Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Michael McCormack MP)Schedule 4 - Compensation for household and attendant care services where catastrophic injury or disease
Military Rehabilitation and Compensation Act 2004
The amendments made by Schedule 4 would amend the existing provisions relating to compensation for household and attendant care services where an Australian Defence Force (ADF) member sustains a catastrophic injury or disease under the Military Rehabilitation and Compensation Act 2004 (MRCA). The new provisions will enable the Military Rehabilitation and Compensation Commission (the Commission) to specify the conditions for the purposes of the definition of "catastrophic injury". The provisions will also allow the Commission to approve weekly amounts of compensation for household and attendant care services it considers reasonable in individual circumstances.
It is intended the definition of catastrophic injury and disease, as well as the framework for the provision of household and attendant care services for those injuries or diseases under the MRCA will be broadly consistent with those contained in section 29A of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).
The definition of catastrophic injury or disease is expected to include injuries and diseases where ADF members require a high degree of attendant care and/or household services as a result of service-related conditions such as, but not limited to, serious neurological injury, paraplegia and quadriplegia. However, the exact list of conditions would be determined by the Commission.
Currently, members with a catastrophic injury receive household and attendant care services according to their individual needs via an exceptional circumstances determination made under subsection 287(2) of the MRCA. These amendments will remove the requirement for an exceptional circumstances determination to be made, thereby minimising any delay in the provision of appropriate household and attendant care support for seriously injured current and former ADF members.
The amendments also ensure entitlements for household and attendant care services for ADF members under the MRCA are equivalent to ADF members covered under the DRCA and civilians with coverage under the Safety, Rehabilitation and Compensation Act 1988 (SRCA).
These amendments commence on the 28th day after this Act receives Royal Assent.
Notes of Clauses:
Item 1 amends the heading at section 213 from 'Definitions of household and attendant care services to '213 Definitions'. This amendment specifies defined terms applicable to injuries and diseases; and catastrophic injuries. This amendment is a technical consequential amendment to support the amendments made below.
Item 2 amends section 213 to renumber the paragraph. This is a consequential technical amendment to support the amendments made below.
Item 3 amends section 213 to insert new definition of catastrophic injury or disease applicable to Division 3 of Part 7 in Chapter 4 of the MRCA. The new definition provides a catastrophic injury means an injury or disease, where the conditions as determined in an instrument made under subsection (2) are satisfied.
This new provision will provide a catastrophic injury or disease is one where a specified condition, to be determined, by the Commission, has been satisfied under new subsection 213(2). This is a similar approach as adopted within the Safety, Rehabilitation and Compensation Act (Defence-related Claims) Act 1988 (DRCA). New subsection 213(2) will be inserted by Item 4 below.
Item 4 amends section 213 by adding new subsection 213(2). New subsection 213(2) provides the Commission may by legislative instrument determine conditions for the purposes of the definition of catastrophic injury or disease in subsection (1).
This new subsection provides a new head of power for the Commission to specify in a legislative instrument the conditions to be satisfied in order for an injury or disease to be a catastrophic injury or disease for the purposes of the definition. This section is critical to the operation of new subsections 216(2) and 219(2) as these sections enable the Commission to determine the financial compensation, household and attendant care services, applicable to catastrophic injury or disease.
Item 5 amends section 216 to renumber the paragraph. This is a consequential technical amendment to support the amendments made below.
Item 6 amends section 216 by adding new subsection (2). New subsection 216(2) provides where the service injury referred to in paragraph 214(1)(a) is a catastrophic injury or disease, the weekly amount of compensation under section 214 the Commonwealth is liable to pay for household services is such amount as the Commission determines to be reasonable in the circumstances.
New subsection 216(2) enables the Commission to determine the financial compensation a person with a catastrophic injury or disease may receive for household services. The Commission has a discretion to determine the financial compensation according to a person's circumstances. This subsection enables the Commission to decide the financial compensation a person with a catastrophic injury or disease receives may be greater than the financial limits specified in subsection 216(1).
Service injury and service disease is defined in the MRCA at section 5 as 'the meaning given by section 27, subsections 29(1) and (2) and section 30'.
Item 7 amends section 219 to renumber the paragraph. This is a consequential technical amendment to support the amendments made below.
Item 8 amends section 219 by adding new subsection (2). New subsection 219(2) provides if the service injury referred to in paragraph 217(1)(a) is a catastrophic injury or disease, the weekly amount of compensation under section 217 the Commonwealth is liable to pay for attendant care services is such amount as the Commission determines to be reasonable in the circumstances.
New subsection 219(2) enables the Commission to determine the financial compensation a person with a catastrophic injury or disease may receive for attendant care services. The Commission has a discretion to determine the financial compensation according to a person's circumstances. This subsection enables the Commission to decide the financial compensation a person with a catastrophic injury or disease receives may be greater than the financial limits specified in subsection 219(1).
Item 9 amends subsection 345(2) to add new paragraph 345(2)(da) to provide a determination under subsection 213(2) (conditions for the purposes of the definition of catastrophic injury or disease in subsection 213(1)).
New paragraph 345(2)(da) will specify the determination made under subsection 213(3) is not an original determination and therefore not subject to review by a review body.
The intent of paragraph 345(2)(da) is to put it beyond doubt the MRCC is the determining body for the purposes of making a determination to specify the conditions defined as catastrophic injury or disease. This amendment will provide a level of certainty and ensure there is a consistency in the consideration as to what conditions are appropriate for the inclusion of a catastrophic injury or disease.
Currently members with a catastrophic injury receive a higher level of household and attendant care services via an exceptional circumstances determination made under subsection 287(2) of the MRCA. This amendment will remove the requirement for an exceptional circumstances determination to be made, in relation to a member where they have a catastrophic injury, minimising any delay in the provision of an appropriate level of household and attendant care.
It is intended the injuries and diseases of members who are currently subject to a special determination under section 287 of the MRCA will be prescribed by the MRCC under new subsection 213(1). The current level of assistance and benefits members who have a current subsection 213 special determination will be preserved. This amendment is not intended to diminish or reduce any current assistance or benefit provided under an existing special determination.
Item 10 are both consequential technical amendments to paragraphs 404(1)(f) and (g) to update references given the above amendments. These amendments are consequential due to sections 216 and 219 being renumbered by items (5) and (7) above. Paragraph 404 relates to indexation and ensures the compensation amounts specified in paragraphs 216(1)(b) and 219(1)(b) are subject to indexation.
Item 11 is the application provision in relation to this Schedule. The amendments to section 216 and 219 apply in relation to compensation of a week beginning on or after the day on which the first instruments made under subsection 213(2) commences (whether the catastrophic injury or disease arose before, or after the commencement of this item).
This application provision determines where the Commission makes an instrument under subsection 213(2), to determine a condition for the purposes of the definition of catastrophic injury or disease, compensation may be payable from the week beginning from when the instrument is made.
This application provision will enable members who may have suffered a catastrophic injury or disease to make a claim for household services and attendant care services even if the injury occurred prior to the commencement of the instrument. Members who have a catastrophic injury or disease and who may not have made a claim for household and/or attendant care services may make a claim where the injury or disease was suffered on or after 1 July 2004.