Bills Digest no. 56,
2016–17
PDF version [632KB]
Paula Pyburne
Law and Bills Digest Section
25
January 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Unique nature of military service
Review of Military Compensation
Arrangements
Earlier legislative action
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Part 1—enacting the DRC Act
Commencement
Key provisions
Part 2—amending the DRC Act
Commencement
Key provisions
Application of the DRC Act
Employees
Compensation
Rehabilitation
Reconsideration and review
Parts VII and VIII
Regulation making power
Changes to Part XI
Application and transitional
provisions
Part 3—commencement
Key provisions
Aligning the cut-off provisions to
the qualifying age for Age Pension
Table 3: increases in
qualifying age
Application
Schedule 2—amending the SRCA
Commencement
Key provisions
Schedule 3—other amendments
Commencement
Key provisions
Concluding comments
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]
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]
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.
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.
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:
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.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[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.
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