EXPLANATORY STATEMENT
Issued by the authority of the Minister for Workplace Relations
Subject - Safety, Rehabilitation and Compensation Act 1988
Paragraph 6(1)(h)
Safety, Rehabilitation and Compensation (Declared Places – Afghanistan and Iraq) Notice 2013
The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides workers’ compensation coverage for employees of the Commonwealth, Commonwealth authorities and licensed corporations.
Section 6 of the SRC Act states, in part:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
...
(h) while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:
(i) outside Australia and the external Territories; and
(ii) declared by the Minister by legislative instrument to be a place to which this paragraph applies.
The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (SRCOLA) amended the SRC Act to include paragraph 6(1)(h). The Explanatory Memorandum stated in relation to this paragraph:
New paragraph (h) will provide that injuries which occurred while an employee was at a declared overseas place, at the direction or request of the Commonwealth or a licensee, will automatically be presumed to be compensable. This means that so long as an employee is doing something that is reasonable (including outside normal working hours), in the circumstances of the overseas posting, he or she will be covered for compensation purposes. This presumption would still be subject to the existing exceptions around submission to an abnormal risk of injury, an injury that is intentionally self-inflicted and injuries arising out of serious and wilful misconduct.
It is anticipated that the Minister’s declaration of places to which this new paragraph would apply would be limited to areas which are significantly dangerous and have a higher risk of injury, for example, Iraq and Afghanistan.
In this notice, the Minister has declared that the Afghanistan and Iraq are places for the purposes of paragraph 6(1)(h) of the SRC Act in recognition of unique and ongoing combat or military-related security risks faced by employees in Afghanistan and Iraq.
Consultation about the proposal to extend the SRC coverage of employees in Afghanistan or Iraq was undertaken with 23 agencies that may have had employees posted overseas, including the Department of Foreign Affairs and Trade, the Department of Defence, AusAid, the Department of Immigration and Citizenship, the Department of Finance, Safe Work Australia and the Australian Federal Police. Consultation was also undertaken with all non-Commonwealth licensees under the SRC scheme.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this instrument (ID 15239).
This notice is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument will take effect from the day after it is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Safety, Rehabilitation and Compensation (Declared Places – Afghanistan and Iraq)
Notice 2013
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill/Legislative Instrument
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides workers’ compensation for employees of the Commonwealth, a Commonwealth authority or a licensed corporation under the SRC Act.
One of the criteria for a successful workers’ compensation claim is that the injury arose out of, or in the course of, the employee’s employment. Paragraph 6(1)(h) of the SRC Act allows the Minister for Workplace relations to make a declaration with the effect that an injury sustained in a declared place (being a place outside of Australia and the external territories) would be taken for the purposes of the SRC Act to have arisen out of, or in the course of, the employee’s employment.
In this notice, the Minister declares Afghanistan and Iraq for the purposes of paragraph 6(1)(h). This reflects the unique and ongoing combat or military-related security risks faced by employees in Afghanistan and Iraq.
Human rights implications
This declaration engages the right to social security, including social insurance under Article 9 of the International Covenant on Economic, Social and Cultural Rights. This is because the SRC Act provides support for employees who have been injured at work by way of weekly compensation payments, payment of medical expenses, permanent impairment benefits as well as other benefits. This declaration serves to extend the coverage of the SRC Act by creating a presumption an injury sustained in a Afghanistan or Iraq would be taken for the purposes of the SRC Act to have arisen out of, or in the course of, the employee’s employment.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
William Richard Shorten, Minister for Workplace Relations