Safety, Rehabilitation and Compensation (Definition of ACT Employee – COVID-19 Emergency Response Volunteers) Declaration 2021

The instrument is compact; it defines a single legal device: a statutory declaration that certain volunteers are, for a particular statute, to be treated as employees of the ACT. The main statutory concepts appearing in the instrument are:

• Identification by the ACT Chief Health Officer: the instrument requires the ACT Chief Health Officer to "identify in writing" a person as a "COVID-19 Response Volunteer" for them to fall within the declaration (s 5). The instrument defines "ACT Chief Health Officer" by reference to the Public Health Act 1997 (ACT) appointment power (s 4).

• Limitation to the Act's purposes: the exceptional status is expressly "for the purposes of the Act" , that is, for the Safety, Rehabilitation and Compensation Act 1988 , and does not purport to alter other legal characterisations (s 5). The declaration is made under the authority conferred by subsection 5(15) of that Act (s 3).

• Non-remuneration requirement: to come within the declaration volunteers must be unpaid except for "payment of expenses incurred" (s 5). That phrase is used as an exclusion from remuneration; the instrument does not define "expenses" further.

• Connection tests: the declaration lists three alternative factual bases by which the volunteer can be connected to the ACT: (a) "at the request or direction, or for the benefit, of the ACT"; (b) "in accordance with a requirement made by or under an ACT enactment"; or (c) "at the request or direction, or for the benefit, of an authority or body established by an ACT enactment" (s 5). Any one of these is sufficient when combined with the other conditions.

• Operational control requirement: beyond identification and connection, the volunteer must "assist in the delivery of ACT COVID emergency response services under the control or direction of an ACT Government officer" to be taken to be an employee of the ACT for the Act's purposes (s 5). The text ties employee status to both the activity type (delivery of ACT COVID emergency response services) and to the supervisory relationship (control or direction by an ACT Government officer).

• Temporal scope: the declaration is conditional on the volunteer "when rendering such assistance" , employee status attaches during the period the volunteer is providing the specified assistance (s 5). The declaration itself commenced on 12 August 2021 (s 2).

These concepts create an instrument with a narrow legal function: a statutory mechanism for temporarily folding particular COVID-19 volunteers into the definitional ambit of the Safety, Rehabilitation and Compensation Act 1988. The identification element requires a written act by a named public official; the connection and supervisory elements define when and why the statutory reclassification applies. The instrument does not define the substantive entitlements that flow from being an "employee" under the Act; it simply adjusts the scope of who is an employee for the Act.

Primary affected persons

• COVID-19 Response Volunteers identified in writing by the ACT Chief Health Officer. The instrument makes the identification in writing a prerequisite to being within the declaration (s 5). Only individuals whom the Chief Health Officer expressly identifies are covered; no class-wide automatic coverage is created without that written identification.

• These volunteers must be unpaid except for reimbursement of expenses; the instrument excludes persons who receive other forms of remuneration (s 5). Therefore, people receiving wages, salaries, fees, or other payment beyond expense reimbursement are not within the declared class according to the instrument’s text.

• The volunteers must be assisting in the delivery of ACT COVID emergency response services under the control or direction of an ACT Government officer. Thus volunteers who work in private capacity, for non-ACT projects, or without such control/direction are not covered by the declaration (s 5).

Affected administrative actors

• The ACT Chief Health Officer: the instrument vests this official with a decisive role. Only the Chief Health Officer may identify persons in writing as COVID-19 Response Volunteers for the instrument’s purposes (s 4 definition; s 5). The CHO’s written identification is the gateway to coverage.

• ACT Government officers: the text requires that volunteers render assistance "under the control or direction of an ACT Government officer" (s 5). This creates a role for ACT Government officers in supervising qualifying activity, and implicitly requires those officers to exercise control or direction when volunteers are to be covered.

• Authorities or bodies established by an ACT enactment: the declaration reaches volunteers acting "at the request or direction, or for the benefit, of an authority or body established by an ACT enactment" (s 5). This ties the instrument’s scope to many ACT statutory entities where such bodies ask for or benefit from volunteer assistance.

Indirectly affected parties

• Employers and organisations engaging volunteers that fall within or outside the declaration, including community organisations and private entities, may be affected insofar as volunteers they coordinate are identified by the CHO and operate under ACT Government officer control.

• Administrators of the Safety, Rehabilitation and Compensation Act 1988: although the instrument does not specify operational procedures, the Act’s administrators will receive claims and decide entitlements for persons taken to be employees under the declaration (s 3 authority; s 5).

• Volunteers themselves: being "taken to be an employee of the ACT for the purposes of the Act" alters their legal classification under the Act during the period of assistance, with attendant administrative and claims pathways even though the instrument does not specify other employment law consequences (s 5).

Not affected

• Individuals who perform COVID-related work but are not identified in writing by the CHO, receive remuneration beyond expenses, are not acting under control/direction of an ACT Government officer, or are not assisting in delivery of ACT COVID emergency response services fall outside the instrument’s scope (s 5). The instrument does not purport to alter legal status beyond the Act’s ambit.

Geographic and temporal scope

• The instrument is framed around the Australian Capital Territory and the ACT Chief Health Officer. The commencement clause records the declaration commenced on 12 August 2021 (s 2). The declaration attaches employee status "when rendering such assistance" , the status is temporally linked to the period of actual assistance (s 5).

Duties created or clarified by the instrument

• Duty to identify in writing: the instrument implicitly creates an operational duty for the ACT Chief Health Officer to identify in writing those persons who are to be treated as COVID-19 Response Volunteers under the declaration. The text does not prescribe form, content or process for the written identification, only stating the requirement that persons be "identified by the ACT Chief Health Officer in writing" (s 5).

• Duty to act under control or direction of an ACT Government officer: for a volunteer to obtain employee status for the Act, they must assist in delivery of ACT COVID emergency response services "under the control or direction of an ACT Government officer." This imposes a factual requirement on the arrangement between volunteer and government actor (s 5).

• Duty to remain unpaid, except for expenses: volunteers must not receive remuneration beyond "payment of expenses incurred" to qualify under the declaration (s 5). This effectively requires persons and any coordinating organisations to structure payments so only expenses are reimbursed where employee status under the Act is sought.

Rights conferred or clarified by the instrument

• Narrow statutory employee status for the Act: the principal legal right conferred is that identified volunteers are "taken to be an employee of the ACT for the purposes of the Act, when rendering such assistance" (s 5). The instrument does not itself state the benefits or administrative consequences that follow from that classification; it relies on the Safety, Rehabilitation and Compensation Act 1988 to define substantive rights and entitlements. The instrument therefore modifies the class of persons who can claim under the Act by adding CHO-identified volunteers during the period of qualifying assistance.

• Temporal and activity-limited coverage: the right to be treated as an employee is limited to the duration and activity described ("when rendering such assistance" in delivering ACT COVID emergency response services under control/direction of an ACT Government officer) (s 5). The instrument does not create ongoing employment rights outside those circumstances.

Matters not changed by the instrument

• The declaration does not itself create general employment contracts, wages, leave entitlements, taxation treatment, or other employment law statuses beyond the Act. It does not define "expenses" nor specify administrative claims procedures under the Act. It does not expressly alter volunteers’ obligations under other laws or create additional obligations on ACT agencies other than those implicit in supervising and identifying volunteers (s 5).

Practical administrative implications

• Recordkeeping: because identification must be in writing and employee status is tied to specific assistance, agencies and volunteers will need documentary evidence of CHO identification, the period of assistance, the supervisory control or direction, and the non-remuneration (expenses-only) condition to support any claim under the Act (s 5).

• Verification of supervision: ACT Government officers will carry the factual responsibility for demonstrating control or direction over volunteers when claims arise. The instrument’s operative test makes supervisory facts directly relevant to whether the Act applies (s 5).

• Limited scope for ambiguity in compensation: the expression "payment of expenses incurred" is not defined, leaving room for dispute about whether particular payments constitute remuneration or are properly expense reimbursement; the declaration does not provide a definition or method to resolve such disputes (s 5).

The declaration itself does not create explicit penalties or enforcement mechanisms. It is an administrative declaration changing the definitional scope of who is an "employee of the ACT" for the purposes of the Safety, Rehabilitation and Compensation Act 1988. The instrument is made under subsection 5(15) of that Act (s 3), and the Act will supply the statutory regime that governs rights, claims and enforcement in relation to persons who are employees for its purposes. The declaration does not contain provisions establishing offences, penalty rates, or direct enforcement powers in the instrument’s text.

Consequences for non-compliance with conditions in the instrument

• Exclusion from declared status: the primary enforcement consequence provided by the instrument is exclusion. If a person is not identified in writing by the ACT Chief Health Officer, receives remuneration beyond expenses, does not assist in delivery of ACT COVID emergency response services, or is not acting under the control or direction of an ACT Government officer, they will not be "taken to be an employee of the ACT for the purposes of the Act" under this declaration (s 5). That factual determination will be material to whether the Act applies to any claim.

• Administrative review under the Act: because the declaration operates by changing who falls within the Act’s coverage, relevant claims or disputes as to whether a person was covered when injured or otherwise making a claim will be processed under the Act’s administrative and adjudicative procedures. The instrument does not itself describe those processes; it simply expands the class of persons subject to them when the declaration’s conditions are met (s 3; s 5).

Who enforces and where disputes sit

• The instrument places identification authority with the ACT Chief Health Officer (s 5). If a dispute arises about whether someone was identified in writing or whether they were acting "under the control or direction of an ACT Government officer," those factual determinations will be material to claims under the Act and will be resolved in the context of the Act’s dispute resolution processes. The instrument does not create a new enforcement agency or tribunal.

• Claims and administrative enforcement pertaining to rights under the Act are governed by the Act itself; the instrument does not alter tribunal jurisdiction, time limits, or evidentiary rules. The precise enforcement pathway is therefore determined by the Safety, Rehabilitation and Compensation Act 1988 rather than by this declaration.

Potential compliance and evidentiary friction

• The requirement that identification be "in writing" (s 5) creates an evidentiary threshold. Parties claiming the benefit of the declaration will need to produce the CHO’s written identification and evidence of the qualifying circumstances to establish enforcement of the entitlements that follow under the Act.

• The instrument leaves undefined the process for lodging complaints about inappropriate or incorrect identification. Any challenge to the CHO’s identification practice will therefore be addressed through existing administrative review or judicial processes applicable to the Act and to administrative decisions, not through the declaration itself.

Specified cross-references in the instrument link this declaration to two other statutory frameworks: the Safety, Rehabilitation and Compensation Act 1988 (the Act) and the Public Health Act 1997 (ACT).

• Authority under the Act: the declaration is expressly made "under subsection 5(15) of the Safety, Rehabilitation and Compensation Act 1988" (s 3). The instrument therefore functions as an exercise of a power within the Act to declare who is an employee for the Act’s purposes. The declaration alters the class of persons to whom the Act applies by treating certain volunteers as employees when they are rendering qualifying assistance (s 5). The instrument does not purport to amend the Act; it uses a statutory power to make a declaration.

• Role of the ACT Chief Health Officer: the instrument defines "ACT Chief Health Officer" as "a person appointed by the Minister under s 7(1) of the Public Health Act 1997 (ACT)" (s 4). This links the instrument to the Public Health Act chain of appointment. The practical consequence is that identification power under the declaration rests with the office-holder appointed under the ACT Public Health Act, and not an arbitrary public official. The instrument thereby ties the identity of the authorised identifier to the statutory office created by the ACT Public Health Act (s 4; s 5).

• Reliance on ACT enactments and bodies established by ACT enactment: two of the connection tests in s 5 reach activities undertaken "in accordance with a requirement made by or under an ACT enactment" and activities done "at the request or direction, or for the benefit, of an authority or body established by an ACT enactment." These phrases create points of interaction with the wider ACT statutory landscape. Where an ACT enactment imposes a requirement, or where an ACT-created body requests or benefits from volunteer assistance, those volunteers may come within the declaration, subject to the other conditions in s 5.

What the declaration does not do as to other laws

• The declaration does not attempt to modify or define the CHO’s functions under the Public Health Act beyond using the identity of the CHO as the identifying authority. It also does not displace or change other legal categories such as employment under the Fair Work Act or taxation law. The instrument is confined to taking persons to be "an employee of the ACT for the purposes of the Act" and so does not, on its face, change how other laws treat volunteers or employees.

• The declaration does not define or alter obligations and immunities that may arise under other enactments, contractual arrangements, insurance regimes, or public liability rules. For example, the text does not purport to create indemnities or insurance coverage, nor does it define the scope of "expenses" for taxation or superannuation purposes.

Practical friction points

• The instrument’s dependence on an ACT enactment or an ACT Government officer’s control or direction to trigger coverage may require cross-referencing operational actions under ACT public health orders or other ACT statutes to verify whether a volunteer was acting "in accordance with a requirement made by or under an ACT enactment" or "under the control or direction of an ACT Government officer" (s 5). This can produce legal questions at the interface of administrative facts (orders, directions, requests) and statutory classification.

• Because the declaration attaches to the Act only, persons and agencies will need to consider explicitly how the volunteer’s status under this declaration aligns or conflicts with characterisations under other Commonwealth or ACT laws, but the declaration itself does not purport to resolve those intersections.

The instrument as supplied contains no amendment history entries. The text records the formal details of the instrument as enacted:

• The instrument is titled the Safety, Rehabilitation and Compensation (Definition of ACT Employee - COVID-19 Emergency Response Volunteers) Declaration 2021 (s 1).

• The commencement clause states "This declaration commences on 12 August 2021" (s 2). The instrument bears a dated signature of the Minister for Industrial Relations, Michaelia Cash, dated 11 October 2021. The instrument therefore records that its operative commencement is retroactive to 12 August 2021 while the signed document is dated 11 October 2021.

• The instrument indicates it is made under subsection 5(15) of the Safety, Rehabilitation and Compensation Act 1988 (s 3). No subsequent amending instrument is provided in the supplied text.

• The supplied document appears to reproduce the same provisions more than once. The replicated text includes the same name, commencement, authority, definitions, and declaration language. The duplication does not include separate amendment entries. The source does not contain any clause indicating later amendment, revocation, replacement, or expiry.

Because the instrument contains no recorded amendments, any historical changes, revocations or superseding instruments are not present in the provided text. Users seeking an authoritative instrument history should consult the register or database where the instrument was gazetted to confirm whether subsequent instruments were made to vary, extend, revoke, or otherwise modify the declaration. The supplied instrument itself is static and contains only the initial declaration text and the dates noted above.

The supplied instrument contains no litigation history, references to judicial consideration, or citations to cases. The text does not record any legal challenges, appeals, or court determinations relating to its operation. There are no statements about precedent, past disputes, administrative appeals, or outcomes in the source document.

Consequently, within the bounds of the supplied material, there is no recorded case law that has interpreted the instrument’s provisions, applied its identification mechanism, or adjudicated disputes over whether particular volunteers were properly "taken to be an employee of the ACT for the purposes of the Act" while rendering assistance. The text does not indicate judicial review proceedings concerning the CHO’s identification power, disputes over the "expenses" versus "remuneration" distinction, or litigation over whether an activity constituted "assisting in the delivery of ACT COVID emergency response services" under the control or direction of an ACT Government officer.

If litigation has in fact occurred after the date of this instrument, that material is not contained in the provided text. Practitioners who need to know whether courts or tribunals have interpreted the declaration should search authoritative legal databases and the decisions under the Safety, Rehabilitation and Compensation Act 1988 for any matters that rely on or contest this declaration’s operation.

The instrument is short but contains several features that can produce practical pitfalls when applied. The following are precise, source-grounded points to watch.

1. Retroactive commencement. The declaration "commences on 12 August 2021" (s 2) while the instrument is dated 11 October 2021 and signed then. The instrument therefore purports to have retrospective operation to 12 August 2021. That timing can create recordkeeping and evidentiary friction because the CHO’s written identifications and records for the earlier period need to exist or be produced to substantiate claims. The declaration does not itself address procedural consequences of its retroactivity (s 2; s 5).

2. Identification must be in writing. The gateway to coverage is the CHO’s written identification of a person as a COVID-19 Response Volunteer (s 5). Absent a written identification the declaration will not apply. This is not a discretionary procedural nicety; it is the statutory requirement. Organisations and volunteers should ensure the CHO’s written instrument is preserved and specific to the person and period.

3. Narrow supervisory test. Employee status under this declaration applies only when the volunteer "assists in the delivery of ACT COVID emergency response services under the control or direction of an ACT Government officer" (s 5). Two distinct elements appear: the particular activity (assisting in delivery of ACT COVID emergency response services) and the supervision/control relationship. Volunteers who perform COVID-related tasks without direct government control or direction, or undertake related preparatory activities, may fall outside the declaration.

4. Expenses-only remuneration clause. The instrument excludes people receiving remuneration other than "payment of expenses incurred" (s 5). The instrument does not define "expenses incurred" and does not prescribe documentation standards for expenses. This absence of definition opens the possibility of disputes about whether certain payments are reimbursement of expenses or constitute remuneration. The instrument does not supply a resolution process for such disputes; they will be resolved within the Act’s administrative or dispute mechanisms.

5. Reliance on ACT enactments and ACT-created authorities. Two alternative connection tests in s 5 reach activities done "in accordance with a requirement made by or under an ACT enactment" or at the request/direction/for the benefit of "an authority or body established by an ACT enactment". Determining whether a statutory requirement or authority’s request places a volunteer within the declaration can require legal analysis of the source ACT enactment or of the authority’s statutory functions.

6. Temporal limitation to "when rendering such assistance". The declared employee status applies when the volunteer is actively rendering the specified assistance. The instrument does not clarify whether travel time, training, administrative tasks, or ancillary activities are included. The text’s silence may generate disputes about whether particular periods are covered.

7. Administrative evidence burden. Because the CHO’s written identification is essential and employee status is activity- and supervision-dependent, volunteers, ACT Government officers and agencies will likely need contemporaneous documentation demonstrating identification, supervisory arrangements, the nature of the assistance, and the absence of remuneration other than expenses. The instrument does not provide record-keeping standards.

8. No express coverage beyond the Act. The instrument only changes who is an employee "for the purposes of the Act" (s 5). It does not alter other statutory frameworks or private contractual obligations. Parties should not assume the declaration confers broader employment rights or protections beyond the Act’s remit.

9. Duplication in the source text. The provided material reproduces the same sections more than once. Users should consult the official gazette or consolidated register entry for a single authoritative text and to confirm that no separate amendment, revocation or variation exists beyond the duplicated content provided.

10. Lack of definition of "ACT COVID emergency response services" and "ACT Government officer". The instrument does not define these phrases. Interpretation will be fact-driven and may require reference to ACT operational documents, public health orders, or the roles and titles of officers. The absence of statutory definitions increases the potential for contested claims over whether a particular activity or supervisor falls within the instrument’s parameters.

For agencies, the ACT Chief Health Officer, volunteers and claim administrators, the declaration sets out a small number of concrete compliance steps and documentary requirements that follow directly from the instrument’s wording. The following are practical steps grounded in the text.

1. CHO identification in writing. The declaration requires that persons be "identified by the ACT Chief Health Officer in writing to be COVID-19 Response Volunteers" before they are taken to be employees under the Act (s 5). The Chief Health Officer should issue written identifications that: (a) name the individual; (b) specify the period during which the identification is effective; and (c) state that the person is identified as a COVID-19 Response Volunteer for the purposes of the declaration. Retain copies for records and for use in any claims under the Act.

2. Document the non-remuneration status. Because the declaration applies only to volunteers who do not receive remuneration "other than payment of expenses incurred" (s 5), organisations should implement a standardised expenses policy and documentation pack that records expense claims and reimbursements. Maintain receipts, approvals and payment records to demonstrate that any payments were reimbursements of actual expenses rather than remuneration.

3. Record supervisory arrangements. The declaration requires that the volunteer "assist in the delivery of ACT COVID emergency response services under the control or direction of an ACT Government officer" (s 5). Agencies should document the name and role of the supervising ACT Government officer, the instructions given, reporting lines, and evidence of control or direction during the period of assistance. These records will be material to establishing coverage under the declaration.

4. Specify the activity and timeframe. Because the declaration applies "when rendering such assistance" in delivering ACT COVID emergency response services (s 5), record the specific tasks performed, start and end dates and times, locations, and any operational orders or directives that describe the activity as an ACT COVID emergency response service. If actions were taken "in accordance with a requirement made by or under an ACT enactment" or at the request/direction of an ACT authority, retain copies of the enactment requirement or the request.

5. Coordinate with authorities established by ACT enactment. Where volunteers are acting at the request or for the benefit of an authority or body established by an ACT enactment, obtain written confirmation from that authority that the activity was requested and that it relates to ACT COVID emergency response services (s 5). This will assist in establishing the statutory connection in any claim.

6. Ensure clear chain of authority for CHO appointments. The declaration defines "ACT Chief Health Officer" by reference to a person appointed under s 7(1) of the Public Health Act 1997 (ACT) (s 4). Ensure that the written identification is issued by the person who holds that CHO appointment and that the appointment is recorded where necessary to avoid challenges to the source of the written identification.

7. Retain an administrative dossier for each volunteer. For each identified volunteer, compile a dossier comprising: the CHO’s written identification; the expenses documentation; records of supervision/control; the description of duties and dates/times; and any relevant ACT enactment requirements or authority requests. These materials will be the core evidence if a claim is made under the Act.

8. Train ACT Government officers and volunteer coordinators. Ensure officers understand that the declaration’s coverage requires active control or direction and that only CHO-identified volunteers who are unpaid except for expenses are within scope (s 5). Officers should be trained to record the fact and substance of their control or direction contemporaneously.

9. Review insurance and indemnity arrangements. The declaration changes who is taken to be an employee under the Act but does not itself address insurance or indemnity arrangements. Agencies should review existing policies to identify whether coverage, premium treatment, or notification obligations are affected when volunteers are treated as employees for Act purposes.

10. Process for claims under the Act. Because the declaration is an instrument under the Act (s 3), claims by volunteers treated as employees will be processed under the Act. Agencies should coordinate with the administrators responsible under the Act to ensure that claims can be brought, evidence can be supplied, and that internal recordkeeping supports the Act’s adjudicative processes.

These steps follow directly from the instrument’s text. The declaration establishes a definitional change for the purposes of the Safety, Rehabilitation and Compensation Act 1988; compliance therefore hinges on producing and preserving the documentary evidence specified or implied in the instrument: the CHO’s written identification, proof of expenses-only payments, records of control or direction by ACT Government officers, and clear descriptions of the qualifying activities and timeframes (s 2; s 4; s 5).