Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Danna Vale MP)Schedule 2 - Amendment of the Safety, Rehabilitation and Compensation Act 1988
This schedule contains amendments to the SRCA necessary as a consequence of the passage of the MRCA. Generally, the provisions are intended to switch off the operation of various rules under the SRCA on and after the MRCA commencement for members of the ADF who render service on or after that date. It does not affect the application of the SRCA to other employees covered under the SRCA, nor to those ADF personnel whose service occurred before the MRCA commencement date.
Part 1 - Main amendments relating to application and transitional issues
Inserts a definition of CTPA into the definitions contained in subsection 4(1) meaning the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2003.
Inserts a definition of MRCA into the definitions contained in subsection 4(1) meaning the Military Rehabilitation and Compensation Act 2003.
Inserts a definition of MRCA commencement date into the definitions in subsection 4(1) meaning the date on which section 3 of the MRCA commences.
Item 4 - At the end of subsection 4(3)
Adds a note that provides that ADF members with service after the MRCA commencement date might be taken not to have suffered a physical or mental injury or ailment. Reference is made to new section 4AA (see item 5) and subsection 6A(2A) (see item 12)). The reason for this is that the person may be eligible for compensation under the MRCA as the MRCA is intended to apply to all service rendered on or after the MRCA commencement date.
Inserts section 4AA entitled 'Most injuries for members of the Defence Force no longer covered by this Act'.
Subsection 4AA(1) will close application of the SRCA because after the MRCA commencement date, compensation those ADF members serving on or after that date who suffer an injury on or after that date, will be provided with compensation coverage under the MRCA instead of the SRCA.
Subsection 4AA(2) will be similar to subsection 4AA(1) except that it applies to the contraction of a disease.
Subsection 4AA(3) will make it clear that the person's employment referred to in this new section means a continuous period or contiguous periods which span the period before, and on or after the MRCA commencement date.
Subsection 4AA(4) will cover the situation described at clause 10 of this Bill.
Item 6 - At the end of subsection 5(2)
Paragraph 5(2)(b) of the SRCA clarifies that an ADF member is to be regarded under the SRCA as employed by the Commonwealth. This item adds a note to subsection 5(2) indicating that ADF members with service after the MRCA commencement date might only be entitled to compensation under the MRCA and not the SRCA. The note is intended to assist decision-makers in assessing which Act applies.
Item 7 - Subparagraph 5(6A)(a)(i)
Is a technical amendment to take account of the commencement of the MRCA. The words 'before the MRCA commencement date' are inserted after the words 'Defence Force'.
Item 8 - Subparagraph 5(6A)(a)(ii)
Is a technical amendment similar to item 7. The words 'before the MRCA commencement date' are inserted after the word 'are'.
Item 9 - Subparagraph 5(6A)(a)(iii)
Is a technical amendment similar to item 8. The words 'before the MRCA commencement date' are inserted after the word 'training'.
Item 10 - At the end of subsection 5(6A)
Subsection 5(6A) is the provision in the SRCA that enables the Minister to declare that persons holding honorary ranks, members of philanthropic organisations etc. are to be taken for the purposes of the SRCA to be employed by the Commonwealth. This provides coverage under the SRCA for these people.
The note advises the reader that the MRCA has a provision that enables declarations in respect of these kinds of people to be made. The MRCA power will be relevant on and from the MRCA commencement date.
Item 11 - At the end of subsection 5(10)
Subsection 5(10) of the SRCA provides that the SRCA does not apply in relation to the service of an ADF member in respect of which provision for the payment of pension is made by the VEA. Item 11 adds a note to this subsection that advises the reader that compensation and other benefits might also be available for an ADF member under the MRCA. Generally, the SRCA will not cover an injury, disease or death that is covered by the MRCA.
Item 12 - After subsection 6A(2)
Amends subsection 6A(2) of the SRCA (which allows certain claims for the unintended consequences of medical treatment paid for by the Commonwealth) by the addition of a new subsection 6A(2A).
Subsection 6A(2A) clarifies that 6A(2) does not apply if:
- •
- the member is covered by the MRCA; and
- •
- the injury is first suffered on or after the MRCA commencement date; and
- •
- the injury is suffered as an unintended consequence of medical treatment paid for by the Commonwealth; and
- •
- the treatment is provided either:
- -
- on or after the MRCA commencement date; or
- -
- before, and on or after, the MRCA commencement date (whether the treatment spans the commencement date or is provided during separate periods before and after that date).
A note also provides that after the MRCA commencement date, compensation for ADF members is provided under the MRCA instead of the SRCA.
Item 13 - At the end of subsection 15(1)
Subsection 15(1) provides for compensation for loss of or damage to property used by an employee. This item adds a note to the end of this subsection that ADF members with service after the MRCA commencement date might only be entitled to compensation under the MRCA and not this Act (see section 15A).
Adds section 15A which provides that loss of or damage to property used by an employee (ADF member) is taken not to have resulted from an accident arising out of and in the course of the member's service if:
- •
- the member is covered by the MRCA;
- •
- the loss or damage occurs on or after the MRCA commencement date; and
- •
- the loss or damage results from an accident arising out of, or in the course of, the member's service as a member.
A note is also added to clarifies the reason for this provision and that is that compensation for ADF members is provided under the MRCA instead of the SRCA for such a loss or damage.
This change also adds a note to the end of subsection 37(1) (which relates to the provision of rehabilitation programs) that a rehabilitation program that is being provided to a person under the section might cease if the person is also provided with rehabilitation under the MRCA.
Item 15 - At the end of subsection 37(1)
Adds a note to the end of subsection 37(1) pointing out that a rehabilitation program provided under section 37 might cease if the person is provided with a rehabilitation program under MRCA and refers to the provision contained in section 18 of this Act for further detail.
Part 2 - Defence-related injuries and deaths etc
This Schedule inserts a new Part XI in the SRCA that has the effect of moving the responsibility for the administration of the continued operation of that Act in relation to ADF members from Comcare to the MRCC. The new Part XI of the SRCA also makes the Commonwealth rather than Comcare liable for all claims etc. relating to ADF members. The level of benefits does not change and will still be covered by guidelines from the Safety, Rehabilitation and Compensation Commission. However, the measure will facilitate more streamlined administration by the MRCC and the Department of Veterans' Affairs for all three military compensation arrangements: the VEA, the SRCA, and the new scheme set out in the MRCB.
The Schedule also validates payments by the Department of Defence to Comcare under section 97H of the SRCA for a determination under section 97 or 97D of that Act in respect of defence service before the MRCA commencement date.