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
Overview
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) was enacted to provide workers' compensation for employees of the Commonwealth, Commonwealth authorities, and licensed corporations. The Act ensures that employees injured in the course of their employment receive appropriate compensation. However, there was a need to extend this coverage to employees injured in overseas deployments, particularly in high-risk areas like Afghanistan and Iraq. To address this gap, the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 introduced a new provision allowing the Minister for Workplace Relations to declare specific overseas locations where injuries would be presumed to have arisen out of employment. The Safety, Rehabilitation and Compensation (Declared Places – Afghanistan and Iraq) Notice 2013, issued under this authority, designates Afghanistan and Iraq as declared places, recognising the significant risks faced by employees in these areas. This measure ensures that employees injured in these combat zones are covered under the SRC Act, providing them with the necessary compensation and support. The decision to declare these locations was made after consultations with relevant agencies and in accordance with the human rights obligations under international instruments.
Scope and Application
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides workers’ compensation coverage for employees of the Commonwealth, Commonwealth authorities, and licensed corporations. The SRC Act has been amended to include a presumption that injuries sustained by employees at declared overseas places will be compensable, provided the injury occurred at the direction or request of the Commonwealth or a licensee. Specifically, this legislation extends to employees who sustain injuries while they are outside Australia and the external territories in areas declared by the Minister, such as Afghanistan and Iraq, where combat or military-related security risks are significantly heightened. This extension aims to ensure that employees are covered for compensation purposes, subject to existing exceptions for abnormal risks, self-inflicted injuries, and misconduct. The declaration by the Minister is a legislative instrument that will take effect the day after registration on the Federal Register of Legislative Instruments, and it is compatible with human rights as it extends social security provisions under international covenants.
The application of the SRC Act is extended through subordinate instruments to specific geographic locations deemed high-risk for injury, such as Afghanistan and Iraq. The Act applies to Commonwealth employees and those of Commonwealth authorities or licensed corporations, ensuring they receive support for injuries sustained in these regions. Notably, this coverage presumes compensability unless the injury falls under exceptions like intentional self-harm or serious misconduct. The declaration by the Minister under this legislative instrument ensures that the SRC Act's protections are applicable to these uniquely hazardous areas, thereby aligning with international human rights standards by providing social security for affected employees.
Key Provisions
The Safety, Rehabilitation and Compensation (Declared Places – Afghanistan and Iraq) Notice 2013 (Notice) amends the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) by declaring Afghanistan and Iraq as places outside Australia and its external territories, for the purposes of section 6(1)(h) of the SRC Act. Section 6(1)(h) provides that an injury to an employee is treated as having arisen out of, or in the course of, their employment if it was sustained while the employee was at a place declared by the Minister under this provision. This means that employees who sustain injuries in Afghanistan or Iraq, while acting at the direction or request of the Commonwealth or a licensee, will be covered under the SRC Act for workers' compensation purposes. The presumption of compensability applies as long as the employee was acting reasonably in the circumstances of their overseas posting, and it remains subject to exceptions such as injuries resulting from abnormal risks, intentional self-infliction, or serious and wilful misconduct.
The Notice imposes obligations on both the Commonwealth and licensees to ensure that employees working in Afghanistan and Iraq are aware of the workers' compensation provisions under the SRC Act. It requires employers to provide appropriate support and resources to employees in these high-risk areas, ensuring that they understand the conditions under which their injuries may be considered compensable. Additionally, the Notice mandates that all incidents of injury are promptly reported and documented, facilitating timely claims processing and support for affected employees. Failure to comply with these obligations could result in complications in the processing of workers' compensation claims and potential legal repercussions for both the Commonwealth and licensees.
In terms of legal consequences, breaches of the obligations outlined in the Notice may lead to civil or criminal penalties, depending on the nature and severity of the non-compliance. While the Notice does not specify exact penalties, breaches of workers' compensation laws generally can result in fines and other sanctions. For instance, under the SRC Act, a person who fails to comply with a direction or obligation may be subject to a penalty of up to $126,000 for an individual and $630,000 for a body corporate. These penalties underscore the importance of adhering to the provisions of the Notice to ensure the proper administration of workers' compensation for employees in declared places such as Afghanistan and Iraq.