Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

Part I—Preliminary

1 Short title

This Act may be cited as the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Provisions</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>The whole of this Act</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>October 2017.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>October 2017</span></p></td></tr></tbody></table>

Note 1: 12 October 2017 was 28 days after the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 received the Royal Assent (see section 2 of and Schedule 1 to that Act).

Note 2: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Application of Act

This Act extends to all places outside Australia, including the external Territories.

3A Secretary may arrange for use of computer programs to make decisions or determinations

(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the MRCC may, or must, under this Act or a legislative instrument made for the purposes of this Act: (a) make a decision or determination; or (b) exercise any power or comply with any obligation; or (c) do anything else related to making a decision or determination or exercising a power or complying with an obligation. (1A) Subsection (1) does not apply to the following: (a) a decision or determination that a disease suffered by an employee was not contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee; (b) a decision or determination that an injury (other than a disease) to an employee did not arise out of, or in the course of, his or her employment; (c) a decision or determination that an aggravation of an injury (other than a disease) suffered by an employee is not an aggravation that arose out of, or in the course of, his or her employment. (2) For the purposes of this Act or the legislative instrument, the MRCC is taken to have: (a) made a decision or determination; or (b) exercised a power or complied with an obligation; or (c) done something else related to the making of a decision or determination or the exercise of a power or the compliance with an obligation; that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under subsection (1). Substituted decisions or determinations (3) The MRCC may, under a provision of this Act or of the legislative instrument, make a decision or determination in substitution for a decision or determination the MRCC is taken to have made under paragraph (2)(a) if the MRCC is satisfied that the decision or determination made by the operation of the computer program is incorrect.

Note: For review of a decision or determination made in substitution, see section 62 (reconsideration and review of determinations etc.).

(4) Subsection (3) does not limit section 62 (reconsideration and review of determinations etc.).

4 Interpretation

(1) In this Act, unless the contrary intention appears:

action for non‑economic loss means any action (whether or not it involves the formal institution of a proceeding) to recover an amount for damages for non‑economic loss sustained by an employee as a result of an injury suffered by that employee:

(a) that is taken by the employee against the employer, whether it is the Commonwealth, a Commonwealth authority or a licensed corporation, or against another employee; and
(b) that follows an election made by the first‑mentioned employee under subsection 45(1).

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

approved Guide means:

(a) the document, prepared by the MRCC in accordance with section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister—that document as so varied.

approved program provider has the same meaning as in section 41 of the MRCA.

attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.

Board has the same meaning as in the MRCA.

catastrophic injury means an injury, where the conditions specified in the legislative rules are satisfied.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

claim means a claim under Part V.

claimant, in relation to a time after the death of a claimant, has the meaning given in subsection (11).

Comcare means the body corporate established by section 68 of the SRC Act.

Commonwealth authority means:

(a) a body corporate that is incorporated for a public purpose by a law of the Commonwealth, other than a body declared by the Minister, by legislative instrument, to be a body corporate to which this Act does not apply; or
(b) a body corporate that is incorporated for a public purpose by a law of a Territory (other than a law of the Australian Capital Territory or the Northern Territory) and is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or
(c) a body corporate:
(i) that is incorporated under a law of the Commonwealth or a law in force in a State or Territory;
(ii) in which:
(A) the Commonwealth has a controlling or substantial interest; or
(B) a Territory (other than the Australian Capital Territory or the Northern Territory) or a body corporate referred to in paragraph (a) or (b) has a controlling interest; and
(iii) that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or
(d) a body corporate:
(i) in which a body corporate declared under paragraph (c) has a controlling interest; and
(ii) that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies.

compensation leave means any period during which an employee is absent from his or her employment due to an incapacity for work resulting from an injury in respect of which compensation is payable under section 19 or 22.

controlling interest, in relation to a body corporate, means an interest in the body corporate that enables the person holding the interest to:

(a) control the composition of the board of directors of the body corporate; or
(b) cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the body corporate; or
(c) control more than one‑half of the issued share capital of the body corporate (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

CTPA means the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.

damages includes any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings.

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

Defence Department has the meaning given by the MRCA.

dependant, in relation to a deceased employee, means:

(a) the spouse, parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee; or
(b) a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;

being a person who was wholly or partly dependent on the employee at the date of the employee’s death.

Note: See also subsection 4(2).

dependent means dependent for economic support.

disease has the meaning given by section 5B.

employee has the meaning given in section 5.

Entity means:

(a) an Agency, within the meaning of the Public Service Act 1999, that is not a Commonwealth authority; or
(b) a Parliamentary Department within the meaning of the Parliamentary Service Act 1999; or
(c) a person, body, organisation or group of persons prescribed for this paragraph.

household services, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

injury has the meaning given by section 5A.

legislative rules means rules made under section 122A.

loss, in relation to property used by an employee, includes the destruction of that property.

medical treatment means:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.

MRCA means the Military Rehabilitation and Compensation Act 2004.

MRCA commencement date means the date on which section 3 of the MRCA commences.

MRCC means the Military Rehabilitation and Compensation Commission.

non‑economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.

normal weekly earnings means the normal weekly earnings of an employee calculated under section 8.

normal weekly hours, in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).

overtime includes:

(a) any duty on shifts or on Saturdays, Sundays or other holidays; and
(b) excess travelling time.

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

pension age has the meaning given by subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991.

permanent means likely to continue indefinitely.

place of residence, in relation to an employee, means:

(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or
(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee’s place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a).

place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

pre‑determination period, in relation to a claim by an employee for compensation under Division 3 of Part II, means the period from the start of the day when the employee is injured until the end of the day on which the MRCC determines the claim.

prescribed child means:

(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25;
(ii) is receiving full‑time education at a school, college, university or other educational institution; and
(iii) is not ordinarily in employment or engaged in work on his or her own account.

principal officer, in relation to a Commonwealth authority, means:

(a) the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or
(b) if the affairs of the authority are administered or managed by a board or other group of persons—the person who is entitled to preside at any meeting of that board or other group at which he or she is present.

principal officer, in relation to an Entity, means:

(a) if the Entity is an Agency that is not a Commonwealth authority—the Agency Head within the meaning of the Public Service Act 1999; or
(b) if the Entity is a Parliamentary Department—the Secretary of the Parliamentary Department within the meaning of the Parliamentary Service Act 1999; or
(c) if the Entity is a person, body, organisation or group of persons prescribed for paragraph (c) of the definition of Entity—the person prescribed as the principal officer.

property used by an employee means an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee.

rehabilitation authority, in relation to an employee and a defence‑related claim, means the rehabilitation authority applicable under subsection 39(3) of the MRCA.

rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in‑patient or out‑patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

related person of another person means:

(a) any of the following:
(i) the spouse of the other person;
(ii) a parent or step‑parent of the other person;
(iii) a parent or step‑parent of the partner of the other person;
(iv) a grandparent of the other person;
(v) a child or stepchild of the other person;
(vi) a child or stepchild of the partner of the other person;
(vii) a grandchild of the other person;
(viii) a sibling or half‑sibling of the other person; or
(b) a person in respect of whom the other person stands in the position of a parent; or
(c) a person who stands in the position of a parent to the other person.

relevant authority means:

(a) in relation to an employee by whom or in respect of whom a defence‑related claim has been made, and in relation to dependants of the employee—the MRCC; or
(b) in relation to liability to pay an amount, a debt being due or the receipt of an amount—the Commonwealth.

relevant money has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

relevant period means the period calculated under section 9.

retirement savings account means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997.

Secretary means Secretary of the Department.

significant degree has the meaning given by subsection 5B(3).

spouse includes:

(a) in relation to an employee or a deceased employee—a person who is, or immediately before the employee’s death was, a de facto partner of the employee; and
(b) in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or a descendant of indigenous inhabitants of the Torres Strait Islands—a person who is or was recognised as the employee’s husband, wife or spouse by the custom prevailing in the tribe or group to which the employee belongs or belonged.

SRC Act means the Safety, Rehabilitation and Compensation Act 1988.

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.

step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.

substantial interest, in relation to a body corporate, means an interest (other than a controlling interest) in the body corporate that enables the person holding the interest to cast, or control the casting of, a number of votes at a general meeting of the body corporate that is equal to or greater than the number of votes which may be cast, or whose casting may be controlled, by any other single person.

suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a) in the case of an employee who was a permanent employee of the Commonwealth on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

superannuation amount, in relation to a pension received by an employee in respect of a week, or a lump sum benefit received by an employee, being a pension or benefit under a superannuation scheme, means an amount equal to:

(a) if the scheme identifies a part of the pension or lump sum as attributable to the contributions made under the scheme by the Commonwealth, Commonwealth authority or licensed corporation—the amount of that part; or
(b) in any other case—the amount assessed by the relevant authority to be the part of the pension or lump sum that is so attributable or, if such an assessment cannot be made, the amount of the pension received by the employee in respect of that week or the amount of the lump sum, as the case requires.

superannuation scheme means any superannuation scheme under which, or retirement savings account to which, the Commonwealth, a Commonwealth authority or a licensed corporation makes contributions on behalf of employees and includes a superannuation or provident scheme established or maintained by the Commonwealth, a Commonwealth authority or a licensed corporation.

the 1912 Act means the Commonwealth Workmen’s Compensation Act 1912.

the 1930 Act means the Commonwealth Employees’ Compensation Act 1930.

the 1971 Act means the Compensation (Commonwealth Government Employees) Act 1971.

therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

(2) For the purposes of this Act, relationships (including the relationship of being family or being relatives) are taken to include (without limitation): (a) relationships between de facto partners; and (b) relationships of child and parent that arise: (i) if someone is an exnuptial or adoptive child of a person; or (ii) because of the definitions of child and parent in this section; and (c) relationships traced through relationships referred to in paragraphs (a) and (b). (3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if: (a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and (b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.

Note: However, members of the Defence Force with service after the MRCA commencement date might be taken not to have suffered a physical or mental injury or ailment (see section 4AA and subsection 6A(2A)).

(4) For the purposes of this Act, a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee’s death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury. (5) For the purposes of this Act, a person who, immediately before the date of an employee’s death, lived with the employee and was: (a) the spouse of the employee; or (b) a child of the employee, being a prescribed child; shall be taken to be a person who was wholly dependent on the employee at that date. (6) For the purposes of this Act, other than subsection 17(5), a child of a deceased employee who was born alive after the employee’s death shall be treated as if he or she had been born immediately before the employee’s death and was wholly dependent upon the employee at the date of the employee’s death. (7) In ascertaining, for the purposes of this Act, whether a child is or was dependent on an employee, any amount of: (a) family tax benefit calculated under Part 2 or 3 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an individual’s Part A rate); and (c) carer allowance under that Act; and (d) double orphan pension under that Act; shall not be taken into account. (8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act. (9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth in that work or any other work immediately before the injury happened. (11) A reference in this Act to a claimant is, in relation to any time after the death of the claimant, a reference to his or her legal personal representative. (13) For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct.

4AA Application of this Act

(1) This Act applies (subject to Part X) in relation to an injury that is not an ailment, or an aggravation of an injury that is not an ailment, suffered by an employee if: (a) the injury or aggravation arises out of, or in the course of, the employee’s employment as a member of the Defence Force; and (b) the employment occurred: (i) on or after the commencement of section 3 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and (ii) before the MRCA commencement date (which was 1 July 2004), but not before and on or after, the MRCA commencement date.

Note 1: Comcare and the Safety, Rehabilitation and Compensation Commission do not have any liability in respect of injuries, losses, damage or deaths that relate to defence service (see section 4AA of the Safety, Rehabilitation and Compensation Act 1988).

Note 2: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for an injury or aggravation that relates to employment that occurred after the MRCA commencement date.

Note 3: See also subsection 6A(2A) (injury arising out of or in the course of employment—extended operation).

Note 4: The Safety, Rehabilitation and Compensation Act 1988 (which previously covered members of the Defence Force) was originally called the Commonwealth Employees’ Rehabilitation and Compensation Act 1988.

(2) This Act applies (subject to Part X) in relation to an ailment, or an aggravation of an ailment, suffered by an employee if: (a) the ailment or aggravation is contributed to, to a significant degree, by the employee’s employment as a member of the Defence Force; and (b) the employment occurred: (i) on or after the commencement of section 3 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and (ii) before the MRCA commencement date (which was 1 July 2004), but not before and on or after, the MRCA commencement date.

Note: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for an ailment or aggravation that relates to employment that occurred after the MRCA commencement date.

(3) This Act applies (subject to Part X) in relation to loss of, or damage to, property used by an employee if: (a) the 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; and (b) the employment occurred: (i) on or after the commencement of section 3 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and (ii) before the MRCA commencement date (which was 1 July 2004).

Note: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for loss or damage that relates to employment that occurred after the MRCA commencement date.

(4) This Act applies (subject to Part X), in accordance with section 6A, in relation to any injury suffered by an employee if: (a) the injury is suffered as an unintended consequence of medical treatment received by the employee that was paid for by the Commonwealth; and (b) the treatment was provided on or after the commencement of section 3 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and (c) section 8 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 does not apply in relation to the injury.

Note: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for injuries suffered as an unintended consequence of medical treatment paid for by the Commonwealth if the treatment was provided after the MRCA commencement date.

(5) To avoid doubt, employment occurred before, and on or after, the MRCA commencement date whether the employment spanned the commencement date or occurred during separate periods before and on or after that date.

Note: Under section 203 of the Veterans’ Entitlements Act 1986, the Minister may enter into an arrangement with a foreign country providing for the making of payments that are, or the provision of treatment or rehabilitation that is, comparable to payments or treatment or rehabilitation under this Act.

5 Employees

(1) In this Act:

employee means a member of the Defence Force.

(2) For the purposes of this Act, 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.

Note: However, members of the Defence Force with service after the MRCA commencement date might only be entitled to compensation under the MRCA and not this Act (see section 4AA and subsection 6A(2A) of this Act).

Persons taken to be members of the Defence Force (3) The Minister may, by legislative instrument, declare: (a) that persons specified in the declaration, being persons who: (i) hold an honorary rank in the Defence Force before the MRCA commencement date; or (ii) are, before the MRCA commencement date, members of a philanthropic organisation that provides services to the Defence Force; or (iii) undertake resettlement training, before the MRCA commencement date, under an arrangement made by the Defence Force; are, for the purposes of this Act, taken to be members of the Defence Force; and (b) that such persons’ employment is, for those purposes, taken to be constituted by the performance by those persons of such acts as are specified in the declaration; and such a declaration has effect accordingly.

Note: Declarations in respect of these kinds of people can be made under the MRCA for service after the MRCA commencement date (see section 8 of the MRCA).

(4) The Minister may, by legislative instrument, declare: (a) that persons specified in the declaration, being persons who, before the MRCA commencement date, engage in activities or perform acts at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth in relation to the Defence Force, are, for the purposes of this Act, taken to be employed by the Commonwealth; and (b) that such persons’ employment is, for those purposes, taken to be constituted by the performance by those persons of such acts as are specified in the declaration; and such a declaration has effect accordingly. Former employees (5) A reference to an employee in a provision of this Act that applies to an employee at a time after the MRCC has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee. Act not to apply to certain members of the Defence Force (6) Subject to subsections (7) and (8), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by: (a) the Veterans’ Entitlements Act 1986; or (b) the Papua New Guinea (Members of the Forces Benefits) Act 1957.

Note: Compensation and other benefits might also be available for a member of the Defence Force under the MRCA. Generally, an injury, disease or death that is covered by that Act would not be covered by this Act (see section 4AA and subsection 6A(2A) of this Act).

(7) Subsection (6) does not apply in relation to a veteran: (a) who has rendered operational service on or after the day on which the Military Compensation Act 1994 commences; and (b) for whom provision for the payment of pension in respect of service rendered by the person is made by Part II of the Veterans’ Entitlements Act 1986. (8) Subsection (6) does not apply in relation to a member of the Defence Force who has rendered service in respect of which provision for the payment of pension is made by Part IV of the Veterans’ Entitlements Act 1986.

5A Definition of injury

(1) In this Act:

injury means:

(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: (a) a reasonable appraisal of the employee’s performance; (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment; (c) a reasonable suspension action in respect of the employee’s employment; (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment; (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

5B Definition of disease

(1) In this Act:

disease means:

(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee’s health. This subsection does not limit the matters that may be taken into account. (3) In this Act:

significant degree means a degree that is substantially more than material.

6 Injury arising out of or in the course of employment

(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: (a) as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or (b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or (c) while the employee was temporarily absent from the employee’s place of work undertaking an activity: (i) associated with the employee’s employment; or (ii) at the direction or request of the Commonwealth; or (d) while the employee was, at the direction or request of the Commonwealth, travelling for the purpose of that employment; or (e) while the employee was at a place of education, except while on leave without pay, in accordance with: (i) a condition of the employee’s employment by the Commonwealth; or (ii) a request or direction of the Commonwealth; or (iii) the approval of the Commonwealth; or (ea) while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with: (i) a condition of the employee’s employment by the Commonwealth; or (ii) a request or direction of the Commonwealth; or (iii) the approval of the Commonwealth; or (f) while the employee was at a place for the purpose of: (i) obtaining a medical certificate for the purposes of this Act; or (ii) receiving medical treatment for an injury; or (iii) undergoing a rehabilitation program provided under this Act; or (iv) receiving a payment of compensation under this Act; or (v) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or (vi) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth, is available, or reasonably expected by the employee to be available, for collection at that place; or (g) while the employee was travelling between the employee’s place of work and another place for the purpose of: (i) obtaining a medical certificate for the purposes of this Act; or (ii) receiving medical treatment for an injury; or (iii) undergoing a rehabilitation program provided under this Act; or (iv) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or (h) while the employee was, at the direction or request of the Commonwealth, at a place: (i) outside Australia and the external Territories; and (ii) declared by the Minister by legislative instrument to be a place to which this paragraph applies; or (i) while the employee was: (i) at the direction or request of the Commonwealth, at a place outside Australia and the external Territories; and (ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies. (1A) For the purposes of this section: (a) a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or (b) a journey to such a place of residence is taken to end at that boundary. (1B) If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel. (1C) For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth. (2) In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f). (3) Subsection (1) does not apply where an employee sustains an injury: (a) while at a place referred to in that subsection; or (b) during an ordinary recess in his or her employment; if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

6A Injury arising out of or in the course of employment—extended operation

(1) This section applies to the following employees: (a) members of the Defence Force; (b) members of the Australian Defence Force Cadets; (e) persons declared by the Minister under subsection 5(3). (2) If, at any time, whether before, on, or after, 1 December 1988: (a) an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and (b) as an unintended consequence of that treatment the person suffered or suffers an injury; the injury to the employee is taken to have arisen out of, or in the course of, the person’s employment, whether or not the person has remained an employee to whom this section applies. (2A) However, subsection (2) does not apply if: (b) the injury or aggravation is first suffered by the employee on or after the MRCA commencement date; and (c) the injury or aggravation is suffered as an unintended consequence of medical treatment paid for by the Commonwealth; and (d) the treatment is provided either: (i) on or after the MRCA commencement date; or (ii) before, and on or after, the MRCA commencement date (whether the treatment spans the commencement date or is provided during separate periods before and on or after that date).

Note: After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such an injury or aggravation.

(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.

7 Provisions relating to diseases

(1) Where: (a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease; (b) the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and (c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind; the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established. (2) Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed. (3) Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed. (4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first. (5) The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time. (6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be: (a) the incapacity or impairment would not have occurred; (b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or (c) the extent of the incapacity or impairment would have been significantly less. (7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. (8) If an employee: (a) suffers a disease mentioned in the following table; and (b) before the disease was sustained, was employed as a firefighter for the qualifying period mentioned for that disease; and (c) was exposed to the hazards of a fire scene during that period; and (d) in the case of a cancer of a kind covered by item 13 of the following table—satisfies the conditions (if any) prescribed for such a cancer; the employment is, for the purposes of this Act, taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

(9) For the purposes of subsection (8): (a) an employee is taken to have been employed as a firefighter if the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion of his or her duties; and (b) an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and (c) an employee is taken to have been employed as a firefighter only if he or she was employed as a firefighter by the Commonwealth. (10) Subsection (8) does not limit, and is not limited by, subsections (1) and (2).

8 Normal weekly earnings

(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula: Start formula open bracket NH times RP close bracket plus A end formula where:

NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP is the employee’s average hourly ordinary time rate of pay during that period; and

A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula: Start formula NH times OR end formula where:

NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

OR is the employee’s average hourly overtime rate of pay during that period.

(3) Where an employee was, at the date of the injury, employed by the Commonwealth in part‑time employment or unpaid employment, any earnings of the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment by the Commonwealth. (4) Where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth and calculated under subsection (1) or (2), as the case requires. (5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as the MRCC considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid. (6) Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of: (a) the attainment by the employee of a particular age; (b) the completion by the employee of a particular period of service; or (c) the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment; the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be. (7) Subject to this section, if: (a) an employee continues to be employed by the Commonwealth after the date of an injury; and (b) the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee; the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased. (8) Subject to this section, where: (a) the employment of an employee is of a kind referred to in subsection 5(4) or subsection (3) of this section; and (b) the employee is not receiving earnings from any other employment at the date of the injury; the normal weekly earnings of the employee before the injury shall be an amount determined by the MRCC to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment. (9) The normal weekly earnings of an employee before the date of the employee’s injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth, be increased or reduced by the relevant percentage. (9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of: (a) the operation of a law of the Commonwealth or of a State or Territory; or (b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law. (9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date. (9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is: (a) the 1 July next following: (i) the date on which this Act receives the Royal Assent; or (ii) the date of that cessation of employment; whichever last occurs; and (b) each subsequent 1 July. (9D) For the purpose of subsection (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection. (9E) The normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, must, with effect from 1 July in each year, be further increased by the amount under subsection (9F) if, in the 12 months immediately preceding that 1 July: (a) there was no increase in those earnings under subsection (6), (7) or (9); and (b) there was no reduction in those earnings under subsection (9). (9F) If the normal weekly earnings of an employee before an injury must be increased because of subsection (9E), the amount by which they are increased is the percentage of increase (if any) in the index prescribed by the regulations for the purposes of this subsection over the period of 12 months ending on the 31 December immediately before the relevant 1 July. (9G) For the purposes of subsection (9F), the regulations may specify the manner of calculating the further increase mentioned in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection. (10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed: (a) where the employee continues to be employed by the Commonwealth—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or (b) where the employee has ceased to be employed by the Commonwealth—whichever is the greater of the following amounts: (i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth in the employment in which he or she was engaged at the date of the injury; (ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth in the employment in which he or she was engaged at the date on which the employment by the Commonwealth ceased; the amount so calculated shall be reduced by the amount of the excess.

9 Relevant period

(1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth. (2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth was varied as a result of: (a) the operation of a law of the Commonwealth or of a State or Territory; or (b) the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law; any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period. (3) Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period: (a) it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or (b) the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth before the injury; subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period. (4) If, during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.

10 Recovery of damages

For the purposes of this Act, damages shall be taken to have been recovered by an employee, or by or for the benefit of a dependant of a deceased employee, when the amount of the damages was paid to or for the benefit of the employee or dependant, as the case may be.

11 Liability of relevant authority

The liability of a relevant authority to pay compensation to a person under this Act is the liability of that authority to pay to the person such amount or amounts as are determined by the MRCC to be payable to the person under this Act.

12 Amounts of compensation

An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to an amount of compensation paid or payable under any other provision of this Act in respect of that injury.

13 Indexation—Consumer Price Index

(1) In this section:

index number, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.

relevant amount means the amount specified in paragraph 18(4)(a) or subsection 19(7), (8) or (9), 24(9), 27(2), 29(1) or (3), 30(1) or 137(1).

relevant year means the period of 12 months commencing on 1 July 1988 and each subsequent period of 12 months.

(2) Subject to subsection (3), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number shall be disregarded for the purposes of this section. (3) If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard shall be had only to the index number published in terms of the new index reference period. (4) Where the factor ascertained under subsection (5) in relation to a relevant year is greater than one, this Act has effect as if for each relevant amount there were substituted, on the first day of that relevant year, an amount calculated by multiplying by that factor: (a) if, by virtue of another application or other applications of this section, this Act has effect as if another amount or amounts were substituted for the relevant amount—the substituted amount or the last substituted amount; or (b) in any other case—the relevant amount. (5) The factor to be ascertained for the purposes of subsection (4) in relation to a relevant year is the number (calculated to 3 decimal places) ascertained by dividing the index number of the December quarter immediately before the relevant year by the index number for the December quarter immediately before that first‑mentioned December quarter. (6) Where the factor ascertained under subsection (5) in relation to a relevant year would, if it were calculated to 4 decimal places, end with a number greater than 4, the factor ascertained under that subsection in relation to that relevant year shall be taken to be the factor calculated to 3 decimal places in accordance with that subsection and increased by 0.001.

13AA Indexation—Wage Price Index

Definitions (1) In this section:

index number, in relation to a quarter, means:

(a) the Wage Price Index (total hourly rates of pay excluding bonuses/all sectors/all Australia/original) number published by the Australian Statistician in respect of that quarter; or
(b) if:
(i) a series of index numbers is prescribed for the purposes of this paragraph; and
(ii) the Australian Statistician publishes an index number in respect of the quarter; and
(iii) that index number belongs to the series;
that index number.

relevant amount means the amount specified in subsection 17(3), (4) or (5).

relevant year means:

(a) the financial year starting on 1 July 2009; or
(b) a later financial year.

Indexation (2) If the indexation factor for a relevant year is greater than one, this Act has effect as if for each relevant amount there were substituted, on the first day of that relevant year, an amount calculated by multiplying by that factor: (a) if, because of one or more other applications of this section, this Act has effect as if another amount or amounts were substituted for the relevant amount—the substituted amount or the last substituted amount; or (b) in any other case—the relevant amount. Indexation factor (3) For the purposes of this section, the indexation factor for a relevant year is the number calculated, to 3 decimal places, using the formula: Start formula start fraction Index number for the reference December quarter over Index number for the base December quarter end fraction end formula where:

base December quarter means the last December quarter before the reference December quarter.

reference December quarter means the last December quarter before the relevant year.

(4) If the number calculated under subsection (3) for a relevant year would, if it were calculated to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001. Other provisions (5) Subject to subsection (6), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for that quarter, the publication of the later index number is to be disregarded for the purposes of this section. (6) If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the index reference period for: (a) the Wage Price Index; or (b) another index; then, for the purposes of the application of this section after the change took place or takes place, regard is to be had only to the index number published in terms of the new index reference period.

13A Application of Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.