately before the onset date for the member’s incapacity for service; or
(b) that would be paid to the member because the member is promoted, as mentioned in paragraph 186(2)(b); or
(c) that the member would have been paid after completing his or her initial training, as mentioned in section 189.
92 Working out actual earnings
(1) The actual earnings for a week for a Permanent Forces member, or a continuous full‑time Reservist, who is incapacitated for service means the amount worked out using the following formula:
(2) The member’s actual ADF pay for a week means the amount of pay that the member earns for the week as a member of the Defence Force.
(3) The member’s actual pay‑related allowances for a week means the total amount of compensable pay‑related allowances (as defined in subsection 91(5)) that are paid to the member for the week.
Division 3—Working out normal and actual earnings for part‑time Reservists
Subdivision A—Simplified outline of this Division
93 Simplified outline of this Division
This Division tells you how to work out the normal and actual earnings for a person who is currently a part‑time Reservist and who was a part‑time Reservist when the service injury or disease occurred. (For example, this Division would apply to a person who has always been a part‑time Reservist.)
The Reservist’s normal earnings are made up of an ADF component and a civilian component. For a Reservist who is incapacitated for both service and work:
(a) the ADF component is based on how much the Reservist would have earned as a part‑time Reservist if the Reservist were not incapacitated for service; and
(b) the civilian component is based on how much the Reservist earned from civilian work during an example period taken from before the onset of the incapacity for work.
Normal earnings worked out under this Division might be adjusted under Part 5.
Subdivision E tells you how to work out actual earnings.
Subdivision B—Working out normal earnings for part‑time Reservists
94 Application of this Division to part‑time Reservists
This Division applies to a person in respect of a week if:
(a) the person is a part‑time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the week as a result of a service injury or disease; and
(c) the person was also a part‑time Reservist when the service injury was sustained or the service disease was contracted.
The person is called an incapacitated Reservist in this Division.
95 Working out normal earnings
(1) The normal earnings for an incapacitated Reservist for a week is the amount worked out using the following formula:
(2) In this section:
ADF component for a week:
(a) for an incapacitated Reservist who is incapacitated for service—means the amount worked out under section 96; and
(b) for an incapacitated Reservist who is not incapacitated for service—means the amount worked out under section 97.
civilian component for a week:
(a) for an incapacitated Reservist who is incapacitated for work—means the amount worked out under section 98; and
(b) for an incapacitated Reservist who is not incapacitated for work—means the amount worked out under section 100.
Subdivision C—Working out the ADF component of normal earnings
96 Working out the ADF component for an incapacitated Reservist who is incapacitated for service
(1) The ADF component for a week for an incapacitated Reservist who is incapacitated for service is the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (3).
(2) The Chief of the Defence Force must advise the Commission in writing of:
(a) the date on which each compensable pay‑related allowance would normally have ceased to be paid to the Reservist; and
(b) the number of days (if any) in each week that the Reservist would have been paid as a Reservist; and
(c) the number of days (if any) in each week that the Reservist would have been paid an amount of pay‑related allowances;
if the Reservist were not incapacitated for service.
(3) In this section:
amount of pay‑related allowances for an incapacitated Reservist for a day means the total amount of compensable pay‑related allowances that would have been paid to the Reservist as a part‑time Reservist for the day if the Reservist were not incapacitated for service.
Note: The Reservist’s pay‑related allowances might be adjusted under Part 5.
compensable pay‑related allowance means a pay‑related allowance:
(a) that was being paid to an incapacitated Reservist immediately before the onset date for the Reservist’s incapacity for service; or
(b) that would be paid to an incapacitated Reservist because the Reservist is promoted, as mentioned in paragraph 186(2)(b); or
(c) that an incapacitated Reservist would have been paid after the Reservist completed his or her initial training, as mentioned in section 189.
pay‑related allowance days for an incapacitated Reservist for a week means the number of days advised by the Chief of the Defence Force under paragraph (2)(c).
rate of pay for an incapacitated Reservist for a day means the amount of pay that the Reservist would have earned for the day as a part‑time Reservist if the Reservist were not incapacitated for service.
Note: The Reservist’s rate of pay might be adjusted under Part 5.
reserve days for an incapacitated Reservist for a week means the number of days advised by the Chief of the Defence Force under paragraph (2)(b).
97 Working out the ADF component for an incapacitated Reservist who is not incapacitated for service
(1) The ADF component for a week for an incapacitated Reservist who is not incapacitated for service means the amount worked out using the following formula:
Note: An incapacitated Reservist might only be incapacitated for work and not incapacitated for service (see paragraph 86(1)(c)).
(2) In this section:
compensable pay‑related allowance has the same meaning as in subsection 96(3).
Subdivision D—Working out the civilian component of normal earnings
98 Working out the civilian component for an incapacitated Reservist who is incapacitated for work
Working out the civilian component of normal earnings
(1) The civilian component for a week for an incapacitated Reservist who is incapacitated for work is the amount worked out using the following formula:
Note: The civilian component for an incapacitated Reservist who is not incapacitated for work is worked out under section 100.
Civilian daily earnings for those working before the onset of the incapacity
(2) The following formula sets out how to work out the civilian daily earnings for an incapacitated Reservist who was engaged in civilian work before the onset date for the incapacity:
Note 1: The expressions used in this formula are defined in subsection (5).
Note 2: The Reservist’s civilian daily earnings might be adjusted under Part 5.
(3) If the incapacitated Reservist was required to work overtime on a regular basis in that work, the civilian daily earnings also include the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (5).
Civilian daily earnings for those not working
(4) The civilian daily earnings for an incapacitated Reservist who was not engaged in civilian work before the onset date for the incapacity is nil.
Definitions
(5) In this section:
allowances for an incapacitated Reservist for a day means the average amount of allowances (other than expense allowances) paid to the Reservist for a day for his or her civilian work during the example period.
civilian daily hours for an incapacitated Reservist means the average number of hours worked each day by the Reservist in his or her civilian work during the example period.
civilian overtime hours for an incapacitated Reservist means the average number of hours of overtime worked each day by the Reservist in his or her civilian work during the example period.
civilian overtime rate of pay for an incapacitated Reservist means the average hourly overtime rate of pay for the Reservist’s overtime in civilian work during the example period.
civilian rate of pay for an incapacitated Reservist means the average hourly ordinary time rate of pay for the Reservist’s civilian work during the example period.
example period has the meaning given by section 99.
99 Definition of example period for the civilian component of normal earnings
(1) For the purposes of section 98, the example period for an incapacitated Reservist who is incapacitated for work is the latest period of 2 weeks:
(a) during which the Reservist was continuously engaged in civilian work; and
(b) ending before the onset date for the incapacity.
(2) However, the Commission may determine as the example period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the civilian daily earnings for the example period under subsection (1) would not fairly represent the daily rate at which the Reservist was being paid for his or her civilian work before the onset date for the incapacity.
100 Working out the civilian component for an incapacitated Reservist who is not incapacitated for work
The civilian component for a week for an incapacitated Reservist who is not incapacitated for work is the amount the Reservist earns (including from allowances other than expense allowances) for the week from civilian work that he or she undertakes for the week.
Note: An incapacitated Reservist might only be incapacitated for service and not incapacitated for work (see paragraph 86(1)(c)).
Subdivision E—Working out actual earnings
101 Working out actual earnings
(1) The actual earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means the amount of pay that the Reservist earns for the week as a part‑time Reservist.
(3) The Reservist’s actual pay‑related allowances for a week means the total amount of compensable pay‑related allowances (as defined in subsection 96(3)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in suitable work;
(b) the amount the Reservist earns (including from allowances other than expense allowances) for the week from civilian work that he or she undertakes for the week.
Note: Section 181 sets out some matters the Commission must have regard to in determining how much the person is able to earn under paragraph (4)(a).
Division 4—Working out normal and actual earnings for part‑time Reservists who were previously Permanent Forces members
102 Simplified outline of this Division
This Division tells you how to work out the normal and actual earnings for a person:
(a) who is currently a part‑time Reservist; and
(b) who was a Permanent Forces member or a continuous full‑time Reservist when the service injury or disease occurred; and
(c) whose last period of full‑time service was as a Permanent Forces member.
The normal earnings are based on the amount the person would have earned if the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under Part 5.
Section 105 tells you how to work out actual earnings.
103 Application of this Division to part‑time Reservists who were previously Permanent Forces members
This Division applies to a person in respect of a week if:
(a) the person is a part‑time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full‑time Reservist, when the service injury was sustained or the service disease contracted; and
(d) the person was a Permanent Forces member immediately before completing his or her last period of full‑time service.
The person is called an incapacitated Reservist in this Division.
104 Working out normal earnings
(1) The normal earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The Reservist’s full‑time ADF pay for a week means the amount of pay that the Reservist would have earned for the week as a Permanent Forces member if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s full‑time ADF pay might be adjusted under Part 5.
(3) The Reservist’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the Reservist for the week if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s allowance component might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the Reservist if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for an incapacitated Reservist means a pay‑related allowance:
(a) that was being paid to the Reservist immediately before completing his or her last period of full‑time service; or
(b) that the Reservist would have been paid after completing his or her initial training, as mentioned in section 189.
105 Working out actual earnings
(1) The actual earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means the amount of pay that the Reservist earns for the week as a part‑time Reservist.
(3) The Reservist’s actual pay‑related allowances for a week means the total amount of compensable pay‑related allowances (as defined in subsection 104(5)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in suitable work;
(b) the amount the Reservist earns (including from allowances other than expense allowances) for the week from civilian work that he or she undertakes for the week.
Note: Section 181 sets out some matters the Commission must have regard to in determining how much the person is able to earn under paragraph (4)(a).
Division 5—Working out normal and actual earnings for part‑time Reservists who were previously continuous full‑time Reservists
Subdivision A—Simplified outline of this Division
106 Simplified outline of this Division
This Division tells you how to work out the normal and actual earnings for a person:
(a) who is currently a part‑time Reservist; and
(b) who was a Permanent Forces member or a continuous full‑time Reservist when the service injury or disease occurred; and
(c) whose last period of full‑time service was as a continuous full‑time Reservist.
The Reservist has a one‑off choice between 2 ways of working out normal earnings. Normal earnings can be based on the amount the person would have earned if the person were still a continuous full‑time Reservist. (This amount is called the full‑time ADF earnings.) Alternatively, normal earnings can be based on the Reservist’s earnings from other work engaged in before beginning his or her last period of continuous full‑time service. (This amount is called the pre‑CFTS earnings.)
Normal earnings worked out under this Division might be adjusted under Part 5.
Subdivision B—Working out normal earnings for part‑time Reservists who were previously continuous full‑time Reservists
107 Application of this Division to part‑time Reservists who were previously continuous full‑time Reservists
This Division applies to a person in respect of a week if:
(a) the person is a part‑time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full‑time Reservist, when the service injury was sustained or the service disease was contracted; and
(d) the person was a continuous full‑time Reservist immediately before completing his or her last period of full‑time service.
The person is called an incapacitated Reservist in this Division.
108 Working out normal earnings
(1) The normal earnings for the week for an incapacitated Reservist means whichever of the following amounts is chosen by the Reservist:
(a) the amount of the Reservist’s full‑time ADF earnings for a week (see Subdivision C);
(b) the amount of the Reservist’s pre‑CFTS earnings for a week (see Subdivision D).
(2) The Reservist must inform the Commission in writing of his or her choice between the full‑time ADF earnings and the pre‑CFTS earnings.
(3) The Reservist is only entitled to make one choice for all weeks in respect of which this Division applies. The Reservist cannot change his or her choice once it has been made.
Subdivision C—Working out full‑time ADF earnings
109 Working out full‑time ADF earnings
(1) The full‑time ADF earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The Reservist’s full‑time ADF pay for a week means the amount of pay that the Reservist would have earned for the week as a continuous full‑time Reservist if:
(a) the Reservist were still a continuous full‑time Reservist; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s full‑time ADF pay might be adjusted under Part 5.
(3) The Reservist’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the Reservist for the week if:
(a) the Reservist were still a continuous full‑time Reservist; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s allowance component might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the Reservist if:
(a) the Reservist were still a continuous full‑time Reservist; and
(b) the Reservist were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for an incapacitated Reservist means a pay‑related allowance:
(a) that was being paid to the Reservist immediately before completing his or her last period of full‑time service; or
(b) that the Reservist would have been paid after completing his or her initial training, as mentioned in section 189.
Subdivision D—Working out pre‑CFTS earnings
110 Simplified outline of this Subdivision
The pre‑CFTS earnings are worked out by looking back at the period before the Reservist began his or her last period of continuous full‑time service. During this period, the Reservist might have been a part‑time Reservist as well as being engaged in other work.
The Reservist’s pre‑CFTS earnings have 2 components: pre‑CFTS pay and reserve pay. The Reservist’s pre‑CFTS pay is based on earnings from work the Reservist was engaged in before beginning the last period of continuous full‑time service. The work engaged in might be civilian work or defence work (as some people become continuous full‑time Reservists after being Permanent Forces members). The Reservist’s reserve pay is based on earnings from service as a part‑time Reservist.
However, for a Reservist whose service injury or disease occurred while a continuous full‑time Reservist, the Commission may determine pre‑CFTS earnings by looking back at the period before the onset date for the Reservist’s incapacity instead of the period before the Reservist began his or her last period of continuous full‑time service.
111 Working out pre‑CFTS earnings
(1) The pre‑CFTS earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
(2) In this section:
pre‑CFTS pay for a person for a week is worked out under section 112.
reserve pay for a person for a week is worked out under section 114.
112 Working out pre‑CFTS pay
Pre‑CFTS pay for those engaged in work before beginning last period of full‑time service
(1) The following formula sets out how to work out the pre‑CFTS pay for a week for an incapacitated Reservist who was engaged in work before beginning his or her last period of continuous full‑time service:
Note 1: The expressions used in this formula are defined in subsection (4).
Note 2: The Reservist’s pre‑CFTS pay might be adjusted under Part 5.
(2) If the incapacitated Reservist was required to work overtime on a regular basis in that work, the pre‑CFTS pay for a week also includes the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
Pre‑CFTS pay for those not working
(3) The pre‑CFTS pay for a week for an incapacitated Reservist who was not engaged in work before beginning his or her last period of full‑time service is nil.
Definitions
(4) In this section:
allowances for an incapacitated Reservist for a week is the average amount of allowances (other than expense allowances) paid to the Reservist for a week for his or her work during the example period.
example period has the meaning given by section 113.
pre‑CFTS overtime hours for an incapacitated Reservist means the average number of hours of overtime worked each week by the Reservist in his or her work during the example period.
pre‑CFTS overtime rate of pay for an incapacitated Reservist means the average hourly overtime rate of pay for the Reservist’s overtime in work during the example period.
pre‑CFTS rate of pay for an incapacitated Reservist means the Reservist’s average hourly ordinary time rate of pay for the Reservist’s work during the example period.
pre‑CFTS weekly hours for an incapacitated Reservist means the average number of hours worked in each week by the Reservist in his or her work during the example period.
work includes work as a member of the Defence Force (other than as a part‑time Reservist).
Note: A person might have been a Permanent Forces member before beginning his or her last period of continuous full‑time service. This work is taken into account in working out pre‑CFTS pay. However, work as a part‑time Reservist is taken into account in working out reserve pay.
113 Definition of example period for pre‑CFTS pay
(1) For the purposes of section 112, the example period for an incapacitated Reservist is the latest period of 2 weeks:
(a) during which the Reservist was continuously engaged in work (as defined in subsection 112(4)); and
(b) ending before the Reservist began his or her last period of continuous full‑time service.
(2) However, the Commission may determine as the example period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre‑CFTS pay for the example period under subsection (1) would not fairly represent the weekly rate at which the Reservist was being paid for his or her work before beginning the continuous full‑time service.
114 Working out reserve pay
Reserve pay for persons who were part‑time Reservists
(1) The reserve pay for a week for an incapacitated Reservist who was a part‑time Reservist before beginning his or her last period of continuous full‑time service is worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
(2) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the Reservist if the Reservist were not incapacitated for service.
Reserve pay for persons who were not part‑time Reservists
(3) The reserve pay for a week for an incapacitated Reservist who was not a part‑time Reservist before beginning his or her last period of continuous full‑time service is nil.
Definitions
(4) In this section:
amount of pay‑related allowances for an incapacitated Reservist for a day means the total amount of compensable pay‑related allowances that would have been paid to the Reservist for the day if the Reservist were not incapacitated for service.
Note: The Reservist’s pay‑related allowances might be adjusted under Part 5.
compensable pay‑related allowance for an incapacitated Reservist means a pay‑related allowance:
(a) that was being paid to the Reservist immediately before the Reservist began his or her last period of continuous full‑time service; or
(b) that would be paid to the Reservist because the Reservist is promoted, as mentioned in paragraph 186(2)(b).
example period for an incapacitated Reservist means:
(a) the latest period of one year:
(i) during which the Reservist was a part‑time Reservist; and
(ii) ending before the Reservist began his or her last period of continuous full‑time service; or
(b) such other period that the Commission determines is reasonable.
pay‑related allowance days for an incapacitated Reservist for a week means the average number of days (if any) served each week during the example period for which the Reservist was paid a pay‑related allowance.
rate of pay for an incapacitated Reservist for a day means the amount of pay that the Reservist would have been paid for the day as a part‑time Reservist if the Reservist were not incapacitated for service.
Note: The Reservist’s rate of pay might be adjusted under Part 5.
reserve days for an incapacitated Reservist for a week means the average number of days (if any) served each week during the example period for which the Reservist was paid as a part‑time Reservist.
114A Example periods for those injured as continuous full‑time Reservists
(1) For the purposes of the definition of example period in sections 113 and 114 for an incapacitated Reservist who was a continuous full‑time Reservist when the service injury was sustained, or the service disease was contracted, the Commission may determine, as the end of the example period, a time before the onset date for the Reservist’s incapacity for service or work (instead of a time before the Reservist began his or her last period of continuous full‑time service).
(2) If the Commission does so, a reference in sections 112, 113 and 114 to a time before the Reservist began his or her last period of continuous full‑time service is taken instead to be a reference to a time before the onset date for the Reservist’s incapacity.
Subdivision E—Working out actual earnings
115 Working out actual earnings
(1) The actual earnings for a week for an incapacitated Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means the amount of pay that the Reservist earns for the week as a part‑time Reservist.
(3) The Reservist’s actual pay‑related allowances for a week means the total amount of compensable pay‑related allowances (as defined in subsection 114(4)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in suitable work;
(b) the amount the Reservist earns (including from allowances other than expense allowances) for the week from civilian work that he or she undertakes for the week.
Note: Section 181 sets out some matters the Commission must have regard to in determining how much the person is able to earn under paragraph (4)(a).
Division 6—Working out normal and actual earnings for cadets and declared members
116 Regulations may prescribe methods for working out normal and actual earnings for cadets and declared members
The regulations may prescribe one or more methods of working out the normal earnings and actual earnings for persons who are cadets or declared members.
Note: The regulations may also modify the application of this Part in respect of cadets and declared members (see section 439).
Division 7—Amount of compensation where a Commonwealth superannuation benefit is received
116A Simplified outline of this Division
This Division tells you how to work out the amount of compensation a member receives for a week if the member receives or has received a benefit under a Commonwealth superannuation scheme. (However, this Division might not apply if the member has applied for the benefit, but has not begun to receive or has not received the benefit (see section 89B).)
The method of working out the amount of compensation depends on whether the member:
(a) is receiving only a Commonwealth superannuation pension (see section 116B); or
(b) has received only a Commonwealth superannuation lump sum (see section 116C); or
(c) has received a lump sum and is receiving a pension (see section 116D).
Basically, the amount of compensation paid is the amount worked out under Division 1 reduced by the amount of superannuation received.
116B Amount of compensation for person receiving only Commonwealth superannuation pension
(1) If paragraph 89A(a) applies to a person, the amount of compensation that the Commonwealth is liable, under section 85, 86 or 87, to pay to the person for a week is worked out using the following formula:
(2) In this Division:
Division 1 compensation amount for a person for a week means the amount of compensation the person would have been paid for the week if subsection 89(1) had applied.
superannuation pension amount for a person who receives a pension for a week under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the pension as attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the pension that is attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or
(ii) if such an assessment cannot be made—the amount of the pension received by the person for the week.
116C Amount of compensation for person who has received only Commonwealth superannuation lump sum
(1) If paragraph 89A(b) applies to a person, the amount of compensation that the Commonwealth is liable, under section 85, 86 or 87, to pay to the person for a week is worked out using the following formula:
(2) In this Division:
superannuation age‑based number for a person who receives a lump sum under a Commonwealth superannuation scheme means the number that is advised by the Australian Government Actuary by reference to the person’s age on the day on which the lump sum is paid.
superannuation lump sum amount for a person who receives a lump sum under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the lump sum as attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the lump sum that is attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority; or
(ii) if such an assessment cannot be made—the amount of the lump sum.
Note: Subsection 116B(2) defines Division 1 compensation amount.
116D Amount of compensation for person receiving both superannuation pension and lump sum
If paragraph 89A(c) applies to a person, the amount of compensation that the Commonwealth is liable, under section 85, 86 or 87, to pay to the person for a week is worked out using the following formula:
Note: Subsection 116B(2) defines Division 1 compensation amount and superannuation pension amount. Subsection 116C(2) defines superannuation age‑based number and superannuation lump sum amount.
116E No compensation if amount worked out is nil or a negative amount
If an amount of compensation worked out under this Division is nil or a negative amount, then the Commonwealth is not liable to pay the compensation for the week.
Part 4—Compensation for incapacity for work for former members
Division 1—Entitlement to compensation
117 Simplified outline of this Part
This Part provides for compensation to be provided for former members who are incapacitated for work as a result of a service injury or disease. The Commission must have accepted liability for the injury or disease, and a claim must have been made in respect of the former member, to be entitled to the compensation.
The amount of compensation a person receives for a week depends on the difference between the person’s normal and actual earnings for the week. The person’s normal earnings are a notional amount. The person’s actual earnings are based on how much the person actually earns for the week.
Normal earnings are worked out under Divisions 3 to 8.
Division 3 applies to a person who left the Defence Force as a Permanent Forces member. Division 4 applies to a person who left the Defence Force as a continuous full‑time Reservist.
Divisions 5 to 8 apply to a person who left the Defence Force as a part‑time Reservist. The Division that applies depends on the person’s status (for example, as a Permanent Forces member or a Reservist) when the service injury or disease occurred and on leaving the Defence Force.
Division 9 applies to a person who was a cadet or declared member.
Part 5 of this Chapter contains other important rules that apply in working out normal earnings, actual earnings and the amount of compensation generally.
118 Compensation for incapacitated former members
(1) The Commonwealth is liable to pay compensation to a person for a week if:
(a) the person is a former member; and
(b) the Commission has accepted liability for a service injury or disease of the person; and
(c) the service injury or disease results in the person’s incapacity for work for the week; and
(d) a claim for compensation in respect of the person has been made under section 319.
Note: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) section 119 (aggravations etc.);
(c) sections 120 and 121 (persons who are 63 or more);
(d) section 122 (imprisonment of persons);
(e) section 138 (small amounts of compensation);
(f) section 196 (compensation for part weeks).
(2) The amount of compensation that the Commonwealth is liable to pay is:
(a) if a person has chosen to receive a Special Rate Disability Pension under Part 6—the amount worked out under Part 6; or
(b) otherwise—the amount worked out under Division 2 of this Part.
Note: The Commonwealth is not liable to pay compensation if the amount worked out under Division 2 is nil or a negative amount.
119 No compensation in certain cases relating to aggravations etc. of injuries or diseases
The Commonwealth is only liable, under section 118, to pay compensation in respect of an aggravated injury or disease if it is because of the aggravation or material contribution (whether wholly or partly) that the service injury or disease results in the person’s incapacity for work for the week.
120 Compensation for those over 65
Other than as provided in section 121, the Commonwealth is not liable to pay compensation to a person to whom paragraph 118(2)(b) applies if the person is 65 or older.
121 Compensation for those over 63
(1) This section applies to a person if:
(a) paragraph 118(2)(b) applies to the person; and
(b) the person’s service injury is sustained, or service disease is contracted, when the person is 63 or older.
(2) The Commonwealth is only liable, under section 118, to pay compensation to the person for a maximum of 104 weeks (whether consecutive or not) during which the person is incapacitated for work.
122 Persons who are imprisoned
The Commonwealth is not liable to pay compensation for a week to a person to whom section 118 applies if the person is imprisoned for the week in connection with his or her conviction of an offence.
Division 2—Amount of compensation (other than for those who have chosen to receive a Special Rate Disability Pension)
Subdivision A—Simplified outline of this Division
123 Simplified outline of this Division
This Division tells you how to work out the amount of compensation a former member receives for a week during which he or she is incapacitated for work (other than for a person who has chosen to receive a Special Rate Disability Pension).
Subdivision B—Amount of compensation generally
124 Simplified outline of this Subdivision
Different methods for working out the amount of compensation apply in different situations (such as where a person is receiving or has received a benefit under a Commonwealth superannuation scheme). This Subdivision gives an overview of where these different methods are found in this Division.
The normal rule for working out the amount of compensation is found in Subdivision C.
Special rules apply in the following cases:
(a) retired persons who are receiving or have received a benefit under a Commonwealth superannuation scheme (although the amount of compensation the persons receive might be worked out under Subdivision C if the persons have applied for the benefit, but have not begun to receive or have not received the benefit) (see sections 126 and 126A);
(b) those maintained in hospitals etc. (see section 127);
(c) those receiving small amounts of compensation (see Subdivision E);
(d) those who choose to receive a Special Rate Disability Pension (see Part 6).
125 Amount of compensation for former members
Amount of compensation generally
(1) Generally, the amount of compensation that the Commonwealth is liable, under section 118, to pay to a person for a week is worked out under Subdivision C.
Amount of compensation for others
(2) Subsection (1) does not apply if any of the following provisions apply instead:
(a) section 126 (retired persons receiving a Commonwealth superannuation benefit);
(b) section 127 (those maintained in hospitals etc.);
(c) Subdivision E (small amounts of compensation);
(d) Part 6 (those who choose to receive a Special Rate Disability Pension).
No compensation if amount worked out is nil or a negative amount
(3) If an amount of compensation worked out under this Division is nil or a negative amount, then the Commonwealth is not liable to pay the compensation for the week.
126 Amount of compensation for retired persons receiving a Commonwealth superannuation benefit
The amount of compensation that the Commonwealth is liable, under section 118, to pay for a week to a person who:
(a) has retired voluntarily, or is compulsorily retired, from his or her work; and
(b) receives either or both a pension or lump sum under a Commonwealth superannuation scheme as a result of the retirement;
is worked out in accordance with the following sections:
(c) if the person is receiving only a pension—section 134;
(d) if the person has received only a lump sum—section 135;
(e) if the person is receiving a pension and has received a lump sum—section 136.
Note: The Commission may determine that this section does not apply if a person has applied for a benefit under a Commonwealth superannuation scheme, but has not begun to receive or has not received the benefit (see section 126A).
126A Payments before a retired person receives a Commonwealth superannuation benefit
(1) The Commission may, in writing, determine that section 126 does not apply to a person if:
(a) the person has applied for a benefit under a Commonwealth superannuation scheme on the basis of the person’s incapacity for service or work, and the application has not been withdrawn; and
(b) the person has not begun to receive or has not received the benefit (as the case requires); and
(c) the person has been notified, in writing:
(i) of the effect of section 126 and this section; and
(ii) that the person may be overpaid while section 126 does not apply to the person; and
(iii) that the overpayments may be recovered under Part 3 of Chapter 11; and
(d) the person has agreed, in writing:
(i) for section 126 not to apply; and
(ii) to notify the Commission if the person withdraws the application for the benefit; and
(iii) to notify the Commission if the person begins to receive or receives the benefit.
(2) The determination has effect according to its terms.
Revocation of determination
(3) The Commission may, in writing, revoke the determination if the Commission is satisfied that:
(a) the person has withdrawn the application for the benefit; or
(b) the person has begun to receive or has received the benefit; or
(c) the person has not complied with a requirement to provide information, or take any further action, in relation to the application for the benefit.
(4) After a determination is revoked in relation to a person who has begun to receive or has received a benefit under a Commonwealth superannuation scheme, section 126 is taken always to have applied to the person.
Status of instruments
(5) A determination under subsection (1), or a revocation under subsection (3), is not a legislative instrument.
127 Amount of compensation for former members who are maintained in hospital etc.
Application of section
(1) This section applies to a person (the patient) if:
(a) the patient has been continuously maintained in a hospital or other institution as a result of a service injury or disease for at least one year; and
(b) the patient is still being maintained as such a patient; and
(c) the patient has:
(i) no dependants; and
(ii) no dependent young persons (see subsection (4)); and
(iii) no carer for a dependent young person (see subsection (4)); and
(d) subsection 125(1) would apply to the patient but for the operation of this section.
Amount of compensation
(2) The Commission must determine the amount of compensation that it considers reasonable that the Commonwealth is liable, under section 118, to pay to the patient for each week during which he or she is so maintained. However, the amount must be at least one‑half of, and not more than, the amount of compensation that would otherwise have been payable to the patient for a week if subsection 125(1) had applied.
Matters to be considered
(3) In determining the amount, the Commission must have regard to:
(a) the present and probable future needs and expenses of the patient; and
(b) the period during which the patient is likely to remain a patient in the hospital or the other institution.
The Commission must not have regard to any other matter.
Definitions
(4) In this section:
carer for a dependent young person means a person:
(a) who is wholly or mainly maintained by the patient; and
(b) who has the care of a dependent young person (other than a person who has that care only because the patient remunerates that person for caring for the young person).
dependent young person means an eligible young person who is dependent on the patient.
Subdivision C—Amount of compensation where no Commonwealth superannuation benefit is received
128 Simplified outline of this Subdivision
This Subdivision tells you the normal rule for working out the amount of compensation for a former member.
The person is paid a full amount of compensation for at least the first 45 weeks of the incapacity. A reduced rate of compensation might be paid after that depending on how many hours a week the person is working.
129 Amount of compensation for maximum rate weeks
(1) If subsection 125(1) applies to a person, the amount of compensation that the Commonwealth is liable, under section 118, to pay to the person for a week that is a maximum rate week is worked out using the following formula:
Note: Section 132 defines normal earnings and actual earnings.
(2) In this Subdivision, a week is a maximum rate week for a person who is incapacitated for work if:
(a) it is a week during which:
(i) the person’s incapacity prevents the person from working his or her normal weekly hours; or
(ii) if the person is working his or her normal weekly hours, the person’s incapacity prevents the person from working at the level at which he or she worked before the incapacity; and
(b) the total number of hours in that week, and in all previous maximum rate weeks (if any), during which the incapacity has prevented the person from so working, does not exceed 45 times the person’s normal weekly hours.
Note: Section 132 defines normal weekly hours.
130 Amount of compensation for the week whose hours exceed 45 times the normal weekly hours
(1) If during, but before the end of, a particular week the total number of hours worked out in accordance with paragraph 129(2)(b) exceeds 45 times the normal weekly hours for a person, then:
(a) subsection (2) applies in respect of the hours that elapse before that number is exceeded (the maximum rate hours as defined in subsection (2)); and
(b) subsection (3) applies in respect of the remaining hours in the week (the reduced rate hours as defined in subsection (3)).
Note: Section 132 defines normal weekly hours.
Amount of compensation in respect of maximum rate hours
(2) The amount of compensation that the Commonwealth is liable, under section 118, to pay to a person in respect of the maximum rate hours is worked out using the following formula:
where:
maximum rate hours for a person means the total number of hours in the week:
(a) that would have counted towards the person’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph 129(2)(b) exceeds 45 times the person’s normal weekly hours.
Note: Section 132 defines normal weekly hours, normal earnings and actual earnings.
Amount of compensation in respect of reduced rate hours
(3) The amount of compensation that the Commonwealth is liable, under section 118, to pay to a person in respect of the reduced rate hours is worked out using the following formula:
where:
reduced compensation amount for a person means the amount of compensation worked out in accordance with section 131 if that section had applied for the whole week.
reduced rate hours for a person means the total number of hours worked out using the following formula:
Note: Section 132 defines normal weekly hours. Subsection (2) defines maximum rate hours.
131 Amount of compensation after 45 weeks
(1) If subsection 125(1) applies to a person, the amount of compensation that the Commonwealth is liable, under section 118, to pay to the person for a week (other than a week in respect of which section 129 or 130 applies) is worked out using the following formula:
(2) In this section:
adjustment percentage for a person for a week means the following percentage:
(a) if the person is not working during that week—75%;
(b) if the person is working for 25% or less of his or her normal weekly hours during that week—80%;
(c) if the person is working for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%;
(d) if the person is working for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%;
(e) if the person is working for more than 75% but less than 100% of his or her normal weekly hours during that week—95%;
(f) if the person is working for 100% or more of his or her normal weekly hours during that week—100%.
Note: Section 132 defines normal weekly hours, normal earnings and actual earnings.
132 Definitions of actual earnings, normal earnings and normal weekly hours
(1) In this Part:
actual earnings for a person for a week means the greater of the following amounts:
(a) the weekly amount (if any) that the person is able to earn in suitable work;
(b) the amount (if any) that the person earns for the week (including from allowances other than expense allowances) from any work that is undertaken by the person during the week.
Note 1: Bonuses are excluded from the calculation of actual earnings under section 180.
Note 2: Section 181 sets out some matters that the Commission must have regard to in determining the amount that the person is able to earn under paragraph (a).
(2) Use this table to work out the normal earnings and the normal weekly hours for a person:
| Definitions of normal earnings and normal weekly hours |
| Item | For this type of person | normal earnings has the meaning given by... | normal weekly hours means... |
| 1 | A person who was a Permanent Forces member immediately before last ceasing to be a member | Division 3 | 37.5 hours |
| 2 | A person who was a continuous full‑time Reservist immediately before last ceasing to be a member | Division 4 | (a) if the person has chosen pre‑CFTS earnings under section 143—the number of hours worked out under section 150; or (b) otherwise—37.5 hours |
| 3 | A person who is or was a part‑time Reservist to whom section 152 applies | Division 5 | the number of hours worked out under section 158 |
| 4 | A person who is or was a part‑time Reservist to whom section 160 applies | Division 6 | 37.5 hours |
| 5 | A person who is or was a part‑time Reservist to whom section 163 applies | Division 7 | 37.5 hours |
| 6 | A person who is or was a part‑time Reservist to whom section 166 applies | Division 8 | (a) if the person has chosen pre‑CFTS earnings under section 167—the number of hours worked out under section 174; or (b) otherwise—37.5 hours |
| 7 | A former cadet or declared member | the regulations (see Division 9) | the number of hours worked out under the regulations (see Division 9) |
Note 1: If a person’s normal earnings are less than the relevant minimum wage set by a national minimum wage order, then the person’s normal earnings are instead the relevant minimum wage (see section 179).
Note 2: Certain amounts (such as bonuses) are excluded from the calculation of normal earnings under section 180.
Subdivision D—Amount of compensation where a Commonwealth superannuation benefit is received
133 Simplified outline of this Subdivision
This Subdivision tells you how to work out the amount of compensation a person receives for a week if the person receives or has received a benefit under a Commonwealth superannuation scheme. (However, this Subdivision might not apply if the person has applied for the benefit, but has not begun to receive or has not received the benefit (see section 126A).)
The method of working out the amount of compensation depends on whether the person:
(a) is receiving only a Commonwealth superannuation pension (see section 134); or
(b) has received only a Commonwealth superannuation lump sum (see section 135); or
(c) has received a lump sum and is receiving a pension (see section 136).
Basically, the amount of compensation paid is the amount worked out under Subdivision C reduced by the amount of superannuation received.
134 Amount of compensation for retired person receiving only Commonwealth superannuation pension
(1) If paragraph 126(c) applies to a person, the amount of compensation that the Commonwealth is liable, under section 118, to pay to the person for a week is worked out using the following formula:
(2) In this Subdivision:
Subdivision C compensation amount for a person for a week means the amount of compensation the person would have been paid for the week if Subdivision C had applied.
superannuation pension amount for a person who receives a pension for a week under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the pension as attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the pension that is attributable to the contribution made under or to the scheme by the Commonwealth or a Commonwealth authority; or
(ii) if such an assessment cannot be made—the amount of the pension received by the person for the week.
135 Amount of compensation for retired person who has received only Commonwealth superannuation lump sum
(1) If paragraph 126(d) applies to a person, the amount of compensation that the Commonwealth is liable, under section 118, to pay to the person for a week is worked out using the following formula:
(2) In this Subdivision:
superannuation age‑based number for a person who receives a lump sum under a Commonwealth superannuation scheme means the number that is advised by the Australian Government Actuary by reference to the person’s age on the day on which the lump sum is paid.
superannuation lump sum amount for a person who receives a lump sum under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the lump sum as attributable to the contributions made under or to the scheme by the Commonwealth or a Commonwealth authority—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the lump sum that is attributable to the contribution made under or to the scheme by the Commonwealth or a Commonwealth authority; or
(ii) if such an assessment cannot be made—the amount of the lump sum.
Note: Subsection 134(2) defines Subdivision C compensation amount.
136 Amount of compensation for retired person receiving both superannuation pension and lump sum
If paragraph 126(e) applies to a person, the amount of compensation that the Commonwealth is liable, under section 118, to pay to the person for a week is worked out using the following formula:
Note: Subsection 134(2) defines Subdivision C compensation amount and superannuation pension amount. Subsection 135(2) defines superannuation age‑based number and superannuation lump sum amount.
Subdivision E—Small amounts of compensation
137 Simplified outline of this Subdivision
Under this Subdivision, a person who receives weekly compensation of $150 or less is entitled to convert that amount into a lump sum if the person is still working or is receiving or has received a benefit under a Commonwealth superannuation scheme.
If the person later stops working because the person’s condition deteriorates, or the person stops receiving the superannuation, then the person can be paid compensation on a weekly basis again.
138 Converting small amounts of weekly compensation into lump sum compensation
(1) This section applies if:
(a) apart from this section, the Commonwealth would be liable to pay an amount of compensation, worked out in accordance with subsection 125(1) or section 126, of $150 or less for a person’s incapacity for work for a week; and
(b) the person:
(i) is engaged in work; or
(ii) is receiving a pension under a Commonwealth superannuation scheme; or
(iii) has received a lump sum under a Commonwealth superannuation scheme; and
(c) the Commission is satisfied that the degree of the person’s incapacity is unlikely to change; and
(d) the person advises the Commission in writing that he or she chooses to receive a lump sum under this Division rather than weekly payments.
Note 1: The Commonwealth might later be liable for weekly compensation if the person becomes unable to engage in work or stops receiving superannuation (see section 139).
Note 2: The amount of $150 is indexed under section 404.
(2) Instead of being liable to pay compensation for that week and future weeks, the amount of compensation that the Commonwealth is liable to pay is the amount of the lump sum worked out using the following formula:
Note: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) section 122 (persons who are imprisoned);
(c) subsection 125(3) (nil and negative amounts).
(3) In this section:
n means the number worked out using the formula:
where:
number of days means the number of days in the period beginning on the day after the day on which the person advises the Commission of his or her choice under paragraph (1)(d) and ending:
(a) if the person’s service injury is sustained, or service disease is contracted, before the person turns 63—on the day before the person turns 65; and
(b) if the person’s service injury is sustained, or service disease is contracted, on or after the day on which the person turns 63—on the day before the person is no longer entitled to compensation under this Part.
specified number means the number specified in writing (in decimal notation) by the Commission for the purposes of this definition.
weekly amount means the amount payable to the person under section 118 for the week in which the person advises the Commission of his or her choice under paragraph (1)(d).
139 Weekly compensation following conversion of weekly amounts to a lump sum
(1) This section applies if:
(a) the Commonwealth has paid a lump sum to a person under section 138 in respect of the person’s incapacity for work; and
(b) either:
(i) subparagraph 138(1)(b)(i) applied and the person’s condition later deteriorates to the extent that the person is no longer able to engage in work; or
(ii) subparagraph 138(1)(b)(ii) applied and the person stops receiving the pension under the Commonwealth superannuation scheme; and
(c) the Commission is satisfied that the person’s incapacity is likely to continue indefinitely.
(2) The Commonwealth is liable to pay compensation under section 118 for each week during which the person continues to be incapacitated for work.
Note: This section might be affected by the following provisions:
(a) sections 50, 52 and 329 (failure to undergo examination or rehabilitation program);
(b) sections 120 and 121 (persons who are 63 or more);
(c) section 122 (imprisonment of persons);
(d) section 196 (compensation for part weeks).
(3) The amount of compensation that the Commonwealth is liable to pay for a week is worked out using the following formula:
Note: The Commonwealth is not liable to pay compensation if the amount worked out is nil or a negative amount (see subsection 125(3)).
(4) In subsection (3):
Subdivision C or D compensation amount for a person for a week means the amount of compensation the person would have been paid for the week if Subdivision C or D had applied.
weekly amount has the same meaning as in subsection 138(3).
Division 3—Working out normal earnings for certain former Permanent Forces members
140 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person who left the Defence Force as a Permanent Forces member.
The normal earnings are based on how much the person would have earned for the week if the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under Part 5.
141 Working out normal earnings
(1) The normal earnings for a week for a person who was a Permanent Forces member immediately before last ceasing to be a member of the Defence Force means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The person’s ADF pay for a week means the amount of pay that the person would have earned for the week as a Permanent Forces member if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s ADF pay for a week might be adjusted under Part 5.
(3) The person’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the person for the week if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component for a week might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for a person means a pay‑related allowance:
(a) that was being paid to the person immediately before the person last ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
Division 4—Working out normal earnings and normal weekly hours for certain former continuous full‑time Reservists
Subdivision A—Simplified outline of this Division
142 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person who left the Defence Force as a continuous full‑time Reservist.
The person has a one‑off choice between 2 ways of working out normal earnings. Normal earnings can be based on the amount the person would have earned if the person were still a continuous full‑time Reservist. (This amount is called the ADF earnings.) Alternatively, normal earnings can be based on the person’s earnings from other work engaged in before beginning his or her last period of continuous full‑time service. (This amount is called the pre‑CFTS earnings.)
Normal earnings worked out under this Division might be adjusted under Part 5.
Subdivision E tells you how to work out the normal weekly hours for a person who chooses the pre‑CFTS earnings. (Normal weekly hours for a person who chooses the ADF earnings are 37.5 hours (see subsection 132(2).)
Subdivision B—Working out normal earnings
143 Working out normal earnings
(1) The normal earnings for a week for a person who was a continuous full‑time Reservist immediately before last ceasing to be a member of the Defence Force means whichever of the following amounts is chosen by the person:
(a) the amount of the person’s ADF earnings for a week (see Subdivision C);
(b) the amount of the person’s pre‑CFTS earnings for a week (see Subdivision D).
(2) The person must inform the Commission in writing of his or her choice between the ADF earnings and the pre‑CFTS earnings.
(3) The person is only entitled to make one choice for all weeks in respect of which subsection (1) applies. The person cannot change his or her choice once it has been made.
Subdivision C—Working out ADF earnings
144 Working out ADF earnings
(1) The ADF earnings for a week for a person who was a continuous full‑time Reservist immediately before last ceasing to be a member of the Defence Force means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The person’s ADF pay for a week means the amount of pay that the person would have earned for the week as a continuous full‑time Reservist if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s ADF pay for a week might be adjusted under Part 5.
(3) The person’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the person for the week if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component for a week might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for a person means a pay‑related allowance:
(a) that was being paid to the person immediately before the person last ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
Subdivision D—Working out pre‑CFTS earnings
145 Simplified outline of this Subdivision
The pre‑CFTS earnings are worked out by looking back at the period before the person began his or her last period of continuous full‑time service. During this period, the person might have been a part‑time Reservist as well as being engaged in work.
The person’s pre‑CFTS earnings has 2 components: pre‑CFTS pay and reserve pay.
The person’s pre‑CFTS pay is based on earnings from work the person was engaged in before beginning the last period of continuous full‑time service. The work engaged in might be civilian work or defence work (as some people become continuous full‑time Reservists after being Permanent Forces members).
The person’s reserve pay is based on earnings from service as a part‑time Reservist.
146 Working out pre‑CFTS earnings
(1) The pre‑CFTS earnings for a week for a person who was a continuous full‑time Reservist immediately before last ceasing to be a member of the Defence Force means the amount worked out using the following formula:
(2) In this section:
pre‑CFTS pay for a person for a week means the amount worked out under section 147.
reserve pay for a person for a week means the amount worked under section 149.
147 Working out pre‑CFTS pay
Pre‑CFTS pay for those engaged in work before beginning last period of full‑time service
(1) The following formula sets out how to work out the pre‑CFTS pay for a week for a person who was engaged in work before beginning his or her last period of continuous full‑time service:
Note 1: The expressions used in this formula are defined in subsection (4).
Note 2: The person’s pre‑CFTS pay might be adjusted under Part 5.
(2) If the person was required to work overtime on a regular basis in that work, the pre‑CFTS pay for a week also includes the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
Pre‑CFTS pay for those not working
(3) The pre‑CFTS pay for a week for a person who was not engaged in work before beginning his or her last period of continuous full‑time service is nil.
Definitions
(4) In this section:
allowances for a person for a week is the average amount of allowances (other than expense allowances) paid to the person for a week for his or her work during the example period.
example period has the meaning given by section 148.
pre‑CFTS overtime hours for a person means the average number of hours of overtime worked each week by the person in his or her work during the example period.
pre‑CFTS overtime rate of pay for a person means the average hourly overtime rate of pay for the person’s overtime in his or her work during the example period.
pre‑CFTS rate of pay for a person means the person’s average hourly ordinary time rate of pay for the person’s work during the example period.
pre‑CFTS weekly hours for a person means the average number of hours worked in each week by the person in his or her work during the example period.
work includes work as a member of the Defence Force (other than as a part‑time Reservist).
Note: A person might have been a Permanent Forces member before beginning his or her last period of continuous full‑time service. This work is taken into account in the pre‑CFTS pay. However, work as a part‑time Reservist is taken into account in working out the reserve pay.
148 Definition of example period for former continuous full‑time Reservists
(1) For the purposes of section 147, the example period for a person who was a continuous full‑time Reservist immediately before last ceasing to be a member of the Defence Force is the latest period of 2 weeks:
(a) during which the person was continuously engaged in work (as defined in subsection 147(4)); and
(b) ending before the person began his or her last period of continuous full‑time service.
(2) However, the Commission may determine as the example period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre‑CFTS pay for the example period under subsection (1) would not fairly represent the weekly rate at which the person was being paid for his or her work before beginning the continuous full‑time service.
149 Working out reserve pay
Reserve pay for persons who were part‑time Reservists
(1) The reserve pay for a week for a person who was a part‑time Reservist immediately before beginning his or her last period of continuous full‑time service is the amount worked out using the following formula:
Note: The expressions used in this subsection are defined in subsection (4).
(2) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a part‑time Reservist; and
(b) the Reservist were not incapacitated for service.
Reserve pay for persons who were not part‑time Reservists
(3) The reserve pay for a week for a person who was not a part‑time Reservist immediately before beginning his or her last period of continuous full‑time service is nil.
Definitions
(4) In this section:
amount of pay‑related allowances for a person for a day means the total amount of compensable pay‑related allowances that would have been paid to the person for the day if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay‑related allowances might be adjusted under Part 5.
compensable pay‑related allowance for a person means a pay‑related allowance:
(a) that was being paid to the person immediately before the person began his or her last period of continuous full‑time service; or
(b) that would be paid to the person because the person is promoted, as mentioned in section 186.
example period for a person who was a part‑time Reservist immediately before beginning his or her last period of continuous full‑time service is:
(a) the latest period of one year:
(i) during which the person was a part‑time Reservist; and
(ii) ending before the person began that continuous full‑time service; or
(b) such other period that the Commission determines is reasonable.
pay‑related allowance days for a person for a week means the average number of days (if any) served each week during the example period for which the person was paid an amount of pay‑related allowances.
rate of pay for a person for a day means the amount of pay that the person would have been paid for the day as a part‑time Reservist if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under Part 5.
reserve days for a person for a week means the average number of days (if any) served each week during the example period for which the person was paid as a part‑time Reservist.
Subdivision E—Working out normal weekly hours for persons who have chosen pre‑CFTS earnings
150 Working out normal weekly hours for persons who have chosen pre‑CFTS earnings
(1) The normal weekly hours for a person who has chosen the pre‑CFTS earnings under section 143 are worked out using the following formula:
(2) In this section:
ADF hours for a person means the average number of hours per week (if any) during the example period (as defined in subsection 149(4)) for which the person was paid as a part‑time Reservist.
pre‑CFTS overtime hours has the meaning given by subsection 147(4).
pre‑CFTS weekly hours has the meaning given by subsection 147(4).
Division 5—Working out normal earnings and normal weekly hours for former part‑time Reservists who were engaged in civilian work
Subdivision A—Simplified outline of this Division
151 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person who:
(a) was a part‑time Reservist when the service injury or disease occurred; and
(b) was still a part‑time Reservist when he or she left the Defence Force; and
(c) was working in civilian work before leaving the Defence Force.
The person’s normal earnings are made up of an ADF component and a civilian component. The ADF component is based on how much the person would have earned as a part‑time Reservist if the person were still a part‑time Reservist. The civilian component is based on how much the person earned from civilian work during an example period taken before the person left the Defence Force.
Normal earnings worked out under this Division might be adjusted under Part 5.
Subdivision E tells you how to work out the normal weekly hours for the person.
Subdivision B—Working out normal earnings of former part‑time Reservists who were engaged in civilian work
152 Application of this Division to former part‑time Reservists who were engaged in civilian work
This Division applies to a person in respect of a week if:
(a) the person was a part‑time Reservist immediately before last ceasing to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a service injury or disease; and
(c) the person was also a part‑time Reservist when the service injury was sustained or the service disease was contracted; and
(d) the person was engaged in civilian work before last ceasing to be a member of the Defence Force.
The person is called an incapacitated person in this Division.
153 Working out normal earnings
(1) The normal earnings for an incapacitated person for a week is the amount worked out using the following formula:
(2) In this section:
ADF component for an incapacitated person for a week means the amount worked out under Subdivision C.
civilian component for an incapacitated person for a week means the amount worked out under Subdivision D.
Subdivision C—Working out the ADF component of normal earnings
154 Working out the ADF component of normal earnings
(1) The ADF component for a week for an incapacitated person is the amount worked out using the following formula:
Note: The expressions used in this subsection are defined in subsection (3).
(2) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
(3) In this section:
amount of pay‑related allowances for an incapacitated person for a day means the total amount of compensable pay‑related allowances that would have been paid to the person for the day as a part‑time Reservist if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay‑related allowances might be adjusted under Part 5.
compensable pay‑related allowance for an incapacitated person means a pay‑related allowance:
(a) that was being paid to the person immediately before the person last ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
example period has the meaning given by section 155.
pay‑related allowance days for an incapacitated person for a week means the average number of days (if any) served each week during the example period for which the person was paid an amount of pay‑related allowances.
rate of pay for an incapacitated person for a day means the amount of pay that the person would have been paid for the day as a part‑time Reservist if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under Part 5.
reserve days for an incapacitated person for a week means the average number of days (if any) served each week during the example period for which the person was paid as a part‑time Reservist.
155 Definition of example period for ADF component of normal earnings
For the purposes of section 154 and the definitions of defence days and defence hours in section 158, the example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part‑time Reservist; and
(ii) ending before the person last ceased to be a member of the Defence Force; or
(b) such other period that the Commission determines is reasonable.
Subdivision D—Working out the civilian component of normal earnings
156 Working out the civilian component of normal earnings
(1) The civilian component for a week for an incapacitated person is the amount worked out using the following formula:
(2) The following formula sets out how to work out the civilian daily earnings for an incapacitated person:
Note 1: The expressions used in this formula are defined in subsection (4).
Note 2: The person’s civilian daily earnings might be adjusted under Part 5.
(3) If the incapacitated person was required to work overtime on a regular basis in his or her work, the civilian daily earnings also include the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
(4) In this section:
allowances for an incapacitated person for a day means the average amount of allowances (other than expense allowances) paid to the person for a day for his or her civilian work during the example period.
civilian daily hours for an incapacitated person means the average number of hours worked each day by the person in his or her civilian work during the example period.
civilian overtime hours for an incapacitated person means the average number of hours of overtime worked each day by the person in his or her civilian work during the example period.
civilian overtime rate of pay for an incapacitated person means the person’s average hourly overtime rate of pay for the person’s overtime in his or her civilian work during the example period.
civilian rate of pay for an incapacitated person means the average hourly ordinary time rate of pay for the person’s civilian work during the example period.
example period has the meaning given by section 157.
157 Definition of example period for the civilian component of normal earnings
(1) For the purposes of this section 156 and the definition of civilian days in section 158, the example period for an incapacitated person is the latest period of 2 weeks:
(a) during which the person was continuously engaged in civilian work; and
(b) ending before the person last ceased to be a member of the Defence Force.
(2) However, the Commission may determine as the example period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the civilian daily earnings for the example period under subsection (1) would not fairly represent the daily rate at which the person was being paid for his or her civilian work before last ceasing to be a member of the Defence Force.
Subdivision E—Working out normal weekly hours
158 Working out normal weekly hours
(1) The normal weekly hours for an incapacitated person means the amount worked out using the following formula:
(2) In this section:
civilian daily hours has the meaning given by subsection 156(4).
civilian days for an incapacitated person means the average number of days (if any) per week during the example period for which the person was paid civilian daily earnings.
civilian overtime hours has the meaning given by subsection 156(4).
defence days for an incapacitated person means the average number of days (if any) per week during the example period for which the person was paid as a part‑time Reservist.
defence hours for an incapacitated person means the average number of hours per day during the example period for which the person was paid as a part‑time Reservist.
example period:
(a) for the purposes of the definition of defence days and defence hours—has the meaning given by section 155; and
(b) for the purposes of the definition of civilian days—has the meaning given by section 157.
Division 6—Working out normal earnings for former part‑time Reservists who were not engaged in civilian work
159 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person who:
(a) was a part‑time Reservist when the service injury or disease occurred; and
(b) was still a part‑time Reservist when he or she left the Defence Force; and
(c) was not working in civilian work before leaving the Defence Force.
Basically, the person’s normal earnings are 7 times the daily rate that the person would be paid if the person were still a part‑time Reservist.
Normal earnings worked out under this Division might be adjusted under Part 5.
160 Application of this Division to former part‑time Reservists who were not engaged in civilian work
This Division applies to a person in respect of a week if:
(a) the person was a part‑time Reservist immediately before last ceasing to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a service injury or disease; and
(c) the person was a part‑time Reservist when the service injury was sustained or the service disease was contracted; and
(d) the person was not engaged in civilian work before last ceasing to be a member of the Defence Force.
The person is called an incapacitated person in this Division.
161 Working out normal earnings
(1) The normal earnings for an incapacitated person for a week means the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (3).
(2) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
(3) In this section:
amount of pay‑related allowances for an incapacitated person for a day means the total amount of compensable pay‑related allowances that would have been paid to the person for the day as a part‑time Reservist if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay‑related allowances might be adjusted under Part 5.
compensable pay‑related allowance for an incapacitated person means a pay‑related allowance:
(a) that was being paid to the person immediately before the person last ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part‑time Reservist; and
(ii) ending before the person ceased to be a member of the Defence Force; or
(b) such other period that the Commission determines is reasonable.
pay‑related allowance days for an incapacitated person for a week means the average number of days per week (if any) served each week during the example period for which the person was paid an amount of pay‑related allowances.
rate of pay for an incapacitated person for a day means the rate of pay that the person would have been paid for the day as a part‑time Reservist if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under Part 5.
Division 7—Working out normal earnings for former part‑time Reservists who were previously Permanent Forces members
162 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person:
(a) who was a Permanent Forces member or a continuous full‑time Reservist when the service injury or disease occurred; and
(b) who was a part‑time Reservist when he or she left the Defence Force; and
(c) whose last period of full‑time service was as a Permanent Forces member.
The normal earnings are based on how much the person would have earned if the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under Part 5.
163 Application of this Division to former part‑time Reservists who were previously Permanent Forces members
This Division applies to a person in respect of a week if:
(a) the person was a part‑time Reservist immediately before last ceasing to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full‑time Reservist, when the service injury was sustained or the service disease was contracted; and
(d) the person was a Permanent Forces member immediately before completing his or her last period of full‑time service.
The person is called an incapacitated person in this Division.
164 Working out normal earnings
(1) The normal earnings for a week for an incapacitated person means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The person’s full‑time ADF pay for a week means the amount of pay that the person would have earned for the week as a Permanent Forces member if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s full‑time ADF pay might be adjusted under Part 5.
(3) The person’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the person for the week if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for an incapacitated person means a pay‑related allowance:
(a) that was being paid to the person immediately before completing his or her last period of full‑time service; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
Division 8—Working out normal earnings and normal weekly hours for former part‑time Reservists who were previously continuous full‑time Reservists
Subdivision A—Simplified outline of this Division
165 Simplified outline of this Division
This Division tells you how to work out the normal earnings for a person:
(a) who was a Permanent Forces member or a continuous full‑time Reservist when the service injury or disease occurred; and
(b) who was a part‑time Reservist when he or she left the Defence Force; and
(c) whose last period of full‑time service was as a continuous full‑time Reservist.
The person has a one‑off choice between 2 ways of working out normal earnings. Normal earnings can be based on the amount the person would have earned if the person were still a continuous full‑time Reservist. (This amount is called the full‑time ADF earnings.) Alternatively, normal earnings can be based on the person’s earnings from other work engaged in before beginning his or her last period of continuous full‑time service. (This amount is called the pre‑CFTS earnings.)
Normal earnings worked out under this Division might be adjusted under Part 5.
Subdivision D tells you how to work out the normal weekly hours for a person who chooses the pre‑CFTS earnings. (Normal weekly hours for a person who chooses the ADF earnings are 37.5 hours (see subsection 132(2).)
Subdivision B—Working out normal earnings for former part‑time Reservists who were previously continuous full‑time Reservists
166 Application of this Division to former part‑time Reservists who were previously continuous full‑time Reservists
This Division applies to a person in respect of a week if:
(a) the person was a part‑time Reservist immediately before last ceasing to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full‑time Reservist, when the service injury was sustained or the service disease was contracted; and
(d) the person was a continuous full‑time Reservist immediately before completing his or her last period of full‑time service.
The person is called an incapacitated person in this Division.
167 Working out normal earnings
(1) The normal earnings for an incapacitated person for a week means whichever of the following amounts is chosen by the person:
(a) the amount of the person’s full‑time ADF earnings for a week (see Subdivision C);
(b) the amount of the person’s pre‑CFTS earnings for a week (see Subdivision D).
(2) The person must inform the Commission in writing of his or her choice between the full‑time ADF earnings and the pre‑CFTS earnings.
(3) The person is only entitled to make one choice for all weeks in respect of which subsection (1) applies. The person cannot change his or her choice once it has been made.
Subdivision C—Working out full‑time ADF earnings
168 Working out full‑time ADF earnings
(1) The full‑time ADF earnings for a week for an incapacitated person means the amount worked out using the following formula:
Note: The amount of $100 is indexed under section 183.
(2) The person’s full‑time ADF pay for a week means the amount of pay that the person would have earned for the week as a continuous full‑time Reservist if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s full‑time ADF pay might be adjusted under Part 5.
(3) The person’s allowance component for a week means the total amount of compensable pay‑related allowances that would have been paid to the person for the week if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component might be adjusted under Part 5.
(4) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a continuous full‑time Reservist; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay‑related allowance for an incapacitated person means a pay‑related allowance:
(a) that was being paid to the person immediately before completing his or her last period of full‑time service; or
(b) that the person would have been paid after completing his or her initial training, as mentioned in section 189.
Subdivision D—Working out pre‑CFTS earnings
169 Simplified outline of this Subdivision
The pre‑CFTS earnings are worked out by looking back at the period before the person began his or her last period of continuous full‑time service. During this period, the person might have been a part‑time Reservist as well as being engaged in work.
The person’s pre‑CFTS earnings have 2 components: pre‑CFTS pay and reserve pay.
The person’s pre‑CFTS pay is based on earnings from work the person was engaged in before beginning the last period of continuous full‑time service. The work engaged in might be civilian work or defence work (as some people become continuous full‑time Reservists after being Permanent Forces members).
The person’s reserve pay is based on earnings from service as a part‑time Reservist.
However, for a person whose service injury or disease occurred while a continuous full‑time Reservist, the Commission may determine pre‑CFTS earnings by looking back at the period before the person last ceased to be a member of the Defence Force instead of the period before the person began his or her last period of continuous full‑time service.
170 Working out pre‑CFTS earnings
(1) The pre‑CFTS earnings for a week for an incapacitated person means the amount worked out using the following formula:
(2) In this section:
pre‑CFTS pay for an incapacitated person for a week means the amount worked out under section 171.
reserve pay for an incapacitated person for a week means the amount worked out under section 173.
171 Working out pre‑CFTS pay
Pre‑CFTS pay for those engaged in work before beginning last period of full‑time service
(1) The following formula sets out how to work out the pre‑CFTS pay for a week for an incapacitated person who was engaged in work before beginning his or her last period of continuous full‑time service:
Note 1: The expressions used in this formula are defined in subsection (4).
Note 2: The person’s pre‑CFTS pay might be adjusted under Part 5.
(2) If the incapacitated person was required to work overtime on a regular basis in that work, the pre‑CFTS pay for the week also includes the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
Pre‑CFTS pay for those not working
(3) The pre‑CFTS pay for a week for an incapacitated person who was not engaged in work before beginning his or her last period of continuous full‑time service is nil.
Definitions
(4) In this section:
allowances for an incapacitated person for a week is the average amount of allowances (other than expense allowances) paid to the person for a week for his or her work during the example period.
example period has the meaning given by section 172.
pre‑CFTS overtime hours for an incapacitated person means the average number of hours of overtime worked each week by the person in his or her work during the example period.
pre‑CFTS overtime rate of pay for an incapacitated person means the average hourly overtime rate of pay for the person’s overtime in his or her work during the example period.
pre‑CFTS rate of pay for an incapacitated person means the average hourly ordinary time rate of pay for the person’s work during the example period.
pre‑CFTS weekly hours for an incapacitated person means the average number of hours worked in each week by the person in his or her work during the example period.
work includes work as a member of the Defence Force (other than as a part‑time Reservist).
Note: A person might have been a Permanent Forces member before beginning his or her last period of continuous full‑time service. This work is taken into account in the pre‑CFTS pay. However, work as a part‑time Reservist is taken into account in the reserve pay.
172 Definition of example period for the pre‑CFTS pay
(1) For the purposes of this section 171, the example period for an incapacitated person is the latest period of 2 weeks:
(a) during which the person was continuously engaged in work (as defined in subsection 171(4)); and
(b) ending before the person began his or her last period of continuous full‑time service.
(2) However, the Commission may determine as the example period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre‑CFTS pay for the example period under subsection (1) would not fairly represent the weekly rate at which the person was being paid for his or her work before beginning the continuous full‑time service.
173 Working out reserve pay
Reserve pay for persons who were part‑time Reservists
(1) The reserve pay for a week for an incapacitated person who was a part‑time Reservist immediately before beginning his or her last period of continuous full‑time service is the amount worked out using the following formula:
Note: The expressions used in this formula are defined in subsection (4).
(2) The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay‑related allowance would normally have ceased to be paid to the person if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Reserve pay for persons who did not serve as part‑time Reservists
(3) The reserve pay for a week for an incapacitated Reservist who was not serving as a part‑time Reservist immediately before beginning his or her last period of continuous full‑time service is nil.
Definitions
(4) In this section:
amount of pay‑related allowances for an incapacitated person for a day means the total amount of compensable pay‑related allowances that would have been paid to the person for the day if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay‑related allowance might be adjusted under Part 5.
compensable pay‑related allowance for an incapacitated person means a pay‑related allowance that was being paid to the person immediately before beginning his or her last period of continuous full‑time service.
example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part‑time Reservist; and
(ii) ending before the person began his or her last period of continuous full‑time service; or
(b) such other period that the Commission determines is reasonable.
pay‑related allowance days for an incapacitated person for a week means the average number of days (if any) served each week during the example period for which the person was paid a pay‑related allowance.
rate of pay for a person for a day means the amount of pay that the person would have been paid for the day as a member of the Reserves if:
(a) the person were still a part‑time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under Part 5.
reserve days for an incapacitated person for a week means the average number of days (if any) served each week during the example period for which the person was paid as a part‑time Reservist.
173A Example periods for those injured as continuous full‑time Reservists
(1) For the purposes of the definition of example period in sections 172 and 173 for an incapacitated person who was a continuous full‑time Reservist when the service injury was sustained, or the service disease was contracted, the Commission may determine, as the end of the example period, a time before the person last ceased to be a member of the Defence Force (instead of a time before the person began his or her last period of continuous full‑time service).
(2) If the Commission does so, a reference in sections 171, 172 and 173 to a time before the person began his or her last period of continuous full‑time service is taken instead to be a reference to a time before the person last ceased to be a member of the Defence Force.
Subdivision E—Working out normal weekly hours for persons who have chosen pre‑CFTS earnings
174 Working out normal weekly hours for persons who have chosen pre‑CFTS earnings
(1) The normal weekly hours for an incapacitated person who has chosen the pre‑CFTS earnings under section 167 means the amount worked out using the following formula:
(2) In this section:
ADF hours for an incapacitated person means the average number of hours per week (if any) during the example period (as defined in subsection 173(4)) for which the person was paid as a part‑time Reservist.
pre‑CFTS overtime hours has the meaning given by subsection 171(4).
pre‑CFTS weekly hours has the meaning given by subsection 171(4).
Division 9—Working out normal and actual earnings and normal weekly hours for persons who were cadets or declared members
175 Regulations may prescribe methods for working out normal and actual earnings and normal weekly hours for cadets and declared members
The regulations may prescribe one or more methods of working out normal earnings, actual earnings and normal weekly hours for persons who were cadets and declared members.
Note: The regulations may also modify the application of this Part in respect of cadets and declared members (see section 439).
Part 5—Adjusting the amount of compensation for incapacity for service or work
Division 1—Introduction
176 Simplified outline of this Part
This Part sets out some important rules relating to a person’s normal earnings, actual earnings and the amount of compensation paid under Part 3 or 4.
Division 2 has some general rules that apply when working out normal and actual earnings.
Division 3 adjusts normal earnings for persons whose normal earnings relate to ADF pay.
Division 4 adjusts normal earnings for persons whose normal earnings relate to civilian pay.
Division 5 sets out how to work out compensation for part of a week.
177 Definitions of normal earnings and actual earnings
In this Part:
actual earnings has the meaning given by subsection 89(3) or 132(1) (as the case requires).
normal earnings has the meaning given by subsection 89(3) or 132(2) (as the case requires).
Division 2—General rules relating to normal and actual earnings etc.
178 Simplified outline of this Division
This Division deals with the following matters:
(a) the amount of a person’s normal earnings if his or her normal earnings are less than the relevant minimum wage set by a national minimum wage order;
(b) amounts to be excluded in working out normal and actual earnings;
(c) matters to be considered when determining actual earnings;
(d) indexation.
179 Normal earnings that are less than the minimum wage
If a person’s normal earnings for a week are less than an amount calculated by multiplying the relevant minimum wage set by a national minimum wage order (under section 294 of the Fair Work Act 2009) by 38 hours per week, then the person’s normal earnings for the week are instead the amount calculated by multiplying the relevant minimum wage set by a national minimum wage order (under section 294 of the Fair Work Act 2009) by 38 hours per week.
180 Amounts that are excluded when working out normal and actual earnings
(1) In working out normal earnings, do not include:
(a) any amount of a bonus that is earned by the person (whether paid as a lump sum or periodically); or
(b) the amount of any expected increase due to:
(i) the reasonable expectation of a bonus; or
(ii) the reasonable expectation of a promotion; or
(iii) the reasonable expectation of a posting.
(2) In working out actual earnings, do not include any amount of a bonus that is earned by the person (whether paid as a lump sum or periodically).
181 Matters to be considered in determining actual earnings
(1) This section sets out those matters that the Commission must have regard to in determining the weekly amount that a person is able to earn in suitable work for the purposes of:
(a) paragraphs 101(4)(a), 105(4)(a) and 115(4)(a) (definition of actual civilian earnings); and
(b) paragraph (a) of the definition of actual earnings in subsection 132(1).
In addition, the Commission may have regard to any other matter it considers relevant.
(2) If the person is working in suitable work, the Commission must have regard to the weekly amount that the person is earning in that work.
(3) If any of the following applies after the person becomes incapacitated for work, the Commission must have regard to the matters set out in subsection (4):
(a) the person fails to accept an offer of suitable work that is made to the person;
(b) an offer of suitable work is made to the person and accepted but the person fails to begin, or fails to continue, the work;
(c) an offer of suitable work is made to the person on the condition that the person complete a reasonable rehabilitation or vocational retraining program but the person fails to do so.
(4) If subsection (3) applies, the Commission must have regard to:
(a) the weekly amount that the person would be earning in that work if the person had not failed as described in subsection (3); and
(b) whether that failure was reasonable in all the circumstances.
(5) If the person has failed to seek suitable work after becoming incapacitated for work, the Commission must have regard to:
(a) the weekly amount that the person could reasonably be expected to earn in suitable work, having regard to the state of the labour market at the relevant time; and
(b) whether that failure was reasonable in all the circumstances.
182 Indexation of pre‑CFTS pay and civilian daily earnings
(1) The regulations may specify:
(a) an index for the purposes of this section; and
(b) the manner of working out an increase in the amount of a person’s pre‑CFTS pay or civilian daily earnings (as the case requires) by reference to the movement of that index over the year ending each 31 December.
(2) The amount of a person’s pre‑CFTS pay or civilian daily earnings, for an indexation year in which there is an increase in the prescribed index, is increased in the manner prescribed by the regulations.
(3) In this section:
civilian daily earnings means the amount worked out under the following provisions:
(a) subsections 98(2) and (3);
(b) subsections 156(2) and (3).
pre‑CFTS pay means the amount worked out under the following provisions:
(a) section 112;
(b) section 147;
(c) section 171.
183 Indexation of $100 in ADF pay
(1) The regulations may specify:
(a) an index for the purposes of this section; and
(b) the manner of working out an increase in the amount of $100 mentioned in subsections 104(1), 109(1), 141(1), 144(1), 164(1) and 168(1) by reference to the movement of that index over the year ending each 31 December.
(2) The amount of $100, for an indexation year in which there is an increase in the prescribed index, is increased in the manner prescribed by the regulations.
Division 3—Adjusting ADF pay and pay‑related allowances
184 Simplified outline of this Division
This Division adjusts the amount of a person’s normal earnings worked out under Part 3 or 4 if the normal earnings relate to ADF pay.
The normal earnings are adjusted in the following situations:
(a) if a person’s pay would increase (because of an increment increase, a pay rise or a promotion);
(b) if a pay‑related allowance, or the category of defence work that is used to determine the person’s normal earnings, is abolished;
(c) if the person is injured during initial training.
Once a person’s normal earnings have been worked out under Part 3 or 4, the earnings can only be adjusted under this Division.
185 Increases in pay and allowances
(1) This section applies for the purposes of the following sections:
(a) section 91;
(b) section 96;
(c) section 104;
(d) section 109;
(e) section 114;
(f) section 141;
(g) section 144;
(h) section 149;
(i) section 154;
(j) section 161;
(k) section 164;
(l) section 168;
(m) section 173.
(2) The amount of pay that a person would have earned for a period as a member of the Defence Force, and the amount of a pay‑related allowance that a person would have been paid for a period, include the following amounts that would have applied for the period:
(a) the amount of any increase in the person’s pay by way of an increment in a range of pay;
(b) the amount of any increase in the person’s pay or a pay‑related allowance as a result of:
(i) the operation of a law of the Commonwealth, a State or a Territory; or
(ii) the making, alteration or operation of a national minimum wage order (within the meaning given by the Fair Work Act 2009), or an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law.
186 Increases in pay and allowances due to actual promotions
(1) This section applies for the purposes of sections 91, 96, 114 and 149 if a person is promoted.
(2) The amount of pay that the person would have earned for a period as a member of the Defence Force, and the amount of a pay‑related allowance that the person would have been paid for a period, include:
(a) the amount of any actual increase in the person’s pay or a pay‑related allowance; or
(b) the amount of an additional pay‑related allowance the person would be paid;
for the period because the person is promoted.
Note: A person must actually be promoted in order to receive an increase under this subsection.
187 Commission must determine category of defence work when defence work abolished
(1) This section applies for the purposes of sections 104, 109, 114, 141, 144, 149, 154, 161, 164, 168 and 173 if the category of defence work that is used to determine a person’s normal earnings ceases to exist.
Note: For example, the category of defence work that is used to determine the normal earnings of a person to whom section 104 applies is the category of defence work that the person was engaged in immediately before completing his or her last period of full‑time service.
(2) The Commission must determine which of the current categories of defence work should be used to determine a person’s normal earnings instead.
(3) The amount of pay that the person would have earned for a period is the amount that the person would have earned for the period if the person performed the category of defence work determined under subsection (2).
Note: The amount of pay mentioned in subsection (3) might include increases mentioned in section 185.
188 Commission may determine pay‑related allowances when defence work abolished
(1) This section applies for the purposes of sections 91, 96, 104, 109, 114, 141, 144, 149, 154, 161, 164, 168 and 173 if a person’s compensable pay‑related allowance (the old allowance) ceases to exist before the allowance’s cessation date.
Note: Subsection (6) defines cessation date and compensable pay‑related allowance.
(2) The Commission may determine which of the current pay‑related allowances (if any) the person would have been paid instead.
(3) The amount of the old allowance that the person would have been paid for a period is the amount (if any) for the period of the pay‑related allowance determined under subsection (2).
Note: The amount of the pay‑related allowance mentioned in subsection (3) might include increases mentioned in section 185.
(4) The pay‑related allowance determined under subsection (2) is taken to be a compensable pay‑related allowance.
(5) The cessation date for the new allowance is taken to be the old allowance’s cessation date.
(6) In this section:
cessation date for a person’s pay‑related allowance means the date advised by the Chief of the Defence Force under the following provisions (as the case requires):
(a) subsection 91(4);
(b) subsection 96(2);
(c) subsection 104(4);
(d) subsection 109(4);
(e) subsection 114(2);
(f) subsection 141(4);
(g) subsection 144(4);
(h) subsection 149(2);
(i) subsection 154(2);
(j) subsection 161(2);
(k) subsection 164(4);
(l) subsection 168(4);
(m) subsection 173(2).
compensable pay‑related allowance has the meaning given by the following provisions (as the case requires):
(a) subsection 91(5);
(b) subsection 96(3);
(c) subsection 104(5);
(d) subsection 109(5);
(e) subsection 114(4);
(f) subsection 141(5);
(g) subsection 144(5);
(h) subsection 149(4);
(i) subsection 154(3);
(j) subsection 161(3);
(k) subsection 164(5);
(l) subsection 168(5);
(m) subsection 173(4).
189 Amount of pay and allowances for those undergoing initial training
(1) This section applies for the purposes of sections 91, 96, 104, 109, 141, 144, 154, 161, 164 and 168:
(a) in respect of a person who was undergoing initial training immediately before:
(ia) if section 91 or 96 applies—the onset date for the person’s incapacity for service; and
(i) if section 104, 109, 164 or 168 applies—completing his or her last period of full‑time service; and
(ii) if section 141, 144, 154 or 161 applies—last ceasing to be a member of the Defence Force; and
(b) for each week that occurs after the person would have completed the initial training if the person had completed the training.
(2) The amount of pay that the person would have earned, and the amount of pay‑related allowances that the person would have been paid, for each such week is the amount advised under subsection (3).
Note: An amount advised under this section might later include increases mentioned in section 185.
(3) The Chief of the Defence Force must advise the Commission in writing of the following:
(a) the rank that the Chief of the Defence Force considers the person would have held after completing the initial training;
(b) the amount of pay for a week for that rank that the Chief of the Defence Force considers the person would have earned as a member of the Defence Force after completing the training;
(c) any pay‑related allowance that the Chief of the Defence Force considers the person would have been paid after completing the training;
(d) the amount of that pay‑related allowance for a week that the Chief of the Defence Force considers the person would have been paid after completing the training.
190 No other adjustments to be taken into account
The only adjustments of the amount of a person’s pay or a pay‑related allowance to be taken into account in determining the person’s normal earnings are the adjustments mentioned in this Division.
Division 4—Adjusting other pay
191 Simplified outline of this Division
This Division adjusts the amount of a person’s civilian daily earnings or pre‑CFTS pay if:
(a) the amount is varied during the example period; or
(b) it is impracticable to work it out for the person.
192 Definitions of civilian daily earnings, example period and pre‑CFTS pay
In this Division:
civilian daily earnings has the meaning given by section 98 or 156 (as the case requires).
example period has the meaning given by section 99, 113, 148, 157 or 172 (as the case requires).
pre‑CFTS pay has the meaning given by section 112, 147 or 171 (as the case requires).
193 Variations during the example period
(1) This section applies for the purposes of sections 98, 112, 147, 156 and 171 if a person’s civilian daily earnings or pre‑CFTS pay varies during the example period.
(2) If the variation occurs as a result of:
(a) the operation of a law of the Commonwealth, a State or a Territory; or
(b) the making, alteration or operation of a national minimum wage order (within the meaning given by the Fair Work Act 2009), or an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;
then the amount of the civilian daily earnings or pre‑CFTS pay for the person is instead the amount that would have been his or her civilian daily earnings or pre‑CFTS pay if the variation had taken effect at the beginning of the example period.
194 Civilian daily earnings or pre‑CFTS pay if working them out is impracticable
(1) This section applies for the purposes of sections 98, 112, 147, 156 and 171 if it is impracticable to work out the civilian daily earnings or pre‑CFTS pay for a person.
(2) The civilian daily earnings or pre‑CFTS pay for a person before the relevant date is the civilian daily earnings or pre‑CFTS pay before that date of another person performing comparable work.
(3) In this section:
relevant date for a person means:
(a) if section 98 applies—the onset date for the person’s incapacity; and
(b) if section 156 applies—the date the person last ceased to be a member of the Defence Force; and
(c) if section 112, 147 or 171 applies—the date the person began his or her last period of continuous full‑time service.
Division 5—Working out compensation for parts of weeks
195 Simplified outline of this Division
This Division sets out how to work out the amount of compensation the Commonwealth is liable to pay under Part 3 or 4 of this Chapter if a person is only entitled to compensation for part of a week and not a whole week.
196 Working out compensation for parts of weeks
(1) The Commonwealth is liable to pay compensation under section 85, 86, 87 or 118 for a part of a week rather than a whole week if a person satisfies subsection 85(1), 86(1), 87(1) or 118(1) for the part of the week.
(2) The following formula sets out how to work out the amount of compensation that the Commonwealth is liable to pay to a person for a part of a week rather than a whole week:
(3) In this section:
number of days means:
(a) if the person is entitled to compensation under section 118 and Division 6 of Part 4 applies to the person—7; and
(b) if the person is entitled to compensation under section 87—the number of days prescribed by the regulations in respect of the person; and
(c) otherwise:
(i) 5; or
(ii) if the Commission determines another number as the number of days that the person would normally work in the part of the week—that other number.
Note 1: Division 6 of Part 4 applies to former part‑time Reservists who are incapacitated for work but who did not engage in civilian work before last ceasing to be a member of the Defence Force.
Note 2: Section 87 applies to incapacitated cadets and declared members.
Part 6—Choice to receive a Special Rate Disability Pension
197 Simplified outline of this Part
This Part provides a choice for severely impaired people (at least 50 impairment points) who are unable to work more than 10 hours per week to receive a pension under this Part instead of compensation worked out under Division 2 of Part 4.
The rate of the pension is the same as the rate applicable under section 24 of the Veterans’ Entitlements Act 1986. However, the rate may be reduced for a recipient who receives an amount under Part 2 (permanent impairment) or who receives or has received a benefit under a Commonwealth superannuation scheme.
A person who works more than 10 hours per week stops receiving the Special Rate Disability Pension. However, the person might still be eligible for assistance under the Return to Work Scheme determined by the Commission under section 210, or compensation worked out under Division 2 of Part 4.
198 What is a Special Rate Disability Pension?
(1) A Special Rate Disability Pension is an ongoing weekly payment (other than a payment under the Return to Work Scheme in section 210) that can be paid to certain persons instead of compensation worked out under Division 2 of Part 4.
(2) The maximum weekly amount of a Special Rate Disability Pension is one half of the fortnightly rate at which a pension is payable from time to time under section 24 of the Veterans’ Entitlements Act 1986.
199 Persons who are eligible to make a choice under this Part
(1) A person is eligible to make a choice under this Part if the Commission is satisfied that the person meets the following criteria (the eligibility criteria):
(a) at least one of the following applies:
(i) the person is receiving compensation worked out under Division 2 of Part 4 as a result of one or more service injuries or diseases;
(ii) the amount, under section 126, of the person’s compensation for a week, as a result of one or more service injuries or diseases, is nil or a negative amount;
(iii) the person has been paid a lump sum under section 138 in respect of the person’s incapacity for work as a result of one or more service injuries or diseases;
(b) as a result of the injuries or diseases, the person has suffered an impairment that is likely to continue indefinitely;
(c) the Commission has determined under Part 2 that the person’s impairment constitutes at least 50 impairment points;
(d) the person is unable to undertake remunerative work for more than 10 hours per week, and rehabilitation is unlikely to increase the person’s capacity to undertake remunerative work.
(2) The Commission must, as soon as practicable after becoming satisfied that a person meets the eligibility criteria, make the person a written offer of a choice under this Part. The offer must specify the date on which the offer is made.
200 Choice to receive Special Rate Disability Pension
(1) A person who is offered the choice under this Division can choose to receive a Special Rate Disability Pension instead of compensation worked out under Division 2 of Part 4.
(2) A person who makes the choice cannot change it.
(3) However, a person to whom the Commonwealth is no longer liable to pay a Special Rate Disability Pension under section 209 is taken not to have chosen to receive the Pension.
Note: This means that the person might still be entitled to compensation worked out under Division 2 of Part 4 or under the Return to Work Scheme in section 210.
201 When the choice is to be made
(1) A person who is offered the choice under this Part and who wishes to make the choice must do so within 12 months after the date on which the offer was made.
(2) The Commission may, either before or after the end of that period, extend the period within which the person must make the choice if the Commission is satisfied that:
(a) there was a delay in the person receiving the offer under subsection 199(2); or
(b) the person did not receive the offer.
202 Other requirements for the choice
(1) The Commission may, in writing, approve a form for the purposes of this section.
(2) A person must make the choice in writing in accordance with the form.
(3) Before making the choice, the person must obtain financial advice from a suitably qualified financial adviser in respect of the choice.
Note: The person might be entitled to compensation for the cost of the financial advice under section 205.
203 Determinations by Commission
(1) The Commission must determine that the Commonwealth is liable to pay a Special Rate Disability Pension to a person instead of compensation worked out under Division 2 of Part 4 if:
(a) the person is offered the choice under this Part; and
(b) the person makes the choice to receive the pension within the period applicable under section 201 and in accordance with section 202; and
(c) the Commission is satisfied that the person meets the eligibility criteria on the day on which the person makes the choice.
(2) The Commission must determine that a person is to continue to receive compensation worked out under Division 2 of Part 4 if:
(a) the person is offered a choice under this Part; and
(b) either:
(i) the person does not make the choice within the period applicable under section 201 and in accordance with section 202; or
(ii) the Commission is satisfied that the person does not meet the eligibility criteria on the day on which the person makes the choice.
(3) If the Commission makes a determination under subsection (1) in relation to a person, a Special Rate Disability Pension is payable to the person instead of compensation worked out under Division 2 of Part 4 from the day on which the Commission becomes aware of the person’s choice.
204 Offsets
(1) The maximum weekly amount of a Special Rate Disability Pension that could be payable to a person is reduced in accordance with this section.
Permanent impairment compensation
(2) There is a reduction that is made by reference to amounts payable or paid to the person under Part 2 (permanent impairment). However, a payment received for eligible young persons, financial advice, legal advice or energy supplement under that Part does not reduce the maximum weekly amount of Special Rate Disability Pension that could be payable to the person.
(3) The maximum weekly amount of a Special Rate Disability Pension that could be payable to a person is reduced by the sum of:
(a) any weekly amounts that are being paid to the person under Part 2; and
(b) if the person has chosen to convert all or part of one or more weekly amounts that were payable to the person under that Part to lump sums—those weekly amounts or those parts of those weekly amounts.
(4) Subsection (3) applies to a person to whom section 389 or 402 applies as if the person were being paid the weekly amounts under Part 2 that the person would be paid if that section did not apply to the person.
Note: Section 389 provides that compensation under Part 2 is not payable to a person who chooses to institute proceedings for damages against the Commonwealth. Under section 402, compensation under this Act is not payable to a person who recovers damages from a third party.
Commonwealth superannuation
(5) There is a reduction if the person:
(a) has retired voluntarily, or has been compulsorily retired, from his or her work; and
(b) receives either or both a pension or lump sum under a Commonwealth superannuation scheme as a result of the retirement.
(6) The amount of the reduction under subsection (5) is 60% of the reduction that would apply to the person under section 134, 135 or 136 if the person were receiving compensation worked out under Division 2 of Part 4.
Relationship with subsection 415(4)
(7) This section does not limit the application of subsection 415(4) in relation to a Special Rate Disability Pension.
Note: Subsection (7) has the effect that if the maximum weekly amount of a Special Rate Disability Pension is reduced in accordance with this section, that amount may be further reduced in accordance with subsection 415(4).
204A Overpayment if payment of lump sum under section 138
(1) This section applies if the Commission makes a determination under subsection 203(1) in relation to a person where subparagraph 199(1)(a)(iii) applies.
(2) An amount, equal to so much of the lump sum under section 138 as is worked out in accordance with a legislative instrument made by the Commission under this subsection, is taken to be an amount of compensation that should not have been paid to the person.
Note 1: Section 415 allows the Commission to recover that amount as a debt due to the Commonwealth and allows that amount to be deducted from an amount that is payable under this Act.
Note 2: Section 1228 of the Social Security Act 1991 provides that amount is recoverable under that Act by means of deductions from payments under that Act.
Note 3: Section 205 of the Veterans’ Entitlements Act 1986 provides that amount is recoverable under that Act by means of deductions from payments under that Act.
205 Compensation for cost of financial advice and legal advice
Financial advice
(1) The Commonwealth is liable to pay compensation for the cost of financial advice obtained by a person if:
(a) the person obtains financial advice from a suitably qualified financial adviser as mentioned in subsection 202(3); and
(b) a claim for compensation in respect of the person has been made under section 319.
Legal advice
(2) The Commonwealth is liable to pay compensation for the cost of legal advice obtained by a person if:
(a) the legal advice was obtained from a practising lawyer; and
(b) the legal advice was obtained in respect of the choice the person may make under this Part; and
(c) a claim for compensation in respect of the person has been made under section 319.
206 Amount of financial advice and legal advice compensation
Financial advice
(1) The Commission must determine the amount of compensation under subsection 205(1) for the cost of the financial advice that it considers reasonable.
Legal advice
(2) The Commission must determine the amount of compensation under subsection 205(2) for the cost of the legal advice that it considers reasonable.
Limit
(3) The sum of the total amount of compensation under subsections 205(1) and (2) in respect of the person must not exceed $2,400.
Note: The amount of $2,400 is indexed under section 404.
(4) The amount of $2,400 applies both to financial advice and legal advice under this Part and financial advice and legal advice under Part 2 if the day on which the offer under this Part was made, and the day specified in the first notice given to the person under section 76, are the same.
207 Whom the compensation is payable to
(1) Compensation under section 205 for the cost of financial advice or legal advice is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who gave the advice; or
(ii) any other person who incurred the cost of the advice.
Note: A special rule applies if a trustee is appointed under section 432.
(2) An amount paid to the person who gave the advice discharges any liability of any other person for the cost of the advice to the extent of the payment.
208 Persons who are imprisoned