Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018

Administered by Department of Veterans' Affairs

Legislation au F2018L01355 In force Legislative Instrument

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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).

 

 

Overview

The Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 is an instrument that specifies certain classes of persons to be considered members of the Defence Force for the purposes of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA). Enacted under subsection 5(3) of the DRCA, this instrument was introduced to address the sunsetting of an earlier declaration made under the Safety, Rehabilitation and Compensation Act 1988 (SRCA), which was due to expire on 1 October 2017. The need for this declaration arose from the legislative changes that established the DRCA on 12 October 2017, which replaced the SRCA and modified its coverage to apply only to members of the Defence Force and their dependants. The instrument preserves compensation coverage under the DRCA for previously eligible classes of persons who performed acts in connection with activities of the Australian Defence Force before 1 July 2004, ensuring they remain eligible for compensation under the Act. The Department of Veterans’ Affairs reviewed the previous declaration and found it necessary to maintain compensation coverage for these classes of persons. Appropriate consultation was conducted with the Department of Jobs and Small Business and the Department of Defence, ensuring that the requirements of section 17 of the Legislation Act 2003 were met. The instrument is compatible with human rights, particularly the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights. It ensures that compensation rights under the DRCA are preserved for the specified classes of persons.

Scope and Application

The Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 is an instrument made under subsection 5(3) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA), which specifies certain classes of persons to be considered members of the Defence Force for the purposes of the DRCA. This declaration ensures that those who performed acts for and on behalf of the Commonwealth in connection with the Australian Defence Force (ADF) prior to 1 July 2004 remain eligible for compensation under the DRCA. The classes of persons covered include individuals who held an honorary rank in the Defence Force, Defence-accredited representatives of specific approved philanthropic organisations, and those who undertook resettlement training under an arrangement made by the Defence Force. The instrument is designed to maintain the status quo by ensuring that these previously eligible individuals continue to receive compensation for injuries or conditions related to their service. It is important to note that the declaration applies only to persons who fall within these specified classes before the commencement of the Military Rehabilitation and Compensation Act 2004 on 1 July 2004. The declaration incorporates by reference the Department of Defence's "Philanthropic Manual" (PHILOMAN) and does not have retrospective effect or impose any regulatory impact.

Key Provisions

The Safety, Rehabilitation and Compensation (Defence-related Claims) (Members) Declaration 2018 provides a framework for determining eligibility for compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) for certain individuals who performed acts in connection with the Australian Defence Force (ADF) before the commencement of the Military Rehabilitation and Compensation Act 2004 (MRCA). Section 4 of the Declaration specifies that particular classes of persons are deemed members of the Defence Force for the purposes of the DRCA (section 4(1)). These classes include individuals who held an honorary rank in the Defence Force, Defence-accredited representatives of certain approved philanthropic organisations, and those who undertook resettlement training under an arrangement made by the Defence Force (section 4(2)). The acts that constitute employment for these classes of persons are those performed in connection with ADF activities or approved resettlement training (section 4(3)). The Declaration imposes specific obligations on the parties it governs. It mandates that the Department of Veterans' Affairs (DVA) recognise the declared classes of persons as eligible for compensation under the DRCA. This includes ensuring that these individuals are entitled to compensation for permanent impairment, incapacity payments, and household and attendant care services (section 4). Furthermore, the DVA must ensure that the compensation provided aligns with the terms set out in the DRCA and its subordinate legislation, thereby maintaining consistency in the treatment of Defence-related claims. There are no explicit offences, penalties, or civil/criminal consequences for breach outlined in the Declaration itself. However, any failure by the DVA or relevant authorities to comply with the terms of the Declaration could potentially lead to legal challenges or disputes regarding the eligibility for compensation. Such challenges might be pursued under the DRCA or other relevant legislation, where non-compliance with statutory requirements could be considered a breach of duty or an error in the administration of the Act. The DRCA does not specify particular penalties for breaches of the Declaration, but general legal principles would apply in cases where there is a failure to adhere to statutory obligations.

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Area of Law
Defence & Security Law
Instrument
Declaration
Concepts
Definitions & Interpretation
Compensation Provisions
Human Rights Law

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.