Explanatory Memorandum
(Circulated by authority of the Minister for Veterans' Affairs, The Honourable Michael McCormack MP)Schedule 6 - Defence-related claims
Amendment to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
The amendments made by Schedule 6 Part 1, will amend the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) to make technical amendment, such as replace redundant references to Comcare and other bodies and to repeal provisions not related to providing compensation and rehabilitation to current and former ADF members and other eligible persons. In addition this amendment will enable the Military Rehabilitation and Compensation Commission (MRCC) to provide information to the Chief of the Defence Force for the reconsideration or review of a determination made regarding the liability of injury, disease or death of an employee. This amendment will align the information sharing provisions under the DRCA with those under the Military Rehabilitation and Compensation Act 2004 (MRCA).
These amendments commence the day after the Act receives Royal Assent.
Amendment to the Safety, Rehabilitation and Compensation Act 1988
The amendments made by Part 2, reinsert section 43 into the Safety, Rehabilitation and Compensation Act 1988 (SRCA). These were omitted during the drafting of the DRCA. To ensure a peacekeeper does not experience any disadvantage section 43 (as it was previously drafted) will be re-inserted into the SRCA. This does not reflect a policy change to any entitlement and/or benefits a peacekeeper may receive under the SRCA.
These amendments commence retrospectively and commence on 12 October 2017, the commencement of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA). The purpose of the retrospective commencement is to ensure any person, who may have been disadvantaged, is placed into the same the position as they were prior to the commencement of the DRCA.
Notes of Clauses:
Schedule 6 Part 1 - amendments commencing the day after Royal Assent
Amendments to repeal redundant definitions
The below amendments will remove redundant definitions in the DRCA as these are not required for a military specific Act. These amendments do not alter any policy, benefits or entitlement under the DRCA.
Item 4 amends subsection 4(1) (definition of adoption).
Item 7 amends subsection 4(1) (definition of Chairperson).
Item 8 amends subsection 4(1) (definition of Comcare subsidiary).
Item 9 amends subsection 4(1) (definition of Commission).
Item 11 amends subsection 4(1)(paragraph (e) of the definition of Commonwealth authority).
Item 12 amends subsection 4(1) (definition of excluded injury).
Item 13 amends subsection 4(1) (definition of exempt authority).
Item 14 amends subsection 4(1) (definition of licence).
Item 15 amends subsection 4(1) (definition of licenced authority).
Item 16 amends subsection 491) (definition of licenced corporation).
Item 17 amends subsection 4(1) (definition of licensee).
Item 19 amends subsection 4(1) (definition of principal officer, in relation to a licensed corporation).
Amendments to definitions
The below amendments will amend the below definitions to ensure they reflect the intent and operation of the DRCA, a military specific Act. The amendments are technical in nature and will amend redundant references and clauses to reflect the intent of the DRCA. These amendments do not alter any policy, benefits or entitlement under the DRCA.
Item 5 amends subsection 4(1) (paragraph (a) of the definition of approved Guide) to omit "Comcare" and substitute "the MRCC".
Item 6 amends subsection 4(1) (definition of approved program provider) to repeal the definition and substitute it to approved program provider has the same meaning as in section 41 of the MRCA.
Item 10 amends subsection 4(1) (subparagraph (d)(ii) of the definition of Commonwealth authority) omit applies;", substitute "applies."
Item 11 amends subsection (4)(1) (paragraph (e) of the definition of Commonwealth authority) repeal the paragraph.
Item 18 amends subsection 4(1) (definition of pre-determined period) to omit "Comcare" and substitute "MRCC".
Item 20 amends subsection 4(1) (definition of rehabilitation authority) to repeal the definition and substitute rehabilitation authority to mean "in relation to an employee and a defence-related claim, means the rehabilitation authority applicable under subsection 39(3) of the MRCA.
Item 21 amends subsection 4(1) (definition of relevant authority) to repeal the definition and substitute relevant authority to mean "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 - the MRCC; or in relation to liability to pay an amount, a debt being due or the receipt of an amount - the Commonwealth.
Item 22 amends subsection 4(1) (paragraph (a) of the definition of suitable employment) to omit "or a licensee".
Item 23 amends subsection 4(1) (paragraph (a) of the definition of suitable employment) omit "or the licensed corporation, as the case may be".
Item 28 amends subsection 5B(1) (definition of disease) to omit "or a license".
Item 56 amends subsection 4(1) (definition of numbers of kilometres travelled) to omit "Comcare" and substitute it to "MRCC".
Item 187 amends subsection 60(1), (definition of determination) to omit "34,".
Item 261 amends subsection 114B(15) (definition of working day) to omit "Comcare or a licenced authority" and substitute it to "the MRCC".
Repeal a Part, Division, Section, Subsection or Paragraph
The amendments are technical in nature and will remove redundant provisions so they reflect the intent of the DRCA. These amendments do not alter any policy, benefits or entitlements under the DRCA.
Item 25 repeals subsection 4(14).
Item 26 repeals section 4A.
Item 78 repeals section 23A.
Item 117 repeals paragraph 33(2)(e).
Item 122 repeals subsection 40(2).
Item 142 repeals paragraph 48(8)(a).
Item 189 repeals subsection 60(3).
Item 191 repeals paragraph 62(2)(c).
Item 192 repeals subsection 62(2A).
Item 194 repeals paragraphs 64(1)(c) and (d).
Item 195 repeals the subsection 67(1A).
Item210 repeals paragraphs 67(8A)(a) and (b).
Item 211 repeals subsection 67(8B).
Item 221 repeals subsection 111(2A).
Item 274 repeals section 117.
Item 290 repeals section 121A.
Item 292 repeals section 124A.
Item 305 repeals section 128A.
Item 318 repeals subsections 143(2), (3) and (4).
Item 324 repeals subsection 146(1).
Item 328 repeals section 153.
Item 329 repeals Division 4 of Part XI.
Amendments omitting references to Comcare and substituting MRCC
These items omit references to Comcare and replace it with the Military Rehabilitation and Compensation Commission (MRCC). The references to Comcare are redundant as Comcare will no longer have any function under the DRCA. These amendments will further align the DRCA with . The MRCC will fulfil all legislative responsibilities under the DRCA as the statutory body authorised to perform a wide range of functions including the making of determinations in relation to a compensation and rehabilitation an employee may receive. These amendments do not alter any policy, benefits or entitlements under the DRCA.
Omit "Comcare", substitute "the MRCC"
Items 27, 38, 41, 67, 68, 70, 74, 80 - 85, 87, 88, 91, 92, 95, 97, 103, 106, 109, 114, 119, 123, 125, 134, 136, 137, 139, 141, 143, 147, 149 - 151, 153, 155, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 184, 227, 233, 265, 270 - 273, 306, 307 and 309 - 311 amends sections 25, 38, 43, subsections 5(5), 8(5), 8(8), 17(8), 17(10), 18(2), 24(2)-(5), 27(2), 28(1)-(2), 28(6), 28(8), 29(2), 29(4), 29A(2), 29A(4), 41(1), 46(1), 47(1), 48(2), 48(7), 50(1)-(4), 52A(2), 52A(3), 52A(4) - (5), 52A(7), 52A(8), 52A(9), 52A(10), 112A(3), 112B(3), 114C(2)(note), 114D(2), 114D(5) and note, 129(3), 129A(2), 132A(4), paragraphs 19(4)(g), 24(7)(b), 24(7A)(b), 26(4)(a), 30(1)(c), 32(1)(a), 48(5)(a), 48(8)(b), 50(4A)(a), 50(4A)(b), 50(4B)(a), 50(5)(a), 52(2)(b), 52A(6)(a)-(b), 52A(7)(a), 54(2)(a)-(b)114D(3)(a), 129(1)(aa) and 129A(1)(b).
Omit "Comcare determines", substitute "the MRCC determines"
Items 53, 63 and 99 amend subsections 16(1), 29(5) and paragraph 17(4)(a).
Omit "Comcare shall", substitute "the MRCC must"
Items 58, 72 and 110 amends subsections 16(8), 19(4) and 30(1).
Omit "Comcare for", substitute "the MRCC for".
Items 61, 64 and 66 amends subsections 17(3), 17(5) and paragraph 17(4)(b).
Omit "Comcare's opinion", substitute "the opinion of the MRCC"
Item 73 amends paragraph 19(4)(f).
Omit "determined by Comcare", substitute "determined by the MRCC"
Item 77 amends subsection 22(1).
Omit "Comcare, a/the licensee", substitute "the MRCC"
Items 89 and 90 amends subsection 28(4).
Omit "Comcare considers", substitute "the MRCC considers"
Items 94, 102 and 105 amends subsections 29(1), 29A(1) and 29A(3).
Omit "Comcare proposes", substitute "the MRCC proposes
Item 152 amend subsection 50(4B).
Omit "Comcare makes", substitute "the MRCC makes"
Item 154 amend subsection 50(5).
Omit "taken over by Comcare", substitute "taken over by the MRCC"
Item 156 amends subsection 50(7).
Omit "to Comcare and Comcare", substitute "to the Commonwealth and the Commonwealth"
Item 157 amends subsection 50(7).
Omit Comcare must pay", substitute "The Commonwealth must pay"
Item 159 amends subsection 50(7).
Omit "Comcare may", substitute "the MRCC may"
Items 162, 164, and 308 amends subsections 51(1), 51(2), and 129A(1).
Omit "to Comcare" (wherever occurring), substitute "to the Commonwealth"
Item 163, 165 amends subsections 51(1) and (2).
Omit "an amount to Comcare", substitute "an amount to the Commonwealth"
Item 166 amends subsection 51(4).
Omit "Comcare may recover", substitute "the MRCC may, on behalf of the Commonwealth, recover"
Items 167, 232, 263 and 267 amend subsections 51(4), 112B(2), 114C(1) and 114D(1).
Omit "due to Comcare", substitute "due to the Commonwealth"
Item 168 amends subsection 51(4).
Amendments omitting references to Comcare and substituting Commonwealth
Under the DRCA, the Commonwealth will adopt the role and responsibilities Comcare provides in under SRCA. As the DRCA is a military service specific Act all liability and responsibility for specific actions will become the responsibility of the Commonwealth. These amendments do not alter any policy, benefits or entitlements under the DRCA.
Omit "Comcare", substitute "the Commonwealth"
Items 49, 51, 54, 59, 69, 71, 75, 79, 86, 96, 100, 107, 108, 112, 115, 138 144, 145, 146, 158, 160, 169, 171, 183, 225, 226, 230, 231, and 236 amend subsections 14(1), 15(1), 16(4), 16(9), 18(1), 19(2) - (3), 20(2), 21(2), 21A(2), 24(1), 27(1), 29(3), 29(6) - (7), 29A(5) - (6), 30(1)(a), 31(1), 32(2), 48(3), 49(2) - (3), 50(8), 51(5), 52A(10) (second occurrence), 112A(2), 112A(5), 112B(5), paragraphs 30(1)(a), 49(5)(b), 50(7)(b), 52A(1)(a), 112A(1)(a), 112B(1)(a) and subparagraphs 49(5)(a)(i).
Omit "Comcare is liable", substitute "the Commonwealth is liable"
Items 52, 55, 60, 62, 66, 76, 93, 101 and 104 amend sections 16(1), 16(6), 17(3), 17(5), 22(1), 29(1), 29A(1), 29A(3) and paragraph 17(4)(a).
Omit "Comcare is not liable", substitute "The Commonwealth is not liable"
Items 57 and 98 amend subsections 16(7) and 29(5).
Omit "liability of Comcare", substitute "liability of the Commonwealth"
Item 113 amends subsection 32(1).
Omit "Comcare stating", substitute "the MRCC stating"
Item 245 amends subsection 114A(1).
Omit 'to Comcare", substitute "to the Commonwealth".
Items 264 and 269 amend subsections 114C(1) and 114D(1).
Amendments omitting references to licensee and licensed corporation
Currently, a licensee means "a Commonwealth authority or a corporation that is licensed, or is taken to be licensed, under Part VIII of the SRC Act". A licensed corporation means "a corporation that is the holder of a licence that is in force under Part VIII of the SRC Act.".
The SRC Act is the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and is administrated by the Department of Jobs and Innovation. The definition of licensee will be omitted by Item 7.
While the DRCA was based on the SRCA, these amendments will ensure the DRCA relates exclusively to current and former ADF members and removes any redundant references inherited by the SRCA which relate to Commonwealth employees.
These below amendments remove redundant references to licensee, licensed corporation, licensed corporation and Commonwealth authority as they not required in the DRCA.
Omit "or a licensee"
Items 28 - 31 amend subsections 5B(2), 6(1), 6(1C).
Omit "or a licensed corporation"
Items 24, 32, 33, 35, 37, 39, 40, 42, 43, 46, 47 and 50 amend subsections 7(2) - (3), 7(7), 8(3), 8(4), 8(6), 8(9), 8(9B), 9(1), 9(2), paragraphs 4(9)(b), 7(1)(c), 8(7)(a), 8(10)(a) -(b), 9(3)(b) and 15(1)(a).
Omit "or the licensed corporation"
Items 36, 44 and 45 amends subsection 8(3) and subparagraphs 8(10)(b)(i) - (ii).
Amendments omitting references to authorities, Commonwealth authorities, relevant authorities and responsible authorities and makes the relevant substitutions or omission if required
The DRCA was based on the SRCA as it was in force on pre 12 October 2017 and covered current and former ADF members. From 12 October 2017 (commencement of the DRCA) the DRCA provides compensation and rehabilitation along with other entitlements and benefits for current and former ADF members. These amendments will further ensure the DRCA relates exclusively to current and former ADF members and aims to remove any redundant references inherited by the SRCA.
The below amendments remove redundant references to authorities, Commonwealth authority, relevant authorities and responsible authorities and make suitable substitutions or omissions as the provision may require. These amendments do not alter any policy, benefits or entitlement under the DRCA.
Omit ", a Commonwealth authority or a licensed corporation"
Item 34 amends paragraph 7(9)(c).
Omit "that authority" (last occurring), substitute "the Commonwealth"
Item 48 amends section 11 to omit the last occurring "that authority" and substitutes it to "the MRCC".
Omit ", a Commonwealth authority, a licensed corporation"
Items 126, 127, 128 - 133 and 135 amend subsections 44(1), 44(3), 45(1), 45(5), paragraphs 44(1)(a), 45(1)(b), 45(2)(a), 46(1)(b) and 47(1)(b).
Omit "responsible authority", substitute "Commonwealth"
Items 196, 199, 203, 208, 212, 216 and 217 amend subsections 67(2), 67(8), 67(9), 67(13), 67(14) and paragraphs 67(3)(h) and 67(4)(h).
Omit "a determining authority", substitute the "MRCC"
Items 198, 200, 201, 204, 205, 206 and 207 amends subsection 67(3), 67(4), 67(5), 67(6), 67(7) and paragraphs 67(3)(a) and 67(4)(a).
Omit "authority", substitute the "MRCC'
Items 198 and 202 amends paragraphs 67(3)(b), (d) - (g), 67(4)(b) and (d) - (g).
Omit "the authority", substitute the "MRCC"
Items 213 and 215 amends paragraph 67(11)(a), subparagraphs 67(11)(b)(ii) and (iii).
Omit "a responsible authority", substitute "Commonwealth"
Item 216 amends subsection 67(13).
Omit "a relevant authority", substitute "the Commonwealth"
Items 220, 222, 223, 238, 275, 282, 286, and 312 amend subsections 111(2), 111(5), 112(1), 118(2), 120(1) and paragraphs 113(a), 119(4)(a) and 137(1)(a).
Omit "or a relevant authority"
Item 224 amends subsection 112(2) to omit reference to a relevant authority.
Omit "relevant authority shall", substitute "Commonwealth must"
Item 240 amends section 113.
Omit "to the relevant authority and of the relevant authority", substitute it to "to the Commonwealth and of the Commonwealth"
Item 242 amends section 113.
Omit "the relevant authority may recover", substitute "the MRCC may, on behalf of the Commonwealth, recover"
Item 276 amends subsection 118(2).
Omit 'the authority", substitute "the Commonwealth"
Item 278 amends subsection 118(2).
Omit "A relevant authority that has received a claim", substitute "If the MRCC has received a claim, the MRCC"
Item 279 amends subsection 118(3).
Omit "by a relevant authority", substitute "by the Commonwealth"
Item 280 amends subsection 119(3).
Omit "to the relevant authority", substitute "to the Commonwealth"
Item 281 amends subsection 119(3).
Omit "the relevant authority", substitute "the Commonwealth"
Items 283, 285, 294, amends paragraph 119(4)(d) and subsections 119(6) and 125(1).
Omit "debtor to the relevant authority", substitute "debtor to the Commonwealth"
Item 284 amends subsection 119(4).
Omit "the relevant authority", substitute "the MRCC"
Items 287 - 289, amends subsections 120(2) - (4).
Omit "or of a Commonwealth authority"
Items 293, 296, 298 and 303 amend section 128 and subsections 125(1) - (2) and 127(1).
Omit "by the relevant authority", substitute "the MRCC"
Items 299 and 301 amends subsections 127(1) and 127(2).
Omit "of the relevant authority", substitute "of the Commonwealth"
Item 300 amends section 127(1).
Omit "of that relevant authority", substitute "of the Commonwealth"
Item 302 amends subsection 127(2).
Omit "relevant authority", substitute "Commonwealth"
Item 304 amends section 128.
Omit "relevant authority", substitute "MRCC"
Item 313 amends paragraph 137(1)(c).
Omit 'relevant authority must", substitute "MRCC must".
Item 314 amends subsection 137(1).
Amendments omitting references to Comcare or/and the authority.
Under the DRCA the Commonwealth will provide the same role Comcare provides under the SRCA. As the DRCA is a military service specific Act all liability and responsibility for specific actions will become the responsibility of the Commonwealth. These amendments do not alter any policy, benefits or entitlement under the DRCA.
Omit "Comcare or authority", substitute "the MRCC"
Item 214 amends paragraphs 67(11)(a).
Omit "Comcare or the authority, as the case may be,", substitute "the MRCC"
Items 247, 251 and 253 amend subsections 114B(2), 114B(3), 114B(5).
Omit "Comcare or the authority", substitute "the MRCC"
Item 249 amends paragraph 114B(2)(b).
Omit "Comcare or the authority", substitute "the MRCC"
Items 250 and 254 amends subparagraphs 114B(2)(c)(i) - (ii) and 114B(5)(ii).
Omit "Comcare or a licenced authority receives", substitute "the MRCC"
Item 252 amends subsection 114B(5).
Omit "Comcare or a licensed authority", substitute "The MRCC"
Items 255 and 260 amends subsections 114B(6) and114B(13).
Omit "Comcare or the licensed authority", substitute "MRCC"
Item 256 amends subsection 114B(8).
Omit "Comcare or the authority", substitute "the MRCC"
Item 257 amends subsection 114B(9), (10) and (11).
Omit "Comcare or a licensed authority" and substitute it to "the MRCC"
Item 258 amends subsection 114B(12).
Omit "Comcare or the authority, as the case may be,", substitute "the MRCC"
Item 259 amends paragraph 114B(12)(b).
Amendments omitting references to "SRCA injury" and substituting "DRCA injury"
These amendments are to make it clear to the reader any SRCA injury is now a DRCA injury. While the DRCA come into force on 12 October 2017 it retrospectively operates from 1 December 1988 therefore there is no variation or difference in the entitlements from the change in Act names.
Items 319, 320, 321, 322 and 323 amend subsection 114B(1), 114B(2), 114B(3) and 114B(5) and paragraphs 114B(1)(a) and (b), subparagraphs 114B(1)(c)(i), (ii) and (iii)
General amendments
Item 2 amends section 2, Commencement, to repeal and substitutes the section to include a table, Commencement information. The table contains 3 columns to specify the provisions, commencement and date/details. The table specifies the whole of the Act commenced on 12 October 2017. This amendment makes it clear the entire Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 commenced on 12 October 2017.
Note 1 makes it clear the date of 12 October 2017 is the 28th day after the Safety, Rehabilitation and Compensation (Defence-related Claims) Act first received Royal Assent.
Note 2 ensures the table relates only to the provision of the Act as originally enacted and does not apply to any later amendments.
Item 3 amends section 3, omit 'Subject to section 117, this", substitute "This". This amendment is consequential to the amendment made by Item 274 to repeal the section. This amendment amends the Application of the Act and removes the reference to section 117 (Compensation payable to locally engaged overseas employees) as this section will be removed by Item 223. The effect of this amendment is to make it clear the Act will be applicable outside Australia, including the external Territories.
Items 111 and 315 amends subsections 30(1) and 137(1) to omit "its liability" and substitute "the liability of the Commonwealth". Subsections 30(1) and 137(1) provides for redemption of compensation, where specified conditions are met, and will enable the Commonwealth to make a lump sum payment where the employee's or former employee's incapacity is unlikely to change.
Item 116 amends paragraph 33(2)(d) to omit "Part; or" and substitute it to "Part." This is a consequential amendment to Item 78.
Item 118 amends section 38 (heading) to repeal the heading and substitutes it to 38 Review of certain determinations by the MRCC. This amendment retitles the section to prescribe determinations under the DRCA are made by the MRCC.
Item 120 amends subsection 40(1) to omit the "(1)". This amendment is consequential to the amendment made by Item 122 to repeal subsection (2). This amendment will renumber the section. Subsection 40(2) defines term of relevant employer for the section. As all employees are current or former ADF members, this definition is no longer required.
Item 121 amends subsection 40(1) to omit "the relevant employer" and substitute it to "the Commonwealth". This is consequential amendment made by Item 122 to repeal the definition of relevant employer. As employees under the DRCA are current or former ADF members, any references to the 'relevant employer' will be changed to the Commonwealth.
Item 124 amends subsection 41A(1) to repeal the subsection and substitute it to "A rehabilitation authority who is the principle officer of an Entity may, in writing, delegate to an officer of, or a persons employed by, that Entity all or any of the powers and functions of the rehabilitation authority under this Part.". This amendment has the effect of removing paragraph (a) to (c) as these paragraphs are no longer required as they refer to a Commonwealth authority under the SRCA and a principal officer of a licensee.
Item 140 amends paragraph 48(5)(b) to omit "Comcare's taking over the conduct of a claim under that section" and substitute it to "the taking over by the MRCC of the conduct of a claim under that section". This is a technical amendment to remove the reference to Comcare and replace it with the MRCC.
Item 148 amends subsection 50(2) to omit "it becomes", and substitutes it to "the Commonwealth becomes". This is a technical amendment and will ensure the Commonwealth becomes liable to pay all costs of and incidental to a claim, except for reasonable costs, where they would become payable by the person who originally made the claim.
Item 161 amends section 51 (heading) to repeal the heading and substitute it to 51 Payment of damages by persons to the Commonwealth. This amendment will accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of the Commonwealth or a person under this provision.
Item 170 amends section 52A (heading) to repeal the heading and substitute it to 52A The Commonwealth's rights and obligations in respect of certain action for non-economic loss. This amendment will accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of the Commonwealth or a person under this provision.
Item 185 amends subsection 54(4) to repeal the subsection and substitute to "the MRCC must cause a copy of any claim it receives to be given to the Secretary of the Defence Department.".
This amendment will omit paragraphs 54(4)(a) and (b), however, the subsection has been redrafted to incorporate the effect of paragraph 54(4)(a). As the DRCA is a military specific Act references to other employees are not required. The intent of new subsection 54(4) is to specify the MRCC must provide a copy of a claim for compensation to the Secretary of Defence.
Item 186 amends section 56 to omit "paid to, or in accordance with the directions of, a relevant authority under subsection 17(3) or (4),", and substitute it to "paid to the Commonwealth, or in accordance with the directions of the MRCC under subsection 17(3) or (4),".
This amendment will ensure where an amount has been paid to the Commonwealth, or in accordance with directions of the MRCC under subsection 17(3) or (4), for the benefit of a dependant of a deceased employee, by whom, or on whose behalf, a claim was made for compensation under section 17, no other dependant of the employee is entitled to claim compensation under the section after the day on which the amount is paid.
The intent of this section is to ensure where a dependant, of a deceased employee, has been paid compensation under section 17, no other dependants may make a claim for compensation after compensation has been paid.
Item 188 amends paragraph 60(2)(c) to repeal the paragraph and substitute it to "the MRCC". This amendment will omit the references to "the body responsible for the reviewable decision" and change it to "the MRCC". The effect of this amendment is to reflect under the DRCA only the MRCC has a role in the review and reconsideration of determinations made in respect of an employee.
Item 190 and 193 amends paragraphs 62(2)(b) and 64(1)(b) to omit "the Commonwealth; or" and substitute it to "the Commonwealth.". These amendments are technical consequential amendments to the amendments made by Items 191 and 196 which remove paragraphs 62(2)(c), 64(1)(c) and (d) respectively. The effect of these amendments are to replace the semicolon with a full stop.
Item 209 amends subsection 67(8A) to omit "paid by:" and substitute it to "paid by the Commonwealth". This amendment has the effect of incorporating paragraph 67(8A)(c) into the subsection and is consequential to the amendment made by Item 210 which removes the paragraphs under the subsection. This amendment will not alter the rights and obligations of the Commonwealth or a person under this provision.
Item 218 amends section 110 to add new subsection (5). New subsection 5 provides the MRCC may establish trust funds for the purpose of this section. The effect of this amendment is to allow the MRCC to establish a trust fund where monies are to be paid to a person under a legal disability.
Item 219 amends subsection 111(2) to omit the reference to subsection (2A). This amendment is consequential to Item 221 to omit subsection 111(2A).
Items 228 and 234 amends subsection 112A(4) and 112B(4) to omit "Subject to section 23A, the" and substitute it to "The". This a consequential amendment to Item 78 to repeal section 23A. As section 23A is repealed this reference is redundant.
Item 229 and 235 amends subsection 112A(4)(note) and 112B(4)(note) to repeal the note. This a consequential amendment to Item 78 to repeal section 23A. As section 23A is repealed this reference is redundant.
Item 237 amends section 113 (heading) to repeal the heading and substitute it to 113 Recovery of amounts due to the Commonwealth. This amendment will accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of the Commonwealth or a person under this section.
Item 241 amends section 113 to omit "shall realise" and substitute it to "must realise". This amendment is a technical amendment to modernise the language and will not alter the rights and obligations of the Commonwealth or a person.
Item 243 amends section 114A (heading) to repeal the heading and substitute it to 114A Notice of the MRCC of retirement of employee. This amendment will accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of the Commonwealth or a person under this section.
Item 244 amends paragraph 114A(1)(a) to repeal the paragraph and substitute it to "an employee of the Commonwealth is receiving, or is entitled to receive, compensation under this Act; and". The effect of this amendment is to repeal subparagraphs 114A(1)(a)(ii) and reframe it as a single paragraph. This amendment enables an appropriate officer of the employer to provide the MRCC written notification of the retirement date and superannuation scheme the employee is a member of. The provisions intent is to avoid an overpayment to the person.
Item 246 amends paragraph 114B(1)(c) to repeal the paragraph and substitute it to: "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 sections 20, 21 or 21A;".
The effect of this amendment is to provide where the MRCC is of the opinion an employee may have been overpaid subsections 114B(2) - (15) are applicable. These subsections enable the administrator of the superannuation fund and the MRCC to communicate and adjust payments if required. This amendment will not alter the existing rights and obligations of the MRCC, administrator of superannuation or an employee.
Item 248 amends paragraph 114B(2)(a) to repeal the paragraph and substitute it to "stating that the retired employee may receive, or may have received, an overpayment of compensation; and".
This amendment reflects the amendments to change all references from Comcare to the Commonwealth and remove reference to 'the authority'. This amendment will not alter the rights and obligations of the Commonwealth or a person under this provision. Item 262 amends section 114C (heading) to repeal the heading and substitute it to 114C The MRCC may write off debt. This amendment is a technical amendment to accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of the Commonwealth or a person under this provision. Item 266 amends section 114D (heading) to repeal the heading and substitute it to 114C The MRCC may waive debt. This amendment will accurately reflect the intent and purpose of the section. This amendment will not alter the rights and obligations of with the Commonwealth or a person under this provision.
Item 268 amends subsection 114D(1) to omit "it's right" and substitute it to "the Commonwealth's right". This amendment is consequential to the amendment made by Item 267 to ensure the section operates to enable the MRCC, on behalf of the Commonwealth, to waive its right to recover a debt from a person.
Item 277 amends subsection 118(2) to omit "paid by it" and substitute it to "paid by the Commonwealth". This amendment reflects the amendments to change all references from Comcare to the Commonwealth and ensures the subsection is grammatically correct given the amendments made to the subsection by Items 230, 231 and 233. This amendment will not alter the rights and obligations of the Commonwealth or a person under this subsection.
Item 291 amends subsection 122A(1) to omit "Minister" and substitute it to "MRCC". This amendment is to prescribe power to the MRCC to make legislative rules under the Act.
Items 295 and 297 amend subsections 125(1) and (2) to omit "the corresponding liability of that relevant authority" and substitute it to "its corresponding liability". This amendment reflects the amendments to change all references from Comcare to the Commonwealth and ensures the subsection is grammatically correct. This amendment will not alter the rights and obligations of the Commonwealth or a person under this subsection.
Item 316 amends section 140, the simplified outline of Part XI Operation of this Act in relation to certain defence-related injuries and deaths to remove the latter part of section 40. The new simplified outline provides "This Part (XI) confers on the Military Rehabilitation and Compensation Commission the functions of determining and managing claims under this Act that relate to defence service that occurred before MRCA commencement date (1 July 2004) and of managing the provision of compensation and rehabilitation provided as a result of the making of claims of that kind".
The effect of this amendment is to remove this Part, to enable the Part to modify the operation of the Safety, Rehabilitation and Compensation Commission and in relation to any liabilities of Comcare and the Commonwealth for members of the Defence Force, as this is now redundant.
Item 317 amends subsection 143(1) to omit the reference to subsection (1) this amendment is consequential to Item 318 to repeal subsections 143(2) to (4). This amendment has the effect of amending the subsection to a section.
Item 325 repeals section 147 and will substitute the heading to 147 Notice to the Chief of the Defence Force and amends the section. Currently section 147 contains a number of tables specifying how Comcare is to be referenced throughout the Act, as these are no longer required the new amendment will replicate table Item 2A into section 147. New section 147 will specify section 61 applies as if it requires the determining authority to give a copy of the notice to the Chief of Defence of the determination where it relates to liability for an injury, disease or permanent impairment at the time the determination was made, or in case of death at the time of death, of a person who was a member of the Defence Force.
Section 61 specifies the requirements for and how a determining authority must make a determination for compensation under section 14 (compensation for injuries) within the period prescribed by the regulations.
The application provision, at Part 2, makes it clear a notice given under this section applies in relation to a notice at or after commencement of this Item (28 days after Royal Assent).
Enable the MRCC to exchange information with Defence obtained prior to the Item commencement
Item 326 inserts new subsection 151(1B) before subsection 151A(2). New subsection 151(1B) provides the MRCC (or a staff member assisting the MRCC) may provide any information obtained in the performance of duties under this Act to the Chief of the Defence Force for a purpose relating to the reconsideration or review under Part VI of a determination made under this Act about acceptance of liability for an injury, disease or death.
Item 327 will amend paragraphs 151A(2)(a) and (b) to omit "or (1A)" and substitutes it with ", (1A) or (1B).". This amendment is a technical consequential amendment to the amendments made by Item 326 above which inserts new subsection 151(A)(1B).
Items 328 repeals subsection 153, holding money on trust, Item 218 incorporates the effect of this subsection into new subsection 110(5).
Items 329 repeals Division 4 of Part XI as this Division is no longer required. The effect of this amendment is to repeal section 155 Reconsideration and review. Section 155 was relevant when the Act included proceedings for Commonwealth employees and former and current ADF members. However as the DRCA is a military specific Act, prescribing all the rights, obligations and entitlements for former and current ADF members, it is no longer required to specify the role of the MRCC in relation to defence related.
Item 330 Application provision
The application provision, makes it clear a notice given under this section applies in relation to a notice at or after commencement of this Item (28 days after Royal Assent).
Enable the MRCC to exchange information with Defence obtained prior to the Item commencement
Schedule 6 Part 2 - Other amendments
Item 331 - after section 42
Item1 of Schedule 6 inserts section 43 in the Safety, Rehabilitation and Compensation Act (1988) (SRCA). New subsection 43(1) provides if compensation under this Act is payable to, or for the benefit of, a person who is a peacekeeper, for the purposes of the VEA Part IV, or their dependant the person may provide written notice to Comcare they do not wish to be paid compensation under the SRCA. A person may elect to provide a written notice not to receive compensation under the SRCA where they wish to choose to pursue a claim under the VEA. This provides the person with a choice, given their circumstances, under which Act they may be compensated for their injury.
New subsection 43(2) will provide compensation ceases to be payable once Comcare receives the notice in subsection (1) and any amount of compensation payable during the period when the request is in force does not become payable. This subsection puts into effect the intent of new subsection 43(1).
New subsection 43(3) provides the person may, by notice in writing to Comcare, to revoke the request. The effect of this amendment is to enable a person to revoke their request made under subsection 43(1) by providing a written notice to Comcare to revoke the notice.
New subsection 43(4) provides the revocation has effect on receipt of the notice by Comcare and it does not revive any entitlement to the compensation amount as a result of making the request. The effect of this amendment is where a person has provided Comcare with written notice to revoke their request for cessation of compensation payments, this will have effect once Comcare receives it. However, revoking the request of cessation of compensation payments does not revive any entitlement to the compensation amount.
Subsection 43(5) provides a person is under a legal disability (the first person) may not make or revoke a request but a request may be made or revoked on his or her behalf by another person who Comcare is satisfied represents the first person's interests. The effect of this amendment is to ensure where a person is under a legal disability the making or revoking of a request can only be done, on their behalf, by a person who Comcare is satisfied represents their interests.
Subsection 43(6) provides a request or revocation made on or behalf of the first person is taken to have been made by the first person. The effect of this amendment is to provide where a request to make or revoke the request is made under subsection 43(5), the request or revocation is taken to have been made by the person with the legal disability.
Item 332 - Application provision
Item 332 ensures section 43 of the Safety, Rehabilitation and Compensation Act 1988 applies to any request or revocation given before, at or after the commencement of this item. The purpose of this amendment is to ensure where an employee has made a revocation under subsection 43(3) the revocation is a valid revocation no matter when it was provided to Comcare.