Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"ACT enactment" means an enactment as defined by section 3 of the ACT Self - Government Act.
"action for non-economic loss" means any action (whether or not it involves the formal institution of a proceeding) to recover an amount for damages for non - economic loss sustained by an employee as a result of an injury suffered by that employee:
(a) that is taken by the employee against the employer, whether it is the Commonwealth, a Commonwealth authority or a licensed corporation, or against another employee; and
(b) that follows an election made by the first - mentioned employee under subsection 45(1).
"ACT Self-Government Act" means the Australian Capital Territory (Self - Government) Act 1988 .
"administering authority" means a Commonwealth authority that, immediately before the repeal of Part VIII, was an administering authority under that Part.
"adoption" means adoption under a law of a State or Territory or of a foreign country.
"aggravation" includes acceleration or recurrence.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
"approved Guide" means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister--that document as so varied.
"approved program provider" means a person or body approved under section 34F or 34H as a rehabilitation program provider and includes a person or body so approved whose approval is renewed under section 34L.
"approved Rehabilitation Assessments and Examinations Guide" means:
(a) the document prepared by Comcare in accordance with section 57A, titled "Guide for Arranging Rehabilitation Assessments and Requiring Examinations", that has been approved by the Minister and is for the time being in force; or
(b) if an instrument varying that document has been approved by the Minister--that document as so varied.
"attendant care services" , in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.
"catastrophic injury" means an injury, where the conditions specified in the legislative rules are satisfied.
"Chairperson" means the Chairperson of the Commission.
"Chief Executive Officer" means the Chief Executive Officer appointed under section 74, and includes a person who is acting as the Chief Executive Officer.
"child" : without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975 .
"claim" means a claim under Part V.
"claimant" , in relation to a time after the death of a claimant, has the meaning given in subsection (11).
"Comcare" means the body corporate established by section 68.
"Comcare subsidiary" means an incorporated company formed by Comcare.
"Commission" means the Safety, Rehabilitation and Compensation Commission established by section 89A.
"Commissioner" means a member of the Commission other than the Chief Executive Officer.
"Commonwealth" , in relation to persons employed by a Commonwealth authority, has the additional meaning given in subsection 5(7).
"Commonwealth authority" means:
(a) a body corporate that is incorporated for a public purpose by a law of the Commonwealth, other than a body declared by the Minister, by legislative instrument, to be a body corporate to which this Act does not apply; or
(b) a body corporate that is incorporated for a public purpose by a law of a Territory (other than an ACT enactment or a law of the Northern Territory) and is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or
(c) a body corporate:
(i) that is incorporated under a law of the Commonwealth or a law in force in a State or Territory;
(ii) in which:
(A) the Commonwealth has a controlling or substantial interest; or
(B) a Territory (other than the Australian Capital Territory or the Northern Territory) or a body corporate referred to in paragraph (a) or (b) has a controlling interest; and
(iii) that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or
(d) a body corporate:
(i) in which a body corporate declared under paragraph (c) has a controlling interest; and
(ii) that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or
(e) if a declaration is in force under section 4A, the Australian Capital Territory.
Note: For the purposes of the provisions relating to regulatory contributions under Division 4A of Part VII, Commonwealth authority has an extended meaning--see section 96.
"compensation leave" means any period during which an employee is absent from his or her employment due to an incapacity for work resulting from an injury in respect of which compensation is payable under section 19 or 22.
"controlling interest" , in relation to a body corporate, means an interest in the body corporate that enables the person holding the interest to:
(a) control the composition of the board of directors of the body corporate; or
(b) cast, or control the casting of, more than one - half of the maximum number of votes that might be cast at a general meeting of the body corporate; or
(c) control more than one - half of the issued share capital of the body corporate (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
"corporation" , in Part VIII, means:
(a) a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or
(b) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or
(c) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or
(d) a body corporate that is incorporated in a Territory;
but does not include a Commonwealth authority.
"CTPA" means the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 .
"damages" includes any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings.
"de facto partner" of a person has the meaning given by the Acts Interpretation Act 1901 .
"Defence Department" has the meaning given by the Military Rehabilitation and Compensation Act 2004 .
"defence service" has the meaning given by the Military Rehabilitation and Compensation Act 2004 .
"dependant" , in relation to a deceased employee, means:
(a) the spouse, parent, step - parent, father - in - law, mother - in - law, grandparent, child, stepchild, grandchild, sibling or half - sibling of the employee; or
(b) a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;
being a person who was wholly or partly dependent on the employee at the date of the employee's death.
Note: See also subsection 4(2).
"dependent" means dependent for economic support.
"Deputy Chief Executive Officer" means the Deputy Chief Executive Officer under section 86.
"disease" has the meaning given by section 5B.
"eligible corporation" , in Part VIII, means a corporation in respect of which a declaration is in force under section 100.
"employee" has the meaning given in section 5.
"Entity" means:
(a) an Agency, within the meaning of the Public Service Act 1999 , that is not a Commonwealth authority; or
(b) a Parliamentary Department within the meaning of the Parliamentary Service Act 1999 ; or
(c) a person, body, organisation or group of persons prescribed for this paragraph.
"excluded injury" means an injury that arose out of, or in the course of, or was incidental to:
(a) State banking not extending beyond the limits of the State concerned; or
(b) State insurance not extending beyond the limits of the State concerned.
"exempt authority" means an Entity or a Commonwealth authority declared by the Minister under section 35 to be an exempt authority.
"exit contribution" means an exit contribution under Division 4A of Part VII.
"Finance Minister" means the Minister who administers the Public Governance, Performance and Accountability Act 2013 .
"household services" , in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"injury" has the meaning given by section 5A.
"legislative rules" means rules made under section 122A.
"licence" means a licence under Part VIII.
"licensed authority" means a Commonwealth authority that is the holder of a licence that is in force.
"licensed corporation" means a corporation that is the holder of a licence that is in force under Part VIII.
"licensee" means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
"loss" , in relation to property used by an employee, includes the destruction of that property.
"medical treatment" means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
"member" means a member of the Commission, including the Chairperson but not including the Chief Executive Officer.
"non-economic loss" , in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non - economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
"normal weekly earnings" means the normal weekly earnings of an employee calculated under section 8.
"normal weekly hours" , in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).
"overtime" includes:
(a) any duty on shifts or on Saturdays, Sundays or other holidays; and
(b) excess travelling time.
"parent" : without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
"pension age" has the meaning given by subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991 .
"permanent" means likely to continue indefinitely.
"place of residence" , in relation to an employee, means:
(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or
(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a).
"place of work" , in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
"pre-determination period" , in relation to a claim by an employee for compensation under Division 3 of Part II, means the period from the start of the day when the employee is injured until the end of the day on which Comcare determines the claim.
"premium" , in respect of an Entity or Commonwealth authority and a financial year, means:
(a) the amount paid or payable under Division 4A of Part VII as the premium, other than a special premium, in respect of that Entity or authority and that financial year; and
(b) if the financial year ended before 1 July 1991, any contribution so paid or payable under section 98 of the Commonwealth Employees (Rehabilitation and Compensation) Act 1988 , as that Act applied in respect of that year.
"prescribed child" means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25;
(ii) is receiving full - time education at a school, college, university or other educational institution; and
(iii) is not ordinarily in employment or engaged in work on his or her own account.
"previous Commission" means the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees that was established under section 68 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 as amended and in force immediately before the commencement of Part 2 of the Industrial Relations Legislation Amendment Act (No. 3) 1991 .
"principal officer" , in relation to a Commonwealth authority, means:
(a) the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or
(b) if the affairs of the authority are administered or managed by a board or other group of persons--the person who is entitled to preside at any meeting of that board or other group at which he or she is present.
"principal officer" , in relation to a licensed corporation, means the principal executive officer of the corporation.
"principal officer" , in relation to an Entity, means:
(a) if the Entity is an Agency that is not a Commonwealth authority--the Agency Head within the meaning of the Public Service Act 1999 ; or
(b) if the Entity is a Parliamentary Department--the Secretary of the Parliamentary Department within the meaning of the Parliamentary Service Act 1999 ; or
(c) if the Entity is a person, body, organisation or group of persons prescribed for paragraph (c) of the definition of Entity --the person prescribed as the principal officer.
"proceeding under Part VI" has the meaning given in subsection (12).
"property used by an employee" means an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee.
"rehabilitation authority" , in relation to an employee, means:
(a) where the employee is employed by an exempt authority--Comcare; and
(b) where the employee is employed by a licensed authority--the principal officer of that authority; and
(ba) if the employee is employed by a licensed corporation--the principal officer of that corporation; and
(c) if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority--the principal officer of the Entity or the Commonwealth authority in which the employee is employed.
"rehabilitation program" includes medical, dental, psychiatric and hospital services (whether on an in - patient or out - patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
"relevant authority" means:
(a) in relation to an employee who is employed by a licensee--the licensee; and
(b) in relation to any other employee--Comcare.
"relevant money" has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .
"relevant period" means the period calculated under section 9.
"retirement savings account" means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 .
"significant degree" has the meaning given by subsection 5B(3).
"special premium" , in respect of an Entity or Commonwealth authority and the financial year starting on 1 July 1999, 1 July 2000 or 1 July 2001, means the amount paid or payable as a result of a determination under section 97B as a special premium in respect of that Entity or authority and that financial year.
"spouse" includes:
(a) in relation to an employee or a deceased employee--a person who is, or immediately before the employee's death was, a de facto partner of the employee; and
(b) in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or a descendant of indigenous inhabitants of the Torres Strait Islands--a person who is or was recognised as the employee's husband, wife or spouse by the custom prevailing in the tribe or group to which the employee belongs or belonged.
"stepchild" : without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person's stepchild except that the person is not legally married to the partner.
"step-parent" : without limiting who is a step - parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person's step - parent except that he or she is not legally married to the person's parent.
"substantial interest" , in relation to a body corporate, means an interest (other than a controlling interest) in the body corporate that enables the person holding the interest to cast, or control the casting of, a number of votes at a general meeting of the body corporate that is equal to or greater than the number of votes which may be cast, or whose casting may be controlled, by any other single person.
"suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case--any employment (including self - employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
"superannuation amount" , in relation to a pension received by an employee in respect of a week, or a lump sum benefit received by an employee, being a pension or benefit under a superannuation scheme, means an amount equal to:
(a) if the scheme identifies a part of the pension or lump sum as attributable to the contributions made under the scheme by the Commonwealth, Commonwealth authority or licensed corporation--the amount of that part; or
(b) in any other case--the amount assessed by the relevant authority to be the part of the pension or lump sum that is so attributable or, if such an assessment cannot be made, the amount of the pension received by the employee in respect of that week or the amount of the lump sum, as the case requires.
"superannuation scheme" means any superannuation scheme under which, or retirement savings account to which, the Commonwealth, a Commonwealth authority or a licensed corporation makes contributions on behalf of employees and includes a superannuation or provident scheme established or maintained by the Commonwealth, a Commonwealth authority or a licensed corporation.
"the 1912 Act" means the Commonwealth Workmen's Compensation Act 1912 .
"the 1930 Act" means the Commonwealth Employees' Compensation Act 1930 .
"the 1971 Act" means the Compensation (Commonwealth Government Employees) Act 1971 .
"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
(2) For the purposes of this Act, relationships (including the relationship of being family or being relatives) are taken to include (without limitation):
(a) relationships between de facto partners; and
(b) relationships of child and parent that arise:
(i) if someone is an exnuptial or adoptive child of a person; or
(ii) because of the definitions of child and parent in this section; and
(c) relationships traced through relationships referred to in paragraphs (a) and (b).
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
(4) For the purposes of this Act, a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee's death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury.
(5) For the purposes of this Act, a person who, immediately before the date of an employee's death, lived with the employee and was:
(a) the spouse of the employee; or
(b) a child of the employee, being a prescribed child;
shall be taken to be a person who was wholly dependent on the employee at that date.
(6) For the purposes of this Act, other than subsection 17(5), a child of a deceased employee who was born alive after the employee's death shall be treated as if he or she had been born immediately before the employee's death and was wholly dependent upon the employee at the date of the employee's death.
(7) In ascertaining, for the purposes of this Act, whether a child is or was dependent on an employee, any amount of:
(a) family tax benefit calculated under Part 2 or 3 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an individual's Part A rate); and
(c) carer allowance under that Act; and
(d) double orphan pension under that Act;
shall not be taken into account.
(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
(10) For the purposes of the application of this Act in relation to an employee employed by a licensed authority, or a dependant of such a person, a reference in this Act (other than in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that authority.
(10A) For the purposes of the application of this Act in relation to an employee employed by a licensed corporation, or a dependant of such a person, a reference in this Act (except in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that corporation.
(11) A reference in this Act to a claimant is, in relation to any time after the death of the claimant, a reference to his or her legal personal representative.
(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Review Tribunal for review of that decision.
(13) For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct.
(14) In spite of the definition of principal officer in subsection (1), if the Australian Capital Territory is, or has ceased to be, a Commonwealth authority for the purposes of this Act, the following rules have effect:
(a) if there is in force a written declaration by the Minister, made at the written request of the Chief Minister for the Territory, that a specified person is to be taken to be the principal officer of the Territory, this Act has effect accordingly;
(b) if there is no such declaration in force, the Chief Minister of the Territory is to be taken to be the principal officer of the Territory.
(15) If:
(a) a body corporate ceases to be a Commonwealth authority; and
(b) the body corporate continues in existence;
the principal officer of the body corporate is to be determined as if the body corporate had not ceased to be a Commonwealth authority.