Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021 (Vic)
Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021
No. 46 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Amendment of Forests Act 1958
4Definitions
5Secretary may enter into agreements and arrangements relating to the prevention and suppression of fires and recovery from fires
6New sections 72A to 72R inserted
7New section 100C inserted
8New sections 107 and 108 inserted
9New Third Schedule inserted
Part 3—Repeal of this Act
10Repeal of this Act
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Endnotes
1 General information
Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021
No. 46 of 2021
[Assented to 3 November 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to amend the Forests Act 1958 to provide a rebuttable presumption for forest firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their employment, including carrying out fire suppression and prevention activities, for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 14 September 2022, it comes into operation on that day.
3Principal Act
In this Act, the Forests Act 1958 is called the Principal Act.
Part 2—Amendment of Forests Act 1958
4Definitions
In section 3(1) of the Principal Act insert the following definition—
"Fire Rescue Victoria has the same meaning as in section 3(1) of the Fire Rescue Victoria Act 1958;".
5Secretary may enter into agreements and arrangements relating to the prevention and suppression of fires and recovery from fires
In section 62C(4) of the Principal Act, the definition of Fire Rescue Victoria is repealed.
6New sections 72A to 72R inserted
After section 72 of the Principal Act insert—
"Forest firefighters presumptive rights compensation
72ADefinitions
In sections 72A to 72R—
advisory committee means the advisory committee established under section 72R;
Authority means the Victorian WorkCover Authority;
career firefighter has the same meaning as in section 4(1) of the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019;
CFA means the Country Fire Authority appointed under the Country Fire Authority Act 1958;
Department Head has the same meaning as in section 4(1) of the Public Administration Act 2004;
firefighter means—
(a)a career firefighter; or
(b)a volunteer firefighter; or
(c)a forest firefighter;
firefighting means exposure to the hazards of a fire scene including—
(a)by extinguishing, controlling or preventing the spread of fires; or
(b)by the application or use of fire—
(i)to prevent fire; or
(ii)for the purposes specified in section 62A(1);
forest firefighter means—
(a)an occupational forest firefighter; or
(b)a surge forest firefighter;
Melbourne Water Corporation has the same meaning as in section 3(1) of the Water Act 1989;
occupational forest firefighter has the meaning given by section 72B;
public sector body has the same meaning as in section 4(1) of the Public Administration Act 2004;
public sector body Head has the same meaning as in section 4(1) of the Public Administration Act 2004;
surge forest firefighter has the meaning given by section 72C;
volunteer firefighter has the same meaning as in section 4(1) of the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019.
72BMeaning of occupational forest firefighter
For the purposes of sections 72A to 72R, occupational forest firefighter means a person who is, or was employed by any of the following as a firefighter in a role in which firefighting duties are or were a portion—
(a)the Department Head in the Department under Part 3 of the Public Administration Act 2004 for the purposes of assisting the Secretary to carry out duties under sections 62(2) and 62A;
(b)a public sector body Head in a public sector body that has entered into—
(i)an agreement or arrangement with the Secretary under section 62C other than firefighters and staff employed by the CFA or Fire Rescue Victoria; or
(ii)an agreement or arrangement with the Secretary relating to the prevention and suppression of fires other than firefighters and staff employed by the CFA or Fire Rescue Victoria;
(c)Parks Victoria in circumstances where Parks Victoria makes its employees available to the Secretary to enable the Secretary to undertake firefighting;
(d)VicForests in circumstances where VicForests makes its employees available to the Secretary to enable the Secretary to undertake firefighting;
(e)Melbourne Water Corporation in circumstances where Melbourne Water Corporation makes its employees available to the Secretary to enable the Secretary to undertake firefighting.
72CMeaning of surge forest firefighter
(1)For the purposes of sections 72A to 72R, surge forest firefighter means a person who is not an occupational forest firefighter but who—
(a)is, or was employed by a person or body specified in subsection (2); and
(b)performs, or has performed firefighting duties while in the employ of a person or body specified in subsection (2).
(2)The following persons or bodies are specified for the purposes of subsection (1)—
(a)the Department Head in the Department under Part 3 of the Public Administration Act 2004 for the purposes of assisting the Secretary to carry out duties under sections 62(2) and 62A;
(b)a public sector body Head in a public sector body that has entered into—
(i)an agreement or arrangement with the Secretary under section 62C other than firefighters and staff employed by the CFA or Fire Rescue Victoria; or
(ii)an agreement or arrangement with the Secretary relating to the prevention and suppression of fires other than firefighters and staff employed by the CFA or Fire Rescue Victoria;
(c)Parks Victoria in circumstances where Parks Victoria makes its employees available to the Secretary to enable the Secretary to undertake firefighting;
(d)VicForests in circumstances where VicForests makes its employees available to the Secretary to enable the Secretary to undertake firefighting;
(e)Melbourne Water Corporation in circumstances where Melbourne Water Corporation makes its employees available to the Secretary to enable the Secretary to undertake firefighting.
72DConstruction of sections 72A to 72R
(1)Sections 72A to 72R should be read as if they formed part of the Workplace InjuryRehabilitation and Compensation Act 2013.
(2)If there is an inconsistency in any of sections 72A to 72R and the Workplace Injury Rehabilitation and Compensation Act 2013, sections 72A to 72R prevail to the extent of the inconsistency.
(3)Unless inconsistent with the context or subject‑matter, words and expressions defined in section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 have the same meaning in sections 72A to 72R as they have in that Act.
(4)If a forest firefighter satisfies the presumption under section 72E or section 72H, their disease is to be taken to be an injury within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013.
72ERebuttable presumption as to cause of certain diseases in relation to occupational forest firefighters
(1)An injury to an occupational forest firefighter is presumed to be due to the nature of their employment as a firefighter if—
(a)the injury—
(i)is a disease referred to in column 1 of the table in the Third Schedule; and
(ii)occurs on or after 1 June 2016; and
(b)the injury occurs during a period in which the worker is employed as an occupational forest firefighter or within the 10 year period after the worker ceases to be employed or served as a firefighter; and
(c)before the date on which the injury that is a disease referred to in column 1 of the table in the Third Schedule occurred, the worker is or was employed, or served as a firefighter, for at least the qualifying period specified in column 2 of that table opposite the disease, and the worker attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter—
in the absence of proof to the contrary.
(2)For the purposes of this section, if an occupational forest firefighter suffers an injury that is a disease specified in column 1 of the table in the Third Schedule, the injury is to be taken to have occurred on the day on which the occupational forest firefighter—
(a)is first diagnosed as suffering from the disease; or
(b)dies by reason of the disease—
whichever occurs first.
72FDetermination as to whether a forest firefighter is an occupational forest firefighter
(1)If a forest firefighter is employed as an occupational forest firefighter at the time the injury occurs, they are taken to be an occupational forest firefighter for the purposes of section 72E.
(2)If a forest firefighter has ceased employment as an occupational forest firefighter, they are to be taken to be an occupational forest firefighter for the purposes of section 72E if—
(a)their most recent employment or service as a firefighter was as an occupational forest firefighter; or
(b)on balance, the greatest proportion of their employment or service as a firefighter was as an occupational forest firefighter.
72GDetermination of whether section 72E requirement is met
(1)For the purposes of determining whether an occupational forest firefighter attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter under section 72E, the Authority or a self‑insurer (as appropriate) must seek an expert opinion from the advisory committee.
(2)In providing the expert opinion to the Authority or a self-insurer (as appropriate), the advisory committee must have regard to—
(a)any relevant records, employer data and local knowledge; and
(b)any other prescribed matter.
(3)The Authority or a self-insurer (as appropriate)—
(a)must have regard to the expert opinion provided to the Authority or the self‑insurer under subsection (1); and
(b)is not required to make a determination that is consistent with the expert opinion provided under subsection (1).
72HRebuttable presumption as to cause of certain diseases in relation to surge forest firefighters
(1)An injury to a surge forest firefighter is presumed to be due to the nature of their employment if—
(a)the injury—
(i)is a disease referred to in column 1 of the table in the Third Schedule; and
(ii)occurs on or after 1 June 2016; and
(b)the injury occurs during a period in which the worker served as a surge forest firefighter or within the 10 year period after the worker ceases to be employed or served as a firefighter; and
(c)before the date on which the injury that is a disease referred to in column 1 of the table in the Third Schedule occurred, the worker is or was employed, or served as a firefighter, for at least the qualifying period specified in column 2 of that table opposite the disease, and the worker attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter—
in the absence of proof to the contrary.
(2)For the purposes of this section, if a surge forest firefighter suffers an injury that is a disease specified in column 1 of the table in the Third Schedule, the injury is to be taken to have occurred on the day on which the surge forest firefighter—
(a)is first diagnosed as suffering from the disease; or
(b)dies by reason of the disease—
whichever occurs first.
72IDetermination as to whether a forest firefighter is a surge forest firefighter
(1)If a forest firefighter is serving as a surge forest firefighter at the time the injury occurs, they are taken to be a surge forest firefighter for the purposes of section 72H.
(2)If a forest firefighter has ceased service as a surge forest firefighter, they are to be taken to be a surge forest firefighter for the purposes of section 72H if—
(a)their most recent employment or service as a firefighter was as a surge forest firefighter; or
(b)on balance, the greatest proportion of their employment or service as a firefighter was as a surge forest firefighter.
72JDetermination of whether section 72H requirement is met
(1)For the purposes of determining whether a surge forest firefighter attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter under section 72H, the Authority or a self-insurer (as appropriate) must seek an expert opinion from the advisory committee.
(2)In providing the expert opinion to the Authority or a self-insurer (as appropriate), the advisory committee must have regard to—
(a)any relevant records, employer data and local knowledge; and
(b)any other prescribed matter.
(3)The Authority or a self-insurer (as appropriate)—
(a)must have regard to the expert opinion provided to the Authority or the self‑insurer under subsection (1); and
(b)is not required to make a determination that is consistent with the expert opinion provided under subsection (1).
72KDetermination of the qualifying period
(1)For the purposes of determining a period under section 72E(1)(c) or 72H(1)(c)—
(a)a worker is taken to have been employed, or served, as a firefighter for a full year in respect of any year the worker was employed or served as a firefighter for only part of that year; and
(b)the following periods may be combined—
(i)any period during which the worker was employed as an occupational forest firefighter;
(ii)any period during which the worker served as a surge forest firefighter;
(iii)any period during which the worker was employed as a career firefighter;
(iv)any period during which the worker served as a volunteer firefighter;
(v)any period during which the worker was employed in a role corresponding to the role of a forest firefighter in another State or Territory.
(2)For the purposes of subsection (1)(b), any consecutive or non-consecutive periods during which a worker has been employed or has served as specified in subparagraph (i), (ii), (iii), (iv) or (v) of subsection (1)(b) may be combined.
(3)If a worker has been employed or has served as specified in 2 or more subparagraphs of subsection (1)(b) at the same time, that period of concurrent employment or service is to be counted once only for the purposes of subsection (1)(b).
72LSpecial consideration
(1)If a forest firefighter—
(a)suffers an injury that is a disease referred to in column 1 of the table in the Third Schedule; and
(b)would not be entitled to the presumption under section 72E or 72H only because the forest firefighter does not satisfy the relevant qualifying period in section 72K; and
(c)can prove in accordance with section 72M that the firefighter has had an exceptional exposure event in a firefighting capacity whether within or outside Victoria while employed or serving as a firefighter—
the injury is presumed to be due to the nature of their employment or service as a firefighter.
(2)A person who intends to rely on subsection (1) must make an application for special consideration in accordance with section 72N.
72MWhat is an exceptional exposure event?
For the purposes of determining whether a forest firefighter has had an exceptional exposure event, regard must be given to the following—
(a)the nature of the event;
(b)whether there are any relevant findings from a coroner, any court proceedings or other official inquiry regarding an event known to have exposed firefighters to carcinogens, and if so, the nature of the findings;
(c)any relevant records, employer data or local knowledge;
(d)any other prescribed matter.
72NApplication for special consideration
(1)An application for special consideration must be—
(a)in the prescribed manner and form; and
(b)made to the Authority or a self-insurer (as appropriate).
(2)An application for special consideration may only be made—
(a)at the same time as a claim for compensation is made; or
(b)after a claim for compensation has been made but before the claim has been accepted or rejected; or
(c)within the period of 60 days after the claim for compensation has been rejected.
(3)In subsection (2) and section 72O, a claim for compensation means a claim forcompensation under the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of which the presumption under section 72E or 72H is invoked.
72ODetermination of application for special consideration
(1)The Authority or a self-insurer (as appropriate) must determine an application for special consideration only if the Authority or the self‑insurer has rejected a claim for compensation by the applicant.
(2)The Authority or self-insurer (as appropriate) must forward an application for special consideration to the advisory committee for an expert opinion as to whether the firefighter has had an exceptional exposure event.
(3)The Authority or self-insurer (as appropriate) must forward the application for special consideration as soon as practicable after the Authority or the self-insurer has—
(a)received the application for special consideration; or
(b)has rejected the claim for compensation—
whichever occurs later.
(4)Within the period of 10 days after receiving the expert opinion from the advisory committee, the Authority or a self-insurer (as appropriate) must determine the application for special consideration having regard to the expert opinion.
(5)The Authority or a self-insurer (as appropriate) is not required to make a determination of the application for special consideration that is consistent with the expert opinion.
72PPayments
The Authority must make any payments necessary for the purposes of the administration of sections 72A to 72R out of the WorkCover Authority Fund.
72QSelf-insurer to pay costs of advisory committee
A self-insurer must pay the costs of the advisory committee if the advisory committee provides an expert opinion to the self-insurer under section 72G, 72J or 72O.
72REstablishment of advisory committee
(1)The Minister must establish an advisory committee for the purposes of sections 72A to 72R in accordance with the regulations.
(2)The purpose of the advisory committee is to provide an expert opinion to the Authority or self-insurer as to—
(a)whether a forest firefighter has attended fires to the extent reasonably necessary to fulfil the purposes of service as a forest firefighter as required by section 72E(1)(c) or 72H(1)(c); or
(b)whether a forest firefighter has had an exceptional exposure event.
(3)Without limiting the generality of section 100C, the regulations may make provision for or with respect to—
(a)the appointment of the advisory committee, including—
(i)the number of members; and
(ii)the experience or qualifications of members; and
(iii)remuneration of members; and
(b)the powers and procedures of the advisory committee, including conditions of confidentiality of information provided to the advisory committee; and
(c)the form of an expert opinion and the process for providing an expert opinion to the Authority or self-insurer.".
7New section 100C inserted
After section 100B of the Principal Act insert—
"100C Regulations for forest firefighters presumptive rights compensation
(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by sections 72A to 72R to be prescribed or necessary to be prescribed to give effect to those sections.
(2)The regulations may—
(a)confer powers or impose duties in connection with the regulations on any specified person or specified class of persons;
(b)apply, adopt or incorporate, with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person—
(i)wholly or partially or as amended by the regulations; or
(ii)as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or
(iii)as formulated, issued, prescribed or published from time to time.".
8New sections 107 and 108 inserted
Before the Schedules to the Principal Act insert—
"107 Transitional provision—Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021
If, before the commencement of section 6 of the Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021—
(a)a forest firefighter has made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of an injury that is a disease referred to in column 1 of the table in the Third Schedule which occurred on or after 1June 2016; and
(b)the Authority has rejected the claim for compensation—
the forest firefighter is entitled to make a new claim for compensation in accordance with sections 72A to 72R.
108Regulations dealing with transitional matters—Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021.
(2)Regulations made under this section may—
(a)have a retrospective effect to a day on or from the date that the Forests Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021 receives the Royal Assent;
(b)be of limited or general application;
(c)differ according to differences in time, place or circumstances;
(d)leave any matter or thing to be decided by a specified person or class of persons;
(e)provide for the exemption of persons or matters or a class of persons or matters from any of the regulations made under this section.
(3)Regulations made under this section have effect despite anything to the contrary—
(a)in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006); or
(b)in any subordinate instrument.
(4)This section is repealed on the second anniversary of the day on which it comes into operation.".
9New Third Schedule inserted
After the Second Schedule to the Principal Act insert—
"Third Schedule
| Column 1 Disease | Column 2 Qualifying period | |
| 1 | Primary site brain cancer | 5 years |
| 2 | Primary site bladder cancer | 15 years |
| 3 | Primary site kidney cancer | 15 years |
| 4 | Primary non-Hodgkins lymphoma | 15 years |
| 5 | Primary leukemia | 5 years |
| 6 | Primary site breast cancer | 10 years |
| 7 | Primary site testicular cancer | 10 years |
| 8 | Multiple myeloma | 15 years |
| 9 | Primary site prostate cancer | 15 years |
| 10 | Primary site ureter cancer | 15 years |
| 11 | Primary site colorectal cancer | 15 years |
| 12 | Primary site oesophageal cancer | 25 years |
".
Part 3—Repeal of this Act
10Repeal of this Act
This Act is repealed on 14 September 2023.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 15 September 2021
Legislative Council: 7 October 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Forests Act 1958 to provide a rebuttable presumption for forest firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their employment for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 and for other purposes."
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