House of Representatives

Explanatory Memorandum

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

Schedule 2 - Amendment of the Military Rehabilitation and Compensation Act 2004

Overview

The amendments to the Military Rehabilitation and Compensation Act 2004 (MRCA) made by this Schedule will correct some minor errors and anomalies in the Act.

Background

The MRCA covers all permanent and reserve members of the Australian Defence Force, cadets and cadet instructors who have warlike, non-warlike and peacetime service. It provides treatment, rehabilitation and increased compensation for those members who suffer a mental or physical injury, or contract a disease, as a result of service after 30 June 2004. The MRCA combines elements of the Veterans' Entitlements Act 1986 (VEA) and the Safety, Rehabilitation and Compensation Act 1988 (SRCA). Benefits provided by the new Act match and in many cases, enhance those provided under the previous arrangements.

Part 1 - Amendments

Explanation of the changes

Unintended consequence of treatment for service injury or service disease

The amendments made by Item 1 relate to the acceptance of liability by the Military Rehabilitation and Compensation Commission (the Commission) for injuries and diseases contracted by service personnel as an intended or unintended consequence of receiving treatment for an earlier service injury or service disease.

Subparagraph 29(1)(a)(i) of the MRCA provides, that if a person receives medical treatment under the MRCA for an accepted condition, and as an unintended consequence of that treatment the person sustains an injury or contracts a disease, liability for the injury or disease is accepted under the MRCA.

Likewise, subparagraph 29(2)(a)(i) of the MRCA provides, that if a person receives medical treatment under the MRCA for an accepted condition, and as an unintended consequence of that treatment the injury or disease or a sign or symptom of the injury or disease of the member is aggravated by the treatment, liability for the injury or disease is accepted under the MRCA.

Those provisions were intended to mirror subsection 4(3) of the SRCA. However, subsection 4(3) of the SCRC provides for the acceptance of liability for any consequence, either intended or unintended that result from medical treatment provided for an earlier compensable injury.

Subparagraph 29(1)(a)(ii) of the MRCA provides that if a serving member receives treatment pursuant to regulations made under the Defence Act 1903 and as an unintended consequence of that treatment the member sustains an injury or contracts a disease, liability for the injury or disease is accepted under the MRCA.

Subparagraph 29(2)(a)(ii) of the MRCA provides that if a serving member receives treatment pursuant to regulations made under the Defence Act 1903 and as an unintended consequence of that treatment the injury or disease or a sign or symptom of the injury or disease of the member is aggravated by the treatment, liability for the injury or disease is accepted under the MRCA.

Those provisions mirror section 6A of the SRCA, which provides for liability being accepted for the unintended consequences of medical treatment provided by the Commonwealth. It does not provide for liability where such consequences are intended.

Unintended consequences of treatment are:

•

not desired or aimed for by the provider of the medical treatment; and

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not a likely consequence of the medical treatment.

For example, if a person were to receive treatment for a service injury or disease, and it was known that a side effect was a desired or likely consequence of the treatment, it could not be said that that side effect is an unintended consequence of that treatment. Therefore, under the current legislation, a person could not receive rehabilitation or compensation for that side effect, as liability could not be accepted under either subparagraph 29(1)(a)(i) of the MRCA or subparagraph 29(2)(a)(i).

Item 1 repeals and substitutes subsections 29(1) and (2) of the MRCA.

New subsection 29(1) provides that an injury sustained or a disease contracted by a person will be a service injury or a service disease if it was caused by a consequence, either intended or unintended of medical treatment paid for by the Commonwealth for an earlier service injury or service disease. This includes treatment provided under the MRCA or regulations made under the Defence Act .

Subsection 29(1) also provides that an injury sustained or a disease contracted by a person will be a service injury or a service disease only where it was an unintended consequence of medical treatment provided under regulations made under the Defence Act 1903 for an earlier injury or disease that was not a service injury or service disease. This applies to situations where a current serving members is provided treatment by the Department of Defence for an injury or disease unrelated to their defence service.

New subsection 29(2) provides that an injury sustained or a disease contracted by a person will be a service injury or a service disease if it was aggravated by a consequence, either intended or unintended, of medical treatment paid for by the Commonwealth for an earlier service injury or service disease. This includes treatment provided under the MRCA or regulations made under the Defence Act 1903 .

Subsection 29(2) also provides that an injury sustained or a disease contracted by a person will be a service injury or a service disease only where it was aggravated by an unintended consequence of medical treatment provided under regulations made under the Defence Act 1903 for an earlier injury or disease that was not a service injury or service disease. This applies to situations where a current serving member is provided treatment by the Department of Defence for a injury or disease unrelated to their defence service.

The amendments recognise that treatment for a service injury or service disease can be provided under either the MRCA or regulations made under the Defence Act 1903 . The amendments also make it clear that liability can be accepted for any consequence of medical treatment provided in relation to a service injury or service disease. However, where treatment is provided under the regulations made under the Defence Act 1903 to current serving members and the condition being treated has no other relationship to their defence service, the consequences of that treatment must be unintended for liability to be accepted.

Onus of Proof Relating to Claim for Liability

The amendments made by Item 2 clarify the issues concerning the onus of proof for liability claims under the MRCA.

It is the policy intention of the MRCA that nothing in any part of the Act will require the claimant, the Military Rehabilitation and Compensation Commission, any other Commonwealth or State organisation, or any other private person or group of persons to prove anything relating to a claim for the acceptance of liability or compensation benefits.

However, paragraph 337(a) of the MRCA, in the provision relating to the onus of proof, referred only to a person claiming compensation, and omitted references to claims for the acceptance of liability.

The discrepancy appears to have been an oversight as the provisions of the MRCA relating to the onus of proof applicable to claims were modelled on provisions of the VEA, which does not make a distinction between a claim for the acceptance of liability and a claim for compensation.

Item 2 amends paragraph 337(a) of MRCA by inserting the words "or claiming for the acceptance of liability" after the reference to a person "claiming compensation".

Commencement

Items 1 and 2 commence on the day after Royal Assent

Part 2 - Application provisions

The application provision inserted by Item 3 is beneficial in nature and provides that the amended subsections 29(1) and (2) of the MRCA as inserted by Item 1 of Part 1 will apply in relation to an injury sustained, or disease contracted, and to injuries or diseases aggravated before, on or after the commencement of the Item which has effect from 1 July 2004.

The application provision inserted by Item 4 provides that the amendment to paragraph 337(a) of the MRCA made by Item 2 of Part 1 will apply in relation to a matter that is, or might be relevant to the determination of a claim made on or after the commencement of the Item.