EXPLANATORY STATEMENT
Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 (Instrument 2018 No. M19)
EMPOWERING PROVISION
Subsection 5(3) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).
PURPOSE
The attached instrument declares certain classes of persons to be members of the Defence Force for the purposes of the DRCA.
On 24 September 2001, the Minister for Employment, Workplace Relations and Small Business, made a declaration (the SRCA declaration) under subsection 5(6A) of the Safety, Rehabilitation and Compensation Act 1988 (F2007B01064). This declaration was due to sunset on 1 October 2017.
Following the passage of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017, the DRCA was created on 12 October 2017, which is a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) that is modified to apply only to members of the Defence Force and their dependants.
The Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 also amended the SRCA to remove coverage for members of the Defence Force and their dependants from that Act, including repealing subsection 5(6A).
As a result, the Department of Jobs and Small Business obtained a 12 month deferral of the sunsetting day for the SRCA declaration to avoid the need to remake the declaration for a short period of time. The declaration is now due to sunset on 1 October 2018.
The Department Veterans’ Affairs (DVA) has reviewed the SRCA declaration and found it to be required to ensure that previously eligible classes of persons remain eligible. Accordingly, the attached instrument is being remade under the DRCA. The attached instrument preserves the status quo by continuing compensation coverage under the DRCA for those classes of persons who performed acts in connection with activities of the Australian Defence Force (ADF) covered by the existing SRCA declaration.
It is appropriate that persons who perform acts for and on behalf of the Commonwealth, through a connection with, or in, the ADF, have compensation coverage under the Act.
CONSULTATION
Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.
The Department of Jobs and Small Business has been consulted as that Department administers the existing instrument under the Safety, Rehabilitation and Compensation Act 1988, which is due to sunset on 1 October 2018.
In addition, the Department of Defence was consulted in relation to the classes of members specified for the purposes of the Act and updated references for the approved philanthropic organisations whose members worked with the ADF as described in the Philanthropic Manual (PHILOMAN).
Consultation was by way of phone calls and email correspondence.
In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
RETROSPECTIVITY
None.
DOCUMENTS INCORPORATED-BY-REFERENCE
This instrument incorporates, by reference, the Department of Defence document entitled “Philanthropic Manual” (PHILOMAN) in the form in which it exists on the date of commencement of this instrument. The incorporated version of the “Philanthropic Manual” (PHILOMAN) is the First edition 2013. It is freely available online at: http://www.defence.gov.au/publications/docs/PHILOMAN.pdf.
There is no power in the DRCA to incorporate a document as in force from time to time.
REGULATORY IMPACT
None.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached instrument engages the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 9 of the ICESCR provides for the right of everyone to social security, including social insurance. General Comment 19 by the Committee on Economic, Social and Cultural Rights elaborates on Article 9, stating that the ‘States parties should … ensure the protection of workers who are injured in the course of employment or other productive work’. Workers’ compensation is analogous to social insurance in that it provides payment of wages and medical costs to employees for injuries occurring as a result of their employment.
The instrument engages the right to social security as it deals with compensation arrangements for certain members of the Defence Force who served before 1 July 2004, which is the commencement date of the Military Rehabilitation and Compensation Act 2004 (MRCA). From 1 July 2004, all members of the Defence Force, and those members covered by this determination, are covered by the MRCA and its subordinate legislation for all types of Defence service.
Overview
The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) provides compensation coverage for members of the Defence Force and their dependants including compensation for permanent impairment, incapacity payments and household and attendant care services.
The purpose of the attached instrument is to specify certain classes of person as members of the Defence Force for the purposes of the DRCA.
The attached instrument will preserve the status quo by ensuring that persons within the classes specified in the current SRCA declaration (due to sunset on 1 October 2018) will remain eligible for relevant compensation payments under the DRCA.
Conclusion
The attached instrument is compatible with human rights, relevantly, the right to social security, because it preserves compensation rights under the DRCA for those classes of persons declared to be members of the Australian Defence Force under the existing instrument.
Darren Chester
Minister for Veterans’ Affairs
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS
See: Attachment A
Attachment A
FURTHER EXPLANATION OF PROVISIONS
Section 1
This section provides that the name of the instrument is the Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018.
Section 2
This section provides that the instrument is to commence on 1 October 2018.
Section 3
This section sets out the primary legislation that authorises the making of the instrument, namely, subsection 5(3) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).
Section 4
This section declares, for subsection 5(3) of the DRCA, by reference to the Schedule to the instrument, the class of persons who are taken to be members of the Defence Force for the purposes of the Act, and the acts that are taken to constitute the employment of those classes of persons for the purposes of the Act.
The declared classes of persons (as specified in column 1 of the Schedule) are persons who, before the MRCA commencement date (1 July 2004):
(a) held an honorary rank in the Defence Force; or
(b) were Defence accredited representatives of the following Defence approved philanthropic organisations that provided services to the Defence Force:
- Australian Red Cross Society (Field Force);
- Everyman’s Welfare Service (formerly known as Campaigners for Christ);
- Salvation Army – Red Shield Defence Services;
- Young Men’s Christian Association – Defence Forces Division;
- Young Women’s Christian Association – Defence Forces Division; and
- Returned Services League – Australian Forces Overseas Fund; or
(c) undertook resettlement training under an arrangement made by the Defence Force.
In accordance with subsection 5(3) of the Act, the declaration relates only to persons who fall within one of the specified classes before the MRCA commencement date (1 July 2004).
The declared classes of acts (as specified in column 2 of the Schedule) are acts performed in connection with the activities of the ADF (for the classes specified in items 1 and 2 of the Schedule) and acts performed in connection with discharge resettlement training under an arrangement approved by the ADF (for the class specified in item 3 of the Schedule).