Safety, Rehabilitation and Compensation (Definition of Employee – Defence Families of Australia) Notice 2015

The Notice operates as a targeted statutory classification, converting specified voluntary or representative activities into, effectively, statutory employment for a defined statutory purpose. The central legal concept is a statutory deeming of employment. Clause 3 uses the language “shall be taken to be employed by the Commonwealth” and “employment … shall, for those purposes, be taken to be constituted by the performance … of the acts or activities specified” in the Schedule. The scope is explicitly bound to “the purposes of subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988”. The Notice therefore does not create a general employment contract, it creates a legal status for the limited purpose named in the enabling provision.

Related definitional and limiting concepts are set out within the Schedule. The Schedule conditions coverage on a combination of (a) appointment or representation status within Defence Families of Australia, and (b) the actual performance of enumerated activities “for the benefit of the Commonwealth”. For Item 1 the class is “Persons holding a current appointment to the Executive Committee of Defence Families of Australia”, excluding any person who is a “member” as defined under section 5 of the Military Rehabilitation and Compensation Act 2004. For Item 2 the class is “Representatives of Defence Families of Australia”, but coverage is confined to those acting at the direction or request of the Executive Committee and performing one or more of the listed acts for the benefit of the Commonwealth.

The Schedule’s enumerated activities are defined by reference to consistency with the Charter of Defence Families of Australia, signed by the Chief of the Defence Force and by the Assistant Minister for Defence on specified dates. The instrument therefore anchors its activity list to a separate Charter; the Notice reproduces a list of functions consistent with that Charter including advice to Ministers and ADF leadership, provision of forums for families, assistance and advocacy for families, and assisting the Department of Defence and other stakeholders to inform families about benefits, assistance, rights, responsibilities and policy changes. The Charter itself is not printed in the instrument but is used as a contextual touchstone for the listed functions.

Statutory authority is a key concept. This Notice is made under the express power conferred by subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988. The instrument therefore exemplifies an executive power to extend the reach of the Act’s employer-employee construct to non-standard roles by administrative declaration. The limitation clauses, including the MRCA 2004 “member” exclusion, restrict the Notice’s reach and indicate an intent to avoid overlap with other statutory arrangements for ADF members. The Notice is time-neutral in its text; it commences once registered and does not specify an expiry or review mechanism.

The instrument identifies two specific classes of persons in the Schedule and excludes a third class defined elsewhere. Item 1 affects persons who hold a current appointment to the Executive Committee of Defence Families of Australia, but expressly excludes any person who is a “member” as defined under section 5 of the Military Rehabilitation and Compensation Act 2004. Item 2 affects representatives of Defence Families of Australia who, at the direction or request of the Executive Committee, perform one or more of the enumerated acts for the benefit of the Commonwealth. Both items require that the acts be performed for the benefit of the Commonwealth; Item 2 adds the procedural hook of acting at the Executive Committee’s direction or request.

Operationally the Notice will therefore affect four groups of actors who interact with Defence Families of Australia. First, appointed Executive Committee members who are not ADF “members” as defined in the MRCA 2004. Second, non-member representatives who carry out advocacy and advisory functions at the Executive Committee’s request or direction. Third, the Commonwealth as the declared employer for the purposes of the Safety, Rehabilitation and Compensation Act 1988; once the persons specified perform the listed acts for the Commonwealth, the Commonwealth is the statutory employer for the narrow purposes of that Act. Fourth, Departmental and Defence personnel who will need to recognise that these classes can be treated as employees under that Act when dealing with safety, rehabilitation and compensation issues.

The Schedule’s activity descriptions show the substantive activities that trigger the deeming. Examples include advising Ministers and Chief of the Defence Force on matters affecting ADF members and their families, providing a forum for families to raise issues, assisting families to contact appropriate persons or bodies, advocating on behalf of families to promote outcomes, and assisting families to obtain information about benefits, assistance, rights, responsibilities and Department of Defence policies, including changes. Item 2 explicitly includes providing assistance to the Executive Committee in carrying out these acts. Each of these activities must be performed “for the benefit of the Commonwealth” to attract coverage under the Notice.

A further practical effect arises from the MRCA 2004 exclusion. The instrument explicitly excludes persons who are “members” as that term is defined under section 5 of the Military Rehabilitation and Compensation Act 2004. That exclusion indicates an intention to avoid duplicative or overlapping statutory regimes between the Safety, Rehabilitation and Compensation Act and the Military Rehabilitation and Compensation Act with respect to serving ADF members. The Notice therefore likely captures family representatives and committee members who are civilians or otherwise not covered as ADF “members” under MRCA 2004, while leaving existing military compensation frameworks intact for service members as defined by that other Act.

The Notice does not itself create new day-to-day duties or operational obligations beyond the formal classification it effects. Instead it changes legal status for a specific statutory purpose. Clause 3 declares that certain persons “shall be taken to be employed by the Commonwealth” and that such employment “shall, for those purposes, be taken to be constituted by the performance … of the acts” in the Schedule. The legal consequence of that declaration is that the Safety, Rehabilitation and Compensation Act 1988 will apply to those persons in the manner applicable to employees, and therefore the rights and obligations that flow from that Act for employees and employers will attach as relevant.

Because the Notice limits its effect to the purposes of subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988, the precise content of rights and duties is determined by that Act and the enabling subsection. The instrument itself does not restate entitlements, thresholds, procedural requirements or employer obligations contained in the Safety, Rehabilitation and Compensation Act; it simply invokes those provisions by deeming employment. Therefore persons and administrators must consult the Safety, Rehabilitation and Compensation Act to identify the concrete duties of the Commonwealth as employer and the rights of those deemed employees in respect of safety, rehabilitation and compensation matters.

Two conditional elements in the Schedule determine when the rights and duties will arise. First, the individuals must hold the relevant appointment or act as representatives at the Executive Committee’s direction or request. Second, the acts performed must be among those listed and must be performed “for the benefit of the Commonwealth”. Those conditions mean that the statutory employer-employee relationship is activity-based; performing other acts outside the listed functions will not be covered by this Notice unless they fall within the scope set out in the Schedule.

The exclusion of persons who are “members” under section 5 of the Military Rehabilitation and Compensation Act 2004 also affects entitlement. For excluded persons the Notice will not bring the Safety, Rehabilitation and Compensation Act into play; their compensation and rehabilitation entitlements are thus governed by whatever other statutory or contractual regimes apply to them, notably the MRCA 2004 where relevant. The Schedule therefore creates boundaries around who gains rights under the SR&C Act as a result of this instrument.

Finally, the instrument imposes a practical duty on administrative actors to assess whether an individual falls within the declared classes when a safety, rehabilitation or compensation matter arises. Records of appointment, direction or request from the Executive Committee and evidence that an enumerated activity was performed for the benefit of the Commonwealth will be material to determining whether the statutory deeming applies. The Notice does not itself prescribe the evidentiary standard, claims process or administrative steps; those will follow the procedures and obligations in the Safety, Rehabilitation and Compensation Act and relevant administrative practice.

The Notice contains no standalone offence provisions, penalty clauses or specific enforcement mechanisms. It is an administrative declaration used to invoke the application of another statute, the Safety, Rehabilitation and Compensation Act 1988. As such, enforcement, dispute resolution and any penalties relevant to employer obligations or employee entitlements will be supplied by the Safety, Rehabilitation and Compensation Act and its regulatory and administrative framework. Clause 3 is declaratory in character and does not set penalties.

Because the instrument’s legal effect is to treat certain persons as employees of the Commonwealth for the purposes of the Safety, Rehabilitation and Compensation Act, any non-compliance with obligations that the Safety, Rehabilitation and Compensation Act places on employers or employees may give rise to whatever sanctions, remedies or enforcement mechanisms that Act provides. The Notice itself does not alter or expand the enforcement regime of the Safety, Rehabilitation and Compensation Act; it merely fixes who, for the Act’s purposes, is the employer and who is an employee when the Schedule conditions are met.

Responsibility for implementing the declared status will fall to Commonwealth entities and to the persons listed, in contexts where safety, rehabilitation or compensation matters arise. Administrative burdens associated with the enforcement mechanisms of the Safety, Rehabilitation and Compensation Act, such as claims handling, record-keeping, reporting or compliance with rehabilitation plans, will be engaged in practice once the deeming applies. Any penalties for contravention of the Safety, Rehabilitation and Compensation Act provisions then will apply as they ordinarily do under that Act.

The Notice itself was made under subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988 and registered as a legislative instrument. Its registration and commencement are administrative formalities that place the Notice on the Federal Register of Legislative Instruments. There is no internal penalty provision in the Notice that requires separate enforcement action; the material enforcement settings remain those of the principal Act which the Notice imports by reference.

The Notice is explicitly tethered to other legal instruments and statutes. It is made under subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988; its operative effect is confined to “the purposes of subsection 5(6)” of that Act, which means it functions as a statutory device to extend the employer-employee classification under that Act to particular classes of Defence Families of Australia personnel when they perform specified acts for the Commonwealth. The Notice therefore interacts directly with the Safety, Rehabilitation and Compensation Act by altering who is an “employee” for the Act’s purposes in the circumstances described.

The Schedule contains an express exclusion that ties to another statute, the Military Rehabilitation and Compensation Act 2004. It excludes “a person who is a ‘member’, as defined under section 5 of the Military Rehabilitation and Compensation Act 2004”. That linkage indicates a deliberate delineation between the compensation regimes that apply to ADF members under the Military Rehabilitation and Compensation Act and the Safety, Rehabilitation and Compensation Act’s regime. The Notice therefore seeks to avoid overlap or double coverage for persons already governed by the military-specific scheme, by excluding those persons from the statutory deeming.

The Notice also references the Charter of Defence Families of Australia as the normative source for the listed activities; the Charter was signed by the Chief of the Defence Force and the Assistant Minister for Defence on specific dates. Although the Charter is not reproduced in the instrument, the activities in Column 2 are described as “consistent with” that Charter. This creates a contextual relationship between the Charter and the Notice; the Charter supplies policy content and function descriptions that determine which activities trigger the deeming. The Notice does not, however, incorporate the Charter as law; it merely references it for consistency.

Because the Notice confines its effect to the Safety, Rehabilitation and Compensation Act, other statutory contexts remain unaffected by the declaration unless those contexts themselves adopt or rely on that Act’s definitions. In particular the Notice does not purport to create an employment contract or to alter taxation, superannuation, industrial relations, immigration, privacy or defence administrative arrangements beyond the narrow SR&C Act status. Any cross-over effects into those fields would depend upon how other statutes and administrative systems treat SR&C Act employment status; the Notice does not itself assert such cross-effects.

Finally, the procedural form of the instrument matters. It is a legislative instrument made by the Minister and registered on the Federal Register of Legislative Instruments. That means it must be read and applied in the statutory context of delegated instruments. Any challenge to the Notice’s validity, scope or construction would therefore be framed against the enabling subsection 5(6) and relevant administrative law standards; the Notice’s interaction with other laws will be interpreted in the light of those statutory texts and the limited purpose the instrument identifies.

The document provided is the Safety, Rehabilitation and Compensation (Definition of Employee - Defence Families of Australia) Notice 2015 as made on 20 April 2015. The instrument contains no internal amendment provisions; it records its name, commencement rule and the Minister’s declaration together with the Schedule. The instrument does not record any earlier versions, revocations, or schedules of amendment. There is no text in the instrument indicating that it amends, repeals or replaces any prior legislative instrument. The instrument therefore appears as a single made-and-registered Notice standing on its own.

Because the Notice is a delegated legislative instrument made under subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988, any amendment or repeal would require further action under that enabling power; the instrument as provided contains neither amendment history entries nor transitional arrangements. No expiry or sunset clause is present in the text; the Notice simply commences on the day after registration and remains in effect until amended or revoked by an appropriate further instrument or until the enabling statutory framework changes.

The Schedule lists two items and the instrument uses language that ties the activities to a Charter signed on particular dates. The instrument does not itself record any subsequent updates to the Charter or any later administrative reconfigurations of Defence Families of Australia. Any changes to the scope of who is covered by the Notice would require a new or amending instrument under the same enabling provision.

In short, the available text contains only the original instrument as made in April 2015. There is no internal evidence in the text of this Notice of subsequent amendments, revocations, or a formal amendment history. Any researcher or practitioner requiring an authoritative amendment history should consult the Federal Register of Legislative Instruments and the official legislative database for any instruments that may have amended or revoked this Notice after registration; such subsequent instruments are not included in the provided text.

The Notice as supplied contains no information about litigation, challenges, judicial interpretation or administrative reviews. The instrument is a declaratory administrative instrument and the text does not mention any judicial proceedings, determinations, or disputes connected with its operation. The Schedule and clauses do not reference any ongoing or concluded legal challenges.

Because the Notice’s legal effect is to bring certain persons within the definition of employee for the purposes of the Safety, Rehabilitation and Compensation Act 1988, any litigation that would concern this instrument would most likely arise in the context of a contested claim under that Act, or a judicial review or statutory construction dispute about whether an individual falls within the declared classes. The Notice itself, however, contains no record or summary of such litigation, nor does it cite precedent. The instrument simply records the declaration and the classes; it does not purport to record or comment upon litigation.

For a practitioner wishing to identify litigation that engages the Notice, the appropriate course is to search court and tribunal databases for matters that reference this Notice or that raise the statutory question whether a person was “taken to be employed” by the Commonwealth pursuant to subsection 5(6) of the Safety, Rehabilitation and Compensation Act 1988 and this particular instrument. Those searches, and any findings they yield, are outside the scope of the instrument’s text as provided here.

Several practical and legal pitfalls arise from close reading of the Notice. First, the scope is tightly conditional. The Schedule requires both status and acts. For Item 1 an individual must hold a current appointment to the Executive Committee of Defence Families of Australia; for Item 2 a person must be a representative acting at the direction or request of the Executive Committee. In both cases the relevant acts must be those enumerated in Column 2 and they must be performed “for the benefit of the Commonwealth”. A person who is appointed but who does not actually perform one of the listed activities for the Commonwealth would not trigger the deeming, and a person performing similar activities independently or for purely private ends may likewise fall outside the instrument’s scope.

Second, the instrument excludes persons who are “members”, as defined under section 5 of the Military Rehabilitation and Compensation Act 2004. The exclusion is absolute in the text and means that a careful status assessment must be undertaken when a person has both a role in Defence Families of Australia and a possible classification as an ADF “member”. If a person meets the MRCA 2004 definition of member, the Notice does not apply and the Safety, Rehabilitation and Compensation Act rights and obligations under this instrument will not attach.

Third, the instrument ties the listed activities to consistency with the Charter of Defence Families of Australia. Because the Charter itself is not reproduced, the reference creates an interpretive dependency: whether an activity is “consistent with” the Charter may require reference to that separate document, and potential disputes about whether a particular activity falls within the Charter-consistent list may arise. The Notice lists activities in Column 2, but it frames them by reference to the Charter, which is external to the instrument.

Fourth, the wording “for the benefit of the Commonwealth” introduces a material factual threshold. Actions taken by the listed persons that are oriented to local interest, private advocacy that is not for the Commonwealth’s benefit, or activities that are essentially internal to non-government organisations might not meet that test and therefore might not attract the deemed employee status.

Fifth, the deeming is purpose-limited to the Safety, Rehabilitation and Compensation Act 1988. Practitioners and administrators must not assume that other statutory regimes automatically mirror the Notice’s classification. The instrument does not create a general employment contract, nor does it automatically change treatment under taxation, superannuation, industrial law or other federal statutes unless those statutes explicitly import or rely on the SR&C Act’s definitions.

Sixth, administrative actors must retain documentary evidence of appointment, of directions or requests by the Executive Committee, and of the fact that particular activities were performed for the Commonwealth. Absent documentary evidence, resolving a claim or dispute under the SR&C Act will be more difficult. The Notice does not specify evidentiary standards, timelines or processes; the absence of those details creates an administrative risk in claims handling.

Finally, the instrument contains no sunset or review mechanism. Unless amended or revoked, the Notice remains effective; however any change in the Charter, in the organisational arrangements of Defence Families of Australia, or in adjacent legislative regimes may render the instrument outdated. Practitioners should be alert to mismatch risk between the Notice’s static words and evolving practice.

Compliance with the Notice is primarily an exercise in administration, documentation and correct legal characterisation. Because the instrument’s operative effect is to declare certain persons to be employees of the Commonwealth for the purposes of the Safety, Rehabilitation and Compensation Act 1988, entities and individuals should take the following practical steps grounded in the instrument’s operative text.

1. Identify covered persons. Maintain an up-to-date register of who holds a current appointment to the Executive Committee of Defence Families of Australia. Capture for each individual whether they are a “member” as defined in section 5 of the Military Rehabilitation and Compensation Act 2004; if they are, the Notice excludes them. Similarly, maintain a list of recognised representatives and record whether their activities are performed at the direction or request of the Executive Committee.

2. Document the activities performed. For each person who might be covered, keep contemporaneous records that show which of the Column 2 activities they perform, for example minutes, correspondence, event records, policy submissions and advocacy communications. The instrument conditions the deeming on the performance of specified acts; documentary records will be decisive in establishing whether the Notice applies.

3. Establish the “for the benefit of the Commonwealth” link. Records should show that the activities were performed with the Commonwealth’s benefit in mind. This may include documentation of engagements with Ministers, the Chief of the Defence Force, Department of Defence personnel or other Commonwealth stakeholders, or records showing activity aimed at informing Commonwealth policy development and decision making.

4. Record Executive Committee direction or request where applicable. For representatives whose coverage is contingent on acting at the Executive Committee’s direction or request, maintain formal or informal records of that direction or request. Emails, meeting minutes or formal tasking documents will assist in demonstrating the link required by Item 2.

5. Align claims and incident reporting processes to the Safety, Rehabilitation and Compensation Act. The Notice does not create an alternative claims mechanism; it invokes the Safety, Rehabilitation and Compensation Act’s regime. Organisations should therefore ensure that when an incident, illness or injury arises in connection with the listed activities, it is reported and processed in line with the procedures and thresholds in the Safety, Rehabilitation and Compensation Act and its administrative guidance.

6. Train staff and committee members. Provide guidance to Executive Committee members and representatives about the limited scope of the deeming, the need to document activity and direction, and the MRCA 2004 exclusion. Clarify that the Notice is limited to SR&C Act purposes and does not create general employment status for other statutory areas.

7. Co-ordinate with Departmental contacts. Since the Schedule contemplates interaction with the Department of Defence and other stakeholders, ensure that departmental officers responsible for policy or for personnel records are aware of who has been appointed and who is acting at the Committee’s request, so that when safety, rehabilitation or compensation issues arise the Commonwealth’s administrative machinery can respond promptly.

8. Legal review for edge cases. For persons whose status is ambiguous, such as those with dual roles or where the “benefit of the Commonwealth” is unclear, seek legal advice before assuming coverage. The Notice’s application will often turn on fine factual and statutory construction questions that are best tested with legal input.

These steps follow from the instrument’s requirements: the Notice makes a conditional, activity-based deeming of employment, excludes MRCA-defined members, and ties activities to the Charter and to acting for the Commonwealth. The Notice itself does not prescribe procedural detail, so compliance tasks focus on generating and retaining the evidence and administrative linkages necessary for correct application of the Safety, Rehabilitation and Compensation Act when claims or incidents arise.