Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Dan Tehan MP)

Statement of Compatibility with Human Rights

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

Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016

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

Background

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

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

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

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

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

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

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

Overview of the amendments

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

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

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

Human rights engaged but not advanced or limited

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

Conclusion

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

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

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

Overview of the amendments

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

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

Human rights engaged but not advanced or limited

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

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

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the injury or aggravation arises out of or in the course of the employee's employment or the ailment or aggravation is contributed to, to a significant degree by the employee's employment as a member of the Defence Force; and

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the employment occurs on or after 1 December 1988 and before 1 July 2004, but not for a continuous period that commences before 1 July 2004 and concludes on or after, 1 July 2004.

New subsection 4AA(3) provides (subject to Part X - the transitional provisions which provide for the payment of compensation under the preceding worker's compensation Acts) that the DRC Act will apply in relation to the loss of or damage to the property of a member of the Defence Force when all of the following circumstances apply:

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the loss or damage resulted from an accident that arose out of, and in the course of the employee's employment as a member of the Defence Force; and

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the employment occurs on or after 1 December 1988 and before 1 July 2004.

New subsection 4AA(4) provides (subject to Part X - the transitional provisions which provide for the payment of compensation under the preceding worker's compensation Acts) that the DRC Act will apply in accordance with section 6A to an injury suffered by a member of the Defence Force when all of the following circumstances apply:

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the injury is suffered as an unintended consequence of medical treatment provided at the Commonwealth's expense; and

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the treatment was provided on or after 1 December 1988; and

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section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act was not applicable in relation to the injury.

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

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

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

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

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

Human rights engaged but not advanced or limited

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

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

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the power of the Minister (by legislative instrument) to declare that persons holding an honorary rank in the Defence Force, persons who were members of a philanthropic organisation or who had undertaken resettlement training were to be taken to be members of the Defence Force;

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the power of the Minister (by legislative instrument) to declare that certain persons who have engaged in activities or performed acts at the request or direction, for the benefit, or under a requirement by law, in relation to the Defence Force, are for the purposes of the SRC Act to be taken to have been employed by the Commonwealth;

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a reference to an employee can also include a person who has ceased to be an employee; and

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the exclusion of coverage under the DRC Act to persons in receipt of a disability pension under Part II or Part IV of the Veterans' Entitlements Act 1986 or the Papua New Guinea (Member of the Forces Benefits) Act 1957.

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

Conclusion

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

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

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

Overview of the amendments

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

Human rights engaged but not advanced or limited

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

Conclusion

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

Schedule 3 - Amendments of other Acts

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

Overview of the amendments

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

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

Human rights engaged but not advanced or limited

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

Conclusion

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