Senate

Revised Explanatory Memorandum

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

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

Overview

Schedule 2 amends the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to remove the entitlement to compensation under that Act for, or in respect of, members of the Defence Force. 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.

Background

When the Military Rehabilitation and Compensation Act took effect in relation to injuries, diseases or deaths or loss of or damage to property, relating to defence service rendered on or after 1 July 2004 (or for a continuous period that began before and continued until on or after 1 July 2004), responsibility for determining and managing defence-related claims under the SRC Act was given to the Military Rehabilitation and Compensation Commission by virtue of the addition of Part XI to the SRC Act.

The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act), creates a legislative framework for Defence-related claims that is separate from the Comcare Scheme under the SRC Act.

Part 1 - Amendments

Item 1 amends the definition of Defence Department to replace the reference to "MRCA" with an expanded reference to the Military Rehabilitation and Compensation Act. The reference is used in the definition of "defence service" being inserted by Item 2 of this Part.

Item 2 inserts a definition of defence service in subsection 4(1) as having the meaning given by the Military Rehabilitation and Compensation Act. The insertion of the definition is a consequence of the repeal of Part XI (by Item 26 of this Part) and the inclusion of new sections 97DAA and 97DAB (by Item 25 of this Part).

Item 3 repeals the definitions of MRCA and MRCA commencement date from subsection 4(1) as the definitions were previously relevant to the administration of defence-related claims.

Item 4 amends paragraph (c) of the definition of rehabilitation authority to make a technical amendment to paragraph (c) to reflect the repeal of paragraph (d) by Item 5.

Item 6 repeals the note at the end of subsection 4(3), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 7 repeals section 4AA, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

A new section 4AA is substituted which provides that Comcare and the Safety, Rehabilitation and Compensation Commission will not have any liability under the SRC Act in respect of "an injury, loss, damage or death that relates to defence service (whenever it occurred)."

Item 8 repeals paragraph 5(2)(b) to remove "a member of the Defence Force" from the definition of an "employee" for the purposes of the SRC Act.

Item 9 amends subsection 5(2) by omitting the words ", by the person's performance of duties as such a member of the Defence Force".

The amendments made by Items 8 and 9 effectively remove from the SRC Act, entitlement to compensation under that Act for a member of the Defence Force by removing references to such members and the performance of duties by such members as being taken to have been employed by the Commonwealth.

Item 10 repeals the note at the end of subsection 5(2), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 11 repeals subsections 5(6A) and subsections 5(10) to (10D), as they apply only in relation to a member of the Defence Force or a declared member of the Defence Force and are no longer relevant to the SRC Act.

Item 12 inserts new subsection 5(17) to make it clear that, for the purposes of the SRC Act a member of the Defence Force is not an employee. The note inserted after the subsection refers the reader to the DRC Act for members of the Defence Force.

Item 13 repeals section 6A, as it relates only to members of the Defence Force, including cadets and declared members, and is no longer relevant to the SRC Act.

Item 14 repeals the note at the end of subsection 15(1), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 15 repeals section 15A, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 16 repeals the note at the end of subsection 16(1), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 17 repeals paragraph 33(2)(b) and (d) from the SRC Act as they relate only to members of the Defence Force and are no longer relevant to the SRC Act.

Item 18 repeals the note at the end of subsection 37(2), as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Items 19 and 20 amend section 41A with a technical amendment to subsection 41A(1) which reflects the repeal of subsection 41A(2). The repeal of subsection 41A(2) is required as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 21 repeals section 43 of the SRC Act, as it relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 22 omits from the definition of prescribed dependant in subsection 49(4) a reference to repealed section 43 ( Item 21 of this Part refers) which relates only to members of the Defence Force and is no longer relevant to the SRC Act.

Item 23 repeals and substitutes subsection 54(4). New subsection 54(4) requires Comcare to provide a copy of a claim for compensation to the principal officer of the entity, Commonwealth authority or licensed corporation.

The revised subsection removes the reference for Comcare to provide a copy of a claim for compensation to the Secretary, Department of Defence for a person who is or was a member of the Defence Force.

With all claims related to defence service being made under the DRC Act the reference is redundant.

Item 24 inserts a note to the end of subsection 97D(1) to refer to the need for Comcare to continue to make a determination under new section 97DAA (inserted by Item 25 of this Part) of the regulatory contributions for each financial year to be made by the Defence Department for employees engaged in defence service.

Item 25 inserts new sections 97DAA and 97 DAB.

New sections 97DAA and 97DAB replicate the requirements previously set out in sections 157 to 159 (from Part XI of this Act as repealed by Item 26 of this Part).

New subsection 97DAA(1) requires Comcare to make a determination of the amount of a regulatory contribution for each financial year that is payable by the Defence Department for employees engaged in defence service.

New subsection 97DAA(2) provides that the determination is to be made in accordance with the guidelines issued under section 97E with the amount of the regulatory contribution for each financial year being the sum of:

•

the estimated costs incurred by the Safety, Rehabilitation and Compensation Commission and Comcare in carrying out their respective functions under the SRC Act that are referable to the Defence Department in relation to defence service employees; and

•

the part of the estimated costs incurred by the Safety, Rehabilitation and Compensation Commission and Comcare in carrying out their respective functions under the repealed Occupational Health and Safety Act 1991, Work Health and Safety Act 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 that are referable to the Defence Department in relation to defence service employees.

New section 97DAB provides that sections 97E to 97P of the SRC Act are applied to the Defence Department in relation to defence service employees but only to the extent that the determinations are made under new section 97DAA.

The regulatory contributions represent cost recovery by Comcare for activities and functions carried out under the SRC Act and the Work Health and Safety Act 2011 on behalf of Australian Government agencies, the Defence Force, the ACT Government and other entities. To ensure that cost recovery is applicable to all of the activities and functions of Comcare the reference to the repealed Occupational Health and Safety Act 1991 has been retained.

Those regulatory activities and functions include setting premium and regulatory contribution guidelines and support for research, the provision of information and statistics management. Policy and regulatory practice advice and support and the preparation of the Permanent Impairment guide.

The regulatory contributions also cover the costs of the participation of Comcare in multi-jurisdiction forums: Safe Work Australia, Technical Advisory Groups and Special Interests Groups.

Item 26 repeals Part XI. Part XI is now redundant as it was applicable to the administration by the MRCC of defence-related claims under the SRC Act. With the enactment of the DRC Act the MRCC will have complete responsibility for the administration of defence-related claims.

Part 2 - Application and transitional provisions

Application of amendments of section 33

Item 27 provides that, despite the amendment of paragraph 33(2)(b) of the SRC Act made by this Schedule, that paragraph, as in force immediately before the amendment, continues in effect in relation to an amount paid or payable in respect of a period of leave of absence granted, or in lieu, before the time of the amendment.

Paragraph 33(2)(b) refers to an amount of pay in respect of a leave of absence or a grant in respect of such under the regulations in force under the Naval Defence Act 1910, the Defence Act 1903 or the Air Force Act 1923.

Subsection 33(2) sets out the amounts which are not to be regarded as amounts payable to an employee for the purposes of subsection 33(1). Subsection 33(1) provides for the offsetting of compensation payable to an employee for a day under sections 19, 20, 21, 21A, 22 or 31 where the employee is in receipt of salary, wages or pay for that day.

Item 28 is an application provision applicable to new sections 97DAA and 97DAB of the SRC Act as inserted by Item 25 of this Schedule. It provides in the circumstances where the determination by Comcare of the regulatory contribution to be made by the Defence Department under section 158 of the SRC Act has not been made before this Item commences, then the amendments are to apply from the financial year in which the Item commences and later financial years.

Commencement

Clause 2 sets out the commencement time for Parts 1 and 2 of Schedule 2 and provides that it will commence 28 days after this Act receives Royal Assent.