Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Main amendments relating to transitional and application issues
1 Subsection 4(1)
Insert:
"CTPA" means the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 .
2 Subsection 4(1)
Insert:
"MRCA" means the Military Rehabilitation and Compensation Act 2004 .
3 Subsection 4(1)
Insert:
"MRCA commencement date" means the date on which section 3 of the MRCA commences.
4 At the end of subsection 4(3)
Add:
Note: However, members of the Defence Force with service after the MRCA commencement date might be taken not to have suffered a physical or mental injury or ailment (see section 4AA and subsection 6A(2A)).
5 After section 4
Insert:
4AA Most injuries for members of the Defence Force no longer covered by this Act
(1) For the purposes of this Act (other than this section), an employee is taken not to have suffered an injury, or an aggravation of an injury, if:
(a) the employee is a member (within the meaning of the MRCA); and
(b) the injury or aggravation is first suffered on or after the MRCA commencement date; and
(c) the injury or aggravation arises out of, or in the course of, the employee's employment as a member; and
(d) the employment occurs either:
(i) on or after the MRCA commencement date; or
(ii) before, and on or after, the MRCA commencement date.
Note: After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such an injury or aggravation.
(2) An employee is taken not to have suffered an injury, being a disease, or an aggravation of a disease, if:
(a) the employee is a member (within the meaning of the MRCA); and
(b) the disease or aggravation is contracted on or after the MRCA commencement date; and
(c) the disease or aggravation is contributed to in a material degree by the employee's employment as a member; and
(d) the employment occurs either:
(i) on or after the MRCA commencement date; or
(ii) before, and on or after, the MRCA commencement date.
Note: After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such a disease or aggravation.
(3) To avoid doubt, employment occurs, before, and on or after, the MRCA commencement date whether the employment spans the commencement date or occurs during separate periods before and on or after that date.
(4) Subsection 7(4) does not apply in determining the day on which a disease is contracted or aggravated for the purposes of paragraph ( 2)(b).
6 At the end of subsection 5(2)
Add:
Note: However, members of the Defence Force with service after the MRCA commencement date might only be entitled to compensation under the MRCA and not this Act (see section 4AA and subsection 6A(2A) of this Act).
7 Subparagraph 5(6A)(a)(i)
After "Defence Force", insert "before the MRCA commencement date".
8 Subparagraph 5(6A)(a)(ii)
After "are", insert ", before the MRCA commencement date,".
9 Subparagraph 5(6A)(a)(iii)
After "training", insert ", before the MRCA commencement date,".
10 At the end of subsection 5(6A)
Add:
Note: Declarations in respect of these kinds of people can be made under the MRCA for service after the MRCA commencement date (see section 8 of the MRCA).
11 At the end of subsection 5(10)
Add:
Note: Compensation and other benefits might also be available for a member of the Defence Force under the MRCA. Generally, an injury, disease or death that is covered by that Act would not be covered by this Act (see section 4AA and subsection 6A(2A) of this Act).
12 After subsection 6A(2)
Insert:
(2A) However, subsection ( 2) does not apply if:
(a) the employee is a member (within the meaning of the MRCA); and
(b) the injury or aggravation is first suffered on or after the MRCA commencement date; and
(c) the injury or aggravation is suffered as an unintended consequence of medical treatment paid for by the Commonwealth; and
(d) the treatment is provided either:
(i) on or after the MRCA commencement date; or
(ii) before, and on or after, the MRCA commencement date (whether the treatment spans the commencement date or is provided during separate periods before and on or after that date).
Note: After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such an injury or aggravation.
13 At the end of subsection 15(1)
Add:
Note: However, members of the Defence Force with service after the MRCA commencement date might only be entitled to compensation under the MRCA and not this Act (see section 15A).
14 After section 15
Insert:
Loss of, or damage to, property used by an employee is taken not to have resulted from an accident arising out of, and in the course of, the employee's employment by the Commonwealth if:
(a) the employee is a member (as defined in the MRCA); and
(b) the loss or damage occurs on or after the MRCA commencement date; and
(c) the loss or damage results from an accident arising out of, and in the course of, the employee's employment as a member.
Note: After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such loss or damage.
15 At the end of subsection 37(1)
Add:
Note: A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
Part 2 -- Defence - related injuries and deaths etc.
16 After Part X
Insert:
Part XI -- Operation of this Act in relation to certain defence - related injuries and deaths etc.
140 Simplified outline of this Part
This Part confers on the Military Rehabilitation and Compensation Commission the functions:
(a) of determining and managing claims under this Act that relate to defence service that occurred before the MRCA commencement date; and
(b) of managing the provision of compensation and rehabilitation provided as a result of the making of claims of that kind.
This Part also modifies the operation of this Act in relation to the Safety, Rehabilitation and Compensation Commission and in relation to the liabilities of Comcare and the Commonwealth for members of the Defence Force.
In this Part:
"Defence Department" has the meaning given by the MRCA.
"Defence Force" has the meaning given by the MRCA.
"defence-related claim" means a claim under this Act made before or after the MRCA commencement date (including a claim made but not determined before that date) in respect of an injury, loss, damage or death:
(a) to which the MRCA does not apply; and
(b) that relates to defence service that occurred before the MRCA commencement date.
Note 1: For injuries, diseases and deaths to which the MRCA applies, see Parts 2 and 3 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 .
Note 2: Rehabilitation may be provided following a defence - related claim in respect of an injury.
"defence service" has the meaning given by the MRCA.
"MRCC" means the Military Rehabilitation and Compensation Commission established by section 361 of the MRCA.
"service chief" has the meaning given by the MRCA.
"Veterans' Affairs Department" means the Department of State that deals with veterans' affairs and that is administered by the Veterans' Affairs Minister.
"Veterans' Affairs Minister" has the meaning given by the MRCA.
Division 2 -- Management of defence - related claims
(1) The functions of the MRCC include:
(a) determining defence - related claims under this Act accurately and quickly; and
(b) arranging the payment of compensation, and the provision of rehabilitation, as a result of the making of defence - related claims; and
(c) maintaining contact with the Safety, Rehabilitation and Compensation Commission and with Comcare to ensure that, as far as practicable, there is equity of outcomes resulting from administrative practices and procedures used by Comcare and the MRCC in the performance of their respective functions; and
(d) doing anything the doing of which:
(i) is incidental to the performance of the function referred to in paragraph ( a) or (b); and
(ii) would be required of Comcare if Comcare had responsibility for the performance of that function.
(2) In performing the function referred to in paragraph ( 1)(a), the MRCC:
(a) is to be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities; and
(b) is not required to conduct a hearing; and
(c) is not bound by the rules of evidence.
(3) The performance by the MRCC of the functions referred to in subsection ( 1) is subject to the condition that the MRCC will not cause or permit to be made on its behalf to a court or tribunal a submission that Comcare or the Commission has requested not be made.
(4) The MRCC has power to do all things necessary or convenient to be done for, or in connection with, the performance of functions conferred by subsection ( 1).
(5) Paragraph 89B(a) has effect as if there were included in that paragraph a reference to the administrative practices and procedures used by the MRCC in the performance of its functions under this Part.
143 Giving copies of defence - related claims etc.
(1) The MRCC must give a copy of a defence - related claim made by or in respect of an employee to the employee's service chief if the employee was a member of the Defence Force at the time when the relevant injury or accident occurred or the relevant disease was contracted.
(2) Comcare must give a copy of each defence - related claim made before the MRCA commencement date but not determined before that date, and a copy of any other document it has that is relevant to that claim, to the MRCC.
(3) Comcare must also give to the MRCC a copy of each notice given to Comcare under section 53 before the MRCA commencement date if the notice relates to an injury, loss or damage for which a defence - related claim might be made.
(4) Subsection 54(4) does not apply to:
(a) a defence - related claim made on or after the MRCA commencement date; or
(b) a defence - related claim made before the MRCA commencement date but not determined before that date.
144 Provisions relating to management of claims etc.
(1) For a defence - related claim made before the MRCA commencement date:
(a) a determination made by Comcare that is in force immediately before that date is taken, after that date, to have been a determination made by the MRCC in relation to that claim; and
(b) any other thing done by Comcare that is in force immediately before the MRCA commencement date is taken, after that date, to have been done by the MRCC in relation to that claim.
(2) For any defence - related claim:
(a) a notice or claim given or made under Part V after the MRCA commencement date is to be given or made to the MRCC; and
(b) a notice or claim given or made under Part V to Comcare and in force immediately before the MRCA commencement date continues in force, after that date, as if it had been given or made to the MRCC.
(3) If, for a defence - related claim:
(a) any proceedings (including proceedings under Part VI) to which Comcare is a party are brought in relation to a determination made, or thing done, by Comcare before the MRCA commencement date; and
(b) those proceedings have not been concluded before that date;
those proceedings may be continued on or after that date. For the purpose of the proceedings as so continued, the MRCC replaces Comcare as a party to the proceedings.
(4) If, on or after the MRCA commencement date:
(a) a determination made or other thing done by Comcare is treated under subsection ( 1) as having been made or done by the MRCC; or
(b) a notice or claim given or made under Part V to Comcare is treated under subsection ( 2) as if it had been given or made to the MRCC; or
(c) proceedings (including proceedings under Part VI) to which Comcare is a party are treated under subsection ( 3) as proceedings to which the MRCC is a party;
Comcare must inform the MRCC, as soon as practicable, of that determination made or other thing done, of that notice or claim, or of those proceedings.
(5) If, under subsection ( 3), the MRCC replaces Comcare as a party to proceedings, the court or tribunal before which the proceedings have been brought must, on application by Comcare, join Comcare as a party to the proceedings.
(6) Any proceedings (including proceedings under Part VI) that may be brought:
(a) in relation to a determination made, or taken to have been made, by the MRCC in managing such a claim; or
(b) in relation to any thing done, or taken to have been done, by the MRCC in managing such a claim;
must be brought against the MRCC.
(7) If proceedings are brought against the MRCC in accordance with subsection ( 6):
(a) the MRCC must inform Comcare as soon as practicable that the proceedings have been brought; and
(b) the court or tribunal before which the proceedings have been brought must, on application by Comcare, join Comcare as a party to the proceedings.
(8) An application by Comcare under subsection ( 5) or (7):
(a) may be made by filing a notice in the registry of the court or tribunal concerned; and
(b) must be notified to the other parties to the proceeding by serving on them a copy of the notice so filed.
(9) A decision in proceedings referred to in subsection ( 3) or (6) is binding on the MRCC and on Comcare, whether or not Comcare is joined as a party to the proceedings.
(10) For proceedings referred to in this section:
(a) in which the MRCC replaces Comcare as a party; or
(b) brought against the MRCC;
the Commonwealth is liable to pay any amounts for which the MRCC would otherwise be liable.
Division 3 -- Administrative matters
(1) This Act applies in relation to an employee by whom or in respect of whom a defence - related claim has been made, and in relation to dependants of the employee, as if the MRCC were the relevant authority in relation to the employee for that claim.
(2) However, for defence - related claims, this Act has effect as if references in this Act to a relevant authority, in relation to liability to pay an amount, in relation to a debt being due or in relation to the receipt of an amount, were references to the Commonwealth.
146 Rehabilitation authority etc.
(1) This Act applies to the employee in relation to a defence - related claim as if the rehabilitation authority in relation to the employee were the rehabilitation authority applicable under subsection 39(3) of the MRCA.
(2) Section 40 of the MRCA (rules where rehabilitation authority changes) applies for the purposes of the application of this Act to the employee in relation to a defence - related claim.
(3) The duty under section 40 to take steps to provide suitable employment, or to assist in finding suitable employment, for a person who is undertaking, or has completed, a rehabilitation program must be performed by the person's rehabilitation authority rather than the Commonwealth.
147 References to Comcare etc.
(1) For the purposes of applying this Act to defence - related claims and matters arising out of those claims:
(a) Part II applies as if references in that Part to Comcare (except references in section 28 and references covered by paragraph ( b)) were references to the MRCC; and
(b) this Act applies as if references in this Act to Comcare, in relation to liability to pay an amount, in relation to a debt being due or in relation to the receipt of an amount, were references to the Commonwealth; and
(c) this Act applies as if another reference in this Act to Comcare (other than in Division 2 of Part III, section 41 or Part VI, VII or VIII) were, unless the contrary intention appears, a reference to the MRCC.
(2) In addition, this Act applies to defence - related claims and matters arising out of those claims with the modifications specified in this table:
Modifications of this Act | ||
Item | Provision | Modification |
1 | Paragraph 48(8)(a) | The paragraph does not apply |
2 | Section 52A | The section does not apply |
3 | Subsection 111(2) | The reference to a relevant authority has effect as a reference to the Commonwealth |
4 | Subsections 111(2A), (3) and (4) | The subsections do not apply |
5 | Sections 112 and 113 | References to a relevant authority have effect as references to the Commonwealth |
6 | Paragraph 114B(1)(c) | The paragraph applies as if it read: (c) the MRCC is of the opinion that the retired employee may have been paid, or might be paid, amounts of compensation under this Act in excess of the amounts that he or she was entitled to receive because of section 20, 21 or 21A; |
7 | Paragraph 114B(2)(a) | The paragraph applies as if it read: (a) stating that the retired employee may receive, or may have received, an overpayment of compensation; and |
8 | Section 121A | The section does not apply |
(1) Despite section 37, the MRCC or a service chief as the rehabilitation authority for an employee in relation to a defence - related claim may make arrangements for the provision of a rehabilitation program for the employee by:
(a) an approved program provider; or
(b) a person nominated in writing by the MRCC or the service chief, being a person the MRCC or service chief is satisfied has appropriate skills and expertise to design and provide rehabilitation programs.
(2) Before nominating a person under paragraph ( 1)(b), the MRCC or service chief must consult with Comcare about the proposed nomination.
(1) The Minister may, by notice in writing given to the Chair of the MRCC, give a direction to the MRCC with respect to the performance of its functions or the exercise of its powers under this Act, otherwise than in relation to a particular case.
(2) The MRCC must comply with a direction given under subsection ( 1).
(1) The Commission may prepare and issue to the Chair of the MRCC written general policy guidelines in relation to the operation of this Part.
(2) The Commission must not issue guidelines that are inconsistent with any directions under section 149 of this Act or section 12A of the Occupational Health and Safety (Commonwealth Employment) Act 1991 .
(3) Any guidelines that are inconsistent with a direction referred to in subsection ( 2) have no effect to the extent of the inconsistency.
(4) The MRCC must comply with any guidelines issued and in force under subsection ( 1).
(5) The guidelines, or variations or revocations of the guidelines, are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 .
(1) The MRCC may, by notice in writing, require:
(a) the Secretary of the Defence Department; or
(b) the Secretary of the Veterans' Affairs Department; or
(c) a service chief;
to give the MRCC, within the period specified in the notice, the documents or information (or both) specified in the notice, being documents or information in the possession, custody or control of that person that are relevant to a defence - related claim.
(2) A person to whom a notice is given must comply with the notice without delay.
(1) The MRCC may, by resolution, delegate any of its functions or powers under a provision of this Act to a person to whom it can, under section 384 of the MRCA, delegate functions or powers under that Act.
(2) A service chief may, in writing, delegate any of his or her functions or powers under a provision of this Act to a person to whom the service chief can, under section 438 of the MRCA, delegate functions or powers under that Act.
153 Holding money on trust for person under a legal disability
(1) The MRCC may establish trust funds for the purposes of section 110.
(2) Comcare must pay to the credit of a trust fund established under subsection ( 1) any money that it holds for the benefit of a person referred to in section 110 as a result of a defence - related claim.
154 Settlements and determinations etc. under the 1912 Act, the 1930 Act or the 1971 Act
(1) Subsection ( 2) applies to a settlement that:
(a) under subsection 127(1), is taken to be a determination made by the relevant authority under this Act; and
(b) is in force immediately before the MRCA commencement date; and
(c) concerns an injury that relates to defence service.
(2) On and after the MRCA commencement date, the settlement is taken to be a determination made by the MRCC under this Act in respect of the corresponding liability of the Commonwealth to pay compensation or make a similar payment under this Part in respect of that injury, but Part VI does not apply in relation to that settlement.
(3) Subsection ( 4) applies to a determination made or action taken that:
(a) under subsection 127(2), is taken to be a determination made by the relevant authority under this Act; and
(b) is in force immediately before the MRCA commencement date; and
(c) concerns compensation or a payment that relates to defence service.
(4) On and after the MRCA commencement date, the determination or action is taken to be a determination made or action taken by the MRCC under this Act in respect of the corresponding liability of the Commonwealth to pay compensation or make a similar payment under this Part.
(5) If a determination or action referred to in subsection ( 3) is, or has been, varied by a court or a tribunal, subsection ( 4) has effect in relation to that determination or action as so varied.
Division 4 -- Reconsideration and review
155 Reconsideration and review
(1) The MRCC is a party to proceedings instituted under Part VI in relation to a determination affecting a defence - related claim.
(2) For the purposes of subsection 60(2), the MRCC is the body responsible for a reviewable decision in relation to a defence - related claim.
(3) The MRCC is a responsible authority for the purposes of section 67 in relation to a determination affecting a defence - related claim. However, any costs for which the MRCC would be responsible under that section are to be paid by the Commonwealth.
156 Liabilities of Comcare and the Commission with respect to defence service
Neither Comcare nor the Commission has any liability under this Act in respect of an injury, loss, damage or death that relates to defence service (whenever it occurred).
157 Application of certain provisions to Defence Department
(1) Sections 97, 97A, 97B, 97C and 97D do not apply to the Defence Department in relation to defence service on or after the MRCA commencement date.
(2) Any payment made by the Defence Department under, or purportedly under, section 97H for a determination under section 97 or 97D in respect of defence service before the MRCA commencement date is taken to have been validly made.
(3) Any payment made by the Defence Department under, or purportedly under, section 67H of the Occupational Health and Safety (Commonwealth Employment) Act 1991 in respect of defence service before the MRCA commencement date is taken to have been validly made.
158 Regulatory contributions by Defence Department
(1) Comcare must make a determination of the regulatory contribution to be paid by the Defence Department for the financial year in which the MRCA commencement date occurs and later financial years in relation to employees engaged in defence service.
(2) The amount of the regulatory contribution to be paid for a particular financial year under subsection ( 1) is the sum of:
(a) that part of the estimated cost incurred by the Commission and Comcare in carrying out their respective functions under this Act that Comcare determines, in accordance with guidelines under section 97E, to be referable to the Defence Department in relation to defence service; and
(b) that part of the estimated cost incurred by the Commission and Comcare in carrying out their respective functions under the Occupational Health and Safety (Commonwealth Employment) Act 1991 that Comcare determines, in accordance with those guidelines, to be referable to the Defence Department in relation to defence service.
159 Modifications of provisions relating to contributions
Sections 97E to 97P apply to the Defence Department in relation to employees engaged in defence service, but only so far as they relate to determinations under section 158.
The Consolidated Revenue Fund is appropriated for the purposes of paying compensation and other amounts payable in relation to defence service under this Act.
(1) As soon as possible after each 30 June, the Chair of the MRCC must give the Minister, for presentation to the Parliament, a report of the MRCC's activities under this Act during the financial year that ended on that day.
(2) A report under subsection ( 1) must include particulars of:
(a) any directions given by the Minister under section 149; and
(b) any guidelines issued by the Commission under section 150;
during the financial year to which the report relates.