SEAFARERS REHABILITATION AND COMPENSATION (SPECIFIED DISEASES AND EMPLOYMENT) AMENDMENT INSTRUMENT 2026
EXPLANATORY STATEMENT
Issued by authority of the Minister for Employment and Workplace Relations
under paragraph 10(1)(b) of the Seafarers Rehabilitation and Compensation Act 1992
Purpose and operation of the Instrument
The Seafarers Rehabilitation and Compensation Act 1992 (the Act) provides workers’ compensation and rehabilitation arrangements for certain seafarers in the Australian maritime industry. Pursuant to the Act, the employers of such seafarers are responsible for determining liability and paying compensation entitlements in accordance with the Act.
Subject to the Act, liability to provide rehabilitation and make certain compensation payments arises in respect of an ‘injury’ suffered by an employee. The term ‘injury’ is relevantly defined to include a ‘disease’ suffered by an employee (section 3), subject to particular exclusions specified in section 3 and subsection 10(7) of the Act.
Under section 3 of the Act, an employee will have suffered from a ‘disease’ if they have suffered an ailment, or an aggravation of an ailment, that was contributed to, to a material degree, by relevant employment.
Subsection 10(1) of the Act provides a mechanism that, subject to the contrary being established, certain ailments are taken to have been contributed to, to a material degree, by relevant employment. This explanatory statement concerns the operation of subsection 10(1) and the legislative instrument made under paragraph (b) of that subsection.
Purpose and effect of subsection 10(1) of the Act
The purpose of subsection 10(1) of the Act is to permit the Minister to specify, in a legislative instrument, the circumstances in which employment in the maritime industry is taken to have contributed, to a material degree, to the contraction of a disease suffered by an employee (subject to the contrary being established).
Consistent with this purpose, the Minister has previously specified what are commonly referred to as ‘occupational diseases’. An occupational disease is a disease associated with a particular kind of employment because the employment involves a particular risk.
Subsection 10(1) of the Act provides:
(1) If:
(a) an employee has suffered, or is suffering, from a disease, or the death of an employee results from a disease; and
(b) the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
(c) the employee was, at any time before symptoms of the disease first became apparent, engaged in employment of that kind in the maritime industry
the employment in which the employee was so engaged is taken, for the purposes of this Act, to have contributed in a material degree to the contraction of the disease, unless the contrary is established.
Subsection 10(1) of the Act is intended to be broadly applied and is not limited to the contraction of a contagious or infectious disease. The term ‘disease’ used in subsection 10(1) of the Act has its ordinary meaning. However, ‘aggravation’ (which is defined in section 3 to include acceleration or recurrence) of a disease is not covered by subsection 10(1) of the Act.
The effect of subsection 10(1) of the Act is to reverse the onus of proof in relation to a claim for compensation once it is established that:
- an employee suffered or suffers from a disease of a specified kind; and
- the employee engaged in employment of a specified kind at any time before symptoms of the disease first became apparent.
Once these facts are established, a claimant is not required to further establish that, on the balance of probabilities, the employee’s employment contributed to the contraction of the disease.
Instead, the relevant employer may determine that the employee has suffered, or is suffering, from a ‘disease’ for the purposes of the definition in section 3 of the Act. The relevant employer is required to make such a determination unless it establishes that, on the balance of probabilities, the employee’s employment did not contribute, to a material degree, to the contraction of the disease.
Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Amendment Instrument 2026
The Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Amendment Instrument 2026 (the Amendment Instrument) extends the self-repeal of the Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Instrument 2021 (the Instrument) to 1 April 2028.
Extension of the self-repeal date retains the deemed diseases list in the Instrument, made by the Minister pursuant to paragraph 10(1)(b) of the Act. The Instrument specifies the diseases, employment and circumstances that enliven the statutory presumption prescribed by subsection 10(1) of the Act.
CONSULTATION
The Instrument was made in consultation with the:
Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority)
Comcare
Australian Maritime Safety Authority (AMSA)
Maritime Industry Australia Limited (MIAL)
Australian Resources and Energy Employer Association (AREEA)
Maritime Union of Australia (MUA)
Australian Institute of Marine and Power Engineers (AIMPE)
Australian Maritime Officers Union (AMOU)
Australian Council of Trade Unions (ACTU).
A consultation paper was circulated to stakeholders. Stakeholders expressed a range of views regarding the approach to the instrument. Amending the self-repeal date will facilitate full consideration of the issues raised by stakeholders. It will also enable alignment with the sunsetting date with the Safety, Rehabilitation and Compensation (Specified Diseases and Employment) Instrument 2017 which is the corresponding instrument under the Safety, Rehabilitation and Compensation Act 1988.
IMPACT AnALYSIS
The Office of Impact Analysis was consulted regarding this instrument and confirmed that a detailed impact analysis was not required (OIA25-09870).
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
This instrument will commence the day after it is registered on the Federal Register of Legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Amendment Instrument 2026 (the Amendment Instrument)
This legislative instrument is compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Seafarers Rehabilitation and Compensation Act 1992 (the Act) provides workers’ compensation and rehabilitation arrangements for certain seafarers in the Australian maritime industry. Pursuant to the Act, the employers of such seafarers are responsible for determining liability and paying compensation entitlements in accordance with the Act.
Subject to the Act, liability to provide rehabilitation and make certain compensation payments arises in respect of an ‘injury’ suffered by an employee. The term ‘injury’ is relevantly defined to include a ‘disease’ suffered by an employee (section 3), subject to particular exclusions specified in section 3 and subsection 10(7) of the Act.
The Act contains a number of deeming provisions in accordance with which a disease (in the ordinary sense) will be taken to have been contributed to, to a material degree, by the employee’s employment, unless the contrary is established. Subsection 10(1) is one of these deeming provisions.
Purpose and effect of subsection 10(1) of the Act
The purpose of subsection 10(1) is to permit the Minister to specify, in a legislative instrument, the circumstances in which employment is deemed to have contributed, to a material degree, to the contraction of a disease suffered by an employee.
Consistent with this purpose, the Minister has previously specified what are commonly referred to as occupational diseases. An occupational disease is a disease associated with a particular kind of employment because the employment involves a particular risk.
The effect of subsection 10(1) is to reverse the onus of proof in relation to a claim for compensation once it is established that:
- an employee suffered or suffers from a disease of a specified kind; and
- the employee engaged in employment of a specified kind at any time before symptoms of the disease first became apparent.
Once these facts are established, a claimant is not required to further establish that, on the balance of probabilities, the employee’s employment contributed to the contraction of the disease.
Instead, the relevant employer may determine that the employee has suffered, or is suffering, from a ‘disease’ as defined in section 3 of the Act. The relevant employer is required to make such a determination unless it establishes that, on the balance of probabilities, the employee’s employment did not contribute, to a material degree, to the contraction of the disease.
The Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Amendment Instrument 2026
The Amending Instrument extends the self-repeal of the Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Instrument 2021 to 1 April 2028.
Extension of the self-repeal date retains the deemed diseases list in the Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Instrument 2021, made by the Minister pursuant to paragraph 10(1)(b) of the Act. The instrument specifies the diseases, employment and circumstances that enliven the statutory presumption prescribed by subsection 10(1) of the Act.
Human rights implications
Article 9 of the International Covenant on Economic, Social and Cultural Rights 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’.[1]
This legislative instrument will assist an employee covered by the Act (or his or her dependants) in relation to a claim made in respect of a disease of a kind specified in the instrument, where the employee was engaged in employment of a kind specified in the instrument before symptoms of the disease first became apparent. It does this by enlivening subsection 10(1) of the Act, which effectively reverses the onus of proof in relation to the claimed disease. This reduces the evidentiary burden on the claimant for the purposes of establishing an entitlement to workers’ compensation and other benefits under the Act.
If an employee does not satisfy the requirements of an item of this legislative instrument (for example, by not meeting the minimum employment period specified for that item), it remains open for the employee (or his or her dependants) to otherwise establish, on the balance of probabilities, that the disease was contributed to, to a material degree, by the employee’s employment.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Amanda Rishworth MP
Minister for Employment and Workplace Relations
Attachment A
NOTES ON SECTIONS
Section 1 – Name
Section 1 provides that the name of the instrument is the Seafarers Rehabilitation and Compensation (Specified Diseases and Employment) Amendment Instrument 2026.
Section 2 – Commencement
Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the instrument is made under paragraph 10(1)(b) of the Seafarers Rehabilitation and Compensation Act 1992.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.
[1] Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc E/C.12/GC/19 (2008), [17].