EXPLANATORY STATEMENT
Issued by the authority of the
Minister for Employment and Workplace Relations
Safety, Rehabilitation and Compensation Act 1988
‘Specified Law’
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) establishes the Commonwealth workers’ compensation and rehabilitation scheme.
Section 119 of the SRC Act is an offsetting provision. It provides that if an employee receives a payment under a specified law, then the compensation payable under the SRC Act is so much that would exceed the amount paid under the specified law. Alternatively, if compensation has been paid under the SRC Act and the employee then receives payment under a specified law, the compensation paid may be recovered up to the amount paid under the specified law.
Subsection 119(7), provides that a “specified law” means a law of a State or Territory that provides for the payment of compensation, other than workers’ compensation, and is declared by the Minister to be a specified law.
The laws were originally specified in the Notice published in Gazette S365 (30 November 1988). The specified laws in the instrument cover laws dealing with victims of crime compensation and transport injury compensation. Specifying these laws means that if an employee receives workers’ compensation for the injury; then any payment under these laws that are for the same injury may be recovered or offset. If the employee establishes that the payment under a specified law was for an injury, loss or damage that did not relate to a loss for which compensation was payable, then there will be no offset or recovery.
Following the commencement of the Legislative Instruments Act 2003, there is a requirement for all pre 2000 legislative instruments to be backcaptured or remade and placed on the Federal Register of Legislative Instruments by 31 December 2007, or they will cease to have effect.
Since there is now a need to amend one of the items in the legislative instrument published on 30 November 1988, it has been decided to remake the original instrument. This instrument remakes the relevant part of the 1988 instrument, including updating any relevant references, but there is no substantive change. The Motor Accidents Compensation Act 1999 (NSW) and the Criminal Offence Victims Act 1995 (Qld) have been added to the list. The NSW Act deals with transport injuries compensation and the Qld Act with compensation to victims of crimes
Consultation was not undertaken as there is no substantive change but rather the list has been updated.
An assessment was made under the new guidelines issued by the Office of Best Practice Regulation, which indicated that a Regulation Impact Statement was not required for this declaration.
This Notice is a legislative instrument for the purposes of the LI Act and takes effect from 1 July 2007.
Overview
The Safety, Rehabilitation and Compensation Act 1988 was enacted by the Australian Parliament to establish the Commonwealth's workers' compensation and rehabilitation scheme. The Act aims to provide a safety net for employees who suffer from work-related injuries or diseases, ensuring they receive necessary rehabilitation and compensation. One of the key provisions, section 119, addresses the issue of double compensation by allowing offsets when an employee receives payments under specified laws, such as victims of crime compensation and transport injury compensation, for the same injury. This ensures that the total compensation does not exceed the actual loss or damage incurred. The Explanatory Statement for the 2007 legislative instrument indicates that the specified laws have been updated to include the Motor Accidents Compensation Act 1999 (NSW) and the Criminal Offence Victims Act 1995 (Qld), reflecting the legislative changes and ensuring compliance with the Legislative Instruments Act 2003.
Scope and Application
The Safety, Rehabilitation and Compensation Act 1988 applies to employees who receive workers’ compensation under the Commonwealth scheme and also obtain payments from specified state or territory laws for the same injury or loss. The Act's offsetting provision, detailed in Section 119, ensures that if an employee receives compensation under the SRC Act and subsequently obtains a payment under a specified law for the same injury, the compensation may be recovered up to the amount paid under the specified law. Conversely, if the payment under the specified law is received first, the compensation payable under the SRC Act is reduced by that amount. The term "specified law" is defined in Subsection 119(7) to include laws of a State or Territory that provide for the payment of compensation other than workers’ compensation, as declared by the Minister. The Notice published in Gazette S365 (30 November 1988) originally specified these laws, which have now been updated to include the Motor Accidents Compensation Act 1999 (NSW) and the Criminal Offence Victims Act 1995 (Qld). This update was necessary to comply with the Legislative Instruments Act 2003, ensuring that all pre-2000 legislative instruments are backcaptured or remade and placed on the Federal Register of Legislative Instruments by 31 December 2007. The updated Notice, which comes into effect from 1 July 2007, reflects these changes without introducing any substantive alterations, thus maintaining the existing framework while ensuring legislative compliance.
Key Provisions
The main sections of this instrument focus on the definition and scope of 'specified law' as outlined in section 119 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Section 119(1) provides that if an employee receives a payment under a specified law, the compensation payable under the SRC Act can be offset to the amount of the payment received under the specified law. Conversely, if the compensation has already been paid under the SRC Act and the employee later receives a payment under a specified law for the same injury, the previously paid compensation can be recovered up to the amount of the specified law payment. Section 119(7) further clarifies that a'specified law' refers to a state or territory law that provides for compensation other than workers' compensation, declared by the Minister to be a specified law. This instrument updates the original list of specified laws by including the Motor Accidents Compensation Act 1999 (NSW) and the Criminal Offence Victims Act 1995 (Qld).
The obligations and requirements imposed by this Act on parties and entities are primarily centred around the accurate identification and calculation of compensation payments. Employers and insurers must ensure that any payments made under a specified law are properly documented and that the compensation paid under the SRC Act is adjusted accordingly to prevent overpayment. This includes verifying the nature of the injury or loss for which compensation is claimed under the specified law. The Act also mandates that any recovery of compensation must be made in a manner that is fair and equitable, considering the circumstances of the case and the legislative intent to avoid double compensation.
Under the provisions of this Act, there are potential civil and criminal consequences for breaches. While the Act itself does not explicitly state penalties, breaches of the compensation offset and recovery provisions can lead to legal disputes and financial penalties. For example, if an employer fails to offset SRC Act compensation payments correctly, the employee may be entitled to claim the difference in court, potentially leading to financial penalties and legal costs. Additionally, any fraudulent misrepresentation or deliberate misapplication of the Act's provisions could result in criminal charges, depending on the jurisdiction and the severity of the breach. The penalties for such offences can include fines and imprisonment, as determined by the relevant state or territory legislation.