BILLS DIGEST NO. 56, 2016–17              25 January 2017

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

Paula Pyburne
Law and Bills Digest Section 

Date introduced: 9 November 2016

House: House of Representatives

Portfolio: Veterans' Affairs

Commencement: Various dates as set out in the body of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at January 2017.

Purpose of the Bill

The purpose of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016 (the Bill) is to create the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act) which will be a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (SRCA).

Structure of the Bill

The Bill comprises three Schedules.

Schedule 1, which deals with the enactment and amendment of the DRC Act, has three Parts:

•       Part 1 enacts the DRC Act

•       Part 2 amends the DRC Act to repeal redundant definitions, include consequential references to the SRCA and to repeal provisions and Parts that are not relevant to the administration of the DRC Act by the Military Rehabilitation and Compensation Commission (the Commission or MRCC)

•       Part 3 contains amendments to the DRC Act relating to pension age.

Schedule 2 contains amendments to the SRCA and relevant application and transitional provisions.

Schedule 3 amends existing references to the SRCA in a range of other Commonwealth statutes.

Background

Unique nature of military service

The comments included in the Review of the Military Compensation Scheme of March 1999 which was conducted by Noel Tanzer (Tanzer Review) are as true today as they were at that time:

The role of the ADF [Australian Defence Force] is to protect Australia and its interests. To meet this role, the ADF is required to maintain an operationally capable force, which displays a high level of fitness, commitment, efficiency and discipline among its members. To achieve this, certain inherent requirements apply to those personnel serving in the ADF. These requirements will, to varying degrees, impact on the lifestyle of each ADF member. Such conditions are generally specific to military life and would not normally apply to the majority of those in civilian employment.[1]

Since Australia’s involvement in the First World War, a high priority for successive Australian Governments has been to ‘provide compensation and related support to veterans and their dependants’.[2] Compensation for members of the Australian Defence Force who suffer injury or disease has been the subject of numerous changes since that time. This has resulted in members being covered under different compensation statutes. For instance, the provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and the Veterans’ Entitlements Act 1986 (VEA) apply to service before 1 July 2004.

Consistent with the recommendations of the Tanzer Review, in the early 2000s, the Government undertook to introduce a more integrated approach to military compensation.[3] The Military, Rehabilitation and Compensation Act 2004 (MRCA) was enacted to provide rehabilitation and compensation coverage for the following members of the ADF who served on or after 1 July 2004:

•       all members of the Permanent Forces

•       all members of the Reserve Forces

•       Cadets and Officers, including instructors of Cadets

•       persons who hold an honorary rank or appointment in the ADF and who perform acts at the request or direction of the Defence Force

•       persons who perform acts at the request or direction of the Defence Force as an accredited representative of a registered charity

•       persons who are receiving assistance under the Career Transition Assistance Scheme (established under section 58B of the Defence Act 1903) and who perform acts in connection with the scheme and

•       other people declared in writing by the Minister for Defence to be members of the ADF.[4]

The MRCA is the first compensation legislation designed to cover the whole spectrum of military service. Unfortunately though, there are inconsistencies between the VEA, the SRCA and the MRCA as they provide for different benefits (due largely to the history of each of the Acts), different rates of payment and different circumstances which give rise to entitlement.[5] The Veterans’ Advisory Council South Australia explains the effect of these laws:

Claims for compensation relating to service in the ADF are assessed under one of a number of different Acts, depending on the time and/or the type of the service, with different liability tests applying. This Byzantine legislative framework is difficult to navigate for advocates, DVA staff and members of the serving and ex-serving community. In some circumstances a veteran may have a claim under more than one Act requiring the claimant (or their advocate) to make a number of applications to more than one compensatory scheme. The complexity of the legislative framework can lead to significant delays to the processing of claims adding unwarranted stress to those involved.[6]

Review of Military Compensation Arrangements

On 8 April 2009, the then Minister for Veterans’ Affairs announced a Review of Military Compensation Arrangements to be conducted by a Steering Committee chaired by Mr Ian Campbell PSM (the Campbell Review).[7]

Whilst the terms of reference focused on the operation of the MRCA, they also called for, amongst other things, a review of legislative schemes that govern military compensation for service before 1 July 2004 and any anomalies that exist.[8]

The Campbell Review was strongly in favour of a military-specific compensation scheme that recognises that military service is different from civilian employment.

Earlier legislative action

The view that there should be a military-specific compensation scheme separate from a workers’ compensation scheme was reflected in the drafting of the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, which was introduced into the House of Representatives on 25 March 2015.[9] That Bill sought to make profound changes to the Comcare scheme by amending the SRCA to make the scheme more sustainable over time. This would have included reducing the types of injuries that are compensable, reducing the costs to the scheme and creating a sanctions regime to suspend and/or cancel payments to injured employees.[10]

Importantly, Schedule 16 of that Bill was intended to operate so that the amendments made by the other schedules in the Bill, with some exceptions, would not apply to defence-related claims. Speaking about the Bill in the Senate, Minister for Human Services, Marise Payne stated:

In recognition of the Government's commitment to the unique nature of military service, Australian Defence Force (ADF) members with coverage under Part XI of the SRC Act will be exempted from all but two of the proposals being introduced in the Bill.

These proposals relate to the calculation of permanent impairment compensation and will ensure that a member or former member of the ADF will not receive less compensation than an employee covered by the Comcare scheme with the same level of impairment. The Government's agreement to these changes is a reflection of our commitment to recognising the unique nature of ADF service.

The Government will also create a new Act to separate ADF members and former members from the existing SRC Act.[11]

The Bill lapsed when the Parliament was prorogued on 15 April 2016.

This Bill makes good the Government's promise to carve out the workers’ compensation entitlements of Defence Force members from the SRCA. If it is enacted, it will effectively quarantine Defence Force members from the effects of any future amendment of the SRCA.

Committee consideration

Selection of Bills Committee

At its meeting of 1 December 2016 the Selection of Bills Committee deferred consideration of the Bill to its next meeting.[12]

Senate Standing Committee for the Scrutiny of Bills

In its Alert Digest of 23 November 2016 the Senate Standing Committee for the Scrutiny of Bills stated that it had no comment in relation to the Bill.[13]

Policy position of non-government parties/independents

At the time of writing this Bills Digest there had been not comments from non-government parties or independents about the Bill.

Position of major interest groups

At the time of writing this Bills Digest peak bodies had not made specific comment about the Bill.

However, the Returned and Services League (RSL) noted in its submission to the Senate Foreign Affairs, Defence and Trade References Committee inquiry into Suicide by Veterans and Ex-service Personnel the difficulties for veterans and ex-service personnel in dealing with three separate statutes.[14]

It is considered that the RSL is likely to welcome both the Government’s move to create a military-specific statute as the DRC Act and its commitment to bring the new Act into closer alignment with the MRCA over time.[15]

Financial implications

According to the Explanatory Memorandum, the Bill is expected to have no financial impact.[16]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[17]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[18]

Part 1—enacting the DRC Act

Commencement

The provisions in Part 1 of Schedule 1 to the Bill commence on the later of Royal Assent and the start of 1 July 2017.

Key provisions

Item 1 re-enacts the SRCA as the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. The effect of this item is to maintain the SRCA in its existing form and to create a mirror copy as the DRC Act which is deemed to have been passed as Act number 156 of 1988.

Item 2 operates so that, in determining a claim, the version of the DRC Act that applies is the same as the version of the SRCA which was applicable at the relevant time.

According to the Explanatory Memorandum to the Bill:

… 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 savings provision that also applied to the Defence Force member at the time for which eligibility is being determined.[19]

Importantly, the DRC Act does not create any new rights—over and above those already contained in the SRCA—for the persons that it covers. However, it does not prevent a provision of a later Act or instrument overriding this position. This is consistent with the comment in the Explanatory Memorandum that the enactment of the DRC Act ‘will enable the Military Rehabilitation and Compensation Commission (MRCC) to bring the newly enacted DRC Act into closer alignment with the MRCA as part of future amendments to these Acts’.[20]

Part 2—amending the DRC Act

Commencement

The provisions in Part 2 of Schedule 1 to the Bill commence immediately after the commencement of the provisions in Part 1.

Key provisions

Item 3 amends the long title of the DRC Act to specify that it is an Act relating to the rehabilitation and treatment of and compensation for, members of the Defence Force, and for related purposes.

Items 4–29 amend Part I of the DRC Act which deals with preliminary matters. Many of the items repeal irrelevant definitions or amend definitions to include references to the SRCA.[21]

Importantly, the DRC Act retains the current definitions of injury and disease in sections 5A and 5B respectively as they are imported from the SRCA as well as section 7 (with a minor amendment to paragraph 7(9)(c) by item 28 of the Bill) which contains provisions about diseases.

Application of the DRC Act

Item 23 repeals existing section 4AA and inserts proposed section 4AA into this framework setting out the application of the DRC Act. It will apply to an injury that is not an ailment,[22] or an aggravation of an injury that is not an ailment, suffered by an employee—provided that:

•       the injury or aggravation arises out of, or in the course of, the employee’s employment as a member of the Defence Force and

•       the employment occurred on, or after, 1 December 1988 and before 1 July 2004.[23]

The DRC Act applies to an ailment, or an aggravation of an ailment, suffered by an employee if the ailment or aggravation is contributed to, to a significant degree, by the employee’s employment as a member of the Defence Force—provided that the employment occurred on, or after, 1 December 1988 and before 1 July 2004.[24]

The DRC Act applies (subject to the transitional provisions in Part X) to loss of, or damage to, property used by an employee if that 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—provided that the employment occurred on, or after, 1 December 1988 and before 1 July 2004.[25]

The DRC Act also applies in relation to any injury suffered by an employee if the injury is suffered as an unintended consequence of medical treatment received by the employee that was paid for by the Commonwealth—provided that the treatment was provided on, or after, 1 December 1988 and the injury is not an injury to which the MRCA applies.[26]

Employees

Item 24 repeals and replaces the definition of employees that has been imported from the SRCA. Proposed subsection 5(1) provides that the term employee means a member of the Defence Force. Proposed subsection 5(2) makes it clear that a person who is a member of the Defence Force is taken to be employed by the Commonwealth, and the person’s employment is taken to be constituted by the person’s performance of duties as such a member of the Defence Force.

The definition also, amongst other things, empowers the Minister to declare, by legislative instrument, that certain persons are, for the purposes of the DRC Act, taken to be members of the Defence Force.[27]

Compensation

Items 30–32 amend Part II of the DRC Act which relates to compensation for injuries. The amendments operate so that the DRC Act will provide for compensation for the loss of, or damage to, property used by an employee if the loss or damage resulted from an accident that arose out of, and in the course of, the employee’s employment in the Defence Force—provided that the employment occurred on or after 1 December 1988 and before 1 July 2004.[28]

Rehabilitation

Items 33–37 amend Part III of the DRC Act which relates to rehabilitation.

Item 33 repeals Divisions 1 and 2 of Part III. In particular, the provisions in Division 2 set out how Comcare can approve people as rehabilitation program providers. It is not necessary to replicate these provisions in the DRC Act. In practice it will be open to the MRCC to use rehabilitation providers who have been approved by Comcare under Divisions 1 and 2 of Part III of the SRC Act.[29]

The amendments in items 35–37 are consequential in nature. They remove references that are not relevant to rehabilitation of injured military personnel under the DRC Act.

Reconsideration and review

Items 38–41 make minor changes to Part VI of the DRC Act which relates to reconsideration and review of decisions.

These minor changes must be considered in the context of the enactment of the Budget Savings (Omnibus) Act 2016. Schedule 24 of that Act amended the MRCA to create a single appeal path with respect to the review of original determinations made under the MRCA. Essentially, from 1 January 2017:

•       the original determination under the MRCA is made by the MRCC[30]

•       a claimant can apply to have an original determination (made by either the Commission or the Chief of the Defence Force) reviewed by the Veterans’ Review Board (VRB)[31]. The Commission may also reconsider an original determination on its own initiative[32]

•       there is a right of appeal to the Administrative Appeals Tribunal (AAT) in respect of a decision by the VRB.

In comparison the DRC Act retains the existing appeal path under the SRCA as follows:

•       the original determination under the DRC Act is made by the MRCC[33]

•       the MRCC may reconsider original determinations on its own motion[34] or on application of the claimant.[35] These decisions are reviewable decisions.

•       there is no right of review to the VRB

•       there is a right of appeal to the AAT in respect of a reviewable decision.[36]

The VRB is established under Part IX of the VEA which sets out, amongst other things, the Board’s functions and procedures. Section 353 of the MRCA applies specific provisions from Part IX of the VEA to allow for the VRB to review certain decisions made in accordance with the MRCA. There is no equivalent provision either in the SRCA or in the newly created DRC Act. However, as noted above it may be possible to bring the DRC Act into closer alignment with the MRCA as part of future amendments to these Acts.[37]

Parts VII and VIII

Item 42 of the Bill repeals Part VII (about Administration and Finance—in particular how Comcare is to determine the premium that is payable by an agency) and Part VIII (about the power of the Safety Rehabilitation and Compensation Commission (SRCC) to grant licences to Commonwealth authorities or eligible corporations), from the DRC Act.

These provisions are not relevant to the DRC Act.

Regulation making power

Items 43–45 of the Bill amend Part IX of the DRC Act which deals with miscellaneous matters.

The DRC Act retains the general regulation making power imported from the SRCA.[38] In addition, item 45 in Schedule 1 to the Bill inserts proposed section 121B which provides that if the Minister is satisfied that it is necessary or desirable to make regulations to ensure that no person (except the Commonwealth) is disadvantaged by the enactment of the DRC Act then the Governor-General may make regulations to modify the operation of the Act. This is known as a Henry VIII clause.[39] According to the Explanatory Memorandum:

The regulations to be made under new section 121B may require a retrospective application and are intended to operate in a purely beneficial way to deal with any anomalies that may arise where there is a retrospective application of the DRC Act which will need to refer to the earlier version of the SRC Act that applied at the time for which eligibility is being determined.[40]

A legislative instrument, such as the regulations which may be made under proposed section 121B, are subject to disallowance if either a Senator or Member of the House of Representatives moves a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled.[41] The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given.

Changes to Part XI

Part XI of the SRCA provides for the operation of that Act in relation to certain defence related injuries and deaths. Clearly when Part XI is imported into the new DRC Act, some of its provisions will be redundant.

Items 46–61 amend Part XI of the DRC Act to, amongst other things:

•       remove the requirement that the MRCC ensure that as far as practicable its administrative practices and procedures do not result in different outcomes to those of Comcare and the SRCC[42]

•       remove the requirement that the MRCC not make a submission to a court or tribunal if Comcare or the SRCC requested that a submission not be made[43]

•       allow the MRCC to prepare a Guide to the Assessment of the Degree of Permanent Impairment for approval by the Minister for Veterans Affairs. [44] Under the application provisions, the MRCC may continue using the existing Guide that has been prepared by Comcare[45] and

•       remove the requirement that the MRCC or the Chief of Defence Force consult with Comcare about the proposed nomination of a person as a rehabilitation program provider.[46]

Application and transitional provisions

Items 62—67 in Schedule 1 to the Bill contain application provisions which are based on:

•       first commencement time—that is, on the later of Royal Assent and the start of 1 July 2017 and

•       second commencement time—the time immediately after the first commencement time.

Essentially, the application provisions provide for the continuity under the DRC Act of legislative and any non-legislative instruments that were made under the SRCA prior to the first commencement time.

Part 3—commencement

The provisions in Part 3 of Schedule 1 to the Bill commence immediately after the commencement of the provisions in Part 1. However, if Division 2 of Part 4 of Schedule 2 to the Seafarers and Other Legislation Amendment Act 2016 commences at or before that time, the provisions do not commence at all.[47]

Key provisions

Aligning the cut-off provisions to the qualifying age for Age Pension

Existing section 23 of the SRCA is imported into the DRC Act. Under that section, weekly compensation is not payable to an employee who has reached 65 years of age. In addition, where an employee who has reached 63 suffers an injury, weekly compensation is payable in respect of the injury for a maximum of 104 weeks (whether consecutive or not) during which the employee is incapacitated.

Item 70 of Schedule 1 to the Bill amends section 23 of the DRC Act to align these cut offs to the qualifying age for the Age Pension in the Social Security Act 1991.[48] To be eligible for Age Pension a person must be 65 years or older. From 1 July 2017, the qualifying age for Age Pension will increase from 65 years to 65 years and 6 months. The qualifying age will then increase by six months every two years, reaching 67 years by 1 July 2023 as shown in table 3 below.[49]

Table 3: increases in qualifying age

Date of birth

Qualifying age

1 July 1952 to 31 December 1953

65 years and 6 months

1 January 1954 to 30 June 1955

66 years

1 July 1955 to 31 December 1956

66 years and 6 months

From 1 January 1957

67 years

Source: Department of Human Services (DHS), ‘Age pension: eligibility basics’, DHS website, last updated 14 November 2016.

The DRC Act imports sections 30 (redemption of compensation) and 137 (redemption on request of former employee) from the SRCA.

A redemption payment is a payment to an injured employee of a lump sum to finalise ongoing and future entitlements to income maintenance and/or medical expenses. The method of calculating redemption payments, and their scope, differs across jurisdictions.[50]

A redemption lump sum is calculated according to a formula, one of the components of which is the number of days that the person will be eligible to receive an incapacity payment. Under subsection 30(3) the number of days refers to the time between the day after the determination to pay the lump sum and:

•       if the employee was injured before he or she turned 63 years of age—the day before the employee reaches 65 years of age

•       if the employee was injured after he or she turned 63 years of age—the day before the day on which the person is no longer entitled to compensation for incapacity to work.[51]

A formula also applies to the calculation of a redemption payment under subsection 137(5). In that case the number of days refers to the time between the day after the determination to pay the lump sum and the day before the employee reaches 65 years of age. Items 73 and 74 of Schedule 1 to the Bill amend subsection 30(3) to make reference to pension age in the calculation of the number of days. Item 75 amends subsection 137(5) to make an equivalent change.

Application

Subitem 76(1) operates so that the amendments to section 23 of the DRC Act apply to a payment of compensation in respect of a week that begins on or after 1 July 2017.

In the event that an employee suffered an injury before the commencement of item 76, subitem 76(2) allows a week to be counted for the 104 weeks of compensation payable under subparagraph 23(1A)(b)(ii) of the DRC Act even if the week begins before 1 July 2017.

Subitem 76(3) applies to a person who would be disadvantaged if the maximum of 104 weeks of incapacity payments stopped before the person reached pension age by increasing the number of weeks beyond the existing 104 weeks.

The amendment of section 137 of the DRC Act applies, in accordance with subitem 76(4) to a determination made by the relevant authority on or after 1 July 2017.

Schedule 2—amending the SRCA

Commencement

The provisions in Schedule 2 to the Bill amend the SRCA. They commence immediately after the commencement of the provisions in Part 1 of Schedule 1.

Key provisions

Just as many of the provisions in Schedule 1 to the Bill amended the DRC Act to remove provisions which were specific to the SRCA and to make the new DRC Act military-specific, so the provisions in Schedule 2 to the Bill amend the SRCA to remove those provisions which are Defence Force specific to ensure that the SRCA applies to employees that are not members of the Defence Force.[52]

Division 4A of Part VII of the SRCA sets out the requirements for the payment of premiums and regulatory contributions. Comcare undertakes activities and functions carried out under the SRCA and the Work Health and Safety Act 2011 on behalf of Australian Government agencies, the Defence Force, the ACT Government and other entities.[53] It then cost recovers in respect of those activities and functions.

Item 25 of the Bill inserts proposed section 97DAA into the SRCA to require Comcare to make a determination of the amount of the regulatory contribution to be paid by the Defence Department in respect of a financial year in relation to Defence service. The amount for a financial year will be the sum of:

•       the estimated cost incurred by the Safety, Rehabilitation and Compensation Commission and Comcare in carrying out their respective functions under the SRCA that are referable to the Defence Department in relation to defence service[54] and

•       that part of the estimated cost 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, the Work Health and Safety Act and the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 that are referable to the Defence Department in relation to defence service.

Schedule 3—other amendments

Commencement

The provisions in Schedule 3 to the Bill commence immediately after the commencement of the provisions in Part 1 of Schedule 1.

Key provisions

The provisions of Schedule 3 to the Bill make consequential amendments to the following Commonwealth statutes:

•       Age Discrimination Act 2004

•       Australian Participants in British Nuclear Tests (Treatment) Act 2006

•       Defence Act 1903

•       Defence Force (Home Loans Assistance) Act 1990

•       Defence Home Ownership Assistance Scheme Act 2008

•       Disability Discrimination Act 1992

•       Income Tax Assessment Act 1997

•       Military Rehabilitation and Compensation Act 2004

•       Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004

•       Superannuation Act 1976

•       Veterans’ Entitlements Act 1986.

The amendments are either to insert references to the DRC Act or to substitute existing references to the SRCA with references to the DRC Act.

Concluding comments

The Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016 enacts the DRC Act as a military-specific statute directed towards the payment of compensation for injuries arising out of or in the course of employment in the Defence Force where that employment was after 1 December 1988 and before 1 July 2004.

As the DRC Act is a mirror copy of the SRCA it does not confer any new rights or entitlements. However, should the Parliament amend the SRCA at some future time, the coverage provided to members of the Defence Force will be quarantined from those amendments.

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[1].              Department of Defence, The review of the military compensation scheme, (Tanzer Review), Department of Defence, Canberra, March 1999, p. 19.

[2].              Review of Military Compensation Arrangements, Review of military compensation arrangements: report to the Minister for Veterans’ Affairs, vol. 1: overview, Department of Veterans’ Affairs (DVA), Canberra, February 2011, p. 11.

[3].              Department of Defence, The review of the military compensation scheme, op. cit. Recommendation 25 of the Tanzer Review was that a new, self-contained and integrated military compensation scheme be based on the principles and attributes identified in that report.

[4].              DVA, Military Rehabilitation and Compensation Act (MRCA), DVA website.

[5].              Department of Veterans’ Affairs (DVA), Review of military compensation arrangements, vol. 1, DVA, February 2011, p. 36.

[6].              Veterans’ Advisory Council South Australia, Submission, no. 162, to the Senate Foreign Affairs, Defence and Trade Committee, Inquiry into Suicide by Veteran and Ex-service Personnel, October 2016, p. 4.

[7].              A Griffin (Minister for Veterans’ Affairs), Government moves to review military compensation, media release, 8 February 2009.

[8].              Department of Veterans’ Affairs (DVA), Review of military compensation arrangements, vol. 1, DVA, February 2011, p. 7.

[9].              Parliament of Australia, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 homepage, Australian Parliament website.

[10].              P Pyburne, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, Bills Digest 13, 2015–16, Parliamentary Library, Canberra, 2015, p. 5.

[11].              M Payne, ‘Second reading speech: Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015’, Senate, Debates, 15 June 2015, p. 3409.

[12].              Senate Standing Committee for the Selection of Bills, Report, 10, 2016, The Senate, 1 December 2016.

[13].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 9, 2016, The Senate, 23 November 2016, p. 10.

[14].              Returned and Services League of Australia (RSL), Submission, no. 216, to the Senate Standing Committee on Foreign Affairs, Defence and Trade References, Inquiry into the Suicide by Veterans and Ex-service Personnel, 30 September 2016.

[15].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, p. 3.

[16].              Ibid., p. i.

[17].              The Statement of Compatibility with Human Rights can be found at pages ii to viii in the Explanatory Memorandum to the Bill.

[18].              Parliamentary Joint Committee on Human Rights, Report, 9, 2016, The Senate, 22 November 2016, p. 39.

[19].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, op. cit., p. iii.

[20].              Ibid., p. ii.

[21].              Items 4, 6, 9, 12, 14, 16 and 18 in Part 2 of Schedule 1 to the Bill.

[22].              The term ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)—section 4 of the SRCA.

[23].              DRC Act, proposed subsection 4AA(1).

[24].              DRC Act, proposed subsection 4AA(2).

[25].              DRC Act, proposed subsection 4AA(3).

[26].              DRC Act, proposed subsection 4AA(4).

[27].              DRC Act, proposed subsection 5(3). A legislative instrument is subject to disallowance by the Parliament under section 42 of the Legislation Act 2003.

[28].              DRC Act, proposed subsection 4AA(3).

[29].              DRC Act, section 148 as amended by items 52 and 53 of the Bill.

[30].              MRCA, section 345. Note that the Chief of Defence Force is also empowered to make decisions about rehabilitation.

[31].              MRCA, section 352.

[32].              MRCA, subsection 347(1).

[33].              DRC Act, section 155.

[34].              DRC Act, section 62(1).

[35].              DRC Act, section 62(4).

[36].              DRC Act, section 64.

[37].                             Explanatory Memorandum, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, op. cit., p. ii.

[38].              DRC Act, section 122.

[39].              A Henry VIII clause is a provision in an enabling statute that provides that delegated legislation made pursuant to it overrides earlier statutes or the enabling statute itself in the event of an inconsistency. Source: PJ Butt, Butterworth's concise Australian legal dictionary, 3rd edn, LexisNexis Butterworths, Chatswood, 2004.

[40].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016, p. 14.

[41].              Legislation Act, section 42.

[42].              Item 48 repeals paragraphs 142(1)(c) and (d) of the DRC Act.

[43].              Item 49 repeals subsections 142(3) and (5) of the DRC Act.

[44].              Item 50 removes the reference to section 28 in paragraph 147(1)(a) of the DRC Act.

[45].              Item 63 in Part 2 to Schedule 1 of the Bill.

[46].              Item 53 repeals subsection 148(2) of the DRC Act.

[47].              The items in Division 2 of Part 4 of Schedule 2 to the Seafarers and Other Legislation Amendment Act 2016 (if enacted) will amend the provisions of the SRCA in relation to pension age.

[48].              Item 69 inserts the definition of pension age into the DRC Act so that it has the same meaning given by subsections 23(5A), (5B), (5C) and (5D) of the Social Security Act.

[49].              Department of Human Services (DHS), ‘Age pension: eligibility basics’, DHS website, last updated 14 November 2016.

[50].              Under subsection 31(1) of the DRC Act, redemption under section 30 does not extinguish the liability of a determining authority to resume incapacity payments to the employee if the injury later incapacitates the employee to the extent that the employee cannot engage in suitable employment, and the incapacity is likely to last indefinitely. There is no equivalent provision in respect of a redemption paid under section 137.

[51].              The definition of ‘number of days’ in the formula for calculating the lump sum amount in section 30 refers to entitlement to compensation under section 19, 20, 21 or 21A. Section 19 relates to compensation for injuries resulting in incapacity; section 20 relates to compensation for injuries resulting in incapacity where the employee is in receipt of a superannuation pension; section 21 relates to compensation for injuries resulting in incapacity where the employee is in receipt of a lump sum benefit and section 21A relates to compensation for injuries resulting in incapacity where the employee is in receipt of a superannuation pension and a lump sum benefit.

[52].              Items 1–23 of Schedule 2 to the Bill.

[53].              Comcare, Regulatory contributions statement: 2016–17.

[54].              These are calculated according to the guidelines issued under section 97E of the SRCA.