Revised Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Dan Tehan MP)Schedule 3 - Amendments of other Acts
Overview
The DRC Act is being created by Schedule 1 of this Bill. The Act is a re-enacted version of the SRC Act, modified to apply only to members of the Defence Force and their dependants.
There are numerous references to the SRC Act in other Acts. Most of the amendments that would be made by Schedule 3 of this Bill are consequential amendments to insert references to the DRC Act into those Acts where it is appropriate, either as a substitute to a reference to the SRC Act, or in addition to such a reference.
The amendments required for Veterans' Affairs portfolio legislation are more substantial as they deal with the interactions between compensation and other benefits provided to members of the Defence Force and their dependants under each of the three Acts administered by the Department.
Age Discrimination Act 2004
Item 1 amends paragraph 41(1)(fc) of the Age Discrimination Act 2004 by replacing the reference to the SRC Act with a reference to the DRC Act. This will mean that anything done by a person in direct compliance with the DRC Act is not unlawful for the purposes of the Age Discrimination Act 2004.
The amendment ensures the existing exemption that applied to defence-related claims under the SRC Act is maintained for defence-related claims under the DRC Act.
Item 2 inserts a reference to the DRC Act as new item 43A into the table in
Schedule 1 of the Age Discrimination Act 2004. The table in Schedule 1 sets out the legislation for which an exemption is provided from the application of subsection 39(1) of the Age Discrimination Act 2004.
The exemption is provided for legislative acts which would otherwise be unlawful under the age discrimination provisions of the Age Discrimination Act 2004.
The exempted legislation usually targets particular age groups for assistance or imposes appropriate age restrictions, such as in the case of the age of criminal responsibility.
Australian Participants in British Nuclear Tests (Treatment) Act 2006
Item 3 amends subparagraph 7(2)(b)(i) to insert a reference to the DRC Act after the reference to the SRC Act.
Section 7 of the Australian Participants in British Nuclear Tests (Treatment) Act 2006 sets out those persons who are and who are not eligible for assistance under that Act. Subsection 7(2) lists those persons who are provided with treatment and assistance under other Acts who are not eligible. Defence Act 1903
Item 4 amends paragraph 58B(1)(b) to replace the reference to the SRC Act with a reference to the DRC Act.
Under section 58B of the Defence Act 2003, the Defence Minister may make a determination concerning the payment of additional compensation to or for members, cadets and including members of the Reserves to whom compensation is payable under the SRC Act.
Item 5 is a transitional provision applicable to the Defence Determination 2016/19. The Defence Determination 2016/19 sets out conditions of service for Defence Force members and cadets. It also sets out the compensation payable to members, cadets, dependants and other eligible persons.
For the period of service prior to the commencement of the Military Rehabilitation and Compensation Act, Defence Force members are entitled to certain additional benefits in the event of compensable death or serious injury that were payable in addition to those payable under the SRC Act.
The effect of the transitional provision is to ensure that the reference to the SRC Act in the Determination is to be regarded as a reference to the DRC Act. Subitem 5(2) provides that the transitional provision will not prevent the amendment or the revocation of the Determination.
Item 6 amends the definition of salary in subsection 120B(16) to replace the reference to SRC Act with a reference to the DRC Act. Section 120B refers to the attachment of the salary of a Defence Force member as a consequence of the enforcement of a judgement to collect a debt.
Item 7 is an application provision concerning the amendment to the definition of salary in subsection 120B(16) made by Item 6. It provides that the amended definition is applicable to payments of compensation made after the commencement of the amendment.
Defence Force (Home Loans Assistance) Act 1990
Item 8 inserts new paragraph (aa) into the definition of compensable disability in section 3. New paragraph (aa) lists the DRC Act as one of the Acts under which compensation will be able to be paid.
Item 9 inserts new subparagraph 24(4)(b)(iaa) listing the DRC Act as one of the Acts under which compensation will be able to be paid for the purpose of defining a prescribed member.
Defence Force Home Ownership Assistance Scheme Act 2008
Item 10 inserts new paragraph (aa) into the definition of compensable condition in section 3. New paragraph (aa) lists the DRC Act as one of the Acts under which compensation will be able to be paid.
Disability Discrimination Act 1992
Item 11 repeals and substitutes paragraph 51(1)(j) replacing the listing of the
SRC Act in respect of defence-related claims under Part XI with a reference to the DRC Act.
The section refers to the exemption provided to the payment of pensions, benefits and allowances under various Acts from the prohibitions against disability discrimination under the Disability Discrimination Act 1992.
Income Tax Assessment Act 1997
Item 12 amends paragraphs 51-32(1)(a), 51-32(4)(a) and 51-33(1)(a) to replace references to the SRC Act with references to the DRC Act. The amendments would maintain the tax exemption applicable to compensation payments under the DRC Act, that replace deployment allowances and other payments.
Military Rehabilitation and Compensation Act 2004
Item 13 replaces the reference to the SRC Act in section 278 with a reference to the DRC Act. Section 278 provides a simplified outline of Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act which provides treatment for current and former Defence force members and the dependants of deceased members.
Items 14 to 16 amend section 280A by replacing references to the SRC Act in the heading, in subsection 280A(1) and in note 2 to subsection 280A(1) with references to the DRC Act.
The amended section 280A provides that treatment will be provided under the Military Rehabilitation and Compensation Act to certain DRC Act employees who are not already entitled to treatment under the Veterans' Entitlements Act or the Military Rehabilitation and Compensation Act.
Items 17 and 18 amend the definition of compensable treatment in section 289 by replacing the reference to "SRCA injuries" with a reference to injuries covered by the DRC Act in paragraph (b) of the definition and by substituting the reference to the SRC Act in the note to the definition with a reference to the DRC Act.
Section 289 defines the term compensable treatment for the purpose of providing compensation for travel expenses. The note refers to compensation for travel expenses being payable under section 16 of the DRC Act for persons entitled to treatment under section 280A of the Military Rehabilitation and Compensation Act.
Item 19 replaces the reference to the SRC Act in note 2 to section 300 with a reference to the DRC Act.
Section 300 provides that a person will be eligible for the MRCA Supplement if the person is entitled to treatment under Part 3 of Chapter 6 of the Military Rehabilitation and Compensation Act. Note 2 refers to the MRCA supplement payable to persons who are eligible for treatment under section 280A being paid from money appropriated under subsection 160(2) of the DRC Act.
Items 20 and 21 amend section 423 by replacing the reference to "SRCA injuries" in paragraph 423(c) with a reference to the injuries to be covered by the DRC Act and by substituting the reference to the SRC Act in note 2 to section 423 with a reference to the DRC Act.
Section 423 provides that the Consolidated Revenue Fund will be appropriated for the purposes of paying the various costs of treatment and benefits payable under the Military Rehabilitation and Compensation Act. Note 2 refers to the MRCA supplement payable to persons who are eligible for treatment under section 280A being paid from money appropriated under subsection 160(2) of the DRC Act.
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004
Item 22 inserts the definition of DRCA in subsection 4(1), being the DRC Act.
Item 23 repeals the notes to subsections 7(1), 7(2), 8(1) and 8(2).
Section 7 enables the Military Rehabilitation and Compensation Act to apply to injury, disease or death if this occurred on or after the commencement of the Act and relates to service rendered on or after that date or periods of service which spanned a period before commencement and on or after commencement. The Act also applies in the cases of the aggravation of a condition or the material contribution to a pre-existing condition.
Section 8 applies to injury, disease or death which is an unintended consequence of treatment provided to the member or former member by the Commonwealth as described in section 29 of the Military Rehabilitation and Compensation Act. The Act also applies in the cases of the aggravation of a condition or the material contribution to a pre-existing condition.
All of the repealed notes were similar and referred to the cessation of benefits under the Veterans' Entitlements Act and/or the SRC Act after the commencement of the Military Rehabilitation and Compensation Act on 1 July 2004.
With the replacement of the SRC Act by the DRC Act, the notes are redundant.
Items 24 to 26 amend section 10 by substituting references to the SRC Act with references to the DRC Act and by repealing the note to section 10.
The amended section 10 provides that subsection 7(4) of the DRC Act does not apply for the purposes of sections 7 and 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.
The exclusion means that where a person's disease can be traced back to service covered under the DRC Act but the disease does not manifest in impairment, incapacity for work or death until on or after the commencement of the Military Rehabilitation and Compensation Act (or treatment is not sought until then), the person's eligibility for compensation remains under the DRC Act.
Item 27 repeals the note to section 11.
Section 11 provides that the Military Rehabilitation and Compensation Act can apply to any loss or damage to medical aids which results from something that happened on or after commencement of the Act.
With the replacement of the SRC Act by the DRC Act the note is redundant.
Item 28 repeals and substitutes the heading to Part 3 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act to include a reference to the DRC Act.
Items 29 and 30 amend section 13 by replacing the heading and the reference to the SRC Act with references to the DRC Act.
Section 13 is applicable when a claim is made under the Military Rehabilitation and Compensation Act for someone who also has an entitlement under the Veterans' Entitlements Act or the DRC Act for an injury or disease (the old injury or disease ).
Subsection 13(3) provides that the impairment rating for the old injury or disease , derived from the application of section 67 of the Military Rehabilitation and Compensation Act, will be taken to have been made under that Act for the purpose of determining any permanent impairment compensation under the Military Rehabilitation and Compensation Act.
Items 31 and 32 amend section 14 by replacing the heading and references to the SRC Act with references to the DRC Act.
Section 14 ensures that a person will not be entitled to dual compensation by receiving the full rate of Special Rate Disability Pension under the Military Rehabilitation and Compensation Act and disability pension under the Veterans' Entitlements Act or compensation payable under the DRC Act.
The amount of Special Rate Disability Pension is reduced under section 14 by offsetting disability pension payments made under the Veterans' Entitlements Act and compensation payments made under the DRC Act.
Item 33 amends sections 15 and 16 by replacing references to the SRC Act with references to the DRC Act.
Sections 15 and 16 also ensure that persons will not be entitled to dual compensation. Section 15 provides that certain benefits payable for an injury or disease which are similar in nature, are only payable under the Military Rehabilitation and Compensation Act instead of the Veterans' Entitlements Act or the DRC Act.
Section 16 refers to the offsetting of payments of Commonwealth superannuation under both the Military Rehabilitation and Compensation Act and the DRC Act.
Item 34 is an application provision concerning the amendments made to sections 14, 15 and 16 by Items 31 to 33. It provides that the amendments are applicable to benefits and amounts paid after the commencement of the amendments.
Items 35 and 36 amend section 17 by replacing the heading and references to the SRC Act with references to the DRC Act.
Section 17 ensures that a person will not be entitled to dual compensation by receiving the full rate of compensation under the Military Rehabilitation and Compensation Act and lump sum compensation under section 30 of the DRC Act.
The amount of compensation is reduced under section 17 by deducting the weekly amount of compensation redeemed under section 30 of the DRC Act from the weekly amount of compensation payable under the Military Rehabilitation and Compensation Act.
Item 37 is an application provision concerning the amendments made to section 17. It provides that the amendments are applicable to amounts redeemed under section 30 of the DRC Act after the commencement of the amendments.
Item 38 and 39 amend section 18 by replacing the heading and the reference to the SRC Act with references to the DRC Act.
Section 18 is applicable when a person who undertakes a rehabilitation program under the Military Rehabilitation and Compensation Act is also undertaking a rehabilitation program under the Veterans' Entitlements Act or the DRC Act.
Subsection 18(2) provides that the rehabilitation authority may determine that the old rehabilitation program will stop being provided under the Veterans' Entitlements Act or the DRC Act and that it may be incorporated into the new program under the Military Rehabilitation and Compensation Act
Item 40 repeals the note to section 22.
Section 22 provides that, for the purposes of the Military Rehabilitation and Compensation Act, a declaration in force under subsection 5(6A) of the SRC Act (concerning persons determined to be employed by the Commonwealth) immediately before the commencement of the Military Rehabilitation and Compensation Act will be taken to have been made on that date under section 8 of that Act.
With the replacement of the SRC Act by the DRC Act the note is redundant.
Item 41 amends the note to section 23 by removing the references to the review process for decisions made under amendments to the Veterans' Entitlements Act or the SRC Act that were contained in Schedules 1 and 2 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act.
Section 23 provides (with the exception of the Schedules referred to previously) that a decision made under the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act will be regarded as an original determination and therefore reviewable under Chapter 8 of the Military Rehabilitation and Compensation Act.
With the passage of time and the replacement of the SRC Act by the DRC Act the reference to Schedules 1 and 2 in the note is redundant.
Item 42 substitutes a reference in paragraph 24(3)(a) to the SRC Act with a reference to the DRC Act.
Section 24 provides that the regulations made under the DRC Act may provide for transitional issues that arise from the enactment of the Act or the Military Rehabilitation and Compensation Act.
Subsection 24(3) now refers to the inclusion in those issues of the cessation of benefits under the Veterans' Entitlements Act or the DRC Act where a person is entitled to compensation under the Military Rehabilitation and Compensation Act.
Superannuation Act 1976
Item 43 amends paragraph 51(2)(d) by including a reference to the DRC Act.
Section 51 generally provides that a superannuation fund contributor who has been granted leave without pay for a period exceeding 12 weeks is not permitted to make superannuation contributions during that period.
Subsection 51(2) provides for an exception during a period referred to as an "excluded period". Paragraph 51(2)(d) refers to compensation leave under the SRC Act and the DRC Act.
Item 44 amends paragraph (a) of the definition of compensation leave in section 54A to include a reference to the DRC Act.
Section 54A defines terms used in Part IVA of the Superannuation Act 1976 which provides for the retirement of superannuation fund members on the basis of invalidity.
Item 45 amends subsections 54G(2) and 54JA(6A) by including references to the DRC Act.
Sections 54G and 54JA are provisions which form part of the assessment process for retirement on the grounds of invalidity.
Subsection 54G(2) is amended so that it is applicable where an employee is eligible for compensation under the Military Rehabilitation and Compensation Act or the DRC Act and refers to the requirement for the Commonwealth Superannuation Corporation to seek the views of the Military Rehabilitation and Compensation Commission concerning the retirement of the employee on the grounds that he or she is totally and permanently incapacitated.
Subsection 54JA(6A) is amended so is applicable where an employee is eligible for compensation under the Military Rehabilitation and Compensation Act or the DRC Act and refers to the requirement for the Commonwealth Superannuation Corporation to obtain the views of the Military Rehabilitation and Compensation Commission concerning the retirement of the employee on the grounds that he or she is totally and permanently incapacitated.
Item 46 amends subsection 78A(1) to include a reference to the DRC Act.
Section 78A provides that a partial invalidity pension, or an increase in the rate of the pension will not be payable under section 78 of the Superannuation Act 1976 if the person is entitled to compensation under the SRC Act, the DRC Act or the Military Rehabilitation and Compensation Act.
Veterans' Entitlements Act 1986
Items 47 and 48 amend section 25A by replacing the heading and references to the SRC Act with references to the DRC Act.
Section 25A ensures that a person will not be entitled to dual compensation by receiving compensation under sections 23, 24 or 25 or temporary incapacity or loss of earnings allowances under the Veterans' Entitlements Act and compensation under sections 24, 25 or 27 of the DRC Act.
The amount of compensation or allowance is reduced by deducting the weekly amount of compensation determined under subsection 25A(1) from the compensation or allowance payable under the Veterans' Entitlements Act.
Item 49 amends the definition of damages in subsection 30B(3) by omitting the reference to the SRC Act and substituting a reference to the DRC Act.
For the purposes of sections 30G and 30H, damages does not include an amount paid under a notice issued under section 51 of the DRC Act.
Items 50 to 53 amend section 30C by replacing subsection headings and other references to the SRC Act with references to the DRC Act.
Section 30C ensures that a person will not be entitled to dual compensation by receiving compensation under Part II of the Veterans' Entitlements Act and a lump sum from another source or under sections 30 or 137 of the DRC Act.
The amount of pension payable under Part II of the Veterans' Entitlements Act is reduced by taking into account the amount of compensation as determined under subsections 30C(8), (9) or (10).
Item 54 replaces the references to the SRC Act in the notes to subsections 30G(1) and 30H(1) with references to the DRC Act.
Both notes refer to damages being defined under subsection 30B(3) as not including certain payments under the DRC Act for the purposes of the sections.
Item 55 replaces the references to the SRC Act in paragraphs 74(3A)(a) and 74(3B)(a) with references to the DRC Act.
Section 74 ensures that a person will not be entitled to dual compensation by receiving compensation under Part IV of the Veterans' Entitlements Act and a lump sum from another source or under sections 30 or 137 of the DRC Act.
The amount of pension payable under Part IV of the Veterans' Entitlements Act is reduced by taking into account the amount of compensation as determined under subsections 30C(8), (9), (10) or (11).
Item 56 replaces the references to the SRC Act in subsections 76(6) and 85(2A) with references to the DRC Act.
Subsection 76(6) provides that damages for the purposes of the section, does not include an amount paid under a notice issued under section 51 of the DRC Act.
Subsection 85(2A) provides that treatment will be provided under the Veterans' Entitlements Act to persons entitled under the DRC Act who are not already entitled to treatment under the Veterans' Entitlements Act.
Item 57 is an application provision concerning the amendments to be made to sections 25A, 30B, 30C, 74 and 76 by items of this Schedule. It provides that those amendments are applicable to payments made or received after the commencement of the amendments.
Items 58 and 59 amend subsection 110(3A) and the note to the subsection by replacing the references to the SRC Act references to the DRC Act.
Subsection 110(3A) provides that travelling expenses are not payable under the section in respect of treatment obtained under subsection 85(2A) (as described by Item 56 of this Schedule).
Item 60 is an application provision concerning the amendment to be made to section 110 by Items 58 and 59 of this Schedule. It provides that the amendments are applicable to treatment obtained after the commencement of the amendment.
Commencement
Clause 2 provides that the amendments in Schedule 3 commence immediately after the commencement of the amendments made by Part 1 of Schedule 1.