Safety, Rehabilitation and Compensation (Definition of Employee) Notice 2007 (2)

The central concept is the “deemed employee” under subsection 5(6) of the SRC Act. That provision gives the Minister power to declare, by notice in writing, that a specified class of persons who engage in activities at the request or direction, for the benefit, or under a requirement made by or under a Commonwealth law, or at the request or direction or for the benefit of a Commonwealth authority, are taken to be employees of the Commonwealth or that authority. The Notice is the exercise of that power.

Thirteen classes are declared in the Schedule. Each class is linked to a specific class of acts that constitute the deemed employment. For example, item 1 covers members of the Australian Air Force Cadets, and the class of acts is “acts performed in connection with the activities of the Cadets”. Item 2 similarly covers Army Cadets and Navy Cadets. These are essentially volunteer youth organisations under the Defence Act, Air Force Act, and Naval Defence Act. The Notice ensures that if a cadet is injured during cadet activities, they have access to SRC Act compensation.

Item 3 covers persons employed under an agreement or arrangement between the Commonwealth and another government to render services to that other government outside Australia. This captures, for example, persons seconded to foreign governments under bilateral arrangements.

Items 4, 5, 7, 8, 9, and 10 cover persons who assist Commonwealth officers without remuneration (excluding payment of expenses). These include: assisting in firefighting at the Woomera Defence Support Centre; participating in search and rescue activities or training exercises by the Department of Transport and Regional Services or CASA; rendering services in institutions or services conducted by the Department of Veterans’ Affairs; taking part in health surveys in the ACT; taking part in civil defence activities in the ACT; and assisting in running the National Library of Australia. Each is limited to unpaid assistance, so paid workers in these areas would generally already be employees under the default definition.

Item 6 covers persons rendering assistance to a “designated Commonwealth officer” at the officer’s request, or in the honest and reasonable belief that the assistance was necessary for the officer to perform their duty. This is a broad category because “designated Commonwealth officer” is defined at the foot of the Schedule to include the ACT sheriff or deputy sheriff, Customs officers, the Family Court Marshal or Deputy Marshal, the Federal Court Sheriff or Deputy Sheriff, and the High Court Marshal or Deputy Marshal. This covers members of the public who help these officers - for example, assisting in executing a warrant or arresting someone.

Item 11 covers members of a board, committee, or other body or group of persons (not a body corporate) appointed by the Governor-General, a Minister, a Commonwealth authority, an APS member, or a person holding a Territory office (other than the Northern Territory or Norfolk Island). Excluded from this category are state ministers, state MPs, and persons holding or acting in an office established by a Commonwealth, state, or territory law (including judicial offices). This captures advisory committees or panels whose members are not otherwise employees.

Item 12 covers persons engaged under subsection 26(3) of the High Court of Australia Act 1979 or whose services are made available under subsection 26(6) of that Act. Section 26(3) allows the High Court to engage persons to assist the Court in its work; subsection 26(6) allows the Court to accept the services of persons made available by other bodies. The Notice deems these persons employees for the purposes of the SRC Act when performing acts for the High Court.

Item 13 covers persons employed to assist in the Governor-General’s household who are employed otherwise than on a regular basis. This covers casual or ad‑hoc household staff who would not otherwise meet the regular employment test.

The Notice directly affects persons in each of the 13 classes described in Column 2 of the Schedule. It also affects the Commonwealth and each Commonwealth authority for which those persons are deemed to be employees.

For the affected persons, the Notice means that if they suffer an injury or disease arising out of or in the course of the acts described in Column 3, they may be entitled to compensation under the SRC Act. This includes medical expenses, incapacity payments, and rehabilitation. The person does not need to have a contract of employment or be paid. The coverage applies regardless of remuneration status, except that several items expressly require that the person receives no remuneration other than reimbursement of expenses. For example, items 4, 5, 7, 8, 9, and 10 condition the declaration on the person not receiving any remuneration (excluding payment of expenses incurred). This means that a paid firefighter at Woomera would not be covered under item 4 (they would be covered under ordinary employee definitions), but a volunteer assisting in firefighting without pay would be covered.

For the Commonwealth and Commonwealth authorities, the Notice expands the pool of potential claimants under the SRC Act. Each such person, when performing the specified acts, is treated as an employee. This means the Commonwealth or the relevant authority assumes liability for workers’ compensation premiums, injury management, and potential claims. The liability attaches without the usual features of employment - no PAYG withholding, no superannuation guarantee, no leave entitlements, no award coverage. This creates a peculiar asymmetry: the compensation tail attaches without the employment head.

The Notice also affects third parties indirectly. For example, if a person covered by item 6 assists a designated Commonwealth officer and is injured, they can claim against the Commonwealth rather than having to rely on common law damages. This potentially shifts costs from the person’s own insurance or the public health system to the Commonwealth.

Item 11 affects persons appointed to boards, committees, or similar bodies by the Commonwealth. Many such appointments are honorary or involve only sitting fees. The Notice ensures that these persons have SRC Act coverage when performing board acts. However, it expressly excludes state ministers, state MPs, and persons holding statutory or judicial offices at any level. This means a state MP serving on a Commonwealth advisory committee would not have SRC Act coverage. Similarly, a person holding a judicial office under a state law would not be covered even if appointed to a Commonwealth committee. The exclusion preserves the separation between Commonwealth and state officeholders.

Item 12 affects persons who assist the High Court on a temporary or seconded basis. The High Court can engage persons directly under s 26(3) or accept seconded services under s 26(6). Without the Notice, these persons might not be employees of the Commonwealth for SRC Act purposes, particularly if they are seconded from a state government or private sector. The Notice ensures continuity of coverage.

The Notice itself imposes no duties and confers no rights. It is a deeming provision. The rights and duties arise from the SRC Act. Once a person is deemed an employee under the Notice, they become entitled to the same benefits and subject to the same obligations as any other employee covered by the SRC Act.

The key right is the entitlement to compensation for “work-related injuries” - broadly, injuries (including diseases) arising out of or in the course of the employment, or contributed to by the employment. This includes medical treatment, rehabilitation, and incapacity payments. The SRC Act also provides for dependant’s payments in case of death. The amount and duration of payments depend on the nature and severity of the injury.

The key duty of the deemed employee is to notify the employer (the Commonwealth or relevant authority) of the injury as soon as practicable. They must also submit to medical examination where required. They cannot make a false or misleading statement in support of a claim. They must also cooperate with rehabilitation programs.

The Commonwealth or the authority has duties under the SRC Act to: notify the relevant insurer or Comcare of the claim; investigate the circumstances; provide suitable employment (if possible) or pay incapacity benefits; manage the worker’s return to work; and maintain appropriate records. There is also a duty to take reasonable care to provide a safe working environment, though for many of the persons covered by the Notice, the “workplace” may be an outdoor environment or a volunteer setting.

It is important to note that the SRC Act does not provide for common law damages. The compensation scheme is no‑fault and statutory. A deemed employee cannot sue the Commonwealth for negligence at common law in respect of the injury covered by the Act (under section 44 of the SRC Act, which bars common law proceedings). So while the Notice gives access to statutory benefits, it also extinguishes the right to sue for tort damages.

The Notice does not create an employment relationship for any other purpose. The deemed employee is not entitled to the National Employment Standards under the Fair Work Act, not entitled to minimum wages under the Fair Work Act, not entitled to superannuation under the Superannuation Guarantee (Administration) Act, and not entitled to leave under the Fair Work Act. They are not covered by the unfair dismissal provisions of the Fair Work Act. They have no right to request flexible work or parental leave. The only right is the right to workers’ compensation benefits.

The Notice does not contain penalties. Penalties arise from the SRC Act for offences such as making false or misleading statements in connection with a claim (section 69 of the SRC Act provides penalties of imprisonment for 12 months or 60 penalty units), or obstructing a Comcare investigator (section 90A). A person deemed an employee by the Notice is subject to these provisions if they lodge a fraudulent claim.

Enforcement of the compensation obligations falls on the Commonwealth or the relevant authority as the deemed employer. Failure to pay compensation when due can lead to proceedings for recovery of the amount in a court of competent jurisdiction (section 49 of the SRC Act). Comcare also has enforcement powers, including the ability to issue compliance notices and directions.

If a person who is not actually within the classes in the Schedule claims to be covered by the Notice, they can be prosecuted for fraud. Conversely, if the Commonwealth or an authority wrongly refuses a claim on the basis that the person is not an employee when the Notice deems them one, the person can seek review by the Administrative Appeals Tribunal (under section 59 of the SRC Act) and then appeal to the Federal Court on a question of law.

The Notice itself is a disallowable legislative instrument. Either house of Parliament could disallow it within 15 sitting days of tabling. If disallowed, the deeming would cease for future claims. The source text does not indicate whether disallowance occurred.

The Notice operates exclusively within the framework of the SRC Act. It does not make persons “employees” for any other Commonwealth law, such as the Fair Work Act 2009, the Superannuation Guarantee (Administration) Act 1992, the Income Tax Assessment Act 1997, or the Occupational Health and Safety Act 1991. This is a critical interaction point.

For example, a cadet covered by item 1 or 2 is deemed an employee for workers’ compensation only. The cadet is not an employee for the purpose of the Fair Work Act, so they are not entitled to the minimum wage, leave, or unfair dismissal protection. The cadet’s service is, from an industrial standpoint, voluntary. The Commonwealth does not owe payroll tax, superannuation, or PAYG withholding obligations for that person.

The exclusion of state and territory workers’ compensation laws is also relevant. By deeming the person a Commonwealth employee, the Notice potentially removes them from coverage under state workers’ compensation regimes. For instance, a state MP on a Commonwealth committee (item 11) is excluded from the Notice, so they would need to rely on their state workers’ compensation coverage if injured while performing committee duties. But for a regular member of a Commonwealth advisory board, the Notice provides Commonwealth coverage.

The interaction with the Military Rehabilitation and Compensation Act 2004 (MRCA) is notable. Cadets under the Defence Act could potentially be covered under the MRCA if they meet its definition of “member of the Defence Force”. But cadets are generally not members of the permanent forces. The Notice ensures they have an alternative compensatory mechanism under the SRC Act.

The interaction with the Work Health and Safety Act 2011 (WHS Act) is indirect. The WHS Act imposes duties on persons conducting businesses or undertakings to ensure the health and safety of workers and others. A person deemed an employee under the SRC Act may or may not be a “worker” under the WHS Act, depending on the circumstances. The WHS definition of “worker” is broader than the SRC Act’s “employee” definition, so some persons covered by the Notice may also be workers under the WHS Act, but the reverse may not hold. The Notice does not affect WHS duties.

There is also a potential interaction with the Commonwealth’s self‑insurance arrangements. Comcare is the regulator and insurer for most Commonwealth entities. The Notice expands the pool of insured persons under Comcare’s coverage, which may affect premium calculations for the relevant entities.

The source text does not reference any amendments. The Notice is titled “Safety, Rehabilitation and Compensation (Definition of Employee) Notice 2007 (2)”. The “(2)” suggests that it is the second notice issued in 2007 under subsection 5(6), implying there may have been a Notice No. 1 of 2007, but that instrument is not provided. Nothing in the source indicates that this Notice has been amended since its making on 21 June 2007. There is no mention of later amending notices or legislative amendments that would have superseded it. Without access to the Federal Register of Legislation, one cannot confirm whether subsequent instruments have expanded, contracted, or revoked the classes declared. The analysis must therefore treat the Notice as it appears: an original instrument effective from 1 July 2007 with no recorded amendment history in the source material. It is possible that the Notice remains in force today, but it is equally possible that later notices have replaced it. The user provides only this document, so the analysis cannot speculate.

The source text contains no references to litigation. No case names, judgments, or court proceedings are mentioned. There are no citations of judicial interpretation of this Notice or of subsection 5(6) of the SRC Act as applied by this Notice. This does not mean no litigation exists; it simply means the source is silent on the point. A thorough researcher would need to search for decisions of the Administrative Appeals Tribunal and the Federal Court that consider the validity or application of this specific Notice. The exclusion of state ministers, the meaning of “designated Commonwealth officer”, and the definition of “body corporate” in item 11 are potential sources of dispute. However, the user has provided only the Notice text, not the surrounding case law. Therefore, the analysis cannot assert any litigation history.

The first gotcha is the “without remuneration” requirement in items 4, 5, 7, 8, 9, and 10. If a person receives more than reimbursement of expenses - for example, a honorarium of $50 for a day’s assistance - they likely fall outside the deemed employee category for that item. The person would then need to rely on the default employee definition under section 5 of the SRC Act, which would likely require a contract of service. Many volunteer arrangements are structured to provide small payments to cover costs, but any element of profit or return could disqualify the person. This creates a compliance trap for Commonwealth officers who may think that paying a token amount is safe. The Notice expressly excludes any form of remuneration beyond expenses.

The second gotcha is the limited scope of “designated Commonwealth officer” in item 6. The definition at the foot of the Schedule lists only five categories: ACT sheriff or deputy sheriff; Customs officers; Family Court Marshal and Deputy Marshal; Federal Court Sheriff and Deputy Sheriff; High Court Marshal and Deputy Marshal (and assistants under s 27 of the High Court Act). It does not include police officers, AFP members, or other law enforcement. If a person assists an AFP officer at the officer’s request and is injured, they are not covered by item 6. Unless another item applies (e.g., item 5 for search and rescue), the person may have no SRC Act coverage.

The third gotcha is the exclusion in item 11 for persons holding an “office (including a judicial office) established by a law of the Commonwealth, of a State or of a Territory of the Commonwealth”. This is very broad. It excludes not only state ministers and MPs, but also any person holding a statutory office at any level of government. For example, a person appointed as a member of a Commonwealth advisory committee who also happens to be a local government councillor might be caught if the council is established under a state law. The phrase “established by a law” is ambiguous as to whether it covers offices created by common law or executive action. The cautious approach is to assume that anyone with a formal office under any government law is excluded.

The fourth gotcha is that the Notice does not cover all persons who assist Commonwealth officers. Only the specific 13 classes are covered. For instance, a person who volunteers for a government department in a general administrative capacity, not falling under an item, would not be deemed an employee. They would have no workers’ compensation cover unless the department has a separate arrangement. This is a gap that practitioners must identify.

The fifth gotcha is the territorial limitation implicit in many items. Items 8 (health survey) and 9 (civil defence) are restricted to the Australian Capital Territory. Items 4 (fire at Woomera) is specific to Woomera in South Australia. Persons performing similar activities in other locations are not covered by those items. Item 5 (search and rescue) is not geographically restricted on its face, but likely aligns with the operational areas of the Department of Transport and Regional Services and CASA.

The sixth gotcha is the interaction with the “honest and reasonable belief” element in item 6. A person who assists a designated Commonwealth officer without a request, but who later claims they believed the assistance was necessary, must have held that belief both honestly and reasonably. Subjective honesty is not enough; the belief must be objectively reasonable. This could be litigated if the Commonwealth resists a claim on the basis that the circumstances did not reasonably warrant the assistance.

For a Commonwealth entity that wishes to ensure compliance with the Notice, the first step is to identify which of its activities are covered by the Schedule. The entity should map each of its operations that involve volunteer or non‑employee assistance against the 13 items. For example, if the entity maintains a library that uses volunteers, check whether item 10 (National Library) applies. If the entity is not the National Library but a different library, there is no coverage.

Second, the entity must ensure that any persons whom it expects to be covered by the Notice are properly informed of their status. They should be told that they are deemed employees for SRC Act purposes only, that they are not entitled to other employment benefits, and that they must report injuries promptly. The entity should also ensure that no more than expense reimbursement is paid to persons purportedly covered by the unpaid items. Paying any form of remuneration (including a sit fee or honorarium) would take the person out of the deemed employee category for that item. The entity may need to assess whether the person would be covered under the default employee definition instead; if not, the entity should either stop the payment or seek a specific notice from the Minister to cover the category.

Third, the entity should keep clear records of each person covered, the item under which they are covered, and the acts they perform. This helps demonstrate the basis for coverage if a claim arises. It also helps in calculating any workers’ compensation premiums that the entity must pay to Comcare. The premium is usually based on wages paid, but for deemed employees under the Notice, there may be no wages. The entity should consult Comcare’s guidelines on how to account for these persons in premium calculation.

Fourth, the entity should ensure that the relevant designated Commonwealth officer (for item 6) understands that they may accept assistance from the public, but they must inform the assistant of the workers’ compensation coverage and that they should report injuries. The officer should also document each request for assistance to support any later claim.

Fifth, for item 11, the entity appointing persons to boards or committees should check whether any appointee holds an excluded office (state MP, state minister, any statutory office). If so, that appointee should be informed that they are not covered by the SRC Act and should maintain their own insurance or rely on state coverage.

Sixth, the entity should lodge a compensation policy with Comcare that covers these deemed employees. The policy must reflect the extended definition. Failure to do so could result in the entity being uninsured for claims arising from these persons.

Finally, the entity should monitor any later notices under subsection 5(6) that may add, remove, or amend classes. The Notice is not static. Practitioners should check the Federal Register of Legislation regularly for updates. Compliance with this Notice requires ongoing diligence, not a one‑off check.