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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Military
Rehabilitation and Compensation Bill
2003
No. ,
2003
(Veterans’
Affairs)
A Bill for an Act to provide
rehabilitation, compensation and other entitlements for veterans, members and
former members of the Defence Force, and for other purposes
Contents
A Bill for an Act to provide rehabilitation, compensation
and other entitlements for veterans, members and former members of the Defence
Force, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Military Rehabilitation and Compensation
Act 2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Sections 3 to 359 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
3. Sections 360 to 385 |
The day on which this Act receives the Royal Assent. |
|
|
4. Sections 386 to 440 |
At the same time as the provision(s) covered by table
item 2. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
This Act provides for compensation and other benefits to be provided for
current and former members of the Defence Force who suffer a service injury or
disease. The Act also provides for compensation and other benefits to be
provided for the dependants of some deceased members.
Before most benefits can be paid or provided, the Commission must accept
liability for an injury, disease or death of a current or former member under
Chapter 2. Chapters 3 to 6 set out what the benefits are.
The procedure for dealing with claims under this Act is dealt with under
Chapters 7 and 8. The Military Rehabilitation and Compensation Commission
and the administration of the Act are dealt with in Chapters 9 to
11.
Provisions in this Act might be affected by the Military Rehabilitation
and Compensation (Consequential and Transitional Provisions) Act
2003.
A person who is entitled to a benefit under this Act might also be entitled
to a pension, allowance or other benefit under the Veterans’
Entitlements Act 1986. This might include the following:
(a) a service pension under Part III of that Act;
(b) treatment under Part V of that Act;
(c) an allowance such as a telephone allowance, a pharmaceutical
allowance, a Victoria Cross allowance or Income Support Supplement;
(d) a funeral benefit.
This Act extends to every external Territory.
In this Act:
actual earnings:
(a) in Part 3 of Chapter 4—has the meaning given by
subsection 89(3); and
(b) in Part 4 of Chapter 4—has the meaning given by
subsection 132(1).
aggravated injury or disease means an injury or disease that
is a service injury or disease because of paragraph 27(d), subsection 29(2) or
section 30 (aggravations etc.) (and only because of that paragraph,
subsection or section).
appointed Commission member means a Commission member
described in paragraph 364(1)(b).
approved program provider has the meaning given by
section 41.
approved rehabilitation program has the meaning given by
section 41.
attendant care services has the meaning given by
section 213.
Australian Defence Force cadets means:
(a) the Australian Navy Cadets established by the Naval Defence Act
1910; and
(b) the Australian Army Cadets established by the Defence Act 1903;
and
(c) the Australian Air Force Cadets established by the Air Force Act
1923.
Board means the Veterans’ Review Board constituted
under the Veterans’ Entitlements Act 1986.
cadet means a member of the Australian Defence Force
cadets.
civilian work means work other than as a member of the
Defence Force.
claimant means a person who has made a claim under
section 319.
Commission means the Military Rehabilitation and Compensation
Commission established by section 361.
Commission Chair means the Chair of the Commission.
Commission member means a member of the Commission (including
the Commission Chair).
Commonwealth superannuation scheme means:
(a) if a person’s normal earnings are worked out (or would be worked
out if the person had not chosen a Special Rate Disability Pension)
under:
(i) Subdivision D of Division 4 of Part 4 of Chapter 4;
or
(ii) Division 5 of Part 4 of Chapter 4; or
(iii) Subdivision D of Division 8 of Part 4 of
Chapter 4;
any superannuation scheme under which the Commonwealth, a Commonwealth
authority or a licensed corporation (within the meaning of the Safety,
Rehabilitation and Compensation Act 1988) makes contributions on behalf of
employees (other than members of the Defence Force) and includes a
superannuation scheme established or maintained by the Commonwealth, a
Commonwealth authority or a licensed corporation; or
(b) otherwise—any superannuation scheme under which the Commonwealth
makes contributions on behalf of members of the Defence Force.
Note: Section 14 affects the operation of
paragraph (a) of this definition.
compensable treatment has the meaning given by
section 289.
compensation means compensation under this Act, including the
following:
(a) alterations provided, or aids and appliances provided or repaired,
under section 56;
(b) a Special Rate Disability Pension under Part 6 of
Chapter 4;
(c) a telephone allowance under section 221 or 245;
(d) education or training provided under the education scheme mentioned in
Division 6 of Part 3 of Chapter 5;
(e) treatment provided under Chapter 6;
(f) a pharmaceutical allowance under Division 4 of Part 4 of
Chapter 6.
continuous full-time Reservist means a member of the Reserves
on continuous full-time service.
continuous full-time service (CFTS) means defence service of
a continuous nature that is rendered by a member of the Reserves.
date of the member’s death for a deceased member means
the date determined under section 343 for the member.
deceased member means a person:
(a) who has died; and
(b) who was a member or former member before his or her death.
declared member means a person to whom a determination under
section 8 applies.
Defence Department means the Department of State that deals
with defence and that is administered by the Defence Minister.
Defence Force means:
(a) the Permanent Forces; and
(b) the Reserves.
Defence Minister means the Minister administering
section 1 of the Defence Act 1903.
defence service has the meaning given by paragraph
6(1)(d).
dental practitioner means a person registered or licensed as
a dental practitioner or dentist under a law of a State or Territory that
provides for the registration or licensing of dental practitioners or
dentists.
dependant has the meaning given by section 15.
dependent means dependent for economic
support.
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition
(whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid
condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid
condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical
measures;
that results from normal physiological stress (for example, the effect of
exercise on blood pressure) or the temporary effect of extraneous agents (for
example, the effect of alcohol on blood cholesterol levels).
duty, for a cadet or a declared member, has the meaning given
by section 9.
Note: Duty has its ordinary meaning for other
kinds of members.
eligible young person means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25; and
(ii) is receiving full-time education at a school, college, university or
other educational institution; and
(iii) is not in full-time employment or engaged in work full-time on his
or her own account.
expense allowance means an allowance paid in respect of any
expense incurred, or likely to be incurred, by a person in respect of the
person’s work.
financial year means each period of 12 months commencing on
1 July.
former member means a person who has ceased to be a
member.
Note: A cadet or a part-time Reservist who is unlikely to be
able to perform his or her duties in the future as a result of an incapacity
might be taken to be a former member (see section 10).
full-time service means defence service as:
(a) a Permanent Forces member; or
(b) a continuous full-time Reservist.
hospital or other institution includes the
following:
(a) a home;
(b) a hostel;
(c) a medical centre;
(d) an out-patient clinic;
(e) a rehabilitation or training establishment.
household services has the meaning given by
section 213.
impairment, in relation to a person, means the
loss, the loss of the use, or the damage or malfunction, of any part of the
person’s body, of any bodily system or function, or of any part of such a
system or function.
impairment points of a person means the points worked
out for the person using the guide determined under section 67.
incapacitated person:
(a) in Division 5 of Part 4 of Chapter 4—has the
meaning given by section 152; and
(b) in Division 6 of Part 4 of Chapter 4—has the
meaning given by section 160; and
(c) in Division 7 of Part 4 of Chapter 4—has the
meaning given by section 163; and
(d) in Division 8 of Part 4 of Chapter 4—has the
meaning given by section 166.
incapacitated Reservist:
(a) in Division 3 of Part 3 of Chapter 4—has the
meaning given by section 94; and
(b) in Division 4 of Part 3 of Chapter 4—has the
meaning given by section 103; and
(c) in Division 5 of Part 3 of Chapter 4—has the
meaning given by section 107.
incapacity for service, in relation to a person who has
sustained an injury or contracted a disease, means an incapacity
of the person to engage in the defence service that he or she was engaged in
before the onset of the incapacity, at the same level at which he or she was
previously engaged.
Note: For example, a person might be unable to engage in
defence service at the same level at which he or she was engaged before the
incapacity because the person is unable to perform all of his or her previous
duties or is unable to work his or her normal weekly hours.
incapacity for service or work means incapacity for service
or incapacity for work.
incapacity for work, in relation to a person who has
sustained an injury or contracted a disease, means:
(a) an incapacity of the person to engage in the work that he or she was
engaged in before the onset of the incapacity, at the same level at which he or
she was previously engaged; or
(b) if the person was not previously engaged in work, an incapacity of the
person to engage in any work that it is reasonably likely that he or she would
otherwise be engaged in.
Note: For example, a person might be unable to engage in
work at the same level at which he or she was engaged before the incapacity
because the person is unable to perform all of his or her previous duties or is
unable to work his or her normal weekly hours.
indexation year means the financial year commencing on
1 July 2003, and each subsequent financial year.
initial training for a person means:
(a) for an officer (other than a non-commissioned officer)—training
undertaken to become a commissioned officer; and
(b) otherwise—recruit training and initial employment training
undertaken to allocate the person to a category of defence work.
injury means any physical or mental injury (including the
recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
legal personal representative means:
(a) the executor of the will, or the administrator of the estate, of a
deceased person; or
(b) the trustee of the estate of a person under a legal disability;
or
(c) a person who holds an enduring power of attorney granted by another
person; or
(d) a person who, by order of a court or otherwise, has the legal
administration or control of the affairs of another person.
medical aid of a person means an artificial
limb or other artificial substitute, or a medical, surgical or other similar aid
or appliance, that is used by the person.
medical practitioner means a person registered or licensed as
a medical practitioner under a law of a State or Territory that provides for the
registration or licensing of medical practitioners.
member means:
(a) a member of the Defence Force; or
(b) a cadet; or
(c) a declared member.
non-warlike service has the meaning given by paragraph
6(1)(b).
normal earnings:
(a) in Part 3 of Chapter 4—has the meaning given by
subsection 89(3);
(b) in Part 4 of Chapter 4—has the meaning given by
subsection 132(2).
normal weekly hours has the meaning given by subsection
132(2).
onset date, for a person’s incapacity for
service or work, means the date determined under section 342 for the
person.
overtime includes:
(a) time spent performing duties on shifts or on Saturdays, Sundays or
other holidays; and
(b) excess travelling time;
that does not count towards the average number of hours worked.
partner of a member means a person of the opposite sex to the
member in respect of whom at least one of the following applies:
(a) if the member is a member of the Aboriginal race of Australia or a
descendant of Indigenous inhabitants of the Torres Strait Islands—the
person is recognised as the member’s husband or wife by the custom
prevailing in the tribe or group to which the member belongs;
(b) the person is legally married to the member;
(c) the person lives with the member as his or her partner on a bona fide
domestic basis although not legally married to the member.
Note: This section also applies to former members (see
section 20).
part-time Reservist means a member of the Reserves who is not
on continuous full-time service.
pay-related allowance means an allowance specified in a
determination under section 11.
peacetime service has the meaning given by paragraph
6(1)(c).
Permanent Forces means:
(a) the Permanent Navy established by the Naval Defence Act 1910;
and
(b) the Regular Army established by the Defence Act 1903;
and
(c) the Permanent Air Force established by the Air Force Act
1923.
Permanent Forces member means a member of the Permanent
Forces.
pharmaceutical benefits has the same meaning as in
section 91 of the Veterans’ Entitlements Act 1986.
practitioner means a person:
(a) who is a medical practitioner; or
(b) who is a dental practitioner.
rehabilitation authority has the meaning given by
section 39.
rehabilitation program has the meaning given by
section 41.
Repatriation Commission means the body corporate continued in
existence by section 179 of the Veterans’ Entitlements Act
1986.
Repatriation Medical Authority means the body corporate
established under section 196A of the Veterans’ Entitlements Act
1986.
Reserves means:
(a) the Naval Reserve established by the Naval Defence Act 1910;
and
(b) the Army Reserve established by the Defence Act 1903;
and
(c) the Air Force Reserve established by the Air Force Act
1923.
service chief means:
(a) for a person who is a member—the service chief of the arm of the
Defence Force of which the person is a member; and
(b) for a person who is a former member or for a deceased member—the
service chief of the arm of the Defence Force of which the person was a member
before last ceasing to be a member of the Defence Force.
service death has the meaning given by section 28
and subsection 29(3).
service disease has the meaning given by
section 27, subsections 29(1) and (2) and section 30.
Note: A reference to a service disease being contracted
includes a reference to a disease being aggravated by defence service (see
section 7).
service injury has the meaning given by section 27,
subsections 29(1) and (2) and section 30.
Note: A reference to a service injury being sustained
includes a reference to an injury being aggravated by defence service (see
section 7).
service injury, disease or death means a service injury, a
service disease or a service death.
service injury or disease means a service injury or a service
disease.
Special Rate Disability Pension has the meaning given by
section 198.
SRC Minister means the Minister administering Division 3
of Part VII of the Safety, Rehabilitation and Compensation Act
1988.
Statement of Principles means a Statement of Principles made
under section 196B of the Veterans’ Entitlements Act
1986.
suitable work for a person means work for which the person is
suited having regard to the following:
(a) the person’s age, experience, training, language and other
skills;
(b) the person’s suitability for rehabilitation or vocational
retraining;
(c) if work is available in a place that would require the person to
change his or her place of residence—whether it is reasonable to expect
the person to change his or her place of residence;
(d) any other relevant matter.
treatment has the meaning given by section 13.
Tribunal means the Administrative Appeals Tribunal.
trust funds, in respect of a trustee of payments of
compensation, means the following:
(a) the amounts of compensation received by the trustee;
(b) interest on those amounts;
(c) investments of the compensation or interest;
(d) returns received on those investments.
Veterans’ Affairs Minister means the Minister
administering section 1 of the Veterans’ Entitlements Act
1986.
vocational assessment and rehabilitation has the meaning
given by section 41.
warlike service has the meaning given by paragraph
6(1)(a).
wholly dependent partner of a deceased member means a
person:
(a) who was the partner of the member immediately before his or her death;
and
(b) who was wholly dependent on the member at that time.
Note: A partner who was living with a deceased member
immediately before the member’s death is taken to have been wholly
dependent on the partner (see section 17).
work means work for financial gain or reward (whether as an
employee, a self-employed person or otherwise).
(1) In this Act:
(a) warlike service means service with the Defence Force
that is of a kind determined in writing by the Defence Minister to be warlike
service for the purposes of this Act; and
(b) non-warlike service means service with the Defence Force
that is of a kind determined in writing by the Defence Minister to be
non-warlike service for the purposes of this Act; and
(c) peacetime service means any other service with the
Defence Force; and
(d) defence service means warlike service, non-warlike
service or peacetime service.
Note: The determination may be varied or revoked (see
subsection 33(3) of the Acts Interpretation Act 1901).
(2) For the purposes of subsection (1), service with the
Defence Force means:
(a) for a cadet—participation in the activities of the Australian
Defence Force cadets; and
(b) for a declared member—engagement in, or performance of,
activities or acts specified in the determination under section 8 that
applies to the member.
To avoid doubt, a reference to a service injury being sustained, or a
service disease being contracted, at a particular time includes a reference to
an injury or disease that is aggravated, or materially contributed to, by
defence service at such a time.
(1) The Defence Minister may make a written determination that a person,
or a class of persons, who engage, or have engaged, in activities, or who
perform, or have performed, acts:
(a) at the request or direction of the Defence Force; or
(b) for the benefit of the Defence Force; or
(c) in relation to the Defence Force, under a requirement made by or under
a Commonwealth law;
are taken to be, or to have been, members for the purposes of this
Act.
Note: The determination may be varied or revoked (see
subsection 33(3) of the Acts Interpretation Act 1901).
(2) The determination must specify:
(a) the date (which may be retrospective) from which the determination
applies; and
(b) the person, or class of persons, to whom the determination applies;
and
(c) the activities or acts, or classes of activities or acts, to which the
determination applies.
(3) The date referred to in paragraph (2)(a) must be, or be after,
the date on which this section commences.
(4) A determination, or a variation or revocation of a determination, is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
In this Act:
duty:
(a) for a cadet—means participation in an activity mentioned in
paragraph 6(2)(a); and
(b) for a declared member—means engagement in or performance of an
activity or act specified in the determination that applies to the member, as
mentioned in paragraph 6(2)(b).
Note: Duty has its ordinary meaning for other
kinds of members.
Determination that part-time Reservist unlikely to return to defence
service
(1) If a claim for compensation has been made under section 319 in
respect of a part-time Reservist, the Reservist’s service chief may advise
the Commission in writing if the Reservist is unlikely to be able to perform the
duties of a part-time Reservist in the future as a result of his or her
incapacity.
Determination that cadet unlikely to return to defence
service
(2) If a claim for compensation has been made under section 319 in
respect of a cadet, the commanding officer of the cadet’s unit (within the
meaning of the Cadet Forces Regulations 1977) may advise the Commission
in writing if the cadet is unlikely to be able to perform the duties of a cadet
in the future as a result of his or her incapacity.
Person taken to have ceased to be a member
(3) If the Commission is given an advice in respect of a person under
subsection (1) or (2), the person is taken to have ceased to be a member
for the purposes of this Act.
Advice to specify the date
(4) The advice must specify the date (which must not be retrospective)
from which the person is taken to have ceased to be a member for the purposes of
this Act.
(1) The Defence Minister must make a written determination specifying
which allowances that are paid under a determination made under section 58B
or 58H of the Defence Act 1903 are pay-related allowances for the
purposes of this Act.
Note: The determination may be varied or revoked (see
subsection 33(3) of the Acts Interpretation Act 1901).
(2) A determination, or a variation or revocation of a
determination, is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
Deceased member whose death was a service death
(1) This section applies in respect of a deceased member if the Commission
has accepted liability for the member’s death.
Note: A dependant of a deceased member in respect of whom
this section applies might be entitled to compensation under Chapter 5 or
6.
Deceased members eligible for Special Rate Disability Pension
etc.
(2) This section applies in respect of a deceased member if one of the
following applies:
(a) the deceased member was receiving a Special Rate Disability Pension
under Part 6 of Chapter 4 immediately before his or her
death;
(b) the deceased member satisfied the eligibility criteria in
section 199 (persons who are eligible for Special Rate Disability Pension)
immediately before his or her death;
(c) the deceased member would have satisfied the eligibility criteria in
section 199 immediately before his or her death apart from the operation of
section 120 or 121 (compensation for those over 63).
Deceased members with 80 impairment points
(3) This section applies in respect of a deceased member if the Commission
has determined under Part 2 of Chapter 4 that the impairment suffered
by the deceased member before the member’s death, as a result of one or
more service injuries or diseases, constituted 80 or more impairment
points.
(1) In this Act:
treatment means treatment provided, or action taken, with a
view to:
(a) restoring a person to physical or mental health or maintaining a
person in physical or mental health; or
(b) alleviating a person’s suffering; or
(c) ensuring a person’s social well-being.
(2) For the purposes of subsection (1), treatment
includes:
(a) providing accommodation in a hospital or other institution, or
providing medical procedures, nursing care, social or domestic assistance or
transport; and
(b) supplying, renewing, maintaining and repairing artificial
replacements, medical aids and other aids and appliances; and
(c) providing diagnostic and counselling services;
for the purposes of, or in connection with, any treatment.
For the purposes of paragraph (a) of the definition of
Commonwealth superannuation scheme in section 5, the normal
earnings of a person who has chosen a Special Rate Disability Pension would be
worked out under Subdivision D of Division 4 or 8 of Part 4 of
Chapter 4 if the amount worked out under that Subdivision is greater than
the amount worked out under Subdivision C of Division 4 or 8 of Part 4
of Chapter 4.
(1) A dependant of a member means any person mentioned in
subsection (2):
(a) who is wholly or partly dependent on the member; or
(b) who would be wholly or partly dependent on the member but for an
incapacity of the member that resulted from an injury or disease or an
aggravation of an injury or disease.
Note 1: Sections 17 and 18 set out some examples
of when a person is wholly dependent on a member.
Note 2: This section also applies to former members (see
section 20).
(2) These are the persons who can be a dependant of a member
for the purposes of subsection (1):
(a) any of the following persons:
(i) the member’s partner;
(ii) the member’s father, mother, step-father or
step-mother;
(iii) the father, mother, step-father or step-mother of the
member’s partner;
(iv) the member’s grandfather or grandmother;
(v) the member’s son, daughter, step-son or step-daughter;
(vi) the son, daughter, step-son or step-daughter of the member’s
partner;
(vii) the member’s grandson or grand-daughter;
(viii) the member’s brother, sister, half-brother or half-sister;
or
Note: This paragraph is affected by
section 16.
(b) a person in respect of whom the member stands in the position of a
parent; or
(c) a person who stands in the position of a parent to the
member.
For the purposes of paragraph 15(2)(a) of the definition of
dependant, relationships mentioned in that paragraph
include:
(a) relationships by adoption; and
(b) relationships that are traced through relationships by
adoption.
For the purposes of this Act, an eligible young person, or the partner of
a member, is taken to be wholly dependent on a member if:
(a) the young person or partner lives with the member; or
(b) the Commission is of the opinion that the young person or partner
would be living with the member but for:
(i) a temporary absence of the member, or the young person or partner (as
the case requires); or
(ii) an absence of the member, or the young person or partner (as the case
requires), due to illness or infirmity.
Note: This section also applies to former members (see
section 20).
(1) For the purposes of this Act, a son or daughter of a deceased member
who is born alive after the member’s death:
(a) is taken to have been wholly dependent on the member immediately
before the member’s death; and
(b) is taken to have been an eligible young person immediately before the
member’s death.
Note: A deceased member may be a member or former member at
the time of his or her death (see the definition of deceased member
in section 5).
(2) For the purposes of this Act, if, before a deceased member’s
death, a member begins adoption proceedings to adopt a child, and the
proceedings are finalised after the member’s death, the child:
(a) is taken to have been wholly dependent on the member immediately
before the member’s death; and
(b) is taken to have been an eligible young person immediately before the
member’s death.
Note: A deceased member may be a member or former member at
the time of his or her death (see the definition of deceased member
in section 5).
For the purposes of ascertaining whether a person is or was dependent on
a member, any amount of the following benefits must not be taken into
account:
(a) family tax benefit worked out under Part 2 or 3 of
Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an
individual’s Part A rate);
(b) carer’s allowance under the Social Security Act
1991;
(c) double orphan pension under the Social Security Act
1991.
Note: This section also applies to former members (see
section 20).
For the purposes of the definition of partner in
section 5, and for the purposes of sections 15, 17 and 19, a reference
to a member includes a reference to a former member.
A condition for most benefits under this Act is that the Commission has
accepted liability for an injury, disease or death. The Commission accepts
liability if there is some connection between the injury, disease or death and
defence service.
The process for deciding whether to accept liability is as
follows:
(a) first, a person makes a claim under section 319 for acceptance of
liability for an injury, disease or death (the rules for making claims are found
in Chapter 7);
(b) then, the Commission decides whether the injury, disease or death is a
service injury, disease or death under Part 3;
(c) then, the Commission decides whether it is prevented from accepting
liability for the injury, disease or death because of an exclusion under
Part 4 (for example, because the injury, disease or death resulted from a
serious default or a wilful act).
The Commission must accept liability if the injury, disease or death is a
service injury, disease or death, and none of the exclusions in Part 4
apply.
The effect of this Chapter in respect of cadets and declared members might
be modified by the regulations (see section 439).
The Commission accepts liability for an injury, disease or death under this
Part.
The Commission must accept liability if a claim for acceptance of liability
has been made under section 319, the injury, disease or death is a service
injury, disease or death, and none of the exclusions in Part 4
apply.
There are 2 standards of proof that the Commission applies in deciding
matters under this Chapter (and the rest of the Act).
The more beneficial standard of proof (in subsections 335(1) and (2))
applies to some claims that an injury, disease or death is a service injury,
disease or death that relates to warlike or non-warlike service. The other
standard of proof (in subsection 335(3)) applies to all other decisions under
this Chapter.
For some claims for acceptance of liability for an injury, disease or death
the standard of proof can only be met if the injury or disease, or the cause of
death, is covered by a Statement of Principles (see sections 338 and 339).
(Chapter 7 has more rules about the Statements of Principles.)
A Statement of Principles is an instrument made under the
Veterans’ Entitlements Act 1986. The Statement sets out all factors
related to defence service that have been found to cause specific injuries,
diseases and deaths.
For other claims for acceptance of liability, the Statements of Principles
are not relevant.
When Commission must accept liability for service injuries and
diseases
(1) The Commission must accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease
under section 27; and
(b) the Commission is not prevented from accepting liability for the
injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been
made under section 319.
Note 1: The standard of proof mentioned in subsections
335(1) and (2) applies to claims that the injury or disease is a service injury
or disease that relates to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3)
applies to the following:
(a) claims that the injury or disease is a service injury or
disease that relates to peacetime service;
(b) all claims when determining whether a person sustained a
particular injury or contracted a particular disease;
(c) all claims when determining whether the Commission is
prevented from accepting liability for the injury or disease by
Part 4.
When Commission must accept liability for service injuries and diseases
arising from Commonwealth treatment
(2) The Commission must accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease
under section 29 (arising from treatment provided by the Commonwealth);
and
(b) a claim for acceptance of liability for the injury or disease has been
made under section 319.
Note: The standard of proof mentioned in subsection 335(3)
applies to all claims:
(a) that an injury or disease is a service injury or disease
under section 29; and
(b) when determining whether a person sustained a particular
injury or contracted a particular disease.
When Commission must accept liability for service injuries and diseases
arising from aggravations of signs and symptoms
(3) The Commission must accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease
under section 30 (aggravations etc. of signs and symptoms); and
(b) the Commission is not prevented from accepting liability for the
injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been
made under section 319.
Note 1: The standard of proof mentioned in subsections
335(1) and (2) applies to claims that the injury or disease is a service injury
or disease that relates to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3)
applies to the following:
(a) claims that an injury or disease is a service injury or
disease that relates to peacetime service; and
(b) all claims when determining whether a sign or symptom
was aggravated etc.; and
(c) all claims when determining whether the Commission is
prevented from accepting liability for the injury or disease by
Part 4.
Acceptance of liability for aggravations etc. of injuries and
diseases
(4) A reference in this section to acceptance of liability for an injury
or disease is taken to include a reference to acceptance of liability for an
aggravation of an injury or disease.
Note: The definitions of injury and
disease exclude aggravations (see
section 5).
When Commission must accept liability for service deaths
(1) The Commission must accept liability for the death of a person
if:
(a) the person’s death is a service death under section 28;
and
(b) the Commission is not prevented from accepting liability for the death
by subsection 34(4) or section 35 or 36; and
(c) a claim for acceptance of liability for the death has been made under
section 319.
Note 1: The standard of proof mentioned in subsections
335(1) and (2) applies to claims that the death is a service death that relates
to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3)
applies to the following:
(a) claims that the death is a service death that relates to
peacetime service;
(b) all claims when determining whether a person sustained
or contracted a particular injury or disease;
(c) all claims when determining the cause of a
person’s death;
(d) all claims when determining whether the Commission is
prevented from accepting liability for the death by subsection 34(4) or
section 35 or 36.
When Commission must accept liability for service deaths arising from
Commonwealth treatment
(2) The Commission must accept liability for the death of a person
if:
(a) the person’s death is a service death under section 29
(service death arising from treatment provided by the Commonwealth);
and
(b) a claim for acceptance of liability for the death has been made under
section 319.
Note: The standard of proof mentioned in subsection 335(3)
applies to all claims:
(a) that a death is a service death under section 29;
and
(b) when determining the cause of a person’s
death.
Commission must accept liability for deaths after being prevented from
accepting liability for the injury or disease that resulted in the
death
(3) To avoid doubt, the Commission must accept liability for a service
death even if the Commission was prevented by section 32 or 33 from
accepting liability for a service injury or disease that resulted in the
death.
Note: Sections 32 and 33 only prevent the Commission
from accepting liability for a service injury or disease, and not a service
death.
The Commission’s acceptance of liability for an injury, disease or
death only has effect for the purposes of this Act.
Note: This means that a person cannot rely on the
Commission’s acceptance of liability for an injury, disease or death in a
common law action against the Commonwealth.
This Part defines service injury, service disease
and service death.
An injury, disease or death is a service injury, disease or death
if:
(a) it is related to defence service in the ways mentioned in
section 27 or 28; or
(b) it resulted from certain treatment provided by the Commonwealth (see
section 29); or
(c) an aggravation of, or a material contribution to, a sign or symptom of
the injury or disease relates to defence service (see
section 30).
However, even if an injury, disease or death is a service injury or disease
under this Part, the Commission might be prevented from accepting liability for
the injury, disease or death by an exclusion under Part 4.
For the purposes of this Act, an injury sustained, or a disease
contracted, by a person is a service injury or a service
disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while
the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any
defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have
occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member;
or
(iv) changes in the person’s environment consequent upon his or her
having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering
defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of
defence service rendered by the person while a member, but not while the person
was rendering defence service;
and, in the opinion of the Commission, the injury or disease was
contributed to in a material degree by, or was aggravated by, any defence
service rendered by the person while a member after he or she sustained the
injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or
material contributions to, signs and symptoms of an injury or disease (see
Repatriation Commission v Yates (1995) 38 Administrative Law Decisions
80). This is dealt with in section 30.
(e) the injury or disease resulted from an accident that occurred while
the person was travelling, while a member rendering peacetime service but
otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform
duty.
Definition of service death
(1) For the purposes of this Act, the death of a person is a service
death if one or more of the following apply:
(a) the death resulted from an occurrence that happened while the person
was a member rendering defence service;
(b) the death arose out of, or was attributable to, any defence service
rendered by the person while a member;
(c) in the opinion of the Commission, the death was due to:
(i) an accident that would not have occurred; or
(ii) a disease that would not have been contracted;
but for:
(iii) the person having rendered defence service while a member;
or
(iv) changes in the person’s environment consequent upon his or her
having rendered defence service while a member;
(d) the injury or disease from which the person died:
(i) was sustained or contracted while the person was a member rendering
defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of
defence service rendered by the person while a member, but not while the person
was rendering defence service;
and, in the opinion of the Commission, the injury or disease was
contributed to in a material degree by, or was aggravated by, any defence
service rendered by the person while a member after he or she sustained the
injury or contracted the disease;
(e) the injury or disease from which the person died is an injury or
disease that has been determined under section 27, 29 or 30 to be a service
injury or a service disease, as the case may be;
Note 1: The effect of this paragraph is that, if the person
has died from an injury or disease that has already been determined by the
Commission to be a service injury or disease, the death is a service death.
Accordingly, the Commission is not required to relate the death to defence
service rendered by the person and sections 338 and 339 do not
apply.
Note 2: This paragraph does not apply to certain
aggravations etc. of injuries and diseases (see
subsection (2)).
(f) the death resulted from an accident that occurred while the person was
travelling, while a member rendering peacetime service but otherwise than in the
course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform
duty.
Aggravations etc. that cease before death
(2) Paragraph (1)(e) does not apply if:
(a) the service injury or disease mentioned in that paragraph is an
aggravated injury or disease; and
(b) immediately before the death, the injury or disease was no longer
aggravated or contributed to in a material degree.
Liability for injuries and diseases caused by treatment
(1) For the purposes of this Act, an injury sustained, or a disease
contracted, by a person is a service injury or a service
disease if:
(a) either:
(i) the person receives treatment under this Act for an earlier service
injury or disease and the treatment is paid for or provided wholly or partly by
the Commonwealth; or
(ii) the person receives any treatment under regulations made under the
Defence Act 1903; and
(b) as an unintended consequence of that treatment, the person sustains
the injury or contracts the disease.
Liability for injuries and diseases aggravated by
treatment
(2) For the purposes of this Act, an injury sustained, or a disease
contracted, by a person is a service injury or a service
disease if:
(a) either:
(i) the person receives treatment under this Act for the service injury or
disease and the treatment is paid for or provided wholly or partly by the
Commonwealth; or
(ii) the person receives any treatment under regulations made under the
Defence Act 1903; and
(b) as an unintended consequence of that treatment, the injury or disease,
or a sign or symptom of the injury or disease, is aggravated by the
treatment.
Liability for deaths caused by treatment
(3) For the purposes of this Act, the death of a person is a service
death if:
(a) either:
(i) the person receives treatment under this Act for a service injury or
disease and the treatment is paid for or provided wholly or partly by the
Commonwealth; or
(ii) the person receives any treatment under regulations made under the
Defence Act 1903; and
(b) as a consequence of that treatment, the person dies.
For the purposes of this Act, an injury sustained, or a disease
contracted, by a person is a service injury or a service
disease if:
(a) the injury or disease:
(i) was sustained or contracted while the person was a member rendering
defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of
defence service rendered by the person while a member, but not while the person
was rendering defence service; and
(b) in the opinion of the Commission, a sign or symptom of the injury or
disease was contributed to in a material degree by, or was aggravated by, any
defence service rendered by the person while a member after he or she sustained
the injury or contracted the disease.
Even if the Commission decides that an injury, disease or death is a
service injury, disease or death, the Commission might be prevented from
accepting liability for that injury, disease or death because of an exclusion
under this Part.
There are 5 kinds of exclusions. They relate to the following:
(a) serious defaults or wilful acts etc.;
(b) reasonable counselling about a person’s performance as a
member;
(c) false representations;
(d) travel during peacetime service;
(e) the use of tobacco products.
The Commission applies the standard of proof mentioned in subsection 335(3)
in deciding whether the exclusions apply.
Exclusion of injuries or diseases resulting from serious default or
wilful acts etc.
(1) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) the injury or disease resulted from the person’s serious default
or wilful act while a member; or
(b) the injury or disease arose from:
(i) a serious breach of discipline committed by the person while a member;
or
(ii) an occurrence that happened while the person was committing a serious
breach of discipline while a member; or
(c) in the case of an injury—the injury was intentionally
self-inflicted while the person was a member;
except if the injury or disease results in serious and permanent
impairment.
(2) For the purpose of paragraph (1)(a), an injury or disease is
taken to have resulted from a person’s serious default or wilful act
if:
(a) the person consumed alcohol or took a drug (other than a drug
administered by a person legally authorised to administer the drug or a drug
legally obtained and taken in accordance with the directions provided with the
drug); and
(b) the injury or disease resulted from being under the influence of the
alcohol or drug.
This subsection does not otherwise limit paragraph (1)(a).
Exclusion of aggravations etc. resulting from serious default
etc.
(3) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) the injury or disease has been contributed to in a material degree, or
aggravated, by defence service; and
(b) the material contribution or aggravation:
(i) resulted from the serious default or wilful act of the person while a
member; or
(ii) arose from a serious breach of discipline committed by the person
while a member; or
(iii) arose from an occurrence that happened while the person was
committing a serious breach of discipline while a member; or
(iv) was intentionally self-inflicted while the person was a
member;
except if the aggravation or material contribution results in serious and
permanent impairment.
Exclusion of aggravations etc. of signs or symptoms resulting from
serious default etc.
(4) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person if:
(a) a sign or symptom of the injury or disease has been contributed to in
a material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation:
(i) resulted from the serious default or wilful act of the person while a
member; or
(ii) arose from a serious breach of discipline committed by the person
while a member; or
(iii) arose from an occurrence that happened while the person was
committing a serious breach of discipline while a member; or
(iv) was intentionally self-inflicted while the person was a
member;
except if the aggravation or material contribution results in serious and
permanent impairment.
(5) For the purpose of subparagraph (3)(b)(i) or (4)(b)(i), a
material contribution or aggravation is taken to have resulted from a
person’s serious default or wilful act if:
(a) the person consumed alcohol or took a drug (other than a drug
administered by a person legally authorised to administer the drug or a drug
legally obtained and taken in accordance with the directions provided with the
drug); and
(b) the material contribution or aggravation results from being under the
influence of the alcohol or drug.
This subsection does not otherwise limit subparagraph (3)(b)(i) or
(4)(b)(i).
Injuries or diseases resulting from reasonable counselling about
performance etc.
(1) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person if the injury or disease resulted
from:
(a) reasonable and appropriate counselling in relation to the
person’s performance as a member; or
(b) a failure to obtain a promotion, transfer or benefit in relation to
the person’s service as a member.
Aggravations etc. of injuries or diseases resulting from reasonable
counselling about performance etc.
(2) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a member if:
(a) the injury or disease was contributed to in a material degree, or
aggravated, by defence service; and
(b) the material contribution or aggravation resulted from:
(i) reasonable and appropriate counselling in relation to the
person’s performance as a member; or
(ii) a failure to obtain a promotion, transfer or benefit in relation to
the person’s service as a member.
Aggravations etc. of signs and symptoms of injuries or diseases
resulting from reasonable counselling about performance etc.
(3) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a member if:
(a) a sign or symptom of the injury or disease was contributed to in a
material degree, or aggravated, by defence service; and
(b) the material contribution or aggravation resulted from:
(i) reasonable and appropriate counselling in relation to the
person’s performance as a member; or
(ii) a failure to obtain a promotion, transfer or benefit in relation to
the person’s service as a member.
Injuries or diseases
(1) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person, if the person made a wilful and false
representation, in connection with his or her defence service or proposed
defence service, that he or she did not suffer, or had not previously suffered,
from that injury or disease.
Aggravations etc. of injuries or diseases
(2) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person, if:
(a) the injury or disease was contributed to in a material degree, or
aggravated, by defence service; and
(b) the person made a wilful and false representation, in connection with
his or her defence service or proposed defence service, that he or she did not
suffer, or had not previously suffered, from that injury or disease.
Aggravations etc. of signs and symptoms of injuries or
diseases
(3) The Commission must not accept liability for an injury sustained, or a
disease contracted, by a person, if:
(a) a sign or symptom of the injury or disease was contributed to in a
material degree, or aggravated, by defence service; and
(b) the person made a wilful and false representation, in connection with
his or her defence service or proposed defence service, that he or she did not
suffer, or had not previously suffered, from that injury or disease.
Deaths
(4) The Commission must not accept liability for the death of a person if
the person made a wilful and false representation, in connection with his or her
defence service or proposed defence service, that he or she did not suffer, or
had not previously suffered, from the injury or disease that resulted in his or
her death.
Commission not to accept liability for injuries etc. resulting from
certain peacetime accidents
(1) This section only applies in respect of an injury, disease or death of
a person that relates to peacetime service rendered by the person as a
member.
Note: This section applies if the injury, disease or death
is a service injury, disease or death because of the application of any of
sections 27, 28 and 30 (not only paragraphs 27(e) and
28(1)(f)).
(2) The Commission must not accept liability for:
(a) an injury sustained, or a disease contracted, by a person, or the
death of a person; or
(b) an injury or a disease that has been aggravated, or materially
contributed to; or
(c) an injury or disease, a sign or symptom of which has been aggravated,
or materially contributed to;
if the injury, disease, death, aggravation or material contribution
resulted from the kinds of accidents mentioned in subsection (3), (4) or
(5).
Substantial delay commencing journey
(3) The Commission must not accept liability if the injury, disease,
death, aggravation or material contribution resulted from an accident that
occurred while the person was a member travelling on a journey from the
person’s place of duty if the person delayed commencing the journey for a
substantial time after he or she ceased to perform duty at that place,
unless:
(a) the delay was for a reason connected with the performance of the
person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or
material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by that delay or by anything that happened during that delay.
Routes that are not reasonably direct
(4) The Commission must not accept liability if the injury, disease,
death, aggravation or material contribution resulted from an accident that
occurred while the person was a member travelling on a journey, or a part of a
journey, by a route that was not reasonably direct having regard to the means of
transport used, unless:
(a) the journey, or that part of the journey, was made by that route for a
reason connected with the performance of the person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or
material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by reason that the journey, or that part of the journey, was made by that
route.
Substantial interruptions to journeys
(5) The Commission must not accept liability if the injury, disease,
death, aggravation or material contribution resulted from an accident that
occurred while the person was a member travelling on a part of a journey made
after a substantial interruption of the journey, unless:
(a) the interruption was made for a reason connected with the performance
of the person’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of the injury, disease, death, aggravation or
material contribution occurring was not substantially changed; and
(ii) the extent of that risk was not substantially increased;
by reason of that interruption.
The Commission must not accept liability for:
(a) an injury sustained, or a disease contracted, by a person, or the
death of a person; or
(b) an injury or a disease that has been aggravated, or materially
contributed to; or
(c) an injury or disease, a sign or symptom of which has been aggravated,
or materially contributed to;
if the injury, disease, death, aggravation or material contribution is
related to defence service only because of the person’s use of tobacco
products.
This Chapter provides for the following for certain current and former
members suffering a service injury or disease:
(a) rehabilitation programs;
(b) assistance in finding suitable defence or civilian work;
(c) assistance in moving from defence service to civilian life.
The capacity for rehabilitation of a person with a service injury or
disease is assessed under Part 2. If the person is capable of
rehabilitation, he or she may be required to undertake a rehabilitation program
under that Part.
Under Part 3, a person who is undertaking a rehabilitation program, or
a person who cannot undertake a program, can have his or her home or place of
work etc. altered or an aid or appliance provided.
All members and former members who are incapacitated for service or work
are assisted in finding suitable work under Part 4.
A case manager is appointed under Part 5 to assist a full-time member
move to civilian life if the member is likely to be discharged from the Defence
Force.
The aim of rehabilitation is to maximise the potential to restore a
person who has an impairment, or an incapacity for service or work, as a
result of a service injury or disease to at least the same physical and
psychological state, and at least the same social, vocational and educational
status, as he or she had before the injury or disease.
(1) The service chief of each arm of the Defence Force is a
rehabilitation authority for the purposes of this
Chapter.
(2) The Commission is a rehabilitation authority for the
purposes of this Chapter.
(3) The rehabilitation authority for a person at a time
is:
(a) the person’s service chief for a time when the person:
(i) is a Permanent Forces member or a continuous full-time Reservist;
and
(ii) has not been identified by or on behalf of the person’s service
chief as being likely to be discharged from the Defence Force for medical
reasons; or
(b) the Commission for any other time.
(1) This section applies if a person’s rehabilitation authority (the
original rehabilitation authority) changes to another
rehabilitation authority (the new rehabilitation authority)
because of section 39.
(2) If:
(a) under subsection 44(2), the person requests the original
rehabilitation authority to carry out an assessment of the person’s
capacity for rehabilitation; and
(b) the rehabilitation authority changes before the assessment
begins;
the person’s request is taken to have been made to the new
rehabilitation authority.
(3) A determination of the original rehabilitation authority that is in
force immediately before the rehabilitation authority changes has effect as a
determination of the new rehabilitation authority. The new rehabilitation
authority is responsible for giving effect to the determination.
(1) In this Chapter:
approved program provider means:
(a) a person or body that is an approved program provider for the purposes
of the Safety, Rehabilitation and Compensation Act 1988; or
(b) a person nominated in writing by a rehabilitation authority, being a
person the rehabilitation authority is satisfied has appropriate skills and
expertise to design and provide rehabilitation programs.
approved rehabilitation program means a rehabilitation
program determined under section 51 for a person by the person’s
rehabilitation authority.
rehabilitation program means a program that consists of or
includes any one or more of the following:
(a) medical, dental, psychiatric and hospital services (whether on an
in-patient or out-patient basis);
(b) physical training and exercise;
(c) physiotherapy;
(d) occupational therapy;
(e) vocational assessment and rehabilitation;
(f) counselling;
(g) psycho-social training.
vocational assessment and rehabilitation consists of or
includes any one or more of the following:
(a) assessment of transferable skills;
(b) functional capacity assessment;
(c) workplace assessment;
(d) vocational counselling and training;
(e) review of medical factors;
(f) training in resume preparation, job-seeker skills and job
placement;
(g) provision of workplace aids and equipment.
This Part applies to a person who is incapacitated for service or work, or
who is impaired, as a result of a service injury or disease.
Most decisions under this Part are made by the person’s
rehabilitation authority. The rehabilitation authority is either the
person’s service chief or the Commission.
The rehabilitation authority, either on its own initiative or on the
person’s request, carries out an initial assessment of the person’s
capacity for rehabilitation. The person might be required to undergo an
examination (paid for by the Commonwealth) as part of the assessment.
(Compensation can be paid for costs incurred in travelling to the
examination.)
Once the assessment is done, the rehabilitation authority decides if the
person should undertake a rehabilitation program (provided by an approved
program provider). In certain cases, the rehabilitation authority can stop or
vary the program once it has begun.
A person’s right to compensation can be suspended if the person fails
to undergo an examination or fails to undertake the program as
required.
(1) This Part applies to a person at a time if, at that time:
(a) the person is incapacitated for service or work, or has an impairment,
as a result of a service injury or disease; and
(b) the Commission has accepted liability for the injury or
disease.
(2) To avoid doubt, this Part applies to a person who is incapacitated or
impaired as a result of an aggravated injury or disease even if the incapacity
or impairment resulted from the original injury or disease and not from the
aggravation or material contribution.
Assessments on rehabilitation authority’s initiative
(1) The rehabilitation authority for a person to whom this Part applies
may, on its own initiative, carry out an initial assessment or a further
assessment of the person’s capacity for rehabilitation.
Requests for assessments
(2) A person to whom this Part applies may request his or her
rehabilitation authority to carry out an initial assessment or a further
assessment of his or her capacity for rehabilitation.
(3) The rehabilitation authority:
(a) must carry out an initial assessment; and
(b) may carry out a further assessment;
if the person requests the rehabilitation authority to do so.
Requirement to carry out assessment before ceasing or varying a
program
(4) The rehabilitation authority must carry out an assessment before
ceasing or varying a rehabilitation program under section 53.
(1) This section applies if the person’s rehabilitation authority
carries out an assessment under section 44 of the person’s capacity
for rehabilitation.
(2) The rehabilitation authority may seek the assistance of a person the
authority is satisfied has suitable qualifications or expertise to provide
assistance.
(3) The rehabilitation authority may take into account any relevant
information of which it is aware.
(4) The rehabilitation authority may require the person to undergo an
examination under section 46.
(1) This section applies if the person’s rehabilitation authority
requires the person to undergo an examination.
(2) The examination is to be carried out by an examiner nominated by the
rehabilitation authority whom the authority is satisfied has suitable
qualifications or expertise to carry out the examination.
(3) The examiner must give a written report of the examination to the
rehabilitation authority. The report must include:
(a) an assessment of the person’s capacity for rehabilitation;
and
(b) if the person has a capacity for rehabilitation—the kinds of
rehabilitation from which the person would benefit; and
(c) any other information relating to the provision of a rehabilitation
program for the person that the rehabilitation authority requires.
(4) The Commonwealth is liable to pay the cost of conducting the
examination.
The Commonwealth is liable to pay compensation for any costs reasonably
incurred if:
(a) the costs are incurred:
(i) in making a necessary journey in connection with the examination;
or
(ii) in remaining, for the purpose of the examination, at a place to which
the person has made a journey for that purpose; and
(b) a claim for compensation in respect of the person has been made under
section 319.
Note: This section might be affected by section 50 or
52 (failure to undergo examination or rehabilitation program).
(1) The amount of compensation that the Commonwealth is liable to pay
under section 47 is the amount determined by the rehabilitation authority
to be the amount reasonably incurred in making the journey or remaining at the
place.
(2) In determining the amount, the rehabilitation authority must have
regard to:
(a) the means of transport available to the person for the journey;
and
(b) the route or routes by which the person could have travelled;
and
(c) the accommodation available to the person.
(1) Compensation under section 47 for costs reasonably incurred is
payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided services in connection with the journey or
accommodation; or
(ii) any other person who incurred the cost of services in connection with
the journey or accommodation.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 47 to a person who provided services in
connection with the journey or accommodation discharges any liability of any
other person for the cost of those services to the extent of the
payment.
(1) If the rehabilitation authority for a person requires the person to
undergo an examination under section 45 and the person:
(a) refuses or fails to undergo the examination; or
(b) in any way obstructs the examination;
the rehabilitation authority may determine that the person’s right to
compensation (but not the person’s right to treatment or compensation for
treatment under Chapter 6) under this Act is suspended until the
examination takes place.
(2) A determination under subsection (1) must not be made in relation
to a refusal or failure to undergo the examination if, before the time fixed for
the examination, the person gives to the rehabilitation authority evidence of a
reasonable excuse for the refusal or failure.
(3) The rehabilitation authority must determine that the suspension under
subsection (1) is terminated from a date determined by the rehabilitation
authority if, within 14 days after the date fixed for the examination, the
person gives to the rehabilitation authority evidence of a reasonable excuse for
the refusal, failure or obstruction.
(4) If a determination under subsection (1) is made by a delegate of
the rehabilitation authority, the rehabilitation authority must ensure that any
determination terminating the suspension under subsection (3) also made by
a delegate of the rehabilitation authority is made by a delegate other than a
delegate who was involved in making the determination under
subsection (1).
(5) If a person’s right to compensation is suspended under
subsection (1), compensation is not payable during or in respect of the
period of the suspension.
(1) The rehabilitation authority for a person to whom this Part applies
may determine that the person is to undertake a rehabilitation program specified
in the determination if an assessment has been made under section 44 of the
person’s capacity for rehabilitation.
(2) In making a determination under subsection (1) in respect of the
person, the person’s rehabilitation authority is to have regard to the
following:
(a) any written report in respect of the person under subsection
46(3);
(b) any reduction in the future liability of the Commonwealth to pay or
provide compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the person’s opportunity to be engaged in
work after completing the program;
(e) the person’s attitude to the program;
(f) the relative merits of any alternative and appropriate rehabilitation
program;
(g) any other matter the rehabilitation authority considers
relevant.
(3) If the rehabilitation authority for a person makes a determination
under subsection (1) that a person is to undertake a rehabilitation
program, the rehabilitation authority must make arrangements with an approved
program provider for the provision of the program for the person.
Note: The person might also be entitled to have his or her
home altered or aids or appliances provided under Part 3.
(4) For the purposes of designing or providing a rehabilitation
program:
(a) the rehabilitation authority or approved program provider concerned
may seek the assistance of persons with suitable qualifications or expertise in
the design or provision of rehabilitation programs; and
(b) the rehabilitation authority or approved program provider concerned
may take into account any relevant information of which it is aware or that is
brought to its attention.
(5) The cost of a rehabilitation program provided for a person under this
section is to be paid by the Commonwealth.
(1) If the rehabilitation authority for a person requires the person to
undertake a rehabilitation program under section 51, and the person refuses
or fails to undertake the rehabilitation program, the rehabilitation authority
may determine that the person’s right to compensation (but not the
person’s right to treatment or compensation for treatment under
Chapter 6) under this Act is suspended until the person undertakes the
rehabilitation program.
(2) A determination under subsection (1) must not be made in relation
to a refusal or failure to undertake the rehabilitation program if, before the
date fixed for starting the rehabilitation program, the person gives to the
rehabilitation authority evidence of a reasonable excuse for the refusal or
failure.
(3) The rehabilitation authority must determine that the suspension under
subsection (1) is terminated from a date determined by the rehabilitation
authority if, within 14 days after the date fixed for starting the
rehabilitation program, the person gives to the rehabilitation authority
evidence of a reasonable excuse for the refusal or failure.
(4) If a determination under subsection (1) is made by a delegate of
the rehabilitation authority, the rehabilitation authority must ensure that any
determination terminating the suspension under subsection (3) also made by
a delegate of the rehabilitation authority is made by a delegate other than a
delegate who was involved in making the determination under
subsection (1).
(5) If a person’s right to compensation is suspended under
subsection (1), compensation is not payable during or in respect of the
period of the suspension.
(1) This section applies if:
(a) the rehabilitation authority for a person has made a determination
under subsection 51(1) that the person is to undertake a rehabilitation program;
and
(b) an approved program provider has commenced providing the
rehabilitation program.
(2) The rehabilitation authority may, on its own initiative or on written
application by the person, determine that:
(a) the rehabilitation program cease; or
(b) the rehabilitation program be varied.
(3) Before making a determination under subsection (2), the
rehabilitation authority must:
(a) undertake an assessment under section 44 of the person’s
capacity for rehabilitation; and
(b) consult the person about the proposed determination.
This Part applies to a person with an impairment from a service injury or
disease who is either undertaking a rehabilitation program or who cannot
undertake a program.
If it is reasonably required for the person, the Commission can:
(a) alter the person’s home or work; or
(b) alter articles used by the person; or
(c) repair or provide aids or appliances for the person.
(1) This Part applies to a person if:
(a) the person has an impairment as a result of a service injury or
disease; and
(b) the Commission has accepted liability for the injury or disease;
and
(c) the person:
(i) is undertaking, or has completed, an approved rehabilitation program
in respect of the impairment; or
(ii) has been assessed under section 44 as not having the capacity
for rehabilitation.
(2) To avoid doubt, this Part applies to a person who has an impairment as
a result of an aggravated injury or disease even if the impairment resulted from
the original injury or disease and not from the aggravation or material
contribution.
(1) The Commission may do the following for a person to whom this Part
applies:
(a) alter the person’s place of residence, education, work or
service, or articles used by the person;
(b) provide aids or appliances for use by the person; or
(c) repair or replace any aids or appliances for use by the
person;
if the alterations, aids or appliances are reasonably required by the
person.
Note: Section 58 sets out the matters that the
Commission must consider in determining if an alteration, aid or appliance is
reasonably required by the person.
(2) The Commonwealth is liable to pay compensation for any costs
reasonably incurred by a person to whom this Part applies if the costs are
incurred in respect of alterations, aids or appliances of a kind mentioned in
subsection (1).
(3) A claim for compensation in respect of the person must have been made
under section 319.
Note: This section might be affected by section 50 or
52 (failure to undergo examination or rehabilitation program).
The amount of compensation that the Commonwealth is liable to pay under
subsection 56(2) is the amount determined by the Commission to be the amount
reasonably incurred in respect of the alterations, aids or appliances.
Note: Section 58 sets out the matters that the
Commission must consider in determining the amount of
compensation.
(1) This section applies for the purposes of:
(a) determining whether an alteration, aid or appliance is reasonably
required by a person under section 56; and
(b) the amount of compensation under section 57.
(2) The Commission must have regard to:
(a) the likely period during which the alteration, article, aid or
appliance will be required; and
(b) any difficulties faced by the person in gaining access to, or enjoying
reasonable freedom of movement in, his or her place of residence, education,
work or service; and
(c) whether arrangements can be made for hiring the article, aid or
appliance concerned; and
(d) if the person has previously received compensation under this section
in respect of an alteration of his or her place of residence and has later
disposed of that place of residence—whether the value of that place of
residence was increased as a result of the alteration; and
(e) if the person is a Permanent Forces member or a continuous full-time
Reservist:
(i) the length of time that the person is likely to continue to serve as a
Permanent Forces member or a continuous full-time Reservist; and
(ii) whether the provision of an alteration, article, aid or appliance
would increase that length of time.
(1) Compensation under subsection 56(2) for costs reasonably incurred is
payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided services in connection with the alteration,
aids or appliances; or
(ii) any other person who incurred the cost of services in connection with
the alteration, aids or appliances.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under subsection 56(2) to a person who provided services in
connection with the alteration, aids or appliances discharges any liability of
any other person for the cost of the services to the extent of the
payment.
All members and former members who are incapacitated for service or work
from a service injury or disease are assisted in finding suitable work under
this Part.
The work might be work in the Defence Force or civilian work.
(1) This section applies if:
(a) a person is a Permanent Forces member or a continuous full-time
Reservist; and
(b) the person is incapacitated for service or work as a result of a
service injury or disease for which the Commission has accepted
liability.
(2) To avoid doubt, this section applies to a person who is incapacitated
as a result of an aggravated injury or disease even if the incapacity resulted
from the original injury or disease and not from the aggravation or material
contribution.
(3) The person’s rehabilitation authority must take all reasonable
steps to:
(a) if the person is a Permanent Forces member who has not been identified
by or on behalf of the person’s service chief as being likely to be
discharged from the Permanent Forces for medical reasons—assist the person
to find suitable work within the Permanent Forces; or
(b) if the person is a continuous full-time Reservist who has not been
identified by or on behalf of the person’s service chief as being likely
to be discharged from the Reserves for medical reasons—assist the person
to find suitable work as a continuous full-time Reservist; or
(c) if the person has been identified by or on behalf of the
person’s service chief as being likely to be discharged from the Defence
Force for medical reasons—assist the person to find suitable civilian
work.
Note: A person who has been identified as being likely to be
discharged from the Defence Force is entitled to a case manager (see
section 64).
(1) This section applies if:
(a) a person:
(i) is a part-time Reservist, a cadet or a declared member; or
(ii) is a former member; and
(b) the person is incapacitated for service or work as a result of a
service injury or disease for which the Commission has accepted
liability.
(2) To avoid doubt, this section applies to a person who is incapacitated
as a result of an aggravated injury or disease even if the incapacity resulted
from the original injury or disease and not from the aggravation or material
contribution.
(3) The person’s rehabilitation authority must take all reasonable
steps to assist the person to find suitable civilian work.
Under this Part, a case manager is appointed to assist a full-time member
move from the Defence Force to civilian life if the member is likely to be
discharged from the Defence Force for medical reasons (whether or not as a
result of a service injury or disease).
(1) This section applies to a person if:
(a) the person is a Permanent Forces member or a continuous full-time
Reservist; and
(b) the person has been identified by or on behalf of the person’s
service chief as being likely to be discharged from the Defence Force for
medical reasons.
(2) The person’s service chief must appoint a case manager for the
person.
(3) The role of the case manager is to assist the person in the transition
to civilian life, including by advising the person about entitlements and
services for which the person may be eligible as a member or former member, and
about how to obtain access to such entitlements and services.
This Chapter provides for compensation and other benefits to be provided
for current and former members who suffer a service injury or disease.
Part 2 provides for compensation to be provided for current and former
members who have suffered a permanent impairment.
Part 3 provides for compensation to be provided for current members
who are incapacitated for service from a service injury or disease. Current
part-time Reservists, cadets and declared members who are incapacitated for work
can also be paid compensation under that Part.
Part 4 provides for compensation to be provided for former members who
are incapacitated for work from a service injury or disease.
Part 5 contains rules for adjusting the amount of compensation the
Commonwealth is liable to pay under Parts 3 and 4.
Some former members who have suffered a serious impairment from an injury
or disease can choose to be paid a Special Rate Disability Pension under
Part 6 instead of compensation under Part 4.
Part 7 provides for additional compensation and benefits to be
provided, such as compensation to modify vehicles, and compensation for
household and attendant care services and damage to a member’s medical
aid. Part 7 also provides for an allowance to pay for a current or former
member’s home phone.
Compensation is payable for permanent impairment that occurs as a result of
one or more service injuries or diseases if the degree of that impairment is
above a certain level.
The level of impairment is measured in impairment points according to a
guide prepared by the Commission.
Interim compensation can be payable to a person whose condition has not
stabilised.
The compensation is payable weekly unless the person chooses to convert
some or all of the weekly amount to a lump sum.
A severely impaired person who has a dependent child is entitled to an
additional lump sum.
(1) The Commission may determine, in writing, a guide setting
out:
(a) criteria to be used in deciding the degree of impairment of a person
resulting from a service injury or disease; and
(b) methods by which the degree of that impairment can be expressed in
impairment points on a scale from 0 to 100; and
(c) criteria to be used in assessing the effect of a service injury or
disease on a person’s lifestyle; and
(d) methods by which the effect of a service injury or disease on a
person’s lifestyle can be expressed as a numerical rating; and
(e) methods by which the impairment points of a person, and the effect on
a person’s lifestyle, from a service injury or disease can be used to
determine the compensation payable to the person under this Part by reference to
the maximum compensation that can be payable to a person under this
Part.
(2) The guide must:
(a) specify different methods under paragraph (1)(e) for:
(i) service injuries or diseases that relate to warlike service or
non-warlike service; and
(ii) other service injuries or diseases; and
(b) specify a method for determining the compensation payable to a person
who has both:
(i) a service injury or disease that relates to warlike service or
non-warlike service; and
(ii) another service injury or disease.
(3) The Commission may, from time to time, repeal or amend the guide in
writing.
(4) The guide, and any repeal or amendment of the guide, is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(1) The Commonwealth is liable to pay compensation to a person
if:
(a) the Commission has accepted liability for one or more service injuries
or diseases (the compensable condition) of the person;
and
(b) the Commission is satisfied that:
(i) as a result of the compensable condition, the person has suffered an
impairment; and
(ii) the impairment is likely to continue indefinitely; and
(iii) the person’s compensable condition has stabilised;
and
(c) a claim for compensation in respect of the person has been made under
section 319.
Note 1: The impairment must constitute a minimum number of
impairment points for compensation to be payable (see sections 69 and 70).
However, the impairment points from more than one service injury or disease can
be combined to make up that minimum number.
Note 2: This subsection might also be affected by
sections 73 (indefinite impairments) and 389 (choice to institute action
for damages).
(2) The Commission must determine:
(a) the degree of impairment suffered by the person as a result of the
compensable condition; and
(b) the date on which the person became entitled to compensation under
this section by satisfying paragraph (1)(b) and sections 69 and 70 (if
applicable).
The Commonwealth is liable to pay compensation to a person under
section 68 only if:
(a) for an impairment resulting from a single service injury or disease
consisting of:
(i) hearing loss; or
(ii) the loss, or the loss of the use, of a finger or toe; or
(iii) the loss of the sense of taste or smell;
the impairment suffered by the person constitutes at least 5 impairment
points; and
(b) otherwise—the impairment suffered by the person from the
compensable condition constitutes at least 10 impairment points.
Note: This section might be affected by section 70
(aggravations etc.).
(1) The Commonwealth is liable to pay compensation under section 68
in respect of a single aggravated injury or disease only if:
(a) for an aggravation of, or a material contribution to:
(i) hearing loss; or
(ii) the loss, or the loss of the use, of a finger or toe; or
(iii) the loss of the sense of taste or smell;
the impairment suffered by the person as a result of the aggravation or
material contribution constitutes at least 5 impairment points; and
(b) otherwise—the impairment suffered by the person as a result of
the aggravation or material contribution constitutes at least 10 impairment
points.
(2) The amount of compensation that the Commonwealth is liable to pay in
respect of the person’s aggravated injury or disease is the amount payable
in respect of the impairment points of the person, and the effect on the
person’s lifestyle, from the aggravation or material
contribution.
Additional compensation for impairment from another service injury or
disease
(1) The Commonwealth is liable to pay additional compensation to a person
who has been paid, or is entitled to be paid, compensation under this Part
(including interim compensation under section 75) if:
(a) the Commission has accepted liability for one or more additional
service injuries or diseases of the person (other than the original compensable
condition in respect of which the person is entitled to be paid compensation);
and
(b) the Commission is satisfied that:
(i) as a result of the additional injuries or diseases, the person suffers
additional impairment; and
(ii) the additional impairment is likely to continue indefinitely;
and
(iii) the increase in the person’s overall impairment constitutes at
least 5 impairment points; and
(iv) each of the person’s additional injuries or diseases have
stabilised; and
(c) a claim for compensation in respect of the person has been made under
section 319.
Note 1: The impairment points from more than one service
injury or disease can be combined to make up the 5 impairment points needed for
compensation to be payable.
Note 2: This subsection might also be affected by
sections 72 (aggravations), 73 (indefinite impairments) and 389 (choice to
institute action for damages).
Additional compensation for deterioration of original
condition
(2) The Commonwealth is liable to pay additional compensation to a person
who has been paid, or is entitled to be paid, compensation under this Part
(including interim compensation under section 75) for the compensable
condition if:
(a) the Commission is satisfied that:
(i) the person has suffered additional impairment as a result of a
deterioration in the person’s compensable condition; and
(ii) the additional impairment is likely to continue indefinitely;
and
(iii) the deterioration is directly related to the natural progression of
the compensable condition; and
(iv) the increase in the person’s overall impairment constitutes at
least 5 impairment points; and
(v) the person’s compensable condition has stabilised; and
(b) a claim for compensation in respect of the person has been made under
section 319.
Note 1: This subsection might be affected by
sections 72 (aggravations etc.) and 73 (indefinite
impairments).
Note 2: The Commission must be notified of the deterioration
(see paragraph 77(3)(a)).
Determination of date
(3) The Commission must determine the date on which:
(a) for additional compensation under subsection (1)—the person
became entitled to compensation under this section by satisfying
paragraph (1)(b) and section 72 (if applicable); and
(b) for additional compensation under subsection (2)—the person
became entitled to compensation under this section by satisfying
paragraph (2)(a).
(1) The Commonwealth is liable to pay additional compensation under
subsection 71(1) in respect of a single aggravated injury or disease only if the
increase in the person’s overall impairment resulting from the aggravation
or material contribution constitutes at least 5 impairment points.
(2) The amount of additional compensation that the Commonwealth is liable
to pay under subsection 71(1) in respect of the aggravated injury or disease of
a person is the amount payable in respect of the impairment points of the
person, and the effect on the person’s lifestyle, from the aggravation or
material contribution.
For the purposes of subparagraph 68(1)(b)(ii) and subparagraphs
71(1)(b)(ii) and (2)(a)(ii), in deciding whether an impairment suffered by a
person is likely to continue indefinitely, the Commission must have regard
to:
(a) the duration of the impairment; and
(b) the likelihood of improvement in the one or more service injuries or
diseases concerned; and
(c) whether the person has undertaken all reasonable rehabilitative
treatment for the impairment; and
(d) any other relevant matters.
(1) The maximum weekly amount of compensation payable to a person under
this Part (including additional compensation under section 71) is
$233.07.
Note: The amount of $233.07 is indexed under
section 404.
(2) The Commission must, as soon as practicable after the Commonwealth
becomes liable to pay compensation under section 68 or 71 to a person for
an impairment resulting from one or more service injuries or diseases:
(a) assess the effect of the injuries or diseases on the person’s
lifestyle; and
(b) determine the weekly amount of compensation to which the person is
entitled under that section.
(1) The Commonwealth is liable to pay interim compensation to a person
if:
(a) the Commission is satisfied that the person will be entitled to
compensation under section 68 or 71; and
(b) the Commission is not able to determine the degree of impairment
suffered by the person because the one or more service injuries or diseases
concerned have not stabilised; and
(c) the Commission is satisfied that the impairment suffered by the person
as a result of the injuries or diseases constitutes at least 10 impairment
points; and
(d) a claim for compensation in respect of the person has been made under
section 319.
Note 1: The impairment points from more than one service
injury or disease can be combined to make up the 10 impairment points needed for
compensation to be payable.
Note 2: Compensation is not payable under this section if
the person chooses under section 389 to institute a common law
action.
(2) The weekly amount of the interim compensation is the amount the
Commission determines to be reasonable having regard to the Commission’s
estimate of the final degree of impairment that will be suffered by the person
(but not having regard to the effect of the injuries or diseases on the
person’s lifestyle).
(3) The Commission must determine the date on which the impairment
suffered by the person constituted at least 10 impairment points.
(4) The Commission must, when the Commission becomes satisfied that the
one or more injuries or diseases concerned have all stabilised:
(a) determine the degree of impairment suffered by the person;
and
(b) assess the effect of the injuries or diseases on the person’s
lifestyle; and
(c) determine the weekly amount of compensation to which the person is
entitled.
(5) If the weekly amount determined under subsection (4) is more than
the weekly amount determined under subsection (2), the person is entitled
to an additional weekly amount equal to the difference between those
amounts.
(1) If the Commission determines, under section 74, the weekly amount
of compensation that is payable to a person under section 68 or 71, or
determines the weekly amount of interim compensation payable to a person under
subsection 75(2), the Commission must give the person a written
notice:
(a) specifying that weekly amount; and
(b) specifying what percentage that weekly amount is of the maximum weekly
amount of compensation that could be payable to a person under this Part;
and
(c) advising the person that the person can choose, under section 78,
to convert some or all of the weekly amount to a lump sum in accordance with
that section.
Note 1: Section 74 sets the maximum weekly amount of
compensation that could be payable to a person under this Part. That amount is
indexed under section 404.
Note 2: If the Commission determines that no compensation is
payable under this Part, the Commission is required to notify the person of that
determination (see section 346).
(2) If the Commission determines under subsection 75(4) a weekly amount of
compensation payable to a person that is more than the weekly amount determined
for the person under subsection 75(2), the Commission must give the person a
written notice:
(a) specifying the difference between those weekly amounts; and
(b) advising the person that the person can choose, under section 78,
to receive a lump sum instead of the difference between those weekly amounts
(whether or not the person has made a choice under that section in respect of
the amount determined for the person under subsection 75(2)).
Note: The amount of the lump sum is worked out under
subsection 78(5).
(3) The notice must specify the date on which it is given.
(4) The notice may be included in the notice given under
section 346.
(1) Weekly compensation payable to a person under section 68 is
payable from the later of:
(a) either:
(i) if compensation is payable in respect of a single service injury or
disease—the date on which a claim was made under section 319 for
acceptance of liability for the injury or disease; or
(ii) otherwise—the date on which the most recent claim was made
under section 319 for acceptance of liability for one of the service
injuries or diseases concerned; and
(b) the date determined by the Commission under paragraph
68(2)(b).
(2) Additional weekly compensation payable to a person under subsection
71(1) is payable from the later of:
(a) either:
(i) if compensation is payable in respect of a single service injury or
disease—the date on which a claim was made under section 319 for
acceptance of liability for the injury or disease; or
(ii) otherwise—the date on which the most recent claim was made
under section 319 for acceptance of liability for one of the service
injuries or diseases concerned; and
(b) the date determined by the Commission under paragraph
71(3)(a).
(3) Additional weekly compensation payable to a person under subsection
71(2) in relation to a deterioration in a person’s condition is payable
from the later of:
(a) the date on which the Commission was notified of the deterioration in
the one or more service injuries or diseases concerned; and
(b) the date determined by the Commission under paragraph
71(3)(b).
(4) Interim weekly compensation payable to a person under section 75
is payable from the later of:
(a) either:
(i) if compensation is payable in respect of a single service injury or
disease—the date on which a claim was made under section 319 for
acceptance of liability for the injury or disease; or
(ii) otherwise—the date on which the most recent claim was made
under section 319 for acceptance of liability for one of the service
injuries or diseases concerned; and
(b) the date determined by the Commission under subsection
75(3).
(5) An additional weekly amount to which a person is entitled under
subsection 75(5) is payable from the date on which the Commission becomes
satisfied that all of the person’s service injuries or diseases have
stabilised.
(1) A person who receives a notice under section 76 about a weekly
amount payable to the person under section 68 or 71 or subsection 75(2)
(the convertible amount) may choose:
(a) to convert 100% of the convertible amount to a lump sum; or
(b) if the convertible amount is at least 10%, but not more than 20%, of
the maximum weekly amount of compensation that could be payable to a person
under this Part—to convert 50% of the convertible amount to a lump sum;
or
(c) if the convertible amount is more than 20% of the maximum weekly
amount of compensation that could be payable to a person under this
Part—to convert 25%, 50% or 75% of the convertible amount to a lump
sum.
Note: Section 74 sets the maximum weekly amount of
compensation that could be payable to a person under this Part. That amount is
indexed under section 404.
(2) A person who makes the choice cannot change it.
(3) The choice must be made in writing and must be given to the Commission
within 6 months after the date on which the person received the
notice.
(4) The Commission may, either before or after the end of that period,
extend the period within which the choice must be made if it considers there are
special circumstances for doing so.
(5) The amount of the lump sum is worked out using the following
formula:
where:
appropriate percentage means the percentage chosen by the
person under subsection (1).
notice date means the date specified in the notice given to
the person under section 76.
weekly amount converted to a lump sum means the appropriate
percentage of the weekly amount payable to the person, as at the date of the
notice given to the person under section 76, converted to a lump sum in
accordance with advice from the Australian Government Actuary by reference to
the person’s age at that date.
Note: Arrears of compensation are payable for the period
between the date when compensation became payable and the notice date. These are
not subtracted from the weekly amount converted to a lump sum.
(6) However, a lump sum that can be payable to a person must not exceed
that worked out by reference to the conversion to a lump sum of a periodic
payment payable to a male aged 30.
(7) The legal personal representative of a deceased person is not entitled
to choose to convert any percentage of a weekly amount that was payable to the
deceased person to a lump sum.
(1) The lump sum is payable to the person within 30 days after the date on
which the Commission became aware of the choice under section 78.
(2) The Commonwealth is liable to pay interest to the person on the amount
of the lump sum if the lump sum is not paid to the person before the end of that
period. The interest is payable in respect of the period starting at the end of
that period of 30 days and ending on the day on which the lump sum is
paid.
(3) The interest is payable at the rate from time to time determined in
writing by the Minister.
(4) A determination under subsection (3) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This section applies to a person (the impaired person)
who has been paid, or is entitled to be paid, compensation under this Part if
the Commission has determined that the degree of impairment suffered by the
person as a result of one or more service injuries or diseases constitutes at
least 80 impairment points.
(2) The Commonwealth is liable to pay the impaired person $60,000 for each
person who is both a dependant of the impaired person and an eligible young
person at the later of:
(a) the date determined by the Commission to be the date on which the
impairment suffered by the impaired person constitutes at least 80 impairment
points; or
(b) either:
(i) if the person has a single service injury or disease—the date on
which a claim was made under section 319 for acceptance of liability for
the injury or disease; or
(ii) otherwise—the date on which the most recent claim was made
under section 319 for acceptance of liability for one of the service
injuries or diseases concerned.
Note: The amount of $60,000 is indexed under
section 404.
(3) The amount specified in subsection (2) is also payable in respect
of a son or daughter of the impaired person:
(a) who was born alive on or after the later of those times but who was
conceived before that time; or
(b) who was adopted on or after the later of those times but in respect of
whom adoption proceedings were begun before that time.
The Commonwealth is liable to pay compensation for the cost of financial
advice obtained by a person if:
(a) the Commonwealth is liable to pay compensation to the person under
section 68, 71 or 75; and
(b) the Commission determines that the impairment suffered by the person
as a result of one or more service injuries or diseases constitutes at least 50
impairment points; and
(c) after the Commission has made the determination, the person obtains
financial advice from a suitably qualified financial adviser; and
(d) a claim for compensation in respect of the person has been made under
section 319.
(1) The Commission must determine an amount of compensation under
section 81 for the cost of the financial advice that it considers
reasonable. However, the total amount must not exceed $1,200.
Note: The amount of $1,200 is indexed under
section 404.
(2) The total amount of $1,200 applies both to financial advice under this
Part for the person and financial advice under Part 6 (Special Rate
Disability Pension) for the person if the date specified in the first notice
given to the person under section 76, and the date on which the offer under
Part 6 was made, are the same.
(1) Compensation under section 81 for the cost of financial advice is
payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who gave the financial advice; or
(ii) any other person who incurred the cost of the financial
advice.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) An amount paid to the person who gave the financial advice discharges
any liability of any other person for the cost of the financial advice to the
extent of the payment.
This Part provides for compensation to be provided for current members who
are incapacitated for service as a result of a service injury or disease. The
Part also provides for compensation for some current part-time Reservists,
cadets and declared members who are incapacitated for work as a result of a
service injury or disease.
The Commission must have accepted liability for the injury or disease, and
a claim must have been made in respect of the member, to be entitled to the
compensation.
The amount of compensation a member receives for a week depends on the
difference between the member’s normal and actual earnings for the week.
The member’s normal earnings are a notional amount. The member’s
actual earnings are based on how much the member actually earns for the
week.
Normal earnings are worked out under Divisions 2 to 6, depending on
the member’s current status (for example, as a Permanent Forces member or
a Reservist) and their status at the time the service injury or disease
occurred.
Part 5 of this Chapter contains other important rules that apply in
working out normal earnings, actual earnings and the amount of compensation
generally.
(1) The Commonwealth is liable to pay compensation to a person for a week
if:
(a) the person is a Permanent Forces member or a continuous full-time
Reservist for the week; and
(b) the Commission has accepted liability for a service injury or disease
of the person; and
(c) the service injury or disease results in the person’s incapacity
for service for the week; and
(d) a claim for compensation in respect of the person has been made under
section 319.
Note: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part
weeks).
(2) The amount of compensation that the Commonwealth is liable to pay is
worked out under section 89.
Note: The Commonwealth is not liable to pay compensation if
the amount worked out under section 89 is nil or a negative
amount.
(1) The Commonwealth is liable to pay compensation to a person for a week
if:
(a) the person is a part-time Reservist for the week; and
(b) the Commission has accepted liability for a service injury or disease
of the person; and
(c) either or both of the following applies:
(i) the service injury or disease results in the person’s incapacity
for service for the week;
(ii) the service injury or disease results in the person’s
incapacity for work for the week; and
(d) the person’s service chief has not advised the Commission under
section 10 that the person is unlikely to be able to perform the duties of
a part-time Reservist in the future; and
(e) a claim for compensation in respect of the person has been made under
section 319.
Note 1: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part
weeks).
Note 2: A person whose service chief has advised the
Commission under section 10 that the person is unlikely to be able to
perform the duties of a part-time Reservist in the future might be entitled to
compensation under Part 4.
(2) The amount of compensation that the Commonwealth is liable to pay is
worked out under section 89.
Note: The Commonwealth is not liable to pay compensation if
the amount worked out under section 89 is nil or a negative
amount.
(1) The Commonwealth is liable to pay compensation to a person for a week
if:
(a) the person is a cadet or a declared member for the week; and
(b) the Commission has accepted liability for a service injury or disease
of the person; and
(c) the service injury or disease results in the person’s incapacity
for work for the week; and
(d) if the person is a cadet—the commanding officer of the
cadet’s unit (within the meaning of the Cadet Forces Regulations
1977) has not advised the Commission under section 10 that the person
is unlikely to be able to perform the duties of a cadet in the future;
and
(e) a claim for compensation in respect of the person has been made under
section 319.
Note 1: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) section 88 (aggravations etc.);
(c) section 196 (compensation for part
weeks).
Note 2: A person whose commanding officer has advised the
Commission under section 10 that the person is unlikely to be able to
perform the duties of a cadet in the future might be entitled to compensation
under Part 4.
(2) The amount of compensation that the Commonwealth is liable to pay is
worked out under section 89.
Note: The Commonwealth is not liable to pay compensation if
the amount worked out under section 89 is nil or a negative
amount.
The Commonwealth is only liable to pay compensation under
section 85, 86 or 87 in respect of an aggravated injury or disease if it is
because of the aggravation or material contribution (whether wholly or partly)
that the service injury or disease results in the person’s incapacity for
service or work for the week.
(1) The amount of compensation that the Commonwealth is liable, under
section 85, 86, or 87, to pay to a member for a week is worked out using
the following formula:
(2) However, if an amount of compensation worked out using the formula is
nil or a negative amount, then the Commonwealth is not liable to pay the
compensation for the week.
(3) Use this table to work out a member’s actual
earnings and normal earnings:
|
Definitions of actual earnings and normal
earnings |
|||
|---|---|---|---|
|
Item |
For this type of member |
actual earnings has the meaning given by... |
normal earnings has the meaning given by... |
|
1 |
A Permanent Forces member |
section 92 |
subsection 91(1) |
|
2 |
A continuous full-time Reservist |
section 92 |
subsection 91(1) |
|
3 |
A part-time Reservist to whom Division 3 applies |
section 101 |
subsection 95(1) |
|
4 |
A part-time Reservist to whom Division 4 applies |
section 105 |
subsection 104(1) |
|
5 |
A part-time Reservist to whom Division 5 applies |
section 115 |
subsection 108(1) |
|
6 |
A cadet or a declared member |
the regulations (see Division 6) |
the regulations (see Division 6) |
Note 1: If a member’s normal earnings are less than
the federal minimum wage, then the member’s normal earnings are instead
the federal minimum wage (see section 179).
Note 2: Certain amounts (such as bonuses) are excluded from
the calculation of normal and actual earnings under
section 180.
This Division tells you how to work out the normal and actual earnings for
a Permanent Forces member or a continuous full-time Reservist who is
incapacitated for service.
The normal earnings are based on how much the member would have earned for
the week if the member were not incapacitated. Normal earnings worked out under
this Division might be adjusted under Part 5.
Section 92 tells you how to work out actual earnings.
(1) The normal earnings for a week for a Permanent Forces
member, or a continuous full-time Reservist, who is incapacitated for service
means the amount worked out using the following formula:
(2) The member’s normal ADF pay for a week means the
amount of pay that the member would have earned for the week as a member of the
Defence Force if the member were not incapacitated for service.
Note: The member’s normal ADF pay might be adjusted
under Part 5.
(3) The member’s normal pay-related allowances for a
week means the total amount of compensable pay-related allowances that would
have been paid to the member for the week if the member were not incapacitated
for service.
Note: The member’s normal pay-related allowances might
be adjusted under Part 5.
(4) The member’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the member if the member were not
incapacitated for service.
(5) In this section:
compensable pay-related allowance for a member means a
pay-related allowance:
(a) that was being paid to the member immediately before the onset date
for the member’s incapacity for service; or
(b) that would be paid to the member because the member is promoted, as
mentioned in paragraph 186(2)(b).
(1) The actual earnings for a week for a Permanent Forces
member, or a continuous full-time Reservist, who is incapacitated for service
means the amount worked out using the following formula:
(2) The member’s actual ADF pay for a week means the
amount of pay that the member earns for the week as a member of the Defence
Force.
(3) The member’s actual pay-related allowances for a
week means the total amount of compensable pay-related allowances (as defined in
subsection 91(5)) that are paid to the member for the week.
This Division tells you how to work out the normal and actual earnings for
a person who is currently a part-time Reservist and who was a part-time
Reservist when the service injury or disease occurred. (For example, this
Division would apply to a person who has always been a part-time
Reservist.)
The Reservist’s normal earnings are made up of an ADF component and a
civilian component. The ADF component is based on how much the Reservist would
have earned as a part-time Reservist if the Reservist were not incapacitated for
service. The civilian component is based on how much the Reservist earned from
civilian work during an example period taken from before the onset of the
incapacity.
Normal earnings worked out under this Division might be adjusted under
Part 5.
Subdivision E tells you how to work out actual earnings.
This Division applies to a person in respect of a week if:
(a) the person is a part-time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the
week as a result of a service injury or disease; and
(c) the person was also a part-time Reservist when the service injury was
sustained or the service disease was contracted.
The person is called an incapacitated Reservist in this
Division.
(1) The normal earnings for an incapacitated Reservist
for a week is the amount worked out using the following
formula:
(2) In this section:
ADF component for a week:
(a) for an incapacitated Reservist who is incapacitated for
service—means the amount worked out under section 96; and
(b) for an incapacitated Reservist who is not incapacitated for
service—means the amount worked out under section 97.
civilian component for a week:
(a) for an incapacitated Reservist who is incapacitated for
work—means the amount worked out under section 98; and
(b) for an incapacitated Reservist who is not incapacitated for
work—means the amount worked out under section 100.
(1) The ADF component for a week for an incapacitated
Reservist who is incapacitated for service is the amount worked out using the
following formula:
Note: The expressions used in this formula are defined in
subsection (3).
(2) The Reservist’s service chief must advise the Commission in
writing of:
(a) the date on which each compensable pay-related allowance would
normally have ceased to be paid to the Reservist; and
(b) the number of days (if any) in each week that the Reservist would have
been paid as a Reservist; and
(c) the number of days (if any) in each week that the Reservist would have
been paid an amount of pay-related allowances;
if the Reservist were not incapacitated for service.
(3) In this section:
amount of pay-related allowances for an incapacitated
Reservist for a day means the total amount of compensable pay-related allowances
that would have been paid to the Reservist as a part-time Reservist for the day
if the Reservist were not incapacitated for service.
Note: The Reservist’s pay-related allowances might be
adjusted under Part 5.
compensable pay-related allowance means a pay-related
allowance:
(a) that was being paid to an incapacitated Reservist immediately before
the onset date for the Reservist’s incapacity for service; or
(b) that would be paid to an incapacitated Reservist because the Reservist
is promoted, as mentioned in paragraph 186(2)(b).
pay-related allowance days for an incapacitated Reservist for
a week means the number of days advised by the Reservist’s service chief
under paragraph (2)(c).
rate of pay for an incapacitated Reservist for a day means
the amount of pay that the Reservist would have earned for the day as a
part-time Reservist if the Reservist were not incapacitated for
service.
Note: The Reservist’s rate of pay might be adjusted
under Part 5.
reserve days for an incapacitated Reservist for a week means
the number of days advised by the Reservist’s service chief under
paragraph (2)(b).
(1) The ADF component for a week for an incapacitated
Reservist who is not incapacitated for service means the amount worked out using
the following formula:
Note: An incapacitated Reservist might only be incapacitated
for work and not incapacitated for service (see paragraph
86(1)(c)).
(2) In this section:
compensable pay-related allowance has the same meaning as in
subsection 96(3).
Working out the civilian component of normal earnings
(1) The civilian component for a week for an incapacitated
Reservist who is incapacitated for work is the amount worked out using the
following formula:
Note: The civilian component for an incapacitated Reservist
who is not incapacitated for work is worked out under
section 100.
Civilian daily earnings for those working before the onset of the
incapacity
(2) The following formula sets out how to work out the civilian
daily earnings for an incapacitated Reservist who was engaged in
civilian work before the onset date for the incapacity:
Note 1: The expressions used in this formula are defined in
subsection (5).
Note 2: The Reservist’s civilian daily earnings might
be adjusted under Part 5.
(3) If the incapacitated Reservist was required to work overtime on a
regular basis in that work, the civilian daily earnings also
include the amount worked out using the following formula:
Note: The expressions used in this formula are defined in
subsection (5).
Civilian daily earnings for those not working
(4) The civilian daily earnings for an incapacitated
Reservist who was not engaged in civilian work before the onset date for the
incapacity is nil.
Definitions
(5) In this section:
allowances for an incapacitated Reservist for a day means the
average amount of allowances (other than expense allowances) paid to the
Reservist for a day for his or her civilian work during the example
period.
civilian daily hours for an incapacitated Reservist means the
average number of hours worked each day by the Reservist in his or her civilian
work during the example period.
civilian overtime hours for an incapacitated Reservist means
the average number of hours of overtime worked each day by the Reservist in his
or her civilian work during the example period.
civilian overtime rate of pay for an incapacitated Reservist
means the average hourly overtime rate of pay for the Reservist’s overtime
in civilian work during the example period.
civilian rate of pay for an incapacitated Reservist means the
average hourly ordinary time rate of pay for the Reservist’s civilian work
during the example period.
example period has the meaning given by
section 99.
(1) For the purposes of section 98, the example period
for an incapacitated Reservist who is incapacitated for work is the
latest period of 2 weeks:
(a) during which the Reservist was continuously engaged in civilian work;
and
(b) ending before the onset date for the incapacity.
(2) However, the Commission may determine as the example
period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the civilian daily earnings for the example period under
subsection (1) would not fairly represent the daily rate at which the
Reservist was being paid for his or her civilian work before the onset date for
the incapacity.
The civilian component for a week for an incapacitated
Reservist who is not incapacitated for work is the amount the Reservist earns
(including from allowances other than expense allowances) for the week from
civilian work that he or she undertakes for the week.
Note: An incapacitated Reservist might only be incapacitated
for service and not incapacitated for work (see paragraph
86(1)(c)).
(1) The actual earnings for a week for an incapacitated
Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means
the amount of pay that the Reservist earns for the week as a part-time
Reservist.
(3) The Reservist’s actual pay-related allowances for
a week means the total amount of compensable pay-related allowances (as defined
in subsection 96(3)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the
greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in
suitable work;
(b) the amount the Reservist earns (including from allowances other than
expense allowances) for the week from civilian work that he or she undertakes
for the week.
Note: Section 181 sets out some matters the Commission
must have regard to in determining how much the person is able to earn under
paragraph (4)(a).
This Division tells you how to work out the normal and actual earnings for
a person:
(a) who is currently a part-time Reservist; and
(b) who was a Permanent Forces member or a continuous full-time Reservist
when the service injury or disease occurred; and
(c) whose last period of full-time service was as a Permanent Forces
member.
The normal earnings are based on the amount the person would have earned if
the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under
Part 5.
Section 105 tells you how to work out actual earnings.
This Division applies to a person in respect of a week if:
(a) the person is a part-time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the
week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full-time
Reservist, when the service injury was sustained or the service disease
contracted; and
(d) the person was a Permanent Forces member immediately before completing
his or her last period of full-time service.
The person is called an incapacitated Reservist in this
Division.
(1) The normal earnings for a week for an incapacitated
Reservist means the amount worked out using the following formula:
Note: The amount of $100 is indexed under
section 183.
(2) The Reservist’s full-time ADF pay for a week means
the amount of pay that the Reservist would have earned for the week as a
Permanent Forces member if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s full-time ADF pay might be
adjusted under Part 5.
(3) The Reservist’s allowance component for a week
means the total amount of compensable pay-related allowances that would have
been paid to the Reservist for the week if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s allowance component might be
adjusted under Part 5.
(4) The Reservist’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the Reservist if:
(a) the Reservist were still a Permanent Forces member; and
(b) the Reservist were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for an incapacitated
Reservist means a pay-related allowance:
(a) that was being paid to the Reservist immediately before completing his
or her last period of full-time service; or
(b) that the Reservist would have been paid after completing his or her
initial training, as mentioned in section 189.
(1) The actual earnings for a week for an incapacitated
Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means
the amount of pay that the Reservist earns for the week as a part-time
Reservist.
(3) The Reservist’s actual pay-related allowances for
a week means the total amount of compensable pay-related allowances (as defined
in subsection 104(5)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the
greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in
suitable work;
(b) the amount the Reservist earns (including from allowances other than
expense allowances) for the week from civilian work that he or she undertakes
for the week.
Note: Section 181 sets out some matters the Commission
must have regard to in determining how much the person is able to earn under
paragraph (4)(a).
This Division tells you how to work out the normal and actual earnings for
a person:
(a) who is currently a part-time Reservist; and
(b) who was a Permanent Forces member or a continuous full-time Reservist
when the service injury or disease occurred; and
(c) whose last period of full-time service was as a continuous full-time
Reservist.
The Reservist has a one-off choice between 2 ways of working out normal
earnings. Normal earnings can be based on the amount the person would have
earned if the person were still a continuous full-time Reservist. (This amount
is called the full-time ADF earnings.) Alternatively, normal earnings can be
based on the Reservist’s earnings from other work engaged in before
beginning his or her last period of continuous full-time service. (This amount
is called the pre-CFTS earnings.)
Normal earnings worked out under this Division might be adjusted under
Part 5.
This Division applies to a person in respect of a week if:
(a) the person is a part-time Reservist for the week; and
(b) the person is incapacitated for either or both service or work for the
week as a result of a service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full-time
Reservist, when the service injury was sustained or the service disease was
contracted; and
(d) the person was a continuous full-time Reservist immediately before
completing his or her last period of full-time service.
The person is called an incapacitated Reservist in this
Division.
(1) The normal earnings for the week for an incapacitated
Reservist means whichever of the following amounts is chosen by the
Reservist:
(a) the amount of the Reservist’s full-time ADF earnings for a week
(see Subdivision C);
(b) the amount of the Reservist’s pre-CFTS earnings for a week (see
Subdivision D).
(2) The Reservist must inform the Commission in writing of his or her
choice between the full-time ADF earnings and the pre-CFTS earnings.
(3) The Reservist is only entitled to make one choice for all weeks in
respect of which this Division applies. The Reservist cannot change his or her
choice once it has been made.
(1) The full-time ADF earnings for a week for an
incapacitated Reservist means the amount worked out using the following
formula:
Note: The amount of $100 is indexed under
section 183.
(2) The Reservist’s full-time ADF pay for a week means
the amount of pay that the Reservist would have earned for the week as a
continuous full-time Reservist if:
(a) the Reservist were still a continuous full-time Reservist;
and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s full-time ADF pay might be
adjusted under Part 5.
(3) The Reservist’s allowance component for a week
means the total amount of compensable pay-related allowances that would have
been paid to the Reservist for the week if:
(a) the Reservist were still a continuous full-time Reservist;
and
(b) the Reservist were not incapacitated for service.
Note: The Reservist’s allowance component might be
adjusted under Part 5.
(4) The Reservist’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the Reservist if:
(a) the Reservist were still a continuous full-time Reservist;
and
(b) the Reservist were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for an incapacitated
Reservist means a pay-related allowance:
(a) that was being paid to the Reservist immediately before completing his
or her last period of full-time service; or
(b) that the Reservist would have been paid after completing his or her
initial training, as mentioned in section 189.
The pre-CFTS earnings are worked out by looking back at the period before
the Reservist began his or her last period of continuous full-time service.
During this period, the Reservist might have been a part-time Reservist as well
as being engaged in other work.
The Reservist’s pre-CFTS earnings have 2 components: pre-CFTS pay and
reserve pay. The Reservist’s pre-CFTS pay is based on earnings from work
the Reservist was engaged in before beginning the last period of continuous
full-time service. The work engaged in might be civilian work or defence work
(as some people become continuous full-time Reservists after being Permanent
Forces members). The Reservist’s reserve pay is based on earnings from
service as a part-time Reservist.
(1) The pre-CFTS earnings for a week for an incapacitated
Reservist means the amount worked out using the following formula:
(2) In this section:
pre-CFTS pay for a person for a week is worked out under
section 112.
reserve pay for a person for a week is worked out under
section 114.
Pre-CFTS pay for those engaged in work before beginning last period of
full-time service
(1) The following formula sets out how to work out the pre-CFTS pay
for a week for an incapacitated Reservist who was engaged in work before
beginning his or her last period of continuous full-time service:
Note 1: The expressions used in this formula are defined in
subsection (4).
Note 2: The Reservist’s pre-CFTS pay might be adjusted
under Part 5.
(2) If the incapacitated Reservist was required to work overtime on a
regular basis in that work, the pre-CFTS pay for a week also
includes the amount worked out using the following formula:
Note: The expressions used in this formula are defined in
subsection (4).
Pre-CFTS pay for those not working
(3) The pre-CFTS pay for a week for an incapacitated
Reservist who was not engaged in work before beginning his or her last period of
full-time service is nil.
Definitions
(4) In this section:
allowances for an incapacitated Reservist for a week is the
average amount of allowances (other than expense allowances) paid to the
Reservist for a week for his or her work during the example period.
example period has the meaning given by
section 113.
pre-CFTS overtime hours for an incapacitated Reservist means
the average number of hours of overtime worked each week by the Reservist in his
or her work during the example period.
pre-CFTS overtime rate of pay for an incapacitated Reservist
means the average hourly overtime rate of pay for the Reservist’s overtime
in work during the example period.
pre-CFTS rate of pay for an incapacitated Reservist means the
Reservist’s average hourly ordinary time rate of pay for the
Reservist’s work during the example period.
pre-CFTS weekly hours for an incapacitated Reservist means
the average number of hours worked in each week by the Reservist in his or her
work during the example period.
work includes work as a member of the Defence Force (other
than as a part-time Reservist).
Note: A person might have been a Permanent Forces member
before beginning his or her last period of continuous full-time service. This
work is taken into account in working out pre-CFTS pay. However, work as a
part-time Reservist is taken into account in working out reserve
pay.
(1) For the purposes of section 112, the example period
for an incapacitated Reservist is the latest period of 2
weeks:
(a) during which the Reservist was continuously engaged in work (as
defined in subsection 112(4)); and
(b) ending before the Reservist began his or her last period of continuous
full-time service.
(2) However, the Commission may determine as the example
period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre-CFTS pay for the example period under subsection (1) would
not fairly represent the weekly rate at which the Reservist was being paid for
his or her work before beginning the continuous full-time
service.
Reserve pay for persons who were part-time Reservists
(1) The reserve pay for a week for an incapacitated
Reservist who was a part-time Reservist before beginning his or her last period
of continuous full-time service is worked out using the following
formula:
Note: The expressions used in this formula are defined in
subsection (4).
(2) The Reservist’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the Reservist if the Reservist were not
incapacitated for service.
Reserve pay for persons who were not part-time Reservists
(3) The reserve pay for a week for an incapacitated
Reservist who was not a part-time Reservist before beginning his or her last
period of continuous full-time service is nil.
Definitions
(4) In this section:
amount of pay-related allowances for an incapacitated
Reservist for a day means the total amount of compensable pay-related allowances
that would have been paid to the Reservist for the day if the Reservist were not
incapacitated for service.
Note: The Reservist’s pay-related allowances might be
adjusted under Part 5.
compensable pay-related allowance for an incapacitated
Reservist means a pay-related allowance:
(a) that was being paid to the Reservist immediately before the Reservist
began his or her last period of continuous full-time service; or
(b) that would be paid to the Reservist because the Reservist is promoted,
as mentioned in paragraph 186(2)(b).
example period for an incapacitated Reservist
means:
(a) the latest period of one year:
(i) during which the Reservist was a part-time Reservist; and
(ii) ending before the Reservist began his or her last period of
continuous full-time service; or
(b) such other period that the Commission determines is
reasonable.
pay-related allowance days for an incapacitated Reservist for
a week means the average number of days (if any) served each week during the
example period for which the Reservist was paid a pay-related
allowance.
rate of pay for an incapacitated Reservist for a day means
the amount of pay that the Reservist would have been paid for the day as a
part-time Reservist if the Reservist were not incapacitated for
service.
Note: The Reservist’s rate of pay might be adjusted
under Part 5.
reserve days for an incapacitated Reservist for a week means
the average number of days (if any) served each week during the example period
for which the Reservist was paid as a part-time Reservist.
(1) The actual earnings for a week for an incapacitated
Reservist means the amount worked out using the following formula:
(2) The Reservist’s actual ADF pay for a week means
the amount of pay that the Reservist earns for the week as a part-time
Reservist.
(3) The Reservist’s actual pay-related allowances for
a week means the total amount of compensable pay-related allowances (as defined
in subsection 114(4)) that are paid to the Reservist for the week.
(4) The Reservist’s actual civilian earnings means the
greater of the following amounts:
(a) the weekly amount (if any) that the Reservist is able to earn in
suitable work;
(b) the amount the Reservist earns (including from allowances other than
expense allowances) for the week from civilian work that he or she undertakes
for the week.
Note: Section 181 sets out some matters the Commission
must have regard to in determining how much the person is able to earn under
paragraph (4)(a).
The regulations may prescribe one or more methods of working out the
normal earnings and actual earnings for persons who are cadets or declared
members.
Note: The regulations may also modify the application of
this Part in respect of cadets and declared members (see
section 439).
This Part provides for compensation to be provided for former members who
are incapacitated for work as a result of a service injury or disease. The
Commission must have accepted liability for the injury or disease, and a claim
must have been made in respect of the former member, to be entitled to the
compensation.
The amount of compensation a person receives for a week depends on the
difference between the person’s normal and actual earnings for the week.
The person’s normal earnings are a notional amount. The person’s
actual earnings are based on how much the person actually earns for the
week.
Normal earnings are worked out under Divisions 3 to 8.
Division 3 applies to a person who left the Defence Force as a
Permanent Forces member. Division 4 applies to a person who left the
Defence Force as a continuous full-time Reservist.
Divisions 5 to 8 apply to a person who left the Defence Force as a
part-time Reservist. The Division that applies depends on the person’s
status (for example, as a Permanent Forces member or a Reservist) when the
service injury or disease occurred and on leaving the Defence Force.
Part 5 of this Chapter contains other important rules that apply in
working out normal earnings, actual earnings and the amount of compensation
generally.
(1) The Commonwealth is liable to pay compensation to a person for a week
if:
(a) the person is a former member; and
(b) the Commission has accepted liability for a service injury or disease
of the person; and
(c) the service injury or disease results in the person’s incapacity
for work for the week; and
(d) a claim for compensation in respect of the person has been made under
section 319.
Note: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) section 119 (aggravations etc.);
(c) sections 120 and 121 (persons who are 63 or
more);
(d) section 122 (imprisonment of
persons);
(e) section 138 (small amounts of
compensation);
(f) section 196 (compensation for part
weeks).
(2) The amount of compensation that the Commonwealth is liable to pay
is:
(a) if a person has chosen to receive a Special Rate Disability Pension
under Part 6—the amount worked out under Part 6; or
(b) otherwise—the amount worked out under Division 2 of this
Part.
Note: The Commonwealth is not liable to pay compensation if
the amount worked out under Division 2 is nil or a negative
amount.
The Commonwealth is only liable, under section 118, to pay
compensation in respect of an aggravated injury or disease if it is because of
the aggravation or material contribution (whether wholly or partly) that the
service injury or disease results in the person’s incapacity for work for
the week.
Other than as provided in section 121, the Commonwealth is not
liable to pay compensation to a person to whom section 118 applies if the
person is 65 or older.
(1) This section applies to a person if:
(a) section 118 applies to the person; and
(b) the person’s service injury is sustained, or service disease is
contracted, when the person is 63 or older.
(2) The Commonwealth is only liable, under section 118, to pay
compensation to the person for a maximum of 104 weeks (whether consecutive or
not) during which the person is incapacitated for work.
The Commonwealth is not liable to pay compensation for a week to a person
to whom section 118 applies if the person is imprisoned for the week in
connection with his or her conviction of an offence.
This Division tells you how to work out the amount of compensation a former
member receives for a week during which her or she is incapacitated for work
(other than for a person who has chosen to receive a Special Rate Disability
Pension).
Different methods for working out the amount of compensation apply in
different situations (such as where a person is also receiving Commonwealth
superannuation). This Subdivision gives an overview of where these different
methods are found in this Division.
The normal rule for working out the amount of compensation is found in
Subdivision C.
Special rules apply in the following cases:
(a) retired persons who are receiving Commonwealth superannuation (see
section 126);
(b) those maintained in hospitals etc. (see section 127);
(c) those receiving small amounts of compensation (see Subdivision
E);
(d) those who choose to receive a Special Rate Disability Pension (see
Part 6).
Amount of compensation generally
(1) Generally, the amount of compensation that the Commonwealth is liable,
under section 118, to pay to a person for a week is worked out under
Subdivision C.
Amount of compensation for others
(2) Subsection (1) does not apply if any of the following provisions
apply instead:
(a) section 126 (retired persons receiving Commonwealth
superannuation);
(b) section 127 (those maintained in hospitals etc.);
(c) Subdivision E (small amounts of compensation);
(d) Part 6 (those who choose to receive a Special Rate Disability
Pension).
No compensation if amount worked out is nil or a negative
amount
(3) If an amount of compensation worked out under this Division is nil or
a negative amount, then the Commonwealth is not liable to pay the compensation
for the week.
The amount of compensation that the Commonwealth is liable, under
section 118, to pay for a week to a person who:
(a) has retired voluntarily, or is compulsorily retired, from his or her
work; and
(b) receives either or both a pension or lump sum under a Commonwealth
superannuation scheme as a result of the retirement;
is worked out in accordance with the following sections:
(c) if the person is receiving only a
pension—section 134;
(d) if the person has received only a lump
sum—section 135;
(e) if the person is receiving a pension and has received a lump
sum—section 136.
Application of section
(1) This section applies to a person (the patient)
if:
(a) the patient has been continuously maintained in a hospital or other
institution as a result of a service injury or disease for at least one year;
and
(b) the patient is still being maintained as such a patient; and
(c) the patient has:
(i) no dependants; and
(ii) no dependent young persons (see subsection (4)); and
(iii) no carer for a dependent young person (see subsection (4));
and
(d) subsection 125(1) would apply to the patient but for the operation of
this section.
Amount of compensation
(2) The Commission must determine the amount of compensation that it
considers reasonable that the Commonwealth is liable, under section 118, to
pay to the patient for each week during which he or she is so maintained.
However, the amount must be at least one-half of, and not more than, the amount
of compensation that would otherwise have been payable to the patient for a week
if subsection 125(1) had applied.
Matters to be considered
(3) In determining the amount, the Commission must have regard
to:
(a) the present and probable future needs and expenses of the patient;
and
(b) the period during which the patient is likely to remain a patient in
the hospital or the other institution.
The Commission must not have regard to any other matter.
Definitions
(4) In this section:
carer for a dependent young person means a person:
(a) who is wholly or mainly maintained by the patient; and
(b) who has the care of a dependent young person (other than a person who
has that care only because the patient remunerates that person for caring for
the young person).
dependent young person means an eligible young person who is
dependent on the patient.
This Subdivision tells you the normal rule for working out the amount of
compensation for a former member.
The person is paid a full amount of compensation for at least the first 45
weeks of the incapacity. A reduced rate of compensation might be paid after that
depending on how many hours a week the person is working.
(1) If subsection 125(1) applies to a person, the amount of compensation
that the Commonwealth is liable, under section 118, to pay to the person
for a week that is a maximum rate week is worked out using the following
formula:
Note: Section 132 defines normal earnings
and actual earnings.
(2) In this Subdivision, a week is a maximum rate week for a
person who is incapacitated for work if:
(a) it is a week during which:
(i) the person’s incapacity prevents the person from working his or
her normal weekly hours; or
(ii) if the person is working his or her normal weekly hours, the
person’s incapacity prevents the person from working at the level at which
he or she worked before the incapacity; and
(b) the total number of hours in that week, and in all previous maximum
rate weeks (if any), during which the incapacity has prevented the person from
so working, does not exceed 45 times the person’s normal weekly
hours.
Note: Section 132 defines normal weekly
hours.
(1) If during, but before the end of, a particular week the total number
of hours worked out in accordance with paragraph 129(2)(b) exceeds 45 times the
normal weekly hours for a person, then:
(a) subsection (2) applies in respect of the hours that elapse before
that number is exceeded (the maximum rate hours as defined in
subsection (2)); and
(b) subsection (3) applies in respect of the remaining hours in the
week (the reduced rate hours as defined in subsection (3)).
Note: Section 132 defines normal weekly
hours.
Amount of compensation in respect of maximum rate hours
(2) The amount of compensation that the Commonwealth is liable, under
section 118, to pay to a person in respect of the maximum rate hours is
worked out using the following formula:
where:
maximum rate hours for a person means the total number of
hours in the week:
(a) that would have counted towards the person’s normal weekly hours
(whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance
with paragraph 129(2)(b) exceeds 45 times the person’s normal weekly
hours.
Note: Section 132 defines normal weekly
hours, normal earnings and actual
earnings.
Amount of compensation in respect of reduced rate hours
(3) The amount of compensation that the Commonwealth is liable, under
section 118, to pay to a person in respect of the reduced rate hours is
worked out using the following formula:
where:
reduced compensation amount for a person means the amount of
compensation worked out in accordance with section 131 if that section had
applied for the whole week.
reduced rate hours for a person means the total number of
hours worked out using the following formula:
Note: Section 132 defines normal weekly
hours. Subsection (2) defines maximum rate
hours.
(1) If subsection 125(1) applies to a person, the amount of compensation
that the Commonwealth is liable, under section 118, to pay to the person
for a week (other than a week in respect of which section 129 or 130
applies) is worked out using the following formula:
(2) In this section:
adjustment percentage for a person for a week means the
following percentage:
(a) if the person is not working during that week—75%;
(b) if the person is working for 25% or less of his or her normal weekly
hours during that week—80%;
(c) if the person is working for more than 25% but not more than 50% of
his or her normal weekly hours during that week—85%;
(d) if the person is working for more than 50% but not more than 75% of
his or her normal weekly hours during that week—90%;
(e) if the person is working for more than 75% but less than 100% of his
or her normal weekly hours during that week—95%;
(f) if the person is working for 100% or more of his or her normal weekly
hours during that week—100%.
Note: Section 132 defines normal weekly
hours, normal earnings and actual
earnings.
(1) In this Part:
actual earnings for a person for a week means the greater of
the following amounts:
(a) the weekly amount (if any) that the person is able to earn in suitable
work;
(b) the amount (if any) that the person earns for the week (including from
allowances other than expense allowances) from any work that is undertaken by
the person during the week.
Note 1: Bonuses are excluded from the calculation of actual
earnings under section 180.
Note 2: Section 181 sets out some matters that the
Commission must have regard to in determining the amount that the person is able
to earn under paragraph (a).
(2) Use this table to work out the normal earnings and the
normal weekly hours for a person:
|
Definitions of normal earnings and normal weekly
hours |
|||
|---|---|---|---|
|
Item |
For this type of person |
normal earnings has the meaning given by... |
normal weekly hours means... |
|
1 |
A person who was a Permanent Forces member immediately before last ceasing
to be a member |
Division 3 |
37.5 hours |
|
2 |
A person who was a continuous full-time Reservist immediately before last
ceasing to be a member |
Division 4 |
(a) if the person has chosen pre-CFTS earnings under
section 143—the number of hours worked out under section 150;
or (b) otherwise—37.5 hours |
|
3 |
A person who is or was a part-time Reservist to whom section 152
applies |
Division 5 |
the number of hours worked out under section 158 |
|
4 |
A person who is or was a part-time Reservist to whom section 160
applies |
Division 6 |
37.5 hours |
|
5 |
A person who is or was a part-time Reservist to whom section 163
applies |
Division 7 |
37.5 hours |
|
6 |
A person who is or was a part-time Reservist to whom section 166
applies |
Division 8 |
(a) if the person has chosen pre-CFTS earnings under
section 167—the number of hours worked out under section 174;
or (b) otherwise—37.5 hours |
|
7 |
A former cadet or declared member |
the regulations (see Division 9) |
the number of hours worked out under the regulations (see
Division 9) |
Note 1: If a person’s normal earnings are less than
the federal minimum wage, then the person’s normal earnings are instead
the federal minimum wage (see section 179).
Note 2: Certain amounts (such as bonuses) are excluded from
the calculation of normal earnings under section 180.
This Subdivision tells you how to work out the amount of compensation a
person receives for a week if the person receives or has received Commonwealth
superannuation.
The method of working out the amount of compensation depends on whether the
person:
(a) is receiving only a Commonwealth superannuation pension (see
section 134); or
(b) has received only a Commonwealth superannuation lump sum (see
section 135); or
(c) has received a lump sum and is receiving a pension (see
section 136).
Basically, the amount of compensation paid is the amount worked out under
Subdivision C reduced by the amount of superannuation received.
(1) If paragraph 126(c) applies to a person, the amount of compensation
that the Commonwealth is liable, under section 118, to pay to the person
for a week is worked out using the following formula:
(2) In this Subdivision:
Subdivision C compensation amount for a person for a week
means the amount of compensation the person would have been paid for the week if
Subdivision C had applied.
superannuation pension amount for a person who receives a
pension for a week under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the pension as attributable to the
contributions made under the scheme by the Commonwealth, a Commonwealth
authority or a licensed corporation—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the pension
that is attributable to the contribution made under the scheme by the
Commonwealth, a Commonwealth authority or a licensed corporation; or
(ii) if such an assessment cannot be made—the amount of the pension
received by the person for the week.
(1) If paragraph 126(d) applies to a person, the amount of compensation
that the Commonwealth is liable, under section 118, to pay to the person
for a week is worked out using the following formula:
(2) In this Subdivision:
superannuation age-based number for a person who receives a
lump sum under a Commonwealth superannuation scheme means the number that is
advised by the Australian Government Actuary by reference to the person’s
age on the day on which the lump sum is paid.
superannuation lump sum amount for a person who receives a
lump sum under a Commonwealth superannuation scheme means:
(a) if the scheme identifies a part of the lump sum as attributable to the
contributions made under the scheme by the Commonwealth, a Commonwealth
authority or a licensed corporation—the amount of that part; or
(b) in any other case, either:
(i) the amount assessed by the Commission to be the part of the lump sum
that is attributable to the contribution made under the scheme by the
Commonwealth, a Commonwealth authority or a licensed corporation; or
(ii) if such an assessment cannot be made—the amount of the lump
sum.
Note: Subsection 134(2) defines Subdivision C
compensation amount.
If paragraph 126(e) applies to a person, the amount of compensation that
the Commonwealth is liable, under section 118, to pay to the person for a
week is worked out using the following formula:
Note: Subsection 134(2) defines Subdivision C
compensation amount and superannuation pension amount.
Subsection 135(2) defines superannuation age-based number and
superannuation lump sum amount.
Under this Subdivision, a person who receives weekly compensation of $150
or less is entitled to convert that amount into a lump sum if the person is
still working or is receiving or has received Commonwealth
superannuation.
If the person later stops working because the person’s condition
deteriorates, or the person stops receiving the superannuation, then the person
can be paid compensation on a weekly basis again.
(1) This section applies if:
(a) apart from this section, the Commonwealth would be liable to pay an
amount of compensation, worked out in accordance with subsection 125(1) or
section 126, of $150 or less for a person’s incapacity for work for a
week; and
(b) the person:
(i) is engaged in work; or
(ii) is receiving a pension under a Commonwealth superannuation scheme;
or
(iii) has received a lump sum under a Commonwealth superannuation scheme;
and
(c) the Commission is satisfied that the degree of the person’s
incapacity is unlikely to change; and
(d) the person advises the Commission in writing that he or she chooses to
receive a lump sum under this Division rather than weekly payments.
Note 1: The Commonwealth might later be liable for weekly
compensation if the person becomes unable to engage in work or stops receiving
superannuation (see section 139).
Note 2: The amount of $150 is indexed under
section 404.
(2) Instead of being liable to pay compensation for that week and future
weeks, the amount of compensation that the Commonwealth is liable to pay is the
amount of the lump sum worked out using the following formula:
Note: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) section 122 (persons who are
imprisoned);
(c) subsection 125(3) (nil and negative
amounts).
(3) In this section:
n means the number worked out using the formula:
where:
number of days means the number of days in the period
beginning on the day after the day on which the person advises the Commission of
his or her choice under paragraph (1)(d) and ending:
(a) if the person’s service injury is sustained, or service disease
is contracted, before the person turns 63—on the day before the person
turns 65; and
(b) if the person’s service injury is sustained, or service disease
is contracted, on or after the day on which the person turns 63—on the day
before the person is no longer entitled to compensation under this
Part.
specified number means the number specified in writing (in
decimal notation) by the Commission for the purposes of this
definition.
weekly amount means the amount payable to the person under
section 118 for the week in which the person advises the Commission of his
or her choice under paragraph (1)(d).
(1) This section applies if:
(a) the Commonwealth has paid a lump sum to a person under
section 138 in respect of the person’s incapacity for work;
and
(b) either:
(i) subparagraph 138(1)(b)(i) applied and the person’s condition
later deteriorates to the extent that the person is no longer able to engage in
work; or
(ii) subparagraph 138(1)(b)(ii) applied and the person stops receiving the
pension under the Commonwealth superannuation scheme; and
(c) the Commission is satisfied that the person’s incapacity is
likely to continue indefinitely.
(2) The Commonwealth is liable to pay compensation under section 118
for each week during which the person continues to be incapacitated for
work.
Note: This section might be affected by the following
provisions:
(a) sections 50, 52 and 329 (failure to undergo
examination or rehabilitation program);
(b) sections 120 and 121 (persons who are 63 or
more);
(c) section 122 (imprisonment of
persons);
(d) section 196 (compensation for part
weeks).
(3) The amount of compensation that the Commonwealth is liable to pay for
a week is worked out using the following formula:
Note: The Commonwealth is not liable to pay compensation if
the amount worked out is nil or a negative amount (see subsection
125(3)).
(4) In subsection (3):
Subdivision C or D compensation amount for a person for a
week means the amount of compensation the person would have been paid for the
week if Subdivision C or D had applied.
weekly amount has the same meaning as in subsection
138(3).
This Division tells you how to work out the normal earnings for a person
who left the Defence Force as a Permanent Forces member.
The normal earnings are based on how much the person would have earned for
the week if the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under
Part 5.
(1) The normal earnings for a week for a person who was a
Permanent Forces member immediately before last ceasing to be a member of the
Defence Force means the amount worked out using the following
formula:
Note: The amount of $100 is indexed under
section 183.
(2) The person’s ADF pay for a week means the amount
of pay that the person would have earned for the week as a Permanent Forces
member if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s ADF pay for a week might be
adjusted under Part 5.
(3) The person’s allowance component for a week means
the total amount of compensable pay-related allowances that would have been paid
to the person for the week if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component for a week
might be adjusted under Part 5.
(4) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for a person means a
pay-related allowance:
(a) that was being paid to the person immediately before the person last
ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her
initial training, as mentioned in section 189.
This Division tells you how to work out the normal earnings for a person
who left the Defence Force as a continuous full-time Reservist.
The person has a one-off choice between 2 ways of working out normal
earnings. Normal earnings can be based on the amount the person would have
earned if the person were still a continuous full-time Reservist. (This amount
is called the ADF earnings.) Alternatively, normal earnings can be based on the
person’s earnings from other work engaged in before beginning his or her
last period of continuous full-time service. (This amount is called the pre-CFTS
earnings.)
Normal earnings worked out under this Division might be adjusted under
Part 5.
Subdivision E tells you how to work out the normal weekly hours for a
person who chooses the pre-CFTS earnings. (Normal weekly hours for a person who
chooses the ADF earnings are 37.5 hours (see subsection 132(2).)
(1) The normal earnings for a week for a person who was a
continuous full-time Reservist immediately before last ceasing to be a member of
the Defence Force means whichever of the following amounts is chosen by the
person:
(a) the amount of the person’s ADF earnings for a week (see
Subdivision C);
(b) the amount of the person’s pre-CFTS earnings for a week (see
Subdivision D).
(2) The person must inform the Commission in writing of his or her choice
between the ADF earnings and the pre-CFTS earnings.
(3) The person is only entitled to make one choice for all weeks in
respect of which subsection (1) applies. The person cannot change his or
her choice once it has been made.
(1) The ADF earnings for a week for a person who was a
continuous full-time Reservist immediately before last ceasing to be a member of
the Defence Force means the amount worked out using the following
formula:
Note: The amount of $100 is indexed under
section 183.
(2) The person’s ADF pay for a week means the amount
of pay that the person would have earned for the week as a continuous full-time
Reservist if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s ADF pay for a week might be
adjusted under Part 5.
(3) The person’s allowance component for a week means
the total amount of compensable pay-related allowances that would have been paid
to the person for the week if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component for a week
might be adjusted under Part 5.
(4) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for a person means a
pay-related allowance:
(a) that was being paid to the person immediately before the person last
ceased to be a member of the Defence Force; or
(b) that the person would have been paid after completing his or her
initial training, as mentioned in section 189.
The pre-CFTS earnings are worked out by looking back at the period before
the person began his or her last period of continuous full-time service. During
this period, the person might have been a part-time Reservist as well as being
engaged in work.
The person’s pre-CFTS earnings has 2 components: pre-CFTS pay and
reserve pay.
The person’s pre-CFTS pay is based on earnings from work the person
was engaged in before beginning the last period of continuous full-time service.
The work engaged in might be civilian work or defence work (as some people
become continuous full-time Reservists after being Permanent Forces
members).
The person’s reserve pay is based on earnings from service as a
part-time Reservist.
(1) The pre-CFTS earnings for a week for a person who was a
continuous full-time Reservist immediately before last ceasing to be a member of
the Defence Force means the amount worked out using the following
formula:
(2) In this section:
pre-CFTS pay for a person for a week means the amount worked
out under section 147.
reserve pay for a person for a week means the amount worked
under section 149.
Pre-CFTS pay for those engaged in work before beginning last period of
full-time service
(1) The following formula sets out how to work out the pre-CFTS pay
for a week for a person who was engaged in work before beginning his or
her last period of continuous full-time service:
Note 1: The expressions used in this formula are defined in
subsection (4).
Note 2: The person’s pre-CFTS pay might be adjusted
under Part 5.
(2) If the person was required to work overtime on a regular basis in that
work, the pre-CFTS pay for a week also includes the amount worked
out using the following formula:
Note: The expressions used in this formula are defined in
subsection (4).
Pre-CFTS pay for those not working
(3) The pre-CFTS pay for a week for a person who was not
engaged in work before beginning his or her last period of continuous full-time
service is nil.
Definitions
(4) In this section:
allowances for a person for a week is the average amount of
allowances (other than expense allowances) paid to the person for a week for his
or her work during the example period.
example period has the meaning given by
section 148.
pre-CFTS overtime hours for a person means the average number
of hours of overtime worked each week by the person in his or her work during
the example period.
pre-CFTS overtime rate of pay for a person means the average
hourly overtime rate of pay for the person’s overtime in his or her work
during the example period.
pre-CFTS rate of pay for a person means the person’s
average hourly ordinary time rate of pay for the person’s work during the
example period.
pre-CFTS weekly hours for a person means the average number
of hours worked in each week by the person in his or her work during the example
period.
work includes work as a member of the Defence Force (other
than as a part-time Reservist).
Note: A person might have been a Permanent Forces member
before beginning his or her last period of continuous full-time service. This
work is taken into account in the pre-CFTS pay. However, work as a part-time
Reservist is taken into account in working out the reserve pay.
(1) For the purposes of section 147, the example period
for a person who was a continuous full-time Reservist immediately before
last ceasing to be a member of the Defence Force is the latest period of 2
weeks:
(a) during which the person was continuously engaged in work (as defined
in subsection 147(4)); and
(b) ending before the person began his or her last period of continuous
full-time service.
(2) However, the Commission may determine as the example
period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre-CFTS pay for the example period under subsection (1) would
not fairly represent the weekly rate at which the person was being paid for his
or her work before beginning the continuous full-time service.
Reserve pay for persons who were part-time Reservists
(1) The reserve pay for a week for a person who was a
part-time Reservist immediately before beginning his or her last period of
continuous full-time service is the amount worked out using the following
formula:
Note: The expressions used in this subsection are defined in
subsection (4).
(2) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a part-time Reservist; and
(b) the Reservist were not incapacitated for service.
Reserve pay for persons who were not part-time Reservists
(3) The reserve pay for a week for a person who was not a
part-time Reservist immediately before beginning his or her last period of
continuous full-time service is nil.
Definitions
(4) In this section:
amount of pay-related allowances for a person for a day means
the total amount of compensable pay-related allowances that would have been paid
to the person for the day if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay-related allowances might be
adjusted under Part 5.
compensable pay-related allowance for a person means a
pay-related allowance:
(a) that was being paid to the person immediately before the person began
his or her last period of continuous full-time service; or
(b) that would be paid to the person because the person is promoted, as
mentioned in section 186.
example period for a person who was a part-time Reservist
immediately before beginning his or her last period of continuous full-time
service is:
(a) the latest period of one year:
(i) during which the person was a part-time Reservist; and
(ii) ending before the person began that continuous full-time service;
or
(b) such other period that the Commission determines is
reasonable.
pay-related allowance days for a person for a week means the
average number of days (if any) served each week during the example period for
which the person was paid an amount of pay-related allowances.
rate of pay for a person for a day means the amount of pay
that the person would have been paid for the day as a part-time Reservist
if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under
Part 5.
reserve days for a person for a week means the average number
of days (if any) served each week during the example period for which the person
was paid as a part-time Reservist.
(1) The normal weekly hours for a person who has chosen the
pre-CFTS earnings under section 143 are worked out using the
following formula:
(2) In this section:
ADF hours for a person means the average number of hours per
week (if any) during the example period (as defined in subsection 149(4)) for
which the person was paid as a part-time Reservist.
pre-CFTS overtime hours has the meaning given by subsection
147(4).
pre-CFTS weekly hours has the meaning given by subsection
147(4).
This Division tells you how to work out the normal earnings for a person
who:
(a) was a part-time Reservist when the service injury or disease occurred;
and
(b) was still a part-time Reservist when he or she left the Defence Force;
and
(c) was working in civilian work before leaving the Defence
Force.
The person’s normal earnings are made up of an ADF component and a
civilian component. The ADF component is based on how much the person would have
earned as a part-time Reservist if the person were still a part-time Reservist.
The civilian component is based on how much the person earned from civilian work
during an example period taken before the person left the Defence
Force.
Normal earnings worked out under this Division might be adjusted under
Part 5.
Subdivision E tells you how to work out the normal weekly hours for the
person.
This Division applies to a person in respect of a week if:
(a) the person was a part-time Reservist immediately before last ceasing
to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a
service injury or disease; and
(c) the person was also a part-time Reservist when the service injury was
sustained or the service disease was contracted; and
(d) the person was engaged in civilian work before last ceasing to be a
member of the Defence Force.
The person is called an incapacitated person in this
Division.
(1) The normal earnings for an incapacitated person for a
week is the amount worked out using the following formula:
(2) In this section:
ADF component for an incapacitated person for a week means
the amount worked out under Subdivision C.
civilian component for an incapacitated person for a week
means the amount worked out under Subdivision D.
(1) The ADF component for a week for an incapacitated person
is the amount worked out using the following formula:
Note: The expressions used in this subsection are defined in
subsection (3).
(2) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
(3) In this section:
amount of pay-related allowances for an incapacitated person
for a day means the total amount of compensable pay-related allowances that
would have been paid to the person for the day as a part-time Reservist
if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay-related allowances might be
adjusted under Part 5.
compensable pay-related allowance for an incapacitated person
means a pay-related allowance that was being paid to the person immediately
before the person last ceased to be a member of the Defence Force.
example period has the meaning given by
section 155.
pay-related allowance days for an incapacitated person for a
week means the average number of days (if any) served each week during the
example period for which the person was paid an amount of pay-related
allowances.
rate of pay for an incapacitated person for a day means the
amount of pay that the person would have been paid for the day as a part-time
Reservist if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under
Part 5.
reserve days for an incapacitated person for a week means the
average number of days (if any) served each week during the example period for
which the person was paid as a part-time Reservist.
For the purposes of section 154 and the definitions of defence
days and defence hours in section 158, the
example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part-time Reservist; and
(ii) ending before the person last ceased to be a member of the Defence
Force; or
(b) such other period that the Commission determines is
reasonable.
(1) The civilian component for a week for an incapacitated
person is the amount worked out using the following formula:
(2) The following formula sets out how to work out the civilian
daily earnings for an incapacitated person:
Note 1: The expressions used in this formula are defined in
subsection (4).
Note 2: The person’s civilian daily earnings might be
adjusted under Part 5.
(3) If the incapacitated person was required to work overtime on a regular
basis in his or her work, the civilian daily earnings also include
the amount worked out using the following formula:
Note: The expressions used in this formula are defined in
subsection (4).
(4) In this section:
allowances for an incapacitated person for a day means the
average amount of allowances (other than expense allowances) paid to the person
for a day for his or her civilian work during the example period.
civilian daily hours for an incapacitated person means the
average number of hours worked each day by the person in his or her civilian
work during the example period.
civilian overtime hours for an incapacitated person means the
average number of hours of overtime worked each day by the person in his or her
civilian work during the example period.
civilian overtime rate of pay for an incapacitated person
means the person’s average hourly overtime rate of pay for the
person’s overtime in his or her civilian work during the example
period.
civilian rate of pay for an incapacitated person means the
average hourly ordinary time rate of pay for the person’s civilian work
during the example period.
example period has the meaning given by
section 157.
(1) For the purposes of this section 156 and the definition of
civilian days in section 158, the example period
for an incapacitated person is the latest period of 2 weeks:
(a) during which the person was continuously engaged in civilian work;
and
(b) ending before the person last ceased to be a member of the Defence
Force.
(2) However, the Commission may determine as the example
period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the civilian daily earnings for the example period under
subsection (1) would not fairly represent the daily rate at which the
person was being paid for his or her civilian work before last ceasing to be a
member of the Defence Force.
(1) The normal weekly hours for an incapacitated person
means the amount worked out using the following formula:
(2) In this section:
civilian daily hours has the meaning given by subsection
156(4).
civilian days for an incapacitated person means the average
number of days (if any) per week during the example period for which the person
was paid civilian daily earnings.
civilian overtime hours has the meaning given by subsection
156(4).
defence days for an incapacitated person means the average
number of days (if any) per week during the example period for which the person
was paid as a part-time Reservist.
defence hours for an incapacitated person means the average
number of hours per day during the example period for which the person was paid
as a part-time Reservist.
example period:
(a) for the purposes of the definition of defence days and
defence hours—has the meaning given by section 155;
and
(b) for the purposes of the definition of civilian
days—has the meaning given by section 157.
This Division tells you how to work out the normal earnings for a person
who:
(a) was a part-time Reservist when the service injury or disease occurred;
and
(b) was still a part-time Reservist when he or she left the Defence Force;
and
(c) was not working in civilian work before leaving the Defence
Force.
Basically, the person’s normal earnings are 7 times the daily rate
that the person would be paid if the person were still a part-time
Reservist.
Normal earnings worked out under this Division might be adjusted under
Part 5.
This Division applies to a person in respect of a week if:
(a) the person was a part-time Reservist immediately before last ceasing
to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a
service injury or disease; and
(c) the person was a part-time Reservist when the service injury was
sustained or the service disease was contracted; and
(d) the person was not engaged in civilian work before last ceasing to be
a member of the Defence Force.
The person is called an incapacitated person in this
Division.
(1) The normal earnings for an incapacitated person for a
week means the amount worked out using the following formula:
Note: The expressions used in this formula are defined in
subsection (3).
(2) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
(3) In this section:
amount of pay-related allowances for an incapacitated person
for a day means the total amount of compensable pay-related allowances that
would have been paid to the person for the day as a part-time Reservist
if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay-related allowances might be
adjusted under Part 5.
compensable pay-related allowance for an incapacitated person
means a pay-related allowance that was being paid to the person immediately
before last ceasing to be a member of the Defence Force.
example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part-time Reservist; and
(ii) ending before the person ceased to be a member of the Defence Force;
or
(b) such other period that the Commission determines is
reasonable.
pay-related allowance days for an incapacitated person for a
week means the average number of days per week (if any) served each week during
the example period for which the person was paid an amount of pay-related
allowances.
rate of pay for an incapacitated person for a day means the
rate of pay that the person would have been paid for the day as a part-time
Reservist if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under
Part 5.
This Division tells you how to work out the normal earnings for a
person:
(a) who was a Permanent Forces member or a continuous full-time Reservist
when the service injury or disease occurred; and
(b) who was a part-time Reservist when he or she left the Defence Force;
and
(c) whose last period of full-time service was as a Permanent Forces
member.
The normal earnings are based on how much the person would have earned if
the person were still a Permanent Forces member.
Normal earnings worked out under this Division might be adjusted under
Part 5.
This Division applies to a person in respect of a week if:
(a) the person was a part-time Reservist immediately before last ceasing
to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a
service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full-time
Reservist, when the service injury was sustained or the service disease was
contracted; and
(d) the person was a Permanent Forces member immediately before completing
his or her last period of full-time service.
The person is called an incapacitated person in this
Division.
(1) The normal earnings for a week for an incapacitated
person means the amount worked out using the following formula:
Note: The amount of $100 is indexed under
section 183.
(2) The person’s full-time ADF pay for a week means
the amount of pay that the person would have earned for the week as a Permanent
Forces member if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s full-time ADF pay might be adjusted
under Part 5.
(3) The person’s allowance component for a week means
the total amount of compensable pay-related allowances that would have been paid
to the person for the week if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component might be
adjusted under Part 5.
(4) The person’s service chief must advise the Commission in writing
of the date on which each compensable pay-related allowance would normally have
ceased to be paid to the person if:
(a) the person were still a Permanent Forces member; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for an incapacitated person
means a pay-related allowance:
(a) that was being paid to the person immediately before completing his or
her last period of full-time service; or
(b) that the person would have been paid after completing his or her
initial training, as mentioned in section 189.
This Division tells you how to work out the normal earnings for a
person:
(a) who was a Permanent Forces member or a continuous full-time Reservist
when the service injury or disease occurred; and
(b) who was a part-time Reservist when he or she left the Defence Force;
and
(c) whose last period of full-time service was as a continuous full-time
Reservist.
The person has a one-off choice between 2 ways of working out normal
earnings. Normal earnings can be based on the amount the person would have
earned if the person were still a continuous full-time Reservist. (This amount
is called the ADF earnings.) Alternatively, normal earnings can be based on the
person’s earnings from other work engaged in before beginning his or her
last period of continuous full-time service. (This amount is called the pre-CFTS
earnings.)
Normal earnings worked out under this Division might be adjusted under
Part 5.
Subdivision D tells you how to work out the normal weekly hours for a
person who chooses the pre-CFTS earnings. (Normal weekly hours for a person who
chooses the ADF earnings are 37.5 hours (see subsection 132(2).)
This Division applies to a person in respect of a week if:
(a) the person was a part-time Reservist immediately before last ceasing
to be a member of the Defence Force; and
(b) the person is incapacitated for work for the week as a result of a
service injury or disease; and
(c) the person was a Permanent Forces member, or a continuous full-time
Reservist, when the service injury was sustained or the service disease was
contracted; and
(d) the person was a continuous full-time Reservist immediately before
completing his or her last period of full-time service.
The person is called an incapacitated person in this
Division.
(1) The normal earnings for an incapacitated person for a
week means whichever of the following amounts is chosen by the person:
(a) the amount of the person’s full-time ADF earnings for a week
(see Subdivision C);
(b) the amount of the person’s pre-CFTS earnings for a week (see
Subdivision D).
(2) The person must inform the Commission in writing of his or her choice
between the full-time ADF earnings and the pre-CFTS earnings.
(3) The person is only entitled to make one choice for all weeks in
respect of which subsection (1) applies. The person cannot change his or
her choice once it has been made.
(1) The full-time ADF earnings for a week for an
incapacitated person means the amount worked out using the following
formula:
Note: The amount of $100 is indexed under
section 183.
(2) The person’s full-time ADF pay for a week means
the amount of pay that the person would have earned for the week as a continuous
full-time Reservist if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s full-time ADF pay might be adjusted
under Part 5.
(3) The person’s allowance component for a week means
the total amount of compensable pay-related allowances that would have been paid
to the person for the week if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s allowance component might be
adjusted under Part 5.
(4) The person’s service chief must advise the Commission in writing
of the date on which each compensable pay-related allowance would normally have
ceased to be paid to the person if:
(a) the person were still a continuous full-time Reservist; and
(b) the person were not incapacitated for service.
(5) In this section:
compensable pay-related allowance for an incapacitated person
means a pay-related allowance:
(a) that was being paid to the person immediately before completing his or
her last period of full-time service; or
(b) that the person would have been paid after completing his or her
initial training, as mentioned in section 189.
The pre-CFTS earnings are worked out by looking back at the period before
the person began his or her last period of continuous full-time service. During
this period, the person might have been a part-time Reservist as well as being
engaged in work.
The person’s pre-CFTS earnings have 2 components: pre-CFTS pay and
reserve pay.
The person’s pre-CFTS pay is based on earnings from work the person
was engaged in before beginning the last period of continuous full-time service.
The work engaged in might be civilian work or defence work (as some people
become continuous full-time Reservists after being Permanent Forces
members).
The person’s reserve pay is based on earnings from service as a
part-time Reservist.
(1) The pre-CFTS earnings for a week for an incapacitated
person means the amount worked out using the following formula:
(2) In this section:
pre-CFTS pay for an incapacitated person for a week means the
amount worked out under section 171.
reserve pay for an incapacitated person for a week means the
amount worked out under section 173.
Pre-CFTS pay for those engaged in work before beginning last period of
full-time service
(1) The following formula sets out how to work out the pre-CFTS pay
for a week for an incapacitated person who was engaged in work before
beginning his or her last period of continuous full-time service:
Note 1: The expressions used in this formula are defined in
subsection (4).
Note 2: The person’s pre-CFTS pay might be adjusted
under Part 5.
(2) If the incapacitated person was required to work overtime on a regular
basis in that work, the pre-CFTS pay for the week also includes
the amount worked out using the following formula:
Note: The expressions used in this formula are defined in
subsection (4).
Pre-CFTS pay for those not working
(3) The pre-CFTS pay for a week for an incapacitated person
who was not engaged in work before beginning his or her last period of
continuous full-time service is nil.
Definitions
(4) In this section:
allowances for an incapacitated person for a week is the
average amount of allowances (other than expense allowances) paid to the person
for a week for his or her work during the example period.
example period has the meaning given by
section 172.
pre-CFTS overtime hours for an incapacitated person means the
average number of hours of overtime worked each week by the person in his or her
work during the example period.
pre-CFTS overtime rate of pay for an incapacitated person
means the average hourly overtime rate of pay for the person’s overtime in
his or her work during the example period.
pre-CFTS rate of pay for an incapacitated person means the
average hourly ordinary time rate of pay for the person’s work during the
example period.
pre-CFTS weekly hours for an incapacitated person means the
average number of hours worked in each week by the person in his or her work
during the example period.
work includes work as a member of the Defence Force (other
than as a part-time Reservist).
Note: A person might have been a Permanent Forces member
before beginning his or her last period of continuous full-time service. This
work is taken into account in the pre-CFTS pay. However, work as a part-time
Reservist is taken into account in the reserve pay.
(1) For the purposes of this section 171, the example period
for an incapacitated person is the latest period of 2 weeks:
(a) during which the person was continuously engaged in work (as defined
in subsection 171(4)); and
(b) ending before the person began his or her last period of continuous
full-time service.
(2) However, the Commission may determine as the example
period:
(a) a different 2 week period that it considers reasonable; or
(b) a period of a different length that it considers reasonable;
if the pre-CFTS pay for the example period under subsection (1) would
not fairly represent the weekly rate at which the person was being paid for his
or her work before beginning the continuous full-time service.
Reserve pay for persons who were part-time Reservists
(1) The reserve pay for a week for an incapacitated person
who was a part-time Reservist immediately before beginning his or her last
period of continuous full-time service is the amount worked out using the
following formula:
Note: The expressions used in this formula are defined in
subsection (4).
(2) The person’s service chief must advise the Commission in
writing of the date on which each compensable pay-related allowance would
normally have ceased to be paid to the person if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Reserve pay for persons who did not serve as part-time
Reservists
(3) The reserve pay for a week for an incapacitated
Reservist who was not serving as a part-time Reservist immediately before
beginning his or her last period of continuous full-time service is
nil.
Definitions
(4) In this section:
amount of pay-related allowances for an incapacitated person
for a day means the total amount of compensable pay-related allowances that
would have been paid to the person for the day if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s pay-related allowance might be
adjusted under Part 5.
compensable pay-related allowance for an incapacitated person
means a pay-related allowance that was being paid to the person immediately
before beginning his or her last period of continuous full-time
service.
example period for an incapacitated person is:
(a) the latest period of one year:
(i) during which the person was a part-time Reservist; and
(ii) ending before the person began his or her last period of continuous
full-time service; or
(b) such other period that the Commission determines is
reasonable.
pay-related allowance days for an incapacitated person for a
week means the average number of days (if any) served each week during the
example period for which the person was paid a pay-related allowance.
rate of pay for a person for a day means the amount of pay
that the person would have been paid for the day as a member of the Reserves
if:
(a) the person were still a part-time Reservist; and
(b) the person were not incapacitated for service.
Note: The person’s rate of pay might be adjusted under
Part 5.
reserve days for an incapacitated person for a week means the
average number of days (if any) served each week during the example period for
which the person was paid as a part-time Reservist.
(1) The normal weekly hours for an incapacitated person who
has chosen the pre-CFTS earnings under section 167 means the amount
worked out using the following formula:
(2) In this section:
ADF hours for an incapacitated person means the average
number of hours per week (if any) during the example period (as defined in
subsection 173(4)) for which the person was paid as a part-time
Reservist.
pre-CFTS overtime hours has the meaning given by subsection
171(4).
pre-CFTS weekly hours has the meaning given by subsection
171(4).
The regulations may prescribe one or more methods of working out normal
earnings, actual earnings and normal weekly hours for persons who were cadets
and declared members.
Note: The regulations may also modify the application of
this Part in respect of cadets and declared members (see
section 439).
This Part sets out some important rules relating to a person’s normal
earnings, actual earnings and the amount of compensation paid under Part 3
or 4.
Division 2 has some general rules that apply when working out normal
and actual earnings.
Division 3 adjusts normal earnings for persons whose normal earnings
relate to ADF pay.
Division 4 adjusts normal earnings for persons whose normal earnings
relate to civilian pay.
Division 5 sets out how to work out compensation for part of a
week.
In this Part:
actual earnings has the meaning given by subsection 89(3) or
132(1) (as the case requires).
normal earnings has the meaning given by subsection 89(3) or
132(2) (as the case requires).
This Division deals with the following matters:
(a) the amount of a person’s normal earnings if his or her normal
earnings are less than the federal minimum wage;
(b) amounts to be excluded in working out normal and actual
earnings;
(c) matters to be considered when determining actual earnings;
(d) indexation.
If a person’s normal earnings for a week are less than the amount
of the federal minimum wage for the week (as set by the Australian
Industrial Relations Commission), then the person’s normal earnings
for the week are instead the amount of the federal minimum wage for the
week.
(1) In working out normal earnings, do not include:
(a) any amount of a bonus that is earned by the person (whether paid as a
lump sum or periodically); or
(b) the amount of any expected increase due to:
(i) the reasonable expectation of a bonus; or
(ii) the reasonable expectation of a promotion; or
(iii) the reasonable expectation of a posting.
(2) In working out actual earnings, do not include any amount of a bonus
that is earned by the person (whether paid as a lump sum or
periodically).
(1) This section sets out those matters that the Commission must have
regard to in determining the weekly amount that a person is able to earn in
suitable work for the purposes of:
(a) paragraphs 101(4)(a), 105(4)(a) and 115(4)(a) (definition of
actual civilian earnings); and
(b) paragraph (a) of the definition of actual earnings
in subsection 132(1).
In addition, the Commission may have regard to any other matter it
considers relevant.
(2) If the person is working in suitable work, the Commission must have
regard to the weekly amount that the person is earning in that work.
(3) If any of the following applies after the person becomes incapacitated
for work, the Commission must have regard to the matters set out in
subsection (4):
(a) the person fails to accept an offer of suitable work that is made to
the person;
(b) an offer of suitable work is made to the person and accepted but the
person fails to begin, or fails to continue, the work;
(c) an offer of suitable work is made to the person on the condition that
the person complete a reasonable rehabilitation or vocational retraining program
but the person fails to do so.
(4) If subsection (3) applies, the Commission must have regard
to:
(a) the weekly amount that the person would be earning in that work if the
person had not failed as described in subsection (3); and
(b) whether that failure was reasonable in all the
circumstances.
(5) If the person has failed to seek suitable work after becoming
incapacitated for work, the Commission must have regard to:
(a) the weekly amount that the person could reasonably be expected to earn
in suitable work, having regard to the state of the labour market at the
relevant time; and
(b) whether that failure was reasonable in all the
circumstances.
(1) The regulations may specify:
(a) an index for the purposes of this section; and
(b) the manner of working out an increase in the amount of a
person’s pre-CFTS pay or civilian daily earnings (as the case requires) by
reference to the movement of that index over the year ending each
31 December.
(2) The amount of a person’s pre-CFTS pay or civilian daily
earnings, for an indexation year in which there is an increase in the prescribed
index, is increased in the manner prescribed by the regulations.
(3) In this section:
civilian daily earnings means the amount worked out under the
following provisions:
(a) subsections 98(2) and (3);
(b) subsections 156(2) and (3).
pre-CFTS pay means the amount worked out under the following
provisions:
(a) section 112;
(b) section 147;
(c) section 171.
(1) The regulations may specify:
(a) an index for the purposes of this section; and
(b) the manner of working out an increase in the amount of $100 mentioned
in subsections 104(1), 109(1), 141(1), 144(1), 164(1) and 168(1) by reference to
the movement of that index over the year ending each 31 December.
(2) The amount of $100, for an indexation year in which there is an
increase in the prescribed index, is increased in the manner prescribed by the
regulations.
This Division adjusts the amount of a person’s normal earnings worked
out under Part 3 or 4 if the normal earnings relate to ADF pay.
The normal earnings are adjusted in the following situations:
(a) if a person’s pay would increase (because of an increment
increase, a pay rise or a promotion);
(b) if a pay-related allowance, or the category of defence work that is
used to determine the person’s normal earnings, is abolished;
(c) if the person is injured during initial training.
Once a person’s normal earnings have been worked out under
Part 3 or 4, the earnings can only be adjusted under this
Division.
(1) This section applies for the purposes of the following
sections:
(a) section 91;
(b) section 96;
(c) section 104;
(d) section 109;
(e) section 114;
(f) section 141;
(g) section 144;
(h) section 149;
(i) section 154;
(j) section 161;
(k) section 164;
(l) section 168;
(m) section 173.
(2) The amount of pay that a person would have earned for a period as a
member of the Defence Force, and the amount of a pay-related allowance that a
person would have been paid for a period, include the following amounts that
would have applied for the period:
(a) the amount of any increase in the person’s pay by way of an
increment in a range of pay;
(b) the amount of any increase in the person’s pay or a pay-related
allowance as a result of:
(i) the operation of a law of the Commonwealth, a State or a Territory;
or
(ii) the making, alteration or operation of an award, order, determination
or industrial agreement, or the doing of any other act or thing, under such a
law.
(1) This section applies for the purposes of sections 91, 96, 114 and
149 if a person is promoted.
(2) The amount of pay that the person would have earned for a period as a
member of the Defence Force, and the amount of a pay-related allowance that the
person would have been paid for a period, include:
(a) the amount of any actual increase in the person’s pay or a
pay-related allowance; or
(b) the amount of an additional pay-related allowance the person would be
paid;
for the period because the person is promoted.
Note: A person must actually be promoted in order to receive
an increase under this subsection.
(1) This section applies for the purposes of sections 104, 109, 114,
141, 144, 149, 154, 161, 164, 168 and 173 if the category of defence work that
is used to determine a person’s normal earnings ceases to exist.
Note: For example, the category of defence work that is used
to determine the normal earnings of a person to whom section 104 applies is
the category of defence work that the person was engaged in immediately before
completing his or her last period of full-time service.
(2) The Commission must determine which of the current categories of
defence work should be used to determine a person’s normal earnings
instead.
(3) The amount of pay that the person would have earned for a period is
the amount that the person would have earned for the period if the person
performed the category of defence work determined under
subsection (2).
Note: The amount of pay mentioned in subsection (3)
might include increases mentioned in section 185.
(1) This section applies for the purposes of sections 91, 96, 104,
109, 114, 141, 144, 149, 154, 161, 164, 168 and 173 if a person’s
compensable pay-related allowance (the old allowance) ceases to
exist before the allowance’s cessation date.
Note: Subsection (6) defines cessation
date and compensable pay-related
allowance.
(2) The Commission may determine which of the current pay-related
allowances (if any) the person would have been paid instead.
(3) The amount of the old allowance that the person would have been paid
for a period is the amount (if any) for the period of the pay-related allowance
determined under subsection (2).
Note: The amount of the pay-related allowance mentioned in
subsection (3) might include increases mentioned in
section 185.
(4) The pay-related allowance determined under subsection (2) is
taken to be a compensable pay-related allowance.
(5) The cessation date for the new allowance is taken to be the old
allowance’s cessation date.
(6) In this section:
cessation date for a person’s pay-related allowance
means the date advised by the person’s service chief under the following
provisions (as the case requires):
(a) subsection 91(4);
(b) subsection 96(2);
(c) subsection 104(4);
(d) subsection 109(4);
(e) subsection 114(2);
(f) subsection 141(4);
(g) subsection 144(4);
(h) subsection 149(2);
(i) subsection 154(2);
(j) subsection 161(2);
(k) subsection 164(4);
(l) subsection 168(4);
(m) subsection 173(2).
compensable pay-related allowance has the meaning given by
the following provisions (as the case requires):
(a) subsection 91(5);
(b) subsection 96(3);
(c) subsection 104(5);
(d) subsection 109(5);
(e) subsection 114(4);
(f) subsection 141(5);
(g) subsection 144(5);
(h) subsection 149(4);
(i) subsection 154(3);
(j) subsection 161(3);
(k) subsection 164(5);
(l) subsection 168(5);
(m) subsection 173(4).
(1) This section applies for the purposes of sections 104, 109, 141,
144, 164 and 168:
(a) in respect of a person who was undergoing initial training immediately
before:
(i) if section 104, 109, 164 or 168 applies—completing his or
her last period of full-time service; and
(ii) if section 141 or 144 applies—last ceasing to be a member
of the Defence Force; and
(b) for each week that occurs after the person would have completed the
initial training if the person had completed the training.
(2) The amount of pay that the person would have earned, and the amount of
pay-related allowances that the person would have been paid, for
each such week is the amount advised under subsection (3).
Note: An amount advised under this section might later
include increases mentioned in section 185.
(3) The person’s service chief must advise the Commission in writing
of the following:
(a) the rank that the service chief considers the person would have held
after completing the initial training;
(b) the amount of pay for a week for that rank that the service chief
considers the person would have earned as a member of the Defence Force after
completing the training;
(c) any pay-related allowance that the service chief considers the person
would have been paid after completing the training;
(d) the amount of that pay-related allowance for a week that the service
chief considers the person would have been paid after completing the
training.
The only adjustments of the amount of a person’s pay or a
pay-related allowance to be taken into account in determining the person’s
normal earnings are the adjustments mentioned in this Division.
This Division adjusts the amount of a person’s civilian daily
earnings or pre-CFTS pay if:
(a) the amount is varied during the example period; or
(b) it is impracticable to work it out for the person.
In this Division:
civilian daily earnings has the meaning given by
section 98 or 156 (as the case requires).
example period has the meaning given by section 99, 113,
148, 157 or 172 (as the case requires).
pre-CFTS pay has the meaning given by section 112, 147
or 171 (as the case requires).
(1) This section applies for the purposes of sections 98, 112, 147,
156 and 171 if a person’s civilian daily earnings or pre-CFTS pay varies
during the example period.
(2) If the variation occurs as a result of:
(a) the operation of a law of the Commonwealth, a State or a Territory;
or
(b) the making, alteration or operation of an award, order, determination
or industrial agreement, or the doing of any other act or thing, under such a
law;
then the amount of the civilian daily earnings or pre-CFTS pay for the
person is instead the amount that would have been his or her civilian daily
earnings or pre-CFTS pay if the variation had taken effect at the beginning of
the example period.
(1) This section applies for the purposes of sections 98, 112, 147,
156 and 171 if it is impracticable to work out the civilian daily earnings or
pre-CFTS pay for a person.
(2) The civilian daily earnings or pre-CFTS pay for a person before the
relevant date is the civilian daily earnings or pre-CFTS pay before that date of
another person performing comparable work.
(3) In this section:
relevant date for a person means:
(a) if section 98 applies—the onset date for the person’s
incapacity; and
(b) if section 156 applies—the date the person last ceased to
be a member of the Defence Force; and
(c) if section 112, 147 or 171 applies—the date the person
began his or her last period of continuous full-time service.
This Division sets out how to work out the amount of compensation the
Commonwealth is liable to pay under Part 3 or 4 of this Chapter if a person
is only entitled to compensation for part of a week and not a whole
week.
(1) The Commonwealth is liable to pay compensation under section 85,
86, 87 or 118 for a part of a week rather than a whole week if a person
satisfies subsection 85(1), 86(1), 87(1) or 118(1) for the part of the
week.
(2) The following formula sets out how to work out the amount of
compensation that the Commonwealth is liable to pay to a person for a part of a
week rather than a whole week:
(3) In this section:
number of days means:
(a) if the person is entitled to compensation under section 118 and
Division 6 of Part 4 applies to the person—7; and
(b) if the person is entitled to compensation under
section 87—the number of days prescribed by the regulations in
respect of the person; and
(c) otherwise—5.
Note 1: Division 6 of Part 4 applies to former
part-time Reservists who are incapacitated for work but who did not engage in
civilian work before last ceasing to be a member of the Defence
Force.
Note 2: Section 87 applies to incapacitated cadets and
declared members.
This Part provides a choice for severely impaired people (at least 50
impairment points) who are unable to work more than 10 hours per week to receive
a pension under this Part instead of compensation worked out under
Division 2 of Part 4.
The rate of the pension is the same as the rate applicable under
section 24 of the Veterans’ Entitlements Act 1986. However,
the rate may be reduced for a recipient who receives an amount under Part 2
(permanent impairment) or who receives Commonwealth superannuation.
A person who stops receiving a Special Rate Disability Pension because the
person starts to work more than 10 hours per week may be eligible for special
assistance under a scheme determined by the Commission.
(1) A Special Rate Disability Pension is an ongoing weekly
payment that can be paid to certain persons instead of compensation worked out
under Division 2 of Part 4.
(2) The maximum weekly amount of a Special Rate Disability Pension is one
half of the fortnightly rate at which a pension is payable from time to time
under section 24 of the Veterans’ Entitlements Act
1986.
(1) A person is eligible to make a choice under this Part if the
Commission is satisfied that the person meets the following criteria (the
eligibility criteria):
(a) the person is receiving compensation worked out under Division 2
of Part 4 as a result of one or more service injuries or
diseases;
(b) as a result of the injuries or diseases, the person has suffered an
impairment that is likely to continue indefinitely;
(c) the Commission has determined under Part 2 that the
person’s impairment constitutes at least 50 impairment points;
(d) the person is unable to undertake remunerative work for more than 10
hours per week, and rehabilitation is unlikely to increase the person’s
capacity to undertake remunerative work.
(2) The Commission must, as soon as practicable after becoming satisfied
that a person meets the eligibility criteria, make the person a written offer of
a choice under this Part. The offer must specify the date on which the offer is
made.
(1) A person who is offered the choice under this Division can choose to
receive a Special Rate Disability Pension instead of compensation worked out
under Division 2 of Part 4.
(2) A person who makes the choice cannot change it.
(1) A person who is offered the choice under this Part and who wishes to
make the choice must do so within 12 months after the date on which the offer
was made.
(2) The Commission may, either before or after the end of that period,
extend the period within which the person must make the choice if the Commission
is satisfied that:
(a) there was a delay in the person receiving the offer under subsection
199(2); or
(b) the person did not receive the offer.
(1) The Commission may, in writing, approve a form for the purposes of
this section.
(2) A person must make the choice in writing in accordance with the
form.
(3) Before making the choice, the person must obtain financial advice from
a suitably qualified financial adviser in respect of the choice.
Note: The person might be entitled to compensation for the
cost of the financial advice under section 205.
(1) The Commission must determine that the Commonwealth is liable to pay a
Special Rate Disability Pension to a person instead of compensation worked out
under Division 2 of Part 4 if:
(a) the person is offered the choice under this Part; and
(b) the person makes the choice to receive the pension within the period
applicable under section 201 and in accordance with section 202;
and
(c) the Commission is satisfied that the person meets the eligibility
criteria on the day on which the person makes the choice.
(2) The Commission must determine that a person is to continue to receive
compensation worked out under Division 2 of Part 4 if:
(a) the person is offered a choice under this Part; and
(b) either:
(i) the person does not make the choice within the period applicable under
section 201 and in accordance with section 202; or
(ii) the Commission is satisfied that the person does not meet the
eligibility criteria on the day on which the person makes the choice.
(3) If the Commission makes a determination under subsection (1) in
relation to a person, a Special Rate Disability Pension is payable to the person
instead of compensation worked out under Division 2 of Part 4 from the
day on which the Commission becomes aware of the person’s
choice.
(1) The maximum weekly amount of a Special Rate Disability Pension that
could be payable to a person is reduced in accordance with this
section.
(2) The reduction is made by reference to amounts payable or paid to the
person under Part 2 (permanent impairment). However, a payment received for
eligible young persons or for financial advice under that Part does not reduce
the maximum weekly amount of Special Rate Disability Pension that could be
payable to the person.
(3) The maximum weekly amount of a Special Rate Disability Pension that
could be payable to a person is reduced by the sum of:
(a) any weekly amounts that are being paid to the person under
Part 2; and
(b) if the person has chosen to convert all or part of one or more weekly
amounts that were payable to the person under that Part to lump sums—those
weekly amounts or those parts of those weekly amounts.
(4) Subsection (3) applies to a person to whom section 389 or
402 applies as if the person were being paid the weekly amounts under
Part 2 that the person would be paid if that section did not apply to the
person.
Note: Section 389 provides that compensation under
Part 2 is not payable to a person who chooses to institute proceedings for
damages against the Commonwealth. Under section 402, compensation under
this Act is not payable to a person who recovers damages from a third
party.
(5) There is a further reduction if the person:
(a) has retired voluntarily, or has been compulsorily retired, from his or
her work; and
(b) receives either or both a pension or lump sum under a Commonwealth
superannuation scheme as a result of the retirement.
(6) The amount of the reduction under subsection (4) is 60% of the
reduction that would apply to the person under section 134, 135 or 136 if
the person were receiving compensation worked out under Division 2 of
Part 4.
The Commonwealth is liable to pay compensation for the cost of financial
advice obtained by a person if:
(a) the person obtains financial advice from a suitably qualified
financial adviser as mentioned in subsection 202(3); and
(b) a claim for compensation in respect of the person has been made under
section 319.
(1) The Commission must determine the amount of compensation under
section 205 for the cost of the financial advice that it considers
reasonable. The total amount must not exceed $1,200.
Note: The amount of $1,200 is indexed under
section 404.
(2) The total amount of $1,200 applies both to financial advice under this
Part and financial advice under Part 2 if the day on which the offer under
this Part was made, and the day specified in the first notice given to the
person under section 76, are the same.
(1) Compensation under section 205 for the cost of financial advice
is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who gave the financial advice; or
(ii) any other person who incurred the cost of the financial
advice.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) An amount paid to the person who gave the financial advice discharges
any liability of any other person for the cost of the financial advice to the
extent of the payment.
The Commonwealth is not liable to pay a Special Rate Disability Pension
to a person for any period during which the person is imprisoned in connection
with his or her conviction of an offence.
The Commonwealth is no longer liable to pay a Special Rate Disability
Pension to a person if the Commission is satisfied that:
(a) the person’s impairment as a result of all of the service
injuries or diseases from which the person suffers constitutes fewer than 50
impairment points; or
(b) the person is able to undertake remunerative work for more than 10
hours per week.
(1) The Commission may determine, in writing, a scheme, called the Return
to Work Scheme, under which the Commonwealth is liable to pay compensation of a
kind mentioned in subsection (2) to a person in circumstances identified in
the Return to Work Scheme if:
(a) the person:
(i) was receiving a Special Rate Disability Pension; and
(ii) becomes able to undertake remunerative work for more than 10 hours
per week; and
(b) a claim for compensation in respect of the person has been made under
section 319.
Note: The person would no longer be entitled to Special Rate
Disability Pension because of paragraph 209(b).
(2) The compensation is a weekly payment of an amount worked out under the
Return to Work Scheme that:
(a) is less than the amount of a Special Rate Disability Pension that the
person was receiving; and
(b) is worked out, at least in part, by reference to the number of hours
per week of remunerative work that the person is able to undertake and the
amount of remuneration per week that the person receives for that
work.
(3) The Commission may, from time to time, repeal or amend the Return to
Work Scheme in writing.
(4) The Return to Work Scheme, and any repeal or amendment of the Return
to Work Scheme, is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
This Part provides other types of compensation for current and former
members who have suffered a service injury or disease.
A person who, because of an impairment resulting from a service injury or
disease, has special requirements for his or her car can obtain compensation
under Division 2.
Compensation is provided under Division 3 for household and attendant
care services that are required because of a service injury or
disease.
An allowance to pay for a home phone is provided under Division 4 for
those who have suffered a serious impairment from a service injury or
disease.
Compensation for loss or damage to a member’s medical aid might be
provided under Division 5 (but only if the member has not claimed
compensation for a related service injury or disease).
(1) The Commission may determine, in writing, a scheme, called the Motor
Vehicle Compensation Scheme (the MVCS), under which the
Commonwealth is liable to provide compensation of a kind mentioned in
subsection (2) to a person in circumstances identified in the MVCS
if:
(a) the person has suffered an impairment as a result of a service injury
or disease for which the Commission has accepted liability; and
(b) because of that impairment, the person has a need for compensation of
that kind; and
(c) a claim for compensation in respect of the person has been made under
section 319.
(2) The kinds of compensation are:
(a) modifying a motor vehicle for a person; and
(b) maintaining or repairing modifications to a motor vehicle;
and
(c) subsidising the purchase of a motor vehicle by a person; and
(d) purchasing a motor vehicle for a person; and
(e) other kinds of compensation relating to motor vehicles specified in
the MVCS.
(3) The Commission may, from time to time, repeal or amend the MVCS in
writing.
(4) The MVCS, and any repeal or amendment of the MVCS, is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(5) The Commonwealth is only liable to pay compensation under the MVCS in
respect of an aggravated injury or disease if it is because of the aggravation
or material contribution (whether wholly or partly) that the person suffered the
impairment.
In this Division:
attendant care services for a person 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 person.
household services for a person 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 person’s
household.
(1) The Commonwealth is liable to pay weekly compensation for household
services provided to a person if:
(a) the Commission has accepted liability for a service injury or disease
of the person; and
(b) the person obtains household services that he or she reasonably
requires because of the injury or disease; and
(c) a claim for compensation in respect of the person has been made under
section 319.
(2) However, the Commonwealth is only liable to pay compensation in
respect of an aggravated injury or disease if it is because of the aggravation
or material contribution (whether wholly or partly) that the person reasonably
requires the household services.
In determining whether household services are reasonably required for a
person, the Commission must have regard to the following matters:
(a) the extent to which household services were provided by the person
before the service injury or disease;
(b) the extent to which he or she is able to provide those services after
the service injury or disease;
(c) the number of other persons (household members) living
with that person as members of his or her household;
(d) the age of the household members and their need for household
services;
(e) the extent to which household services were provided by household
members before the service injury or disease;
(f) the extent to which household members, or any other relatives of the
person, might reasonably be expected to provide household services for
themselves and for the person after the service injury or disease;
(g) the need to avoid substantial disruption to the work or other
activities of the household members;
(h) any other matter that the Commission considers relevant.
The weekly amount of compensation under section 214 that the
Commonwealth is liable to pay for household services is the lesser of the
following amounts:
(a) the weekly amount paid or payable for those services;
(b) $330.
Note: The amount of $330 is indexed under
section 404.
(1) The Commonwealth is liable to pay weekly compensation for
attendant care services provided to a person if:
(a) the Commission has accepted liability for a service injury or disease
of the person; and
(b) the person obtains attendant care services that he or she reasonably
requires because of the injury or disease; and
(c) a claim for compensation in respect of the person has been made under
section 319.
(2) However, the Commonwealth is only liable to pay compensation in
respect of an aggravated injury or disease if it is because of the aggravation
or material contribution (whether wholly or partly) that the person reasonably
requires the attendant care services.
In determining whether attendant care services are reasonably required
for a person, the Commission must have regard to the following
matters:
(a) the nature of the person’s injury or disease;
(b) the degree to which that injury or disease impairs the person’s
ability to provide for his or her personal care;
(c) the extent to which any medical service or nursing care received by
the person provides for his or her essential and regular personal
care;
(d) the extent to which the attendant care services are necessary to meet
any reasonable wish by the person to live outside an institution;
(e) the extent to which attendant care services are necessary to enable
the person to undertake or continue defence service or any other work;
(f) any assessment made in relation to the rehabilitation of the
person;
(g) the extent to which a relative of the person might reasonably be
expected to provide attendant care services;
(h) any other matter that the Commission considers relevant.
The weekly amount of compensation under section 217 that the
Commonwealth is liable to pay for attendant care services is the lesser of the
following amounts:
(a) the weekly amount paid or payable for those services;
(b) $330.
Note: The amount of $330 is indexed under
section 404.
(1) Compensation under section 214 or 217 for household services or
attendant care services is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided, or will provide, the services; or
(ii) any other person who incurred, or will incur, the cost of the
services.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 214 or 217 to a person who provided, or
will provide, the services discharges any liability of any other person for the
cost of the services to the extent of the payment.
Persons eligible for Special Rate Disability Pension
(1) A person is eligible for a telephone allowance if:
(a) any of the following applies:
(i) the person is receiving a Special Rate Disability Pension under
Part 6;
(ii) the person satisfies the eligibility criteria in section 199
(persons who are eligible for Special Rate Disability Pension);
(iii) the person would satisfy the eligibility criteria in
section 199 apart from the operation of section 120 or 121
(compensation for those over 63); and
(b) the person is an Australian resident (within the meaning of
section 5G of the Veterans’ Entitlements Act 1986);
and
(c) the partner’s telephone service is connected in Australia in the
partner’s name or jointly in the partner’s name and someone
else’s name.
Note: Section 222 sets out some circumstances in which
telephone allowance is not payable.
Persons with 80 or more impairment points
(2) A person is eligible for a telephone allowance if:
(a) the Commission has determined under Part 2 that an impairment
suffered by the person as a result of one or more service injuries or diseases
constitutes 80 or more impairment points; and
(b) the person is an Australian resident (within the meaning of
section 5G of the Veterans’ Entitlements Act 1986);
and
(c) the partner’s telephone service is connected in Australia in the
partner’s name or jointly in the partner’s name and someone
else’s name.
Note: Section 222 sets out some circumstances in which
telephone allowance is not payable.
Persons leaving Australia otherwise than temporarily
(1) A person who leaves Australia otherwise than temporarily is not
eligible for a telephone allowance on or after the next telephone allowance
payday.
Temporary absence from Australia
(2) A person who is temporarily absent from Australia and has been so
absent for more than 26 weeks is not eligible for a telephone allowance after
the first 26 weeks of the absence.
When a person becomes eligible for telephone allowance after leaving
Australia
(3) A person mentioned in subsection (1) or (2) again becomes
eligible to receive the telephone allowance on the later of the following
days:
(a) the day on which the person returns to Australia;
(b) the day on which the person notifies the Commission of his or her
return to Australia.
Persons receiving other allowances etc.
(4) Even though a person is eligible for a telephone allowance, the
allowance is not payable to the person if he or she is receiving a telephone
allowance under:
(a) the Veterans’ Entitlements Act 1986; or
(b) the Social Security Act 1991; or
(c) this Act.
Entitlement under this Act when Veterans’ Entitlements Act rate is
lower
(5) However, if the rate of telephone allowance at which a person is being
paid telephone allowance under the Veterans’ Entitlements Act 1986
is lower than the rate at which the person would be paid under
section 223 of this Act, then the allowance is payable under this Act
rather than the Veterans’ Entitlements Act 1986.
Definition of telephone allowance payday
(6) In this section:
telephone allowance payday has the same meaning as in
section 118T of the Veterans’ Entitlements Act 1986.
The annual rate of telephone allowance that is payable under
section 221 is the rate that is payable from time to time under subsection
118S(1) of the Veterans’ Entitlements Act 1986.
A full instalment of telephone allowance is payable to a person on each
telephone allowance payday (within the meaning of section 118T of the
Veterans’ Entitlements Act 1986) on which:
(a) the person is eligible for the allowance; and
(b) the allowance is payable to the person.
Note: If a trustee is appointed under section 432, then
the allowance would be payable to the trustee instead.
(1) The amount of an instalment of telephone allowance is the amount
worked out by dividing the amount of the annual rate of telephone allowance by
4.
(2) If the amount of an instalment is not a multiple of 10 cents, the
amount is to be increased to the nearest multiple of 10 cents.
(1) The Commonwealth is liable to pay compensation for the loss of, or
damage to, a member’s medical aid if:
(a) the loss or damage results from an occurrence that happened while the
member was rendering defence service; and
(b) the loss or damage requires the medical aid to be repaired or
replaced; and
(c) a claim for acceptance of liability for the loss or damage, and a
claim for compensation in respect of the member, has been made under
section 319.
Exclusions
(2) However, the Commonwealth is not liable to pay compensation for the
loss or damage if:
(a) a claim for the Commission to accept liability for a service injury,
disease or death resulting from the occurrence has been made under
section 319; or
(b) one or more of the exclusions in sections 227 and 228 applies in
respect of the loss or damage, or in respect of the occurrence that resulted in
the loss or damage.
(3) The Commonwealth is not liable to pay compensation for the loss or
damage to the extent that the medical aid is repaired or replaced by the
Commonwealth (other than under this section).
(1) The Commonwealth is not liable to pay compensation for the loss of, or
damage to, a member’s medical aid if:
(a) the occurrence that results in the loss or damage:
(i) resulted from the member’s serious default or wilful act;
or
(ii) happened while the member was committing a serious breach of
discipline; or
(iii) resulted from reasonable and appropriate counselling in relation to
the member’s performance as a member; or
(b) the loss or damage was intentionally caused by the member.
(2) For the purpose of subparagraph (1)(a)(i), an occurrence is taken
to have resulted from a member’s serious default or wilful act
if:
(a) the member consumed alcohol or took a drug (other than a drug
administered by a person legally authorised to administer the drug or a drug
legally obtained and taken in accordance with the directions provided with the
drug); and
(b) the occurrence resulted from the member being under the influence of
the alcohol or drug.
This subsection does not otherwise limit
subparagraph (1)(a)(i).
Substantial delay commencing journey
(1) The Commission is not liable to pay compensation for the loss of, or
damage to, a member’s medical aid that resulted from an accident that
occurred while the member was travelling on a journey from the member’s
place of duty if the member delayed commencing the journey for a substantial
time after he or she ceased to perform duty at that place, unless:
(a) the delay was for a reason connected with the performance of the
member’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of having the accident was not substantially
changed; and
(ii) the extent of that risk was not substantially increased;
by that delay or by anything that happened during that delay.
Routes that are not reasonably direct
(2) The Commission is not liable to pay compensation for the loss of, or
damage to, a member’s medical aid that resulted from an accident that
occurred while the member was travelling on a journey, or a part of a journey,
by a route that was not reasonably direct having regard to the means of
transport used, unless:
(a) the journey, or that part of the journey, was made by that route for a
reason connected with the performance of the member’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of having the accident was not substantially
changed; and
(ii) the extent of that risk was not substantially increased;
because the journey, or that part of the journey, was made by that
route.
Substantial interruptions to journeys
(3) The Commission is not liable to pay compensation for the loss of, or
damage to, a member’s medical aid that resulted from an accident that
occurred while the member was travelling on a part of a journey made after a
substantial interruption of the journey, unless:
(a) the interruption was made for a reason connected with the performance
of the member’s duties; or
(b) in the circumstances of the particular case:
(i) the nature of the risk of having the accident was not substantially
changed; and
(ii) the extent of that risk was not substantially increased;
because of that interruption.
The amount of compensation that the Commonwealth is liable to pay under
section 226 for the loss of, or damage to, a member’s medical aid is
the amount reasonably incurred by the member (whether paid or payable) in the
necessary replacement or repair of the medical aid. This may include any
reasonable fees or charges of a practitioner, or other qualified person, for a
consultation, examination, prescription, or other service that is reasonably
rendered in connection with the replacement or repair.
(1) Compensation under section 226 for the loss of, or damage to, a
member’s medical aid is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided any goods or services in connection with the
replacement or repair of the medical aid; or
(ii) any other person who incurred the cost of goods or services in
connection with the replacement or repair.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 226 to a person who provided the goods or
services discharges any liability of any other person for the cost of the goods
or services to the extent of the payment.
This Chapter provides for compensation and other benefits for dependants of
certain deceased, current and former members.
Most of the benefits are provided to dependants of deceased members to whom
section 12 applies. That section applies to a deceased member who died from
a service death or who suffered a serious impairment from a service injury or
disease before his or her death.
Part 2 provides compensation for the partners of these members if the
partners were wholly dependent on the member before the member’s
death.
Part 3 provides compensation for the children of these members. Other
young people who were dependent on a deceased member before the member’s
death might also be entitled to compensation.
The Commission can set up a scheme under Part 3 to provide education
and training for the children and young dependants of deceased members, as well
as for the children and young dependants of some current and former
members.
Part 4 provides compensation for other dependants who were wholly or
partly dependent on a deceased member to whom section 12 applies.
Part 5 provides compensation for the cost of such a deceased
member’s funeral.
This Part provides compensation for the partners of deceased members in
respect of whom section 12 applies if the partner was wholly dependent on
the member before his or her death.
Division 2 provides the partner with a choice between compensation as
a lump sum or as a weekly amount. The Division also provides additional lump sum
compensation for a partner if the deceased member died from a service
death.
Division 3 provides compensation for the cost of financial advice
obtained for a partner who is entitled to compensation under
Division 2.
Division 4 provides a partner with a further lump sum if the deceased
member received some types of compensation under Chapter 4.
The partner might be entitled to an allowance to pay for his or her home
phone under Division 5.
A partner who is entitled to compensation under this Chapter might also be
entitled to have free treatment, or compensation for treatment, provided under
Chapter 6.
The Commonwealth is liable to pay compensation for a wholly dependent
partner of a deceased member if:
(a) section 12 applies in respect of the member; and
(b) a claim for compensation in respect of the partner has been made under
section 319.
(1) The amount of compensation that the Commonwealth is liable to pay
under section 233 is:
(a) if the Commission has accepted liability for the member’s
death:
(i) if the member’s death relates to warlike service—the
amount of the lump sum mentioned in subsection (2); or
(ii) if the member’s death relates to non-warlike or peacetime
service—the amount of the lump sum mentioned in subsection (3);
and
Note: If the Commission does not accept liability for a
deceased member’s death, then the member’s wholly dependent partner
would not be entitled to compensation under this paragraph.
(b) whichever of the following amounts is chosen by the partner:
(i) the amount of the lump sum mentioned in subsection (4);
(ii) the weekly amount mentioned in subsection (5).
Note: The subsection is affected by the following
provisions:
(a) subsection (6) (meaning of relates to warlike
service and relates to non-warlike or peacetime
service);
(b) section 236 (requirements for choosing between lump
sum and weekly amount);
(c) section 404 (indexation).
(2) For the purposes of subparagraph (1)(a)(i), the amount of the
lump sum is the amount worked out using the following formula:
Note 1: Subsection (7) defines partner’s
age-based number.
Note 2: The amount of $100,000 is indexed under
section 404.
(3) For the purposes of subparagraph (1)(a)(ii), the amount of the
lump sum is the amount worked out using the following formula:
Note 1: Subsection (7) defines partner’s
age-based number.
Note 2: The amount of $40,000 is indexed under
section 404.
(4) For the purposes of subparagraph (1)(b)(i), the amount of the
lump sum is the amount worked out using the following formula:
Note 1: Subsection (7) defines partner’s
age-based number.
Note 2: The amount of the lump sum might be reduced under
section 237 if the partner fails to make a choice within 6 months and
receives the weekly amount for a period.
(5) For the purposes of subparagraph (1)(b)(ii), the weekly amount
is:
(a) one half of the fortnightly rate at which a pension is payable from
time to time under paragraphs 30(1)(a) and (b) of the Veterans’
Entitlements Act 1986; and
(b) payable from the date of the member’s death until the
partner’s death.
(6) For the purposes of subparagraphs (1)(a)(i) and (ii), if 2 or
more causes contribute to a member’s death, the death relates to
warlike service or relates to non-warlike or peacetime service
if the warlike, non-warlike or peacetime service materially contributes
to the death.
(7) In this section:
partner’s age-based number, in respect of
a lump sum under paragraph (1)(a) or (b), means the number that is advised
by the Australian Government Actuary by reference to the partner’s age at
the date of the member’s death.
(1) The Commission must give the partner a written notice as soon as
practicable:
(a) specifying the amount of the lump sum mentioned in subparagraph
234(1)(b)(i); and
(b) specifying the weekly amount mentioned in subparagraph 234(1)(b)(ii)
that is currently payable; and
(c) advising the partner that he or she can choose between the lump sum
and the weekly amount; and
(d) specifying the date on which the notice is given.
(2) The notice may be included in the notice given under
section 346.
(1) A partner who receives a notice under section 235 may choose to
be paid the lump sum or the weekly amount.
Note: The weekly amount is payable from the date of the
member’s death (see subsection 234(5)).
(2) A partner who makes a choice cannot change it.
(3) The choice must be made in writing and must be given to the Commission
within 6 months after the date on which the partner received the
notice.
(4) Before the end of the 6 month period, the Commission may extend the
period within which the choice must be made if it considers there are special
circumstances for doing so.
(5) The legal personal representative of a deceased partner is not
entitled to choose to be paid the lump sum.
(1) The Commonwealth is liable to pay the weekly amount mentioned in
subparagraph 234(1)(b)(ii) if a partner has not made a choice under
section 236 within:
(a) if the Commission has extended the period under subsection
236(4)—the period as extended by the Commission under that subsection;
or
(b) otherwise—the period of 6 months after receiving the notice
under section 235.
Note: The weekly amount is payable from the date of the
member’s death (see subsection 234(5)).
(2) If the partner subsequently chooses the lump sum mentioned in
subparagraph 234(1)(b)(i), then the amount of the lump sum that the Commonwealth
is liable to pay is worked out using the following formula:
Compensation under section 233 is payable to the partner.
Note: A special rule applies if a trustee is appointed under
section 432.
The Commonwealth is liable to pay compensation for the cost of financial
advice obtained by a wholly dependent partner of a deceased member if:
(a) the partner is entitled to compensation under section 233;
and
(b) the financial advice was obtained from a suitably qualified financial
adviser after the member’s death; and
(c) a claim for compensation in respect of the partner has been made under
section 319.
The Commission must determine the amount of compensation under
section 239 for the cost of the financial advice that it considers
reasonable. The total amount (including all previous amounts paid in respect of
the partner under this section) must not exceed $1,200.
Note: The amount of $1,200 is indexed under
section 404.
(1) Compensation under section 239 for the cost of the financial
advice is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who gave the financial advice; or
(ii) any other person who incurred the cost of the financial
advice.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) An amount paid to the person who gave the financial advice discharges
any liability of any other person for the cost of the financial advice to the
extent of the payment.
(1) The Commonwealth is liable to pay compensation for a wholly dependent
partner of a deceased member if:
(a) the member was paid compensation for the week before the week in which
the member died under one or more of the following provisions:
(i) section 68, 71 or 75 (permanent impairment);
(ii) Part 3 or 4 of Chapter 4 (incapacity for service or
work);
(iii) Part 6 of Chapter 4 (Special Rate Disability Pension);
and
(b) a claim for compensation in respect of the partner has been made under
section 319.
(2) In subsection (1):
(a) a reference to compensation paid for a week does not include a
reference to compensation paid as a lump sum; and
(b) a reference to compensation paid includes a reference to compensation
that the member was entitled to be paid.
(1) The amount of compensation that the Commonwealth is liable to pay
under section 242 is the amount that is 12 times:
(a) the total amount of compensation that the member was paid under the
provisions mentioned in paragraph 242(1)(a) for the week before the week in
which the member died; or
(b) the total amount of compensation that the member was entitled to have
been paid under those provisions for that week;
(as the case requires).
(2) The amount mentioned in subsection (1) is the total amount of
compensation that the Commonwealth is liable to pay under section 242, even
if more than one person is entitled to compensation under that section because
of the same deceased member’s death.
(1) Compensation for the partner under section 242 is payable to the
partner.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) If 2 or more partners are entitled to compensation under
section 242 because of the same deceased member’s death, then the
compensation is payable in accordance with the directions of the
Commission.
(3) In making directions under subsection (2), the Commission must
have regard to any loss of financial support suffered by the partners as a
result of the member’s death. The Commission must not have regard to any
other matter.
A wholly dependent partner of a deceased member is eligible for a
telephone allowance if:
(a) section 12 applies in respect of the member; and
(b) the partner is an Australian resident (within the meaning of
section 5G of the Veterans’ Entitlements Act 1986);
and
(c) the partner’s telephone service is connected in Australia in the
partner’s name or jointly in the partner’s name and someone
else’s name.
Note: Section 246 sets out some circumstances when
telephone allowance is not payable.
People leaving Australia otherwise than temporarily
(1) A wholly dependent partner who leaves Australia otherwise than
temporarily is not eligible for a telephone allowance on or after the next
telephone allowance payday.
Temporary absence from Australia
(2) A wholly dependent partner who is temporarily absent from Australia
and has been so absent for more than 26 weeks is not eligible for a telephone
allowance after the first 26 weeks of the absence.
When a person becomes eligible for telephone allowance after leaving
Australia
(3) The wholly dependent partner mentioned in subsections (1) and (2)
again becomes eligible to receive the telephone allowance on the later of the
following days:
(a) the day on which the partner returns to Australia; or
(b) the day on which the partner notifies the Commission of his or her
return to Australia.
Partners receiving other allowances etc.
(4) Even though a wholly dependent partner is eligible for a telephone
allowance, the allowance is not payable to the partner if he or she is receiving
a telephone allowance under:
(a) the Veterans’ Entitlements Act 1986; or
(b) the Social Security Act 1991; or
(c) this Act.
Entitlement under this Act when Veterans’ Entitlements Act rate is
lower
(5) However, if the rate of telephone allowance at which a wholly
dependent partner is being paid under the Veterans’ Entitlements Act
1986 is lower than the rate at which the partner would be paid under
section 247 of this Act, then the allowance is payable under this Act
rather than the Veterans’ Entitlements Act 1986.
Definition of telephone allowance payday
(6) In this section:
telephone allowance payday has the same meaning as in
section 118T of the Veterans’ Entitlements Act 1986.
The annual rate of telephone allowance that is payable under
section 245 is the rate that is payable from time to time under subsection
118S(1) of the Veterans’ Entitlements Act 1986.
A full instalment of telephone allowance is payable to a wholly dependent
partner on each telephone allowance payday (within the meaning of
section 118T of the Veterans’ Entitlements Act 1986) on
which:
(a) the partner is eligible for the allowance; and
(b) the allowance is payable to the partner.
Note: If a trustee is appointed under section 432, then
the allowance would be payable to the trustee instead.
(1) The amount of an instalment of telephone allowance is the amount
worked out by dividing the amount of the annual rate of telephone allowance by
4.
(2) If the amount of an instalment is not a multiple of 10 cents, the
amount is to be increased to the nearest multiple of 10 cents.
This Part provides compensation and other benefits for the children of
certain deceased, current and former members. Young dependants under 25 might
also be entitled to compensation or benefits even though they are not the child
of a deceased, current or former member.
Divisions 2 to 4 provide compensation to children and young people who
were dependants of deceased members to whom section 12 applies.
Division 2 provides lump sum compensation for most children and young
people. Divisions 3 and 4 provide an additional weekly amount and lump sum
for certain children and young people who were wholly or mainly dependent on
deceased members.
Under Division 6, the Commission can set up a scheme to provide
education and training for children and young people who are the dependants of
certain deceased, current and former members.
A child or young person who is entitled to compensation under this Chapter
might also be entitled to have free treatment, or compensation for treatment,
provided under Chapter 6.
The Commonwealth is liable to pay compensation for a person if:
(a) the person:
(i) was an eligible young person; and
(ii) was a dependant of a deceased member;
immediately before the member’s death; and
(b) section 12 applies in respect of the member; and
(c) a claim for compensation in respect of the person has been made under
section 319.
Note 1: Section 257 sets out who the compensation is
payable to.
Note 2: This Part does not apply to an eligible young person
who was also the wholly dependent partner of the deceased member (see
section 260).
The amount of compensation that the Commonwealth is liable to pay under
section 251 for the eligible young person is $60,000.
Note: The amount of $60,000 is indexed under
section 404.
(1) The Commonwealth is liable to pay compensation for a person for a week
if:
(a) the person is an eligible young person for the week or a part of the
week; and
(b) the person was a dependant of a deceased member immediately before the
member’s death; and
(c) either:
(i) the young person was wholly or mainly dependent on the member
immediately before the member’s death; or
(ii) the young person would have been wholly or mainly dependent on the
member for the week or the part of the week if the member had not died;
and
(d) section 12 applies in respect of the member; and
(e) a claim for compensation in respect of the person has been made under
section 319.
Note 1: Section 257 sets out who the compensation is
payable to.
Note 2: This Part does not apply to an eligible young person
who was also the wholly dependent partner of the deceased member (see
section 260).
(2) The Commonwealth is only liable to pay compensation for an eligible
young person who is born alive after the deceased member’s death from the
week in which the young person is born.
The amount of compensation that the Commission is liable to pay under
section 253 for the eligible young person for a week is $66.
Note: The amount of $66 is indexed under
section 404.
(1) The Commonwealth is liable to pay compensation for a person
if:
(a) the person:
(i) was an eligible young person; and
(ii) was a dependant of a deceased member;
immediately before the member’s death; and
(b) the person was wholly or mainly dependent on the member
immediately before the member’s death; and
(c) the member was paid compensation for the week before the week in which
the member died under one or more of the following provisions:
(i) section 68, 71 or 75 (permanent impairment);
(ii) Part 3 or 4 of Chapter 4 (incapacity for service or
work);
(iii) Part 6 of Chapter 4 (Special Rate Disability Pension);
and
(d) there is no wholly dependent partner of the member:
(i) who is entitled to compensation under section 242; or
(ii) who would be entitled to compensation under that section if a claim
for compensation in respect of the partner were made; and
(e) a claim for compensation in respect of the person has been made under
section 319.
Note 1: Section 257 sets out who the compensation is
payable to.
Note 2: This Part does not apply to an eligible young person
who was also the wholly dependent partner of the deceased member (see
section 260).
(2) In paragraph (1)(c):
(a) a reference to compensation paid for a week does not include a
reference to compensation paid as a lump sum; and
(b) a reference to compensation paid includes a reference to compensation
that the member was entitled to be paid.
(1) The amount of compensation that the Commonwealth is liable to pay
under section 255 is the amount that is 12 times:
(a) the total amount of compensation that the member was paid under the
provisions mentioned in paragraph 255(1)(c) for the week before the week in
which the member died; or
(b) the total amount of compensation that the member was entitled to be
paid under those provisions for that week;
(as the case requires).
(2) The amount mentioned in subsection (1) is the total amount of
compensation that the Commonwealth is liable to pay under section 255, even
if more than one person is entitled to compensation under that section because
of the same deceased member’s death.
Note: If more than one person is entitled to compensation
under section 255, the amount mentioned in subsection (1) is payable
in accordance with the directions of the Commission (see
section 257).
(1) Compensation under Divisions 2 to 4 is payable to:
(a) if the eligible young person is less than 18 years old—the
person who has primary responsibility for the daily care of the young person;
or
(b) otherwise—the eligible young person.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) If 2 eligible young persons are entitled to compensation under
section 255 because of the same deceased member’s death, then
compensation under that section is payable in accordance with the directions of
the Commission.
(3) In making directions under subsection (2), the Commission must
have regard to any loss of financial support suffered by the eligible young
persons as a result of the member’s death. The Commission must not have
regard to any other matter.
(1) The Commission may determine, in writing, a scheme to provide
education and training for:
(a) an eligible young person who is a dependant of the following member or
former member:
(i) a member or former member who is receiving, or satisfies the
eligibility criteria for, a Special Rate Disability Pension under Part 6 of
Chapter 4;
(ii) a member or former member who would satisfy the eligibility criteria
for a Special Rate Disability Pension under Part 6 of Chapter 4 but
for the operation of section 120 or 121;
(iii) a member or former member who suffers an impairment, as a result of
one or more service injuries or diseases, that the Commission has determined
under Part 2 of Chapter 4 constitutes 80 or more impairment points;
and
(b) an eligible young person who, immediately before a deceased
member’s death, was a dependant of the member in respect of whom
section 12 applies.
Note: This Part does not apply to an eligible young person
who was also the wholly dependent partner of the deceased member (see
section 260).
(2) A claim under section 319 must be made in respect of the eligible
young person in order to be provided with education and training under the
scheme.
(3) The scheme may provide for the following:
(a) the payment of maintenance allowances for eligible young persons who
are being provided with education or training under the scheme;
(b) how applications for education or training for eligible young persons
are made under the scheme;
(c) investigating and determining those applications;
(d) the establishment, membership and operation of any body to perform the
functions, and exercise the powers, that are conferred on the body by or under
the scheme in respect of the operation of the scheme;
(e) guidance and counselling services in respect of the education or
training of eligible young persons under the scheme.
(4) The Commission may, by written determination, vary or revoke a
determination under subsection (1).
(5) A determination, and any variation or revocation of a determination,
under this section has no effect unless the Minister has approved the
determination in writing.
(6) A determination, and any variation or revocation of a determination,
under this section that has been approved by the Minister is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
This Division, and the scheme established under section 258,
continue to apply to a person after he or she turns 25 if:
(a) before turning 25, the person began a course of education or training
provided under the scheme; and
(b) the person turns 25 before finishing the course; and
(c) after turning 25, the person continues the course in order to finish
it.
This Part does not apply to an eligible young person who was dependent on
a deceased member immediately before the member’s death if the eligible
young person was also the wholly dependent partner of the member at that
time.
Note: A wholly dependent partner of a deceased member is
entitled to compensation under Part 2.
This Part provides compensation for dependants of deceased members to whom
section 12 applies (other than partners and children of those
members).
Each dependant can be paid a lump sum determined by the
Commission.
The Commonwealth is liable to pay compensation for a person if:
(a) the person was a dependant of a deceased member immediately before the
member’s death; and
(b) the dependant was neither:
(i) a wholly dependent partner of the member; nor
(ii) an eligible young person who was a dependant of the member;
immediately before the member’s death; and
(c) section 12 applies in respect of the member; and
(d) a claim for compensation in respect of the person has been made under
section 319.
(1) The amount of compensation that the Commonwealth is liable to pay
under section 262 in respect of a dependant is the amount that the
Commission determines is reasonable. However:
(a) that amount must not exceed $60,000; and
(b) the total amount paid under section 262 in respect of all
dependants of a particular deceased member must not exceed $190,000.
Note: The amounts of $60,000 and $190,000 are indexed under
section 404.
(2) In making a determination under subsection (1), the Commission
must have regard to:
(a) any financial loss suffered by the dependant as a result of the
member’s death (other than compensation paid or payable under this Act);
and
(b) the degree to which the dependant was dependent on the deceased
member; and
(c) the length of time that the dependant would have been dependent on the
member.
The Commission must not have regard to any other matter (in particular, any
amount of compensation paid or payable under this Act before the member
died).
Compensation for a dependant under section 262 is payable
to:
(a) if the dependant is less than 18 years old—the person who has
primary responsibility for the daily care of the dependant; or
(b) otherwise—the dependant.
Note: A special rule applies if a trustee is appointed under
section 432.
This Part provides compensation to pay for the cost of the funeral of a
deceased member in respect of whom section 12 applies.
(1) The Commonwealth is liable to pay compensation for the cost of a
deceased member’s funeral if:
(a) section 12 applies in respect of the member; and
(b) a claim for compensation has been made under
section 319.
(2) The claim under section 319 may only be made:
(a) in respect of a dependant of the deceased member if the dependant
incurred the cost of the funeral; or
(b) by the deceased member’s legal personal
representative.
(1) The Commission must determine the amount of compensation under
section 266 that it considers reasonable for the cost of the deceased
member’s funeral. The amount must not exceed $4,600.
Note: The amount of $4,600 is indexed under
section 404.
(2) In determining the amount, the Commission must have regard
to:
(a) the charges ordinarily made for funerals in the place where the
funeral was carried out; and
(b) any amount paid or payable in respect of the cost of the funeral under
any other law of the Commonwealth.
The Commission must not have regard to any other matter.
(1) Compensation under section 266 for the cost of a deceased
member’s funeral is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who carried out the funeral; or
(ii) any other person who incurred the cost of the funeral.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 266 to a person who carried out the
funeral discharges any liability of any other person for the cost of the funeral
to the extent of the payment.
This Chapter deals with the provision of treatment for injuries and
diseases for certain current and former members and dependants of deceased
members.
Compensation for the cost of treatment is provided for under Part 2,
while treatment itself is provided for under Part 3.
Some people are entitled to treatment, or compensation for the cost of
treatment, for any injury or disease. Other people are only entitled to
treatment, or compensation for treatment, for a service injury or
disease.
Additional compensation for costs incurred in travelling to obtain
treatment and a pharmaceutical allowance are provided for under
Part 4.
Generally, a claim for compensation must be made under section 319 to
be entitled to treatment or compensation under this Chapter.
Part 5 contains offence provisions relating to treatment compensated
or provided for under this Chapter. The offences relate to conduct by those
claiming compensation or treatment under this Chapter, as well as conduct by
practitioners and providers of pathology services.
This Part provides compensation for the cost of treatment for injuries or
diseases of certain current and former members and dependants of deceased
members.
Under this Part, the Commission can provide current and former members with
compensation for the cost of treatment for service injuries or diseases instead
of providing the treatment under Part 3 or under the Defence Force
Regulations 1952.
Treatment can be compensated under this Part even if the person obtains the
treatment before the Commission determines that the person is entitled to the
treatment under Part 3 or if the person dies after receiving the
treatment.
A claim for compensation must be made under section 319 in respect of
a person to be entitled to the compensation.
A person who is entitled to compensation under this Part might also be
entitled to compensation under Part 4 for costs incurred in travelling to
obtain the treatment.
Compensation for costs incurred in treating an aggravated injury or disease
might not be paid if the aggravation or material contribution ceases.
Compensation for treatment for service injuries and
diseases
(1) The Commonwealth is liable to pay compensation for the cost of
treatment obtained for a person’s service injury or disease if:
(a) the person is a former member, or a current part-time Reservist, cadet
or declared member; and
(b) the Commission has accepted liability for the service injury or
disease; and
(c) it was reasonable for the person to obtain the treatment in the
circumstances; and
(d) a claim for compensation in respect of the person has been made under
section 319; and
(e) the Commission determines under section 327 that this section
applies to the person.
Note 1: Treatment for current members of the Defence Force
(other than part-time Reservists) is provided under regulation 58F of the
Defence Force Regulations 1952. However, compensation or treatment for
such a member might also be provided under section 272 or under
Part 3.
Note 2: This subsection might be affected by the following
provisions:
(a) section 274 (relationship with other compensation
provisions);
(b) section 275 (no compensation if aggravation etc.
ceases);
(c) section 276 (amount of
compensation);
(d) section 277 (whom compensation is payable
to).
Compensation for treatment prior to a service death
(2) The Commonwealth is liable to pay compensation for the cost of
treatment obtained for a person’s injury or disease if:
(a) the person later dies from the injury or disease; and
(b) the Commission has accepted liability for the service death;
and
(c) it was reasonable for the person to obtain the treatment in the
circumstances; and
(d) a claim for compensation has been made under section 319 by the
person’s legal personal representative.
Note: This subsection might be affected by the following
provisions:
(a) section 274 (relationship with other compensation
provisions);
(b) section 275 (no compensation if aggravation etc.
ceases);
(c) section 276 (amount of
compensation);
(d) section 277 (whom compensation is payable
to).
The Commonwealth is liable to pay compensation for the cost of
treatment obtained for a member’s service injury or disease if:
(a) the Commission has accepted liability for the injury or disease;
and
(b) it was reasonable for the member to obtain the treatment in the
circumstances; and
(c) the member is entitled to medical and dental treatment under
regulation 58F of the Defence Force Regulations 1952; and
(d) a claim for compensation in respect of the member has been made under
section 319; and
(e) the Commission, after considering any advice from the member’s
service chief, determines that it is more appropriate to provide compensation
for the treatment under this section even though the treatment could have been
provided under regulation 58F.
Note: This section might be affected by the following
provisions:
(a) section 274 (relationship with other compensation
provisions);
(b) section 275 (no compensation if aggravation etc.
ceases);
(c) section 276 (amount of
compensation);
(d) section 277 (whom compensation is payable
to).
The Commonwealth is liable to pay compensation for the cost of
treatment obtained for a person’s injury or disease if:
(a) the person is entitled to treatment under Part 3 in respect of
the injury or disease; and
(b) the person obtains the treatment before any determination by the
Commission that the person is entitled to the treatment under that Part;
and
(c) it was reasonable for the person to obtain the treatment in the
circumstances; and
(d) a claim for compensation in respect of the person has been made under
section 319.
Note: This section might be affected by the following
provisions:
(a) section 274 (relationship with other compensation
provisions);
(b) section 275 (no compensation if aggravation etc.
ceases);
(c) section 276 (amount of
compensation);
(d) section 277 (whom compensation is payable
to).
(1) The Commonwealth is not liable to pay compensation under
section 271, 272 or 273 for the cost of treatment if the Commonwealth is
liable to pay compensation in respect of the treatment under a section in
another Chapter of this Act.
(2) If a person would be entitled to compensation for the cost of
treatment under more than one section in this Part, then the Commonwealth is
only liable to pay compensation in respect of the treatment under one of those
sections.
The Commonwealth is not liable to pay compensation for the cost of
treatment obtained for an aggravated injury or disease if, at the time of the
treatment, the aggravation or material contribution had ceased.
(1) The Commission must determine the amount of compensation payable under
section 271, 272 or 273. The amount must be the amount the Commission
considers reasonable for the cost of the treatment for a person’s injury
or disease. However, the amount must not be more than the amount actually
incurred in obtaining the treatment.
Note 1: The amount determined by the Commission must not
take into account increases in the cost of a particular treatment after that
treatment has been obtained.
Note 2: Compensation for costs incurred in respect of
journeys etc. made for the purposes of obtaining treatment is paid under
Part 4.
(2) The amount of compensation for treatment includes the amount
reasonably incurred (whether paid or payable) in the necessary replacement or
repair of a medical aid used by the person. This may include any reasonable fees
or charges of a practitioner, or other qualified person, for a consultation,
examination, prescription, or other service that is reasonably rendered in
connection with the replacement or repair.
(1) Compensation under section 271, 272 or 273 for the cost of the
treatment is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) the person who provided the treatment; or
(ii) any other person who incurred the cost of the treatment.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 271, 272 or 273 to a person who provided
the treatment discharges any liability of any other person for the cost of the
treatment to the extent of the payment.
This Part provides for treatment to be provided for the injuries and
diseases of certain current and former members and dependants of deceased
members.
Current and former members might be entitled to treatment for a service
injury or disease rather than compensation under Part 2 or treatment under
the Defence Force Regulations 1952.
Current and former members who have suffered a serious impairment from a
service injury or disease are entitled to treatment for any injury or
disease.
Some partners and young dependants (such as children) of deceased members
in respect of whom section 12 applies are also entitled to treatment for
any injury or disease.
Generally, a claim for compensation in respect of the person must be made
under section 319 to be entitled to the treatment.
Treatment might not be provided for an aggravated injury or disease if the
aggravation or material contribution ceases.
The Commission can arrange for the treatment either in accordance with
arrangements it has with hospitals and doctors etc. or in accordance with a
determination it makes under Division 4 of this Part.
A person who is entitled to treatment under this Part might also be
entitled to compensation for costs incurred in travelling to obtain the
treatment and a pharmaceutical allowance under Part 4.
A member is entitled to be provided with treatment under this Part for a
service injury or disease of the member if:
(a) the Commission has accepted liability for the injury or disease;
and
(b) the member is entitled to medical and dental treatment under
regulation 58F of the Defence Force Regulations 1952; and
(c) a claim for compensation in respect of the member has been made under
section 319; and
(d) the Commission, after considering any advice from the member’s
service chief, determines that it is more appropriate to provide treatment for
the injury or disease under this Part than to provide such treatment under
regulation 58F.
Note 1: Compensation might be payable in respect of
treatment obtained before the Commission determines that the person is entitled
to treatment (see section 273).
Note 2: A person is not entitled to treatment for an
aggravated injury or disease if the aggravation ceases (see
section 283).
A person is entitled to be provided with treatment under this Part for a
service injury or disease of the person if:
(a) the person is a former member or a current part-time Reservist, cadet
or declared member; and
(b) the Commission has accepted liability for the service injury or
disease; and
(c) a claim for compensation in respect of the person has been made under
section 319; and
(d) the Commission determines under section 327 that this section
applies to the person.
Note 1: Compensation might be payable in respect of
treatment obtained before the Commission determines that the person is entitled
to treatment (see section 273).
Note 2: A person is not entitled to treatment for an
aggravated injury or disease if the aggravation ceases (see
section 283).
(1) A person is entitled to be provided with treatment under this Part for
any injury or disease of the person if:
(a) the Commission has determined under Part 2 of Chapter 4
(permanent impairment) that an impairment resulting from one or more service
injuries or diseases suffered by the person constitutes 60 or more impairment
points; and
(b) the person’s impairment continues to constitute 60 or more
impairment points; and
(c) the treatment is provided to the person after the determination under
Part 2 of Chapter 4 is made.
Note 1: Compensation might be payable in respect of
treatment obtained before the Commission determines that the person is entitled
to treatment (see section 273).
Note 2: A person who ceases to be entitled to treatment
under this section might still be entitled to treatment under
section 282.
(2) However, if the person is only suffering from a single aggravated
injury or disease, then the person is only entitled to be provided with the
treatment if the impairment resulting from the aggravation or material
contribution constitutes, and continues to constitute, 60 or more impairment
points.
A person is entitled to be provided with treatment under this Part for
any injury or disease of the person if:
(a) any of the following applies:
(i) the person is receiving a Special Rate Disability Pension under
Part 6 of Chapter 4;
(ii) the person satisfies the eligibility criteria in section 199
(persons who are eligible for Special Rate Disability Pension);
(iii) the person would satisfy the eligibility criteria in
section 199 but for the operation of section 120 or 121 (compensation
for those over 63); and
(b) the treatment is provided to the person after paragraph (a)
begins to apply to the person.
Note 1: Compensation might be payable in respect of
treatment obtained before the Commission determines that the person is entitled
to treatment (see section 273).
Note 2: A person who ceases to be entitled to treatment
under this section might still be entitled to treatment under
section 281.
A person is not entitled to be provided with treatment under
section 279 or 280 for an aggravated injury or disease if the aggravation
or material contribution ceases.
Treatment for certain wholly dependent partners
(1) A wholly dependent partner of a deceased member is entitled to be
provided with treatment under this Part for any injury or disease of the
partner if:
(a) section 12 applies in respect of the member; and
(b) the treatment is provided to the partner after the member’s
death; and
(c) a claim for compensation in respect of the partner has been made under
section 319.
Note: Compensation might be payable in respect of treatment
obtained before the Commission determines that the person is entitled to
treatment (see section 273).
Treatment for certain eligible young persons
(2) A person is entitled to be provided with treatment under this Part
for any injury or disease of the person if:
(a) the person is an eligible young person; and
(b) the person was an eligible young person who was wholly or mainly
dependent on a deceased member immediately before the member’s death;
and
(c) section 12 applies in respect of the member; and
(d) the treatment is provided to the person after the member’s
death; and
(e) a claim for compensation in respect of the person has been made under
section 319.
Note: Compensation might be payable in respect of treatment
obtained before the Commission determines that the person is entitled to
treatment (see section 273).
(1) For the purposes of this Part, the Commission may:
(a) enter into arrangements with the appropriate authority of the
Commonwealth, a State or a Territory for the provision of care and welfare at a
public hospital or other institution for persons entitled to be provided with
treatment under this Part; and
(b) enter into arrangements with any other body operating a hospital or
other institution for the provision of care and welfare at that hospital or
institution for persons entitled to be provided with treatment under this Part;
and
(c) enter into arrangements with any practitioner or other person
qualified to provide treatment.
(2) In this section:
public hospital or other institution means a hospital or
other institution that is operated by the Commonwealth, a State or a
Territory.
Commission may make written determination
(1) The Commission may make a written determination of any one or more of
the following:
(a) the places at which, the circumstances in which, and the conditions
subject to which, a particular kind or class of treatment may be provided under
this Part other than under arrangements made under section 285;
(b) the places at which, the circumstances in which, and the conditions
subject to which, treatment may be provided under this Part to persons as
private patients other than under arrangements made under
section 285;
(c) the places at which, the circumstances in which, and the conditions
subject to which, pharmaceutical benefits may be provided under this Part other
than under arrangements made under section 285;
(d) the kinds or classes of treatment that will not be provided under this
Part;
(e) the places at which, the circumstances in which, and the conditions
subject to which, treatment will not be provided under this Part;
(f) whether the Commission’s prior approval of a particular kind or
class of treatment is required;
(g) if the Commission’s prior approval is required:
(i) the circumstances in which the Commission may exercise its power to
give prior approval; and
(ii) the circumstances in which the Commission may exercise its power to
give approval if the treatment was obtained without prior approval.
Variation or revocation
(2) The Commission may, by written determination, vary or revoke a
determination under subsection (1).
Minister must approve a determination
(3) A determination under this section has no effect unless the Minister
has approved the determination in writing.
Disallowable instrument etc.
(4) A determination that has been approved by the Minister is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(5) For the purposes of sections 48, 48A, 48B and 49 of the Acts
Interpretation Act 1901 as they apply to a determination under this
section:
(a) the determination is taken to be made on the day on which the Minister
approved the determination; and
(b) the references in section 48 of that Act to the date of
notification of the determination are to be read as references to the date on
which the Minister approved the determination.
Determinations must be publicly available
(6) The Commission must make copies of all determinations under this
section available on the Internet.
When treatment is provided as a private patient
(7) For the purposes of paragraph (1)(b), treatment is taken to be
provided to a person as a private patient if:
(a) the treatment is provided to the person as a person who is a private
patient of a hospital, for the purposes of the Health Insurance Act 1973;
or
(b) the treatment is provided to the person by a medical specialist to
whom the person has been referred but is not provided at a hospital.
(1) The Commission may arrange for treatment to be provided to a person
who is entitled to treatment under this Part:
(a) in accordance with the arrangements made under section 285;
or
(b) in accordance with the determination made under
section 286.
(2) However, if a person who is entitled to treatment under this Part
requires a particular kind or class of treatment that is not dealt with in the
arrangements or the determination, then the person’s entitlement is
subject to the Commission’s approval of the treatment (whether that
approval is given before or after the treatment is provided).
(3) Nothing in this Part:
(a) imposes a duty on the Commission to arrange for treatment to be
provided to a person outside Australia; or
(b) confers a right on a person to be provided with treatment outside
Australia.
Division 2 of this Part provides for compensation for costs incurred
in some travel taken by a patient to obtain treatment. The Commission can also
approve an attendant to accompany the patient and pay the attendant’s
travel costs. The costs of the patient’s or attendant’s
accommodation can be paid if they have to stay at a place to obtain the
treatment.
Division 3 of this Part provides for compensation for costs incurred
by certain persons in transporting another person to a hospital etc. or a
mortuary.
Division 4 provides for an allowance to pay for pharmaceutical
benefits for those who are entitled to treatment under Part 3 of this
Chapter.
In this Division:
compensable treatment means:
(a) treatment in respect of which compensation is payable under
Part 2; or
(b) treatment to which a person is entitled under Part 3.
Compensation for costs of a patient’s journey
(1) The Commonwealth is liable to pay compensation for any costs
reasonably incurred if:
(a) the costs are incurred in respect of a journey that is made by a
person that is necessary for the person to obtain compensable treatment for an
injury or disease of the person; and
(b) any one or more of the following applies:
(i) if the journey is by ambulance services—the person’s
injury or disease reasonably requires using those services; or
(ii) the journey is by public transport; or
(iii) if the journey is by means other than public transport or ambulance
services—it is unreasonable for the person to use public transport having
regard to the nature of the person’s injury or disease, or public
transport is unavailable; or
(iv) the reasonable length of the journey (including the return part of
the journey) exceeds 50 kilometres; and
(c) a claim for compensation in respect of the person has been made under
section 319.
Note 1: Section 289 defines compensable
treatment.
Note 2: This subsection might be affected by the following
provisions:
(a) section 292 (journeys etc. outside
Australia);
(b) section 293 (amount of
compensation).
Compensation for costs of an attendant’s journey
(2) The Commonwealth is liable to pay compensation for any costs
reasonably incurred if:
(a) the Commission approves a person (the attendant) to
accompany another person (the patient) on a journey that is
necessary for the patient to obtain compensable treatment for an injury or
disease of the patient; and
(b) the costs are incurred in respect of the attendant’s journey;
and
(c) any one or more of the following applies:
(i) if the journey is by ambulance services—the person’s
injury or disease reasonably requires using those services; or
(ii) the journey is by public transport; or
(iii) if the journey is by means other than public transport or ambulance
services—it is unreasonable for the person to use public transport having
regard to the nature of the person’s injury or disease, or public
transport is unavailable; or
(iv) the reasonable length of the journey (including the return part of
the journey) exceeds 50 kilometres; and
(d) a claim for compensation in respect of the attendant has been made
under section 319.
Note 1: Section 289 defines compensable
treatment.
Note 2: This subsection might be affected by the following
provisions:
(a) section 292 (journeys etc. outside
Australia);
(b) section 293 (amount of
compensation).
Compensation for the costs of a patient’s
accommodation
(1) The Commonwealth is liable to pay compensation for any costs
reasonably incurred if:
(a) a person makes a journey that is necessary for the person to obtain
compensable treatment for an injury or disease of the person; and
(b) it is necessary for the person to remain at the place to which the
journey was made to obtain the treatment; and
(c) the costs are incurred in respect of the person’s accommodation
at that place; and
(d) a claim for compensation in respect of the person has been made under
section 319.
Note 1: Section 289 defines compensable
treatment.
Note 2: This subsection might be affected by the following
provisions:
(a) section 292 (journeys etc. outside
Australia);
(b) section 294 (amount of
compensation).
Compensation for the costs of an attendant’s
accommodation
(2) The Commonwealth is liable to pay compensation for any costs
reasonably incurred if:
(a) the Commission approves a person (the attendant) to
accompany another person (the patient) on a journey that is
necessary for the patient to obtain compensable treatment for an injury or
disease of the patient; and
(b) it is necessary for the patient and the attendant to remain at the
place to which the journey was made to obtain that treatment; and
(c) the costs are incurred in respect of the attendant’s
accommodation at that place; and
(d) a claim for compensation in respect of the attendant has been made
under section 319.
Note 1: Section 289 defines compensable
treatment.
Note 2: This subsection might be affected by the following
provisions:
(a) section 292 (journeys etc. outside
Australia);
(b) section 294 (amount of
compensation).
The Commonwealth is not liable to pay compensation under section 290
or 291 for:
(a) costs incurred in respect of a journey that is made outside Australia
for the main purpose of obtaining treatment; or
(b) costs incurred in respect of accommodation required during such a
journey.
(1) The amount of compensation that the Commonwealth is liable to pay
under section 290 (compensation for journeys) is the amount determined by
the Commission to be the amount reasonably incurred in respect of the
journey.
(2) In determining an amount under subsection (1), the Commission may
determine the amount of compensation using the following formula:
Note: For example, the Commission might use the formula if a
person used a private vehicle to make a journey, but not if a person flew on a
commercial airline.
(3) In this section:
length of the journey in kilometres means:
(a) if only subparagraph 290(1)(b)(iv) or (2)(c)(iv) applies—the
number of whole kilometres the Commission determines to be the reasonable length
of the journey that it was necessary to make; and
(b) otherwise—the length of the journey in kilometres.
specified rate per kilometre means the rate per kilometre
that the Minister determines in writing for the purposes of this
section.
Note: The determination may be varied or revoked (see
subsection 33(3) of the Acts Interpretation Act 1901).
(4) A determination of the rate per kilometre, or a variation or
revocation of a determination, under this section is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
The amount of compensation that the Commonwealth is liable to pay under
section 291 (compensation for accommodation) is the amount reasonably
incurred in respect of the accommodation.
In determining issues arising under this Division, the Commission must
have regard to the following matters:
(a) the places where appropriate treatment was available to the
person;
(b) the means of transport available to the person for the
journey;
(c) the means of transport appropriate for the person to take for the
journey;
(d) the routes by which the person could have travelled;
(e) the accommodation available to the person at the place to which the
journey was made;
(f) any other relevant matters.
(1) Compensation under section 290 or 291 for costs reasonably
incurred is payable to:
(a) the person who made the claim for compensation; or
(b) if that person so directs:
(i) a person who provided services in connection with the journey or
accommodation; or
(ii) any other person who incurred the cost of services in connection with
the journey or accommodation.
Note: A special rule applies if a trustee is appointed under
section 432.
(2) A payment under section 290 or 291 to a person who provided
services in connection with the journey or accommodation discharges any
liability of any other person for the cost of those services to the extent of
the payment.
The Commonwealth is liable to pay compensation for any costs reasonably
incurred by a person (the first person) if:
(a) the first person reasonably incurred those costs in connection with
transporting another person to:
(i) a hospital or other institution; or
(ii) a mortuary;
from a place where that other person had sustained an injury, contracted
a disease or died; and
(b) either:
(i) that injury, disease or death is a service injury, disease or death in
respect of which the Commission has accepted liability; or
(ii) the other person is entitled to treatment under section 284 in
respect of the injury or disease; and
(c) a claim for compensation in respect of the first person has been made
under section 319.
The amount of compensation that the Commonwealth is liable to pay under
section 297 is the amount reasonably incurred by the person.
Compensation under section 297 is payable to the person.
Note: A special rule applies if a trustee is appointed under
section 432.
A person is eligible for a pharmaceutical allowance if the person is
entitled to treatment under Part 3 of this Chapter.
Note: Section 301 sets out some circumstances when
pharmaceutical allowance is not payable.
People leaving Australia otherwise than temporarily
(1) A person who leaves Australia otherwise than temporarily is not
eligible for a pharmaceutical allowance after the day on which he or she left
Australia.
Temporary absence from Australia
(2) A person who is temporarily absent from Australia and has been so
absent for more than 26 weeks is not eligible for a pharmaceutical allowance
after the first 26 weeks of the absence.
When a person becomes eligible for pharmaceutical allowance after
leaving Australia
(3) The person mentioned in subsections (1) and (2) again becomes
eligible to receive the pharmaceutical allowance on the later of the following
days:
(a) the day on which the person returns to Australia; or
(b) the day on which the person notifies the Commission of his or her
return to Australia.
Persons receiving other allowances etc.
(4) Even though a person is eligible for a pharmaceutical allowance, the
allowance is not payable to the person under this Act if he or she is receiving
a pharmaceutical allowance under:
(a) the Veterans’ Entitlements Act 1986; or
(b) the Social Security Act 1991.
Persons who later become eligible for pharmaceutical allowance under the
Veterans’ Entitlements Act
(5) Even though a person is eligible for a pharmaceutical allowance, if
the person later becomes eligible for the pharmaceutical allowance under the
Veterans’ Entitlements Act 1986, the allowance is not
payable to the person under this Act.
The rate of pharmaceutical allowance that is payable under
section 300 is the rate that is payable from time to time under
section 118C of the Veterans’ Entitlements Act 1986.
A person’s pharmaceutical allowance is payable on each pension
payday (within the meaning of subsection 5Q(1) of the Veterans’
Entitlements Act 1986) on which:
(a) the person is eligible for the allowance; and
(b) the allowance is payable to the person.
Note: If a trustee is appointed under section 432, then
the allowance would be payable to the trustee.
This Part contains offences relating to treatment provided or compensated
under this Chapter.
The offences relate to:
(a) false or misleading statements or documents given in respect of
treatment; and
(b) medical service providers who cause or threaten detriment to others;
and
(c) medical service providers who bribe practitioners in respect of
treatment; and
(d) practitioners who accept bribes in respect of treatment; and
(e) pathology practitioners who provide payments or services to other
practitioners with whom they have arrangements.
There are other offence provisions in the Criminal Code that might
also apply (such as in Parts 7.3 (fraudulent conduct), 7.4 (false or
misleading statements) and 7.7 (forgery)).
The Criminal Code and the Crimes Act 1914 also contain
provisions that are relevant to offences generally.
(1) In this Part:
medical service provider means a person:
(a) who is a pathology practitioner; or
(b) who is a proprietor of premises at which pathology services are
rendered; or
(c) who is a proprietor of a hospital or other institution that is not
operated by the Commonwealth, a State or a Territory; or
(d) who is acting on behalf of a proprietor of such a hospital or other
institution.
pathology practitioner means a person in respect of whom
there is in force an undertaking given by the person, and accepted by the
Minister, under section 23DC of the Health Insurance Act
1973.
pathology service has the meaning given by subsection 3(1) of
the Health Insurance Act 1973.
proprietor means:
(a) in relation to premises—the person, authority or body of persons
having effective control of the premises (whether or not that person, authority
or body is the holder of an estate or interest in the premises); and
(b) in relation to a hospital or other institution—the proprietor
(within the meaning of paragraph (a)) of the premises occupied by the
hospital or other institution.
treatment under this Chapter includes treatment in respect of
which compensation is paid under Part 2 of this Chapter.
(2) In this Part, a person engages in conduct dishonestly
if:
(a) the person engages in conduct; and
(b) the conduct is dishonest according to the standards of ordinary
people; and
(c) the defendant knows the conduct is dishonest according to the
standards of ordinary people.
(1) A person commits an offence if:
(a) any of the following applies:
(i) the person makes a statement (whether oral or in writing);
(ii) the person issues or presents a document;
(iii) the person authorises a statement to be made or a document to be
issued or presented; and
(b) the statement or document is false or misleading in a material
particular; and
(c) the statement or document is capable of being used in connection
with:
(i) a claim for compensation under Part 2 or 4; or
(ii) a claim by a person for payment for treatment provided by the person
under Part 3.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if:
(a) the person did not know, and could not reasonably be expected to have
known, that the statement or document was false or misleading in a material
particular; or
(b) the person did not know, and could not reasonably be expected to have
known, that the statement or document was capable of being used in connection
with:
(i) a claim for compensation under Part 2 or 4; or
(ii) a claim by a person for payment for treatment provided by the person
under Part 3.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Section 9.2 of the Criminal Code (mistake of fact) does
not apply in relation to the matters mentioned in subsection (3).
(5) Despite section 15B of the Crimes Act 1914, a prosecution
for an offence under this section can be commenced at any time within 3 years
after the offence is committed.
A person commits an offence if:
(a) the person is a medical service provider; and
(b) the person engages in conduct or omits to engage in conduct;
and
(c) the conduct or omission causes detriment to another person;
and
(d) the person engages in the conduct or omits to engage in the conduct
intending:
(i) the conduct or omission to cause detriment to the other person;
and
(ii) to encourage the other person to request a pathology service in
respect of treatment provided under this Chapter; and
(e) the other person does not consent to the conduct or
omission.
Penalty: 120 penalty units or imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is a medical service provider; and
(b) the medical service provider makes a threat to another person to cause
detriment to the other person or a third person; and
(c) the medical service provider is reckless as to causing the other
person or the third person to fear that the threat will be carried out;
and
(d) the medical service provider makes the threat intending to encourage
the other person to request a pathology service in respect of treatment
provided under this Chapter.
Penalty: 120 penalty units or imprisonment for 2 years.
(2) For the purposes of subsection (1), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) In a prosecution for an offence against subsection (1), it is not
necessary to prove that the person actually feared that the threat would be
carried out.
A person commits an offence if:
(a) the person is a medical service provider; and
(b) the person dishonestly:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers or promises to provide a benefit to another person;
or
(iv) causes an offer or a promise to provide a benefit to be made to
another person; and
(c) the person does so intending to encourage the other person to
request a pathology service in respect of treatment provided under this
Chapter.
Penalty: 120 penalty units or imprisonment for 2 years.
A person commits an offence if:
(a) the person is a practitioner; and
(b) the person dishonestly:
(i) asks for a benefit for himself or herself, or for another person;
or
(ii) receives or obtains a benefit for himself or herself, or for another
person; or
(iii) agrees to receive or obtain a benefit for himself or herself, or for
another person; and
(c) the person does so intending:
(i) that treatment provided by him or her under this Chapter will be
influenced; or
(ii) to induce, foster or sustain a belief that such treatment will be
influenced.
Penalty: 120 penalty units or imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is a pathology practitioner; and
(b) another practitioner (the requesting practitioner)
requests the pathology practitioner to provide pathology services to a person
(the patient); and
(c) the patient is entitled to treatment under this Chapter; and
(d) the pathology practitioner provides those services; and
(e) the pathology practitioner makes a payment (either directly or
indirectly) to the requesting practitioner either:
(i) in respect of other services provided by the requesting practitioner
to the patient in connection with the request; or
(ii) in respect of the use of the requesting practitioner’s staff in
connection with taking pathology specimens from the patient.
Penalty: 120 penalty units or imprisonment for 2 years.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) A person commits an offence if:
(a) the person is a pathology practitioner; and
(b) the person has entered an arrangement with another practitioner to
share the cost of:
(i) employing staff; or
(ii) buying, renting or maintaining items of equipment;
(whether or not the arrangement involves paying money or providing other
consideration); and
(c) the other practitioner requests the person to provide pathology
services in respect of treatment under this Chapter; and
(d) the person provides those services while the arrangement is in
force.
Penalty: 120 penalty units or imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is a pathology practitioner; and
(b) the pathology practitioner has entered an arrangement with a
practitioner:
(i) to share a particular space in a building; or
(ii) for one of them to provide space in a building for the other to use
or occupy; or
(iii) for one of them to permit the other to use or occupy the building;
and
(c) the charges payable under the arrangement are not charges fixed at
normal commercial rates; and
(d) the practitioner requests the pathology practitioner to provide
pathology services in respect of treatment under this Chapter; and
(e) the pathology practitioner provides those services while the
arrangement is in force.
Penalty: 120 penalty units or imprisonment for 2 years.
A person commits an offence if:
(a) the person is a pathology practitioner; and
(b) the person provides nursing or other staff at the premises of another
practitioner (whether the staff are present full-time, part-time or from time to
time); and
(c) the person intends the staff to be used in taking pathology specimens
in respect of treatment under this Chapter.
Penalty: 120 penalty units or imprisonment for 2 years.
(1) This section applies if:
(a) a person (the treatment provider) has provided treatment
under this Chapter; and
(b) the treatment provider has been counselled by a staff member assisting
the Commission with respect to providing treatment under this Chapter;
and
(c) the treatment provider makes a statement during the
counselling.
(2) The statement is inadmissible as evidence against the treatment
provider in proceedings prosecuting him or her for an offence mentioned in
subsection (3) unless:
(a) the treatment provider consents to the statement being admitted as
evidence in the proceedings; or
(b) both of the following apply:
(i) evidence of another statement made by the treatment provider during
such counselling is admitted on behalf of the provider;
(ii) evidence of the statement mentioned in paragraph (1)(c) is
adduced to refute evidence of that other statement.
(3) For the purposes of subsection (2), these are the
offences:
(a) an offence under this Part;
(b) an offence against:
(i) section 6 of the Crimes Act 1914 (accessory after the
fact); or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code (attempt,
incitement or conspiracy);
that relates to an offence under this Part.
(1) This section applies if:
(a) an amount is paid under this Chapter purportedly by way of
compensation or payment to a person for treatment provided by the person;
and
(b) as a result of making a false or misleading statement, the amount paid
exceeds the amount (if any) that should have been paid.
(2) The amount of the excess is recoverable as a debt due to the
Commonwealth from:
(a) the person by or on behalf of whom the statement was made;
or
(b) the estate of that person.
(3) Subsection (2) applies whether or not:
(a) the amount was paid to the person by or on behalf of whom the
statement was made; and
(b) any person has been convicted of an offence in relation to the making
of the statement.
(1) This section applies if:
(a) an amount (the principal sum) is recoverable as a debt
due to the Commonwealth from a person or estate under section 315;
and
(b) the Commission has served a notice on the person or estate (as the
case requires) claiming the amount as a debt due to the Commonwealth;
and
(c) an arrangement has been entered into between the Commission and the
person or estate (as the case requires) to repay the principal sum within the
following period (the relevant period):
(i) the period of 3 months from the day the notice is served;
(ii) such longer period as the Commission allows; and
(d) there has been a default (whether before or after the end of that
period) in repaying all or part of the principal sum as required by the
arrangement.
(2) This section applies if:
(a) an amount (the principal sum) is recoverable as a debt
due to the Commonwealth from a person or estate under section 315;
and
(b) the Commission has served a notice on the person or estate (as the
case requires) claiming the amount as a debt due to the Commonwealth;
and
(c) an arrangement to repay the principal sum has not been entered into
within the following period (the relevant period):
(i) the period of 3 months from the day the notice is served;
(ii) such longer period as the Commission allows; and
(d) all or part of the principal sum remains unpaid.
(3) Interest is payable on the amount of the principal sum that remains
unpaid from time to time.
(4) The interest is payable from:
(a) the day after the end of the relevant period; or
(b) such other later day ordered by a court in any proceedings instituted
by the Commonwealth to recover an amount due under this section.
(5) The interest is payable at the rate prescribed from time to time for
the purposes of subsection 129AC(2) of the Health Insurance Act
1973.
(6) The interest is recoverable as a debt due to the Commonwealth from the
person or estate (as the case requires).
(1) The Commission may reduce the amount of any payment that becomes
payable to a person if:
(a) an amount has previously been paid under this Chapter to the person
purportedly by way of compensation or payment for treatment provided;
and
(b) the amount paid exceeds the amount (if any) that should have been
paid; and
(c) the person agrees to the reduction.
(2) The amount of the reduction must not exceed:
(a) if the Commission has not previously reduced a payment under this
section—the amount of the excess; and
(b) otherwise—the amount by which the sum of all amounts of excess
under subsection (1) exceeds the sum of all amounts recovered under this
section.
Most benefits under this Act require a claim to have been made under
section 319 in respect of a person. This Part sets out the rules that apply
in making claims.
A claim can be made for:
(a) acceptance of liability for an injury, disease or death; or
(b) acceptance of liability for the loss of or damage to a member’s
medical aid;
(c) compensation.
The claim can be made by a current or former member who suffered a service
injury or disease, a dependant of a deceased member, or a person who is entitled
to compensation. A claim can also be made on behalf of such a person.
Once a claim is made, the Commission must investigate the claim. As part of
this investigation, the Commission can assess the needs of a person who has made
a claim for acceptance of liability for a service injury or disease (including
by requiring the person to undergo an examination). The Commission decides under
section 327 whether the person should be paid compensation for treatment
under Part 2 of Chapter 6 or whether the person should be provided
with treatment under Part 3 of Chapter 6.
The Commission can require information or documents that are relevant to a
claim to be provided. A service chief or a person who has made a claim can
require the Commission to provide information or documents that are relevant to
a claim.
(1) A claim may be made under this section for one or more of the
following:
(a) acceptance of liability by the Commission for a service injury
sustained by a person or a service disease contracted by a person;
(b) acceptance of liability by the Commission for the service death of a
person;
(c) acceptance of liability by the Commission for the loss of, or damage
to, a member’s medical aid;
(d) compensation.
Note: Section 320 sets out who may make the
claim.
(2) A claim must:
(a) be in writing; and
(b) be given to the Commission; and
(c) satisfy the requirements (if any):
(i) prescribed by the regulations; or
(ii) determined in writing by the Commission;
as to the form and content of claims, or claims of that kind.
Note: Section 323 sets out when a claim is taken to
have been given to the Commission.
(3) The Commission must give a copy of a claim that has been made in
respect of a person to the person’s service chief if:
(a) the claim is for the acceptance of liability by the Commission for a
service injury sustained by the person, a service disease contracted by the
person or the person’s service death; and
(b) the person was a member of the Defence Force:
(i) for a claim relating to a service injury or disease—at the time
the claim was made; or
(ii) for a claim relating to a service death—at the time of
death.
(4) The Commission must give a copy of a claim that has been made in
respect of a person to the person’s service chief if:
(a) the claim is for compensation under Part 2 of Chapter 4
(permanent impairment); and
(b) the person was a member of the Defence Force at the time the claim was
made.
(1) A claim under subsection 319(1) may be made by:
(a) if paragraph 319(1)(a) applies—the person who sustained the
injury or contracted the disease; or
(b) if paragraph 319(1)(b) applies—a person who is a dependant of
the person who died; or
(c) if paragraph 319(1)(c) applies—the member whose medical aid is
lost or damaged; or
(d) if paragraph 319(1)(d) applies—the person who is entitled to the
compensation.
Note: A special rule applies in respect of claims for the
cost of funerals and compensation for treatment for members who later die (see
section 266 and subsection 271(2)).
(2) Alternatively, a claim may be made on behalf of such a
person:
(a) with the person’s approval; or
(b) by the person’s legal personal representative; or
(c) if the person is unable, because of physical or mental incapacity, to
approve someone to make the claim on his or her behalf—by another person
approved by the Commission.
(3) The Commission may approve another person to make a claim on a
person’s behalf as mentioned in paragraph (2)(c) only if:
(a) the person has no legal personal representative; or
(b) the Commission is satisfied that:
(i) the person’s legal personal representative has been notified
that the legal personal representative has, or may have, a right to make a
claim; and
(ii) the person’s legal personal representative has refused, or
failed within a reasonable time after having been so notified, to make the
claim.
Claim made before death
(1) A claim made before the death of the person who made the claim
(including a claim made by a dependant of a deceased member) continues to have
effect after the death of that person.
(2) If a person makes a claim under section 319 before the
person’s death, the person’s legal personal representative can make
a claim for any compensation (including compensation under Part 2 of
Chapter 4 (permanent impairment)) that could have been payable to the
person up to the date of death.
Note 1: The legal personal representative cannot convert
compensation for permanent impairment to a lump sum (see
section 78).
Note 2: The legal personal representative of a deceased
dependant cannot choose to receive a lump sum for a deceased partner (see
section 236).
No claim made before death
(3) If a person who is entitled to make a claim under this Act dies before
making the claim, the claim may be made on the person’s behalf by the
person’s legal personal representative.
(4) The person’s legal personal representative can make a claim for
any compensation that could have been payable to the person up to the date of
death, except compensation under Part 2 of Chapter 4 (permanent
impairment).
Note: A payment of compensation in respect of a deceased
person normally forms part of the estate of the person (see
section 436).
(1) A claim for acceptance of liability for a service injury, disease or
death, or the loss of or damage to a medical aid, must not be made if another
claim for acceptance of liability for that injury, disease, death, loss or
damage has not yet been finally determined.
(2) For the purposes of subsection (1), a claim is finally determined
when either:
(a) a decision that has been made in respect of the claim is not subject
to any form of reconsideration or review; or
(b) a decision that has been made in respect of the claim was subject to
some form of reconsideration or review, but the period within which such a
reconsideration or review could be instituted has ended without a
reconsideration or review having been instituted.
(3) Another claim for acceptance of liability for that service injury,
disease or death, or loss of or damage to a medical aid, must be supported by
additional evidence.
(1) This section regulates the lodgment of claims and other documents
under this Act.
(2) A claim or other document (other than a claim or other document that
is approved by the Commission for electronic lodgment and that is transmitted
electronically):
(a) is taken to have been given to the Commission only if the claim or
other document is:
(i) lodged at a place within or outside Australia approved by the
Commission for the purposes of this subsection; or
(ii) delivered to a person approved by the Commission for the purposes of
this subsection; and
(b) is taken to have been so given on the day on which it is received at
that place or delivered to that person.
(3) A claim or other document that is approved by the Commission for
electronic lodgment and that is transmitted electronically:
(a) is taken to have been given to the Commission only if the claim or
document is transmitted electronically in a manner, and to an electronic
address, approved by the Commission for the purposes of this subsection in
relation to claims or documents of that kind; and
(b) is taken to have been so given on the day on which it is received at
that electronic address.
(4) Claims and other documents transmitted electronically other than in a
manner approved by the Commission, or to an electronic address other than an
electronic address approved by the Commission, are treated as not having been
given to the Commission.
(5) A claim is taken to have been made on the day on which, under
subsection (2) or (3), it is taken to have been given to the
Commission.
(6) If a provision of this Act requires any material to be lodged in
support of a claim or other document, that supporting material:
(a) unless paragraph (b) applies—may be lodged in accordance
with this section in the same manner as the claim or other document to which it
relates; and
(b) if the supporting material is not appropriate to be lodged in the same
manner as the claim or other document to which it relates—may be lodged in
such other manner contemplated by this section as the Commission
approves.
If a claim is given to the Commission in accordance with
section 323, the Commission must investigate the matters to which the claim
relates.
(1) The Commission may carry out an assessment of a person’s needs
at any time after the Commission accepts liability for a service injury or
disease of the person.
Note: Section 326 sets out some matters that are
considered in an assessment of a person’s needs.
(2) However, the Commission must carry out an assessment of a
person’s needs before determining a claim for compensation in respect of
the person’s injury or disease.
For the purposes of section 325, an assessment of a person’s
needs may include, but is not limited to, an assessment of any or all of the
following:
(a) whether an assessment of the person’s capacity for
rehabilitation should be conducted under section 44;
(b) whether the person would be entitled to any compensation or treatment
under this Act;
(c) the person’s medical needs, including but not limited
to:
(i) any treatment (including ongoing treatment) that the person needs or
is likely to need; and
(ii) whether Part 2 or 3 of Chapter 6 (treatment or compensation
for treatment) should apply to the person.
If the Commission conducts an assessment of a person’s needs under
section 325 in relation to a claim for compensation, the Commission must
make a written determination specifying that either section 271 or 280
applies to the person.
Note: A person is paid compensation for treatment of a
service injury or disease under section 271. A person is provided with
treatment for a service injury or disease under
section 280.
(1) This section applies if a claim is made under section 319 by or
on behalf of a person who is member or a former member.
(2) The Commission may, at any time after the claim is made, require the
person to undergo an examination by one medical practitioner nominated by the
Commission.
(3) The Commonwealth is liable to pay the cost of conducting the
examination.
(4) The Commonwealth is liable to pay compensation to the person for any
costs the Commission determines are reasonably incurred by the person:
(a) in making a necessary journey in connection with the examination;
or
(b) in remaining, for the purpose of the examination, at a place to which
the person has made a journey for that purpose.
(5) In making a determination under subsection (4), the Commission
must have regard to:
(a) the means of transport available to the person for the journey;
and
(b) the route or routes by which the person could have travelled;
and
(c) the accommodation available to the person.
(6) A person must not be required to undergo an examination under this
section at more frequent intervals than are specified by the Minister by notice
in writing.
(7) A notice under subsection (6) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) If the Commission requires a person to undergo an examination under
subsection 328(2), and the person:
(a) refuses or fails to undergo the examination; or
(b) in any way obstructs the examination;
the Commission may determine that the person’s right to compensation
(but not to treatment or compensation for treatment under Chapter 6) under
this Act is suspended until the examination takes place.
(2) A determination under subsection (1) must not be made in relation
to a refusal or failure to undergo the examination if, before the time fixed for
the examination, the person gives to the Commission evidence of a reasonable
excuse for the refusal or failure.
(3) The Commission must determine that the suspension under
subsection (1) is terminated from a date determined by the Commission if,
within 14 days after the date fixed for the examination, the person gives to the
Commission evidence of a reasonable excuse for the refusal, failure or
obstruction.
(4) If a determination under subsection (1) is made by a delegate of
the Commission, the Commission must ensure that any determination terminating
the suspension under subsection (3) also made by a delegate of the
Commission is made by a delegate other than a delegate who was involved in
making the determination under subsection (1).
(5) If a person’s right to compensation is suspended under
subsection (1), compensation is not payable in respect of the period of the
suspension.
(1) This section applies if the Commission is satisfied that a person who
has made a claim:
(a) has information or a document (including information or a document
relating to costs incurred by the person, such as a receipt) that is relevant to
the claim; or
(b) may obtain any such information or a copy of such a document without
unreasonable expense or inconvenience.
(2) The Commission may, by notice in writing given to the person, request
the person to give:
(a) specified information or a specified document; or
(b) information or a document in a specified class of information or
documents;
to the Commission within 28 days after the date of the notice or within
such further period (if any) as the Commission, on the request of the person,
allows.
(3) If the person refuses or fails, without reasonable excuse, to comply
with a notice under subsection (2), the Commission may refuse to deal with
the claim until the person gives the Commission the information, or a copy of
the document, specified in the notice.
(1) Any of the following persons may request the Commission to give him or
her any document held by the Commission that relates to the claim:
(a) if the claim is made in respect of a member or former member—the
member or former member’s service chief;
(b) if the claim is made in respect of a dependant of a deceased
member—the deceased member’s service chief;
(c) in any case—a person who has made a claim under
section 319.
(2) The Commission must comply with the request.
The Commission must decide all claims under this Act in accordance with
this Part. In deciding claims, the usual technicalities and rules that apply to
courts do not apply to the Commission. The standards of proof that apply in
determining issues under this Act are found in section 335.
There are 2 standards of proof that the Commission applies in deciding
matters under this Part (and the rest of the Act).
The more beneficial standard of proof (in subsections 335(1) and (2)) only
applies to some claims that relate to warlike or non-warlike service. The other
standard of proof (in subsection 335(3)) applies to all other decisions under
this Act.
This Part also introduces the Statements of Principles regime under
sections 338 and 339. For some claims for acceptance of liability for an
injury, disease or death the standard of proof can only be met if the injury or
disease, or the cause of death, is covered by a Statement of
Principles.
A Statement of Principles is an instrument made under the
Veterans’ Entitlements Act 1986 (VEA). The Statement
sets out all factors related to defence service that have been found to cause
specific injuries, diseases and deaths.
The process for making Statements of Principles is found in Part XIA
of the VEA. A person who is entitled to a benefit under this Act can apply under
the VEA to the Repatriation Medical Authority (RMA) to investigate
a particular injury, disease or death or review one of its previous decisions
about a Statement of Principles.
Under Part XIB of the VEA, the Specialist Medical Review Council can
review decisions of the RMA about Statements of Principles. The Commission can
also override an RMA decision about a Statement of Principles under
section 340 of this Act.
After the Commission has investigated a claim under section 324, the
Commission must:
(a) consider all matters that, in the Commission’s opinion, are
relevant to the claim; and
(b) determine the claim in writing in accordance with this Act.
Note: The Commission is required to give notice of
determinations to claimants (see section 346).
(1) In considering, hearing or determining a claim or request mentioned in
subsection (2) and in making a decision in relation to such a claim or
request, the Commission:
(a) is not bound to act in a formal manner and is not bound by any rules
of evidence, but may inform itself on any matter in such manner as it thinks
just; and
(b) must act according to substantial justice and the substantial merits
of the case, without regard to legal form and technicalities; and
(c) without limiting paragraphs (a) and (b), must take into account
any difficulties that, for any reason, lie in the way of ascertaining the
existence of any fact, matter, cause or circumstance, including any reason
attributable to:
(i) the effects of the passage of time, including the effect of the
passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records,
including an absence or deficiency resulting from the fact that an occurrence
that happened during the defence service of a member was not reported to the
appropriate authorities.
(2) Subsection (1) applies to:
(a) a claim under section 319; and
(b) a request under section 349 for reconsideration of a
determination.
Standard of proof for claims relating to warlike or non-warlike
service
(1) If a claim in respect of subsection 23(1) or (3) or 24(1) for
acceptance of liability for a person’s injury, disease or death relates to
warlike or non-warlike service rendered by the person while a member, the
Commission must determine that the injury is a service injury, that the disease
is a service disease, or that the death is a service death, as the case may be,
unless it is satisfied, beyond reasonable doubt, that there is no sufficient
ground for making that determination.
Note: This subsection, to the extent that it relates to
subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a
determination
(2) In applying subsection (1) in respect of a person’s injury,
disease or death, related to service rendered by the person while a member, the
Commission must be satisfied, beyond reasonable doubt, that there is no
sufficient ground for determining:
(a) that the injury is a service injury; or
(b) that the disease is a service disease; or
(c) that the death is a service death;
as the case may be, if the Commission, after consideration of the whole of
the material before it, is of the opinion that the material before it does not
raise a reasonable hypothesis connecting the injury, disease or death with the
circumstances of the particular service rendered by the person while a
member.
Note: This subsection, to the extent that it relates to
subsections 23(1) and 24(1), is affected by section 338.
Other determinations to be made to its reasonable
satisfaction
(3) Except in making a determination to which subsection (1) applies,
a service chief or the Commission must, in making any determination or decision
in respect of a matter arising under this Act, the regulations, or any other
instrument made under this Act or the regulations, decide the matter to his, her
or its reasonable satisfaction.
Note: This subsection, to the extent that it relates to
subsections 23(1) and 24(1), is affected by section 339.
Nothing in section 335, or in any other provision of this Act,
entitles the Commission to presume that:
(a) an injury sustained by a person is a service injury; or
(b) a disease contracted by a person is a service disease; or
(c) the death of a person is a service death; or
(d) a person is entitled to be granted compensation.
Nothing in section 335, or in any other provision of this Act,
imposes on:
(a) a person claiming compensation; or
(b) the Commission, the Commonwealth, the Department or any other person
in relation to such a claim;
any onus of proving any matter that is, or might be, relevant to the
determination of the claim.
(1) This section applies to a claim under section 319 for acceptance
of liability under subsection 23(1) or 24(1) for an injury, disease or death
that relates to warlike or non-warlike service.
Note: Subsections 335(1) and (2) are relevant to these
claims.
(2) If the Repatriation Medical Authority has given notice under
section 196G of the Veterans’ Entitlements Act 1986 that it
intends to carry out an investigation in respect of a particular kind of injury,
disease or death:
(a) the Commission is not to determine a claim for acceptance of liability
for a person’s injury, disease or death of that kind; and
(b) the Commission, the Board or the Tribunal is not to make a decision on
the reconsideration or review of:
(i) a determination by the Commission on such a claim; or
(ii) such a determination as previously affirmed or varied; or
(iii) a decision made on a previous review in substitution for a
determination referred to in subparagraph (i) or (ii);
unless or until the Authority:
(c) has determined a Statement of Principles under subsection 196B(2) of
that Act in respect of that kind of injury, disease or death; or
(d) has declared that it does not propose to determine such a Statement of
Principles.
(3) For the purposes of subsection 335(2), a hypothesis connecting an
injury sustained, or a disease contracted, by a person, or the death of a
person, with the circumstances of any particular service rendered by the person
while a member, is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11)
of the Veterans’ Entitlements Act 1986; or
(b) a determination of the Commission under subsection 340(2) of this
Act;
that upholds the hypothesis.
Note: See subsection (4) about the application of this
subsection.
(4) Subsection (3) does not apply in relation to a claim for
acceptance of liability for a person’s injury, disease or death if the
Repatriation Medical Authority has neither determined a Statement of Principles
under subsection 196B(2) of the Veterans’ Entitlements Act 1986,
nor declared that it does not propose to make such a Statement of Principles, in
respect of:
(a) the kind of injury sustained by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
(1) This section applies to a claim under section 319 for acceptance
of liability under subsection 23(1) or 24(1) for an injury, disease or death
that relates to peacetime service.
Note: Subsection 335(3) is relevant to these
claims.
(2) If the Repatriation Medical Authority has given notice under
section 196G of the Veterans’ Entitlements Act 1986 that it
intends to carry out an investigation in respect of a particular kind of injury,
disease or death:
(a) the Commission is not to determine a claim for acceptance of liability
for a person’s injury, disease or death of that kind; and
(b) the Commission, the Board or the Tribunal is not to make a decision on
the review of:
(i) a determination by the Commission on such a claim; or
(ii) such a determination as previously affirmed or varied; or
(iii) a decision made on a previous review in substitution for a
determination referred to in subparagraph (i) or (ii);
unless or until the Authority:
(c) has determined a Statement of Principles under subsection 196B(3) of
that Act in respect of that kind of injury, disease or death; or
(d) has declared that it does not propose to make such a Statement of
Principles.
(3) In applying subsection 335(3) to determine a claim, the Commission is
to be reasonably satisfied that an injury sustained, or a disease contracted, by
a person, or the death of a person, is a service injury, a service disease, or a
service death, only if:
(a) the material before the Commission raises a connection between the
injury, disease or death of the person and some particular defence service
rendered by the person while a member; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12)
of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this
Act;
that upholds the contention that the injury, disease or death of the
person is, on the balance of probabilities, connected with that
service.
(4) Subsection (3) does not apply in relation to a claim for
acceptance of liability for a person’s injury, disease or death if the
Repatriation Medical Authority has neither determined a Statement of Principles
under subsection 196B(3) of the Veterans’ Entitlements Act 1986,
nor declared that it does not propose to make such a Statement of Principles, in
respect of:
(a) the kind of injury sustained by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
Commission may make determinations
(1) If:
(a) the Repatriation Medical Authority has determined, or has declared
that it does not propose to make or amend, a Statement of Principles in respect
of a particular kind of injury, disease or death (see section 196B of the
Veterans’ Entitlements Act 1986); and
(b) the Commission is of the opinion that, because the Statement of
Principles is in force, or because of the decision by the Authority not to make
or amend the Statement of Principles:
(i) claims for acceptance of liability for injuries or diseases of that
kind made by members or former members of a particular class; or
(ii) claims for acceptance of liability for the deaths of such members or
former members made by dependants of those members or former members;
cannot succeed; and
(c) the Commission is also of the opinion that, in all the circumstances
of the case, those persons or their dependants should be entitled to receive
compensation under this Act;
the Commission may, in its discretion, make a determination in respect of
that kind of injury, disease or death under either or both subsections (2)
and (3).
Requirements for a reasonable hypothesis determination
(2) A determination under this subsection in respect of a particular kind
of injury, disease or death must:
(a) be in writing; and
(b) state that it has effect only in relation to the specified class of
members; and
(c) state that it applies only in respect of claims relating to:
(i) warlike service; or
(ii) non-warlike service; and
(d) set out:
(i) the factors that must as a minimum exist; and
(ii) which of those factors must be related to service rendered by a
member;
before it can be said that a reasonable hypothesis has been raised
connecting an injury, disease or death of that kind with the circumstances of
that service.
Requirements for a reasonable satisfaction determination
(3) A determination under this subsection in respect of a particular kind
of injury, disease or death must:
(a) be in writing; and
(b) state that it has effect only in relation to the specified class of
members; and
(c) state that it applies only in respect of claims relating to peacetime
service; and
(d) set out:
(i) the factors that must exist; and
(ii) which of those factors must be related to service rendered by a
member;
before it can be said, on the balance of probabilities, that an injury,
disease or death of that kind is connected with the circumstances of that
service.
Disallowable instrument
(4) A determination under subsection (2) or (3) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
Effect of reasonable hypothesis determination
(5) While there is in force under subsection (2) a determination in
respect of a particular kind of injury, disease or death, any Statement of
Principles in force under subsection 196B(2) of the Veterans’
Entitlements Act 1986 in respect of that kind of injury, disease or death
does not apply in respect of any person in relation to whom the determination
has effect.
Effect of reasonable satisfaction determination
(6) While there is in force under subsection (3) a determination in
respect of a particular kind of injury, disease or death, any Statement of
Principles in force under subsection 196B(3) of the Veterans’
Entitlements Act 1986 in respect of that kind of injury, disease or death
does not apply in respect of any person in relation to whom the determination
has effect.
Definition of related to service
(7) A factor causing, or contributing to, an injury, disease or death is
related to service rendered by a member if:
(a) it resulted from an occurrence that happened while the member was
rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it was contributed to in a material degree by, or was aggravated by,
that service; or
(d) in the case of a factor causing, or contributing to, an
injury—it resulted from an accident that would not have
occurred:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his
or her having rendered that service; or
(e) in the case of a factor causing, or contributing to, a
disease—it would not have occurred:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his
or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, the death of a
member—it was due to an accident that would not have occurred, or to a
disease that would not have been contracted:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his
or her having rendered that service; or
(g) it resulted from an accident that occurred while the member was
travelling, while rendering that service but otherwise than in the course of
duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform
duty.
(1) This section applies if:
(a) the Commission, the Board or the Tribunal is reconsidering or
reviewing a determination in relation to a claim to which section 338 or
339 applies; and
(b) at the time of the making of the decision on the review, there is in
force a Statement of Principles (the current Statement of
Principles) determined under section 196B of the Veterans’
Entitlements Act 1986 in respect of:
(i) the kind of injury sustained by the person in respect of whom the
claim is made; or
(ii) the kind of disease contracted by the person in respect of whom the
claim is made; or
(iii) the kind of death suffered by the person in respect of whom the
claim is made.
(2) Subject to section 340, the Commission, the Board or the Tribunal
is to apply the current Statement of Principles when making its decision on the
reconsideration or review.
(3) To avoid doubt, it is declared that no right, privilege, obligation or
liability is acquired, accrued or incurred that would permit the Commission, the
Board or the Tribunal, in making a decision on the reconsideration or review, to
apply any Statement of Principles that is no longer in force.
The Commission must determine in writing the date of onset of an
incapacity for service or work of a member if the member is entitled to
compensation under Part 3 of Chapter 4.
The Commission must determine in writing the date of a deceased
member’s death if a dependant of the member is entitled to compensation
under Chapter 5 or 6.
Most determinations made by the Commission (the original
determinations) can be reconsidered and reviewed. This also applies to
decisions of service chiefs about rehabilitation.
The Commission or a service chief must give notice of an original
determination to the claimant. The notice must set out the terms of and the
reasons for the determination and the claimant’s rights to apply for
reconsideration or review.
There are 2 possible paths in the reconsideration and review process
depending on the nature of the original determination.
If an original determination relates to warlike or non-warlike service, the
claimant can either ask the Commission to reconsider it or ask the
Veterans’ Review Board to review it. If dissatisfied with the
determination on reconsideration or review (the reviewable
determination), the claimant can apply to the Administrative Appeals
Tribunal for review of the reviewable determination.
For other original determinations, a claimant can ask the Commission to
reconsider the determination (even if it was made by a service chief), and then
apply to the Tribunal for review of the reviewable determination.
The Commission or a service chief can also initiate reconsideration of
original determinations made by the Commission or the service chief.
(1) In this Chapter:
original determination means:
(a) a determination of the Commission under this Act (including a
determination under subsection 347(3)) that is not specified in
subsection (2); or
(b) a determination of a service chief under this Act (including a
determination under subsection 347(3)) that relates to rehabilitation for a
person if the service chief is the rehabilitation authority of the
person.
reviewable determination means:
(a) a determination under subsection 350(2) revoking, confirming or
varying an original determination; or
(b) a determination that has been varied under subsection 348(1);
or
(c) a determination under Part 4 by the Board on review of a
warlike or non-warlike service determination (except a determination that has
been varied under subsection 348(1)).
warlike or non-warlike service determination means an
original determination that relates to a service injury, disease or death that
relates to warlike or non-warlike service.
(2) These determinations of the Commission are not original
determinations:
(a) a determination under section 50, 52, 329 or 397 (suspending
compensation);
(b) a determination under section 67 (guide to determining impairment
and compensation);
(c) a determination under section 210 (Return to Work
Scheme);
(d) a determination under section 212 (Motor Vehicle Compensation
Scheme);
(e) a determination under section 258 (education scheme for certain
eligible young persons);
(f) a determination about the compensation to be provided under that
education scheme;
(g) a determination under section 272 (compensation for members
entitled to treatment under regulation 58F of the Defence Force
Regulations);
(h) a determination under Part 3 of Chapter 6 (entitlement to
provision of treatment);
(i) a determination under section 315 or 415 to recover an
overpayment (but not as to the amount that should be recovered);
(j) a determination under section 316 to recover interest (but not as
to the amount that should be recovered);
(k) a determination under section 327 that section 271 or 280
applies to a person (treatment path under Chapter 6);
(l) a determination under section 428 to write off a debt (but not as
to the amount that should be written off);
(m) a determination under section 429 to waive a debt (but not as to
the amount that should be waived);
(n) a determination that has been varied under subsection
348(1);
(o) a determination under subsection 349(6) (extending the period within
which a request for reconsideration must be made).
(1) As soon as practicable after the Commission makes an original
determination in relation to a claim, the Commission must give the claimant a
written notice setting out:
(a) the terms of the original determination; and
(b) the reasons for the original determination.
(2) The Commission must also give a copy of the notice to the relevant
service chief if the original determination relates to liability for a service
injury, disease or death, or the permanent impairment, of a person who was a
member of the Defence Force:
(a) for a service injury or disease or permanent impairment—at the
time when the original determination was made; or
(b) for a service death—at the time of death.
(3) As soon as practicable after a service chief makes an original
determination in relation to a claim, the service chief must give the claimant a
written notice setting out:
(a) the terms of the original determination; and
(b) the reasons for the original determination.
(4) The service chief must also give a copy of the notice to the
Commission.
(5) A notice under subsection (1) or (3) must include a statement to
the effect that the claimant may, if dissatisfied with the original
determination:
(a) if the determination is a warlike or non-warlike service
determination—request a reconsideration of the determination under
section 349 or make an application to the Board under Part 4
for review of the determination; or
(b) otherwise—request a reconsideration of the determination under
section 349.
(6) A failure to comply with this section does not affect the validity of
the determination.
(1) The Commission may, on its own initiative, reconsider an original
determination made by the Commission.
(2) A service chief may, on his or her own initiative, reconsider an
original determination made by the service chief.
(3) If the Commission or a service chief reconsiders an original
determination under subsection (1) or (2), the Commission or the service
chief may make a determination revoking, confirming or varying the original
determination.
(4) The Commission or a service chief must ensure that, if the original
determination was made by a delegate and reconsideration of the determination is
also to be made by a delegate, the reconsideration is done by a delegate who was
not involved in making the original determination.
(5) The Commission or a service chief must not reconsider an original
determination under subsection (1) or (2) if the Tribunal has made a
determination in proceedings under Part 5 for review of a reviewable
determination made in relation to that original determination.
(6) The Commission or a service chief must not reconsider an original
determination under subsection (1) or (2) if the Board has made a
determination in proceedings under Part 4 for review of that
determination.
(1) The Commission or a service chief may, with the consent of the
claimant, vary:
(a) a warlike or non-warlike service determination made by the Commission
or that service chief that has been affirmed by the Board under Part 4;
or
(b) a determination made by the Board under Part 4 in
substitution for a warlike or non-warlike service determination made by the
Commission or that service chief;
if the claimant has made an application to the Tribunal under
Part 5 for review of the affirmed determination or the determination
made by the Board and the review has not been determined.
(2) The Commission or a service chief may, for the purpose only of
correcting a manifest error, vary the date approved by the Board as the date
from which a determination of the Board made in substitution for a determination
of the Commission or of that service chief is to operate.
(1) The claimant may request the Commission to reconsider an original
determination made by the Commission.
(2) The claimant may request the Commission to reconsider an original
determination made by a service chief.
(3) The claimant cannot request the Commission to reconsider a warlike or
non-warlike service determination if the claimant has made an application to the
Board under Part 4 for review of the determination.
(4) The relevant service chief may request the Commission to reconsider an
original determination made by the Commission that relates to liability for a
service injury, disease or death of a person who is or was a member of the
Defence Force.
(5) A request must:
(a) be in writing; and
(b) set out the reasons for the request; and
(c) be given to the Commission within 30 days after the day on which
notice of the determination was given to the person making the
request.
(6) The Commission may, either before or after the end of that period,
extend the period within which the request must be made.
Note: A determination under subsection (6) is not an
original determination.
(1) The Commission must, as soon as practicable after receiving a request
to reconsider an original determination under section 349, reconsider the
original determination.
(2) The Commission may make a determination revoking, confirming or
varying the original determination.
(3) The Commission must ensure that, if the original determination was
made by a delegate and reconsideration of the determination is also to be made
by a delegate, the reconsideration is done by a delegate who was not involved in
making the original determination.
(1) The Commission must, as soon as practicable after it makes a
reviewable determination, give the claimant a written notice setting
out:
(a) the terms of the reviewable determination; and
(b) the reasons for the reviewable determination.
(2) The notice must include a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975, an application may be made to
the Tribunal under Part 5 for review of the reviewable
determination.
(3) The Commission must also give a copy of the notice to the relevant
service chief if the reviewable determination relates to liability for a service
injury, disease or death, or the permanent impairment, of a person who was a
member of the Defence Force:
(a) for a service injury or disease or permanent impairment—at the
time when the reviewable determination was made; or
(b) for a service death—at the time of death.
(4) A failure to comply with this section does not affect the validity of
the determination.
(1) The claimant may make an application to the Board for review of a
warlike or non-warlike service determination.
(2) The claimant cannot make an application to the Board for review of a
warlike or non-warlike service determination if the claimant has requested the
Commission to reconsider the determination under Part 3.
(3) An application for review must:
(a) be in writing; and
(b) set out the reasons for the application; and
(c) be given to the Commission within 12 months after the day on which
notice of the determination was given to the person making the
application.
(1) Sections 133, 137, 138, 139, 140 and 140A, and Divisions 4,
5, 6 and 8 of Part IX (except sections 154 and 157), of the
Veterans’ Entitlements Act 1986 apply for the purposes of a review
by the Board under this Part.
(2) Those provisions (the applied provisions) apply subject
to the modifications set out in this table.
|
Modifications of the Veterans’ Entitlements Act
1986 |
||
|---|---|---|
|
Item |
Provision |
Modification |
|
1 |
The applied provisions |
References to the Repatriation Commission have effect as references to the
Military Rehabilitation and Compensation Commission |
|
2 |
The applied provisions |
References to the Veterans’ Entitlements Act 1986 have effect
as references to this Act |
|
3 |
The applied provisions |
References to Part IX of the Veterans’ Entitlements Act
1986 have effect as references to this Chapter |
|
4 |
The applied provisions |
References to a pension or allowance under the Veterans’
Entitlements Act 1986 have effect as references to compensation under this
Act |
|
5 |
The applied provisions |
References to the rate of a pension or allowance have effect as references
to an amount of compensation |
|
6 |
The applied provisions |
References to a decision have effect as references to a warlike or
non-warlike service determination |
|
7 |
The applied provisions |
References to a veteran have effect as references to a claimant |
|
8 |
Section 137 |
References to the Secretary have effect as references to the
Commission. The report under that section is to be prepared within 6 weeks after an
application for review by the Board under this Chapter is received by the
Commission |
|
9 |
Paragraph 138(1)(b) |
Instead of the reason attributable to a thing described in subparagraph
138(1)(b)(ii), the Board is to have regard to a reason attributable to the
absence of, or a deficiency in, relevant official records, including one
resulting from the fact that something that happened during warlike service or
non-warlike service rendered by a person was not reported to the appropriate
authorities |
|
10 |
Paragraph 138(2)(a) |
The paragraph does not apply |
|
11 |
Subsection 140(2A) |
The reference to a prescribed address has effect as a reference to a place
approved by the Commission under subsection 323(2) of this Act |
|
12 |
Subsection 147(1) |
The parties to a review by the Board are: (a) the claimant; and (b) the Commission. The relevant service chief may also choose to be a party to the
review |
|
13 |
Subsection 148(2) |
The reference to either party to the review has effect as a reference to
each party to the review |
|
14 |
Subsection 148(6A) |
References to the Secretary have effect as references to the
Commission |
|
15 |
Section 152 |
References to the Secretary have effect as references to the
Commission |
|
16 |
Subsection 153(1) |
The reference to the other party to the review has effect as a reference to
each other party to the review |
|
17 |
Subsection 155(2) |
The reference to section 135 has effect as a reference to
section 352 of this Act |
|
18 |
Subsections 155AA(5), (6) and (7) and 155AB(5), (6) and (7) |
The notice must also be given to the relevant service chief if the service
chief is a party |
|
19 |
Subsection 156(1) |
The subsection has effect as if “, being a date fixed in accordance
with section 157” were omitted |
|
20 |
Subsection 170A(2) |
The subsection has effect as if “referred to in
section 135” were omitted |
|
21 |
Subsections 170B(1) and 171(1) |
Regulations made for the purposes of those subsections apply in working out
amounts of travelling allowance, and fees and expenses for witnesses, for the
purposes of a review by the Board under this Part of this Act |
|
22 |
Subsections 170A(5) and 170B(5) |
A reference to an office of the Department in Australia has effect as a
reference to a place approved by the Commission under subsection 323(2) of this
Act |
(1) An application may be made to the Tribunal for review of a reviewable
determination.
Note: Item 2 of the table in section 355 sets out
who may make the application.
(2) An application may be made to the Tribunal for review of:
(a) a determination under subsection 50(1), 52(1), 329(1) or 397;
or
(b) a failure to make a determination under subsection 50(3), 52(3),
329(3) or 397.
For the purposes of a review by the Tribunal under this Part, the
Administrative Appeals Tribunal Act 1975 has effect subject to the
modifications set out in this table.
|
Modifications of the Administrative Appeals Tribunal Act
1975 |
||
|---|---|---|
|
Item |
Provision |
Modification |
|
1 |
Section 24 |
Sittings of the Tribunal for the purposes of a review under this Part may
be held at any place, whether within or outside Australia |
|
2 |
Section 27 |
An application may be made only by: (a) the claimant; or (b) the relevant service chief; or (c) the Commission. The Commission may only make an application for review of a determination
by the Board on the review of a warlike or non-warlike service
determination |
|
3 |
Subsection 29(2) |
The period within which an application may be made to the Tribunal
is: (a) for a review of a determination by the Board on review of a warlike or
non-warlike service determination, or a determination that has been varied under
subsection 348(1)—3 months after the day on which the notice of the
Board’s determination or variation was given to the applicant;
or (b) otherwise—60 days after the day on which notice of the
determination was given to the applicant |
|
4 |
Subsection 29(7) |
For a review of a determination by the Board on review of a warlike or
non-warlike service determination, or a determination that has been varied under
subsection 348(1), the Tribunal cannot extend the time for making an application
beyond the period of 12 months after the day on which notice of the
Board’s determination or variation was given to the applicant |
|
5 |
Paragraph 30(1)(b) |
The Commission rather than the Board is a party to a proceeding before the
Tribunal for review of a determination by the Board on the review of a warlike
or non-warlike service determination |
(1) Evidence of a matter is not, without the leave of the Tribunal,
admissible in proceedings under this Part if:
(a) the person who instituted the proceedings seeks to adduce the evidence
before the Tribunal; and
(b) the person had not disclosed that matter to the Tribunal at least 28
days before the day fixed for the hearing of those proceedings.
(2) Information or a document is not, without the leave of the Tribunal,
admissible in evidence in proceedings under this Part if:
(a) the Commission has determined a claim and, before doing so, gave the
claimant a notice under section 330 requesting the claimant to give the
Commission the information or document specified in the notice; and
(b) the claimant failed to comply with the notice; and
(c) the claimant had the information or document, or could have obtained
it without unreasonable expense or inconvenience, before the determination was
made.
(3) The Tribunal must not give leave under subsection (2)
unless:
(a) the claimant provides a statement of reasons why he or she failed to
comply with the notice; and
(b) the Tribunal is satisfied that there are special circumstances
justifying the admission of the information or document in evidence.
(1) Subject to this section and to subsection 358(1), the costs incurred
by a party to proceedings instituted under this Part in respect of a
determination are to be borne by that party.
(2) If, in proceedings instituted by a claimant, the Tribunal makes a
determination:
(a) varying a determination in a manner favourable to the claimant;
or
(b) setting aside a determination and making a determination in
substitution for the first-mentioned determination that is more favourable to
the claimant than the first-mentioned determination;
the Tribunal may order that the costs of those proceedings incurred by the
claimant, or a part of those costs, are to be paid by the
Commonwealth.
(3) The Tribunal may order that the costs incurred by the claimant of
proceedings instituted by the Commission or a service chief be paid by the
Commonwealth.
(4) If the Tribunal makes a determination setting aside a determination
and remitting the case for re-determination by the Commission or a service
chief, the Tribunal must order that the costs of the proceedings before it
incurred by the claimant are to be paid by the Commonwealth.
(5) This section does not authorise the Tribunal to order the Commonwealth
to pay any costs incurred by a claimant in relation to an application for an
extension of time for applying to the Tribunal for a review of a
determination.
(6) If, in any proceedings, the Tribunal varies or sets aside a
determination, the Tribunal must not make an order under subsection (2) or
(4) in favour of a claimant in relation to the costs of those proceedings
if:
(a) the Commission, before making the determination, gave the claimant a
notice under section 330 requesting the claimant to give the Commission
information or a document specified in the notice; and
(b) the Tribunal is satisfied that:
(i) the claimant failed to comply with that notice; and
(ii) at the time when the Commission made the reviewable determination, it
did not have the information or document, nor was the information or document
reasonably available to it; and
(iii) if the Commission had the information or document at the time when
it made the determination, it would have made a determination more favourable to
the claimant than the reviewable determination.
(7) If the Tribunal orders the Commonwealth to pay costs incurred by a
claimant, the Tribunal may, in the absence of agreement between the parties as
to the amount of the costs, tax or settle the amount of the costs or order that
the costs be taxed by the Registrar, a District Registrar or a Deputy Registrar
of the Tribunal.
(1) Subject to this section, if a proceeding instituted under this Part in
respect of a reviewable determination is rendered abortive because a
determination has been made, following a reconsideration under subsection 347(1)
or (2), varying or revoking the reviewable determination, the Commonwealth is
liable to reimburse the claimant for costs reasonably incurred by the claimant
in connection with that proceeding.
(2) The Commission may determine, in writing, that subsection (1)
does not apply to costs if:
(a) a determination (the first determination) of a claim has
been made; and
(b) the Commission, before the first determination was made, gave the
claimant a notice under section 330 requesting the claimant to give it
information or a document specified in the notice; and
(c) the claimant failed to comply with the notice; and
(d) when the first determination was made, the Commission did not have the
information or document nor was the information or document reasonably available
to it; and
(e) after the first determination was made, the claimant disclosed the
information or document to the Commission or to the Tribunal; and
(f) the Commission reconsidered the first determination under subsection
347(1) and made a determination more favourable to the claimant than the first
determination; and
(g) the Commission is satisfied that, if it had the information or
document when the first determination was made, a determination more favourable
to the claimant than the first determination would have been made; and
(h) the Commonwealth would, apart from this subsection, be liable under
subsection (1) to reimburse the claimant for costs reasonably incurred by
the claimant.
(3) The Commission must give a copy of a determination made by it under
subsection (2) to the claimant.
(4) Application may be made to the Tribunal for review of a determination
of the Commission to make a determination under subsection (2).
Sections 356, 357 and 358 do not apply to a review by the Tribunal
of a determination of the Board.
The Military Rehabilitation and Compensation Commission is established
under Part 2 of this Chapter.
The Commission’s functions are set out in Part 3.
Parts 4, 5 and 6 deal with the administration of the Commission, and
include provisions relating to members, acting members and meetings of the
Commission.
Part 7 deals with staff, consultants, delegations of the Commission
and the Commission’s annual report.
Part VII of the Acts Interpretation Act 1901 also has
provisions that are relevant to members and acting members of the
Commission.
The Military Rehabilitation and Compensation Commission is established by
this section.
(1) The functions of the Commission are as follows:
(a) to make determinations under this Act relating to:
(i) acceptance of liability; and
(ii) the payment or provision of compensation; and
(iii) the provision of services for treatment and
rehabilitation;
(b) to minimise the duration and severity of service injuries and service
diseases by arranging quickly under this Act for the rehabilitation of members
and former members who suffered those injuries and diseases;
(c) to promote the return to suitable work (defence or civilian) by
persons who suffered a service injury or disease;
(d) to promote research into:
(i) the health of members and former members; and
(ii) the prevention of injury and disease; and
(iii) the rehabilitation of persons from injury and/or disease;
(e) to provide advice and information relating to the operation of this
Act to:
(i) the Minister; and
(ii) the Defence Minister; and
(iii) the Secretary of the Department; and
(iv) the Secretary of the Defence Department; and
(v) the Chief of the Defence Force; and
(vi) the service chief of each arm of the Defence Force;
either on request or on the Commission’s own initiative;
(f) such other functions as are conferred on the Commission by other
provisions of this Act or by another Act.
(2) The Commission has power to do all things necessary or convenient to
be done for or in connection with the performance of its
functions.
(1) The Commission:
(a) is a body corporate with perpetual succession; and
(b) must have a seal; and
(c) may sue and be sued in its corporate name.
(2) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the seal of the Commission
appearing on a document; and
(b) presume that the document was duly sealed.
(1) The Commission consists of the following members:
(a) the persons who, from time to time, hold the following
offices:
(i) President of the Repatriation Commission;
(ii) Deputy President of the Repatriation Commission;
(b) the following persons appointed under section 365:
(i) a member of the Repatriation Commission (other than the President or
Deputy President) nominated by the Veterans’ Affairs Minister;
(ii) a person who is nominated by the SRC Minister and is either a person
described in subsection 89E(1) of the Safety, Rehabilitation and Compensation
Act 1988 or engaged under the Public Service Act 1999 and performing
duties in the Department of State administered by the SRC Minister;
(iii) a person who is nominated by the Defence Minister and is either a
Permanent Forces member or engaged under the Public Service Act 1999 and
performing duties in the Defence Department.
Note: The performance of the Commission’s functions or
the exercise of its powers is not affected merely because of a vacancy in the
Commission’s membership (see subsection 33(2B) of the Acts
Interpretation Act 1901).
(2) If, when the Veterans’ Affairs Minister is nominating a member
under subparagraph (1)(b)(i), there is no member of the Commission who is a
member of the Repatriation Commission appointed in accordance with subsection
182(4) of the Veterans’ Entitlements Act 1986, then the Minister
must nominate the member of the Repatriation Commission appointed in accordance
with that subsection.
Note 1: Subsection 182(4) requires one member of the
Repatriation Commission to be a person chosen from a list provided by
organisations representing veterans.
Note 2: This subsection does not need to be complied with
during a temporary vacancy in the office (see subsection
366(5)).
(3) The member described in subparagraph (1)(a)(i) is the Chair of
the Commission.
(4) The members of the Commission hold office on a part-time
basis.
(1) The members of the Commission described in paragraph 364(1)(b)
are to be appointed by the Governor-General by written instrument.
(2) An appointed Commission member holds office for the period specified
in the instrument of appointment. The period must not exceed 5 years.
(3) The appointment of a person as an appointed Commission member is not
invalid merely because there was a defect or irregularity in connection with the
appointment.
(4) An appointed Commission member holds office on the terms and
conditions (if any) in relation to matters not covered by this Act that are
determined by the Governor-General.
Application of section
(1) This section applies:
(a) during a vacancy in the office of a Commission member described in
subparagraph 364(1)(b)(i), whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all periods, when such a Commission
member is absent from duty or from Australia, or is, for any reason, unable to
perform the duties of the office.
Minister may appoint person to act
(2) The Minister may appoint a person to act in the office of the
Commission member in accordance with this section.
Note: For information about acting appointments, see
section 33A of the Acts Interpretation Act 1901.
Appointment if Repatriation Commissioner available
(3) If there is present in Australia a member of the Repatriation
Commission who:
(a) is able to perform the duties of the office of the Commission member;
and
(b) is not a Commission member under section 364; and
(c) is not absent from duty as a member of the Repatriation
Commission;
then the person appointed must be the member of the Repatriation
Commission.
Appointment if no Repatriation Commissioner available
(4) Otherwise, the person appointed may be any person.
Person not required to be a person chosen from a list provided by
veterans’ organisations
(5) The person appointed is not required to be a person whose name is on a
list mentioned in subsection 182(3) of the Veterans’ Entitlements Act
1986.
Application of section
(1) This section applies:
(a) during a vacancy in the office of a Commission member described in
subparagraph 364(1)(b)(ii) or (iii), whether or not an appointment has
previously been made to the office; or
(b) during any period, or during all periods, when such a Commission
member is absent from duty or from Australia, or is, for any reason, unable to
perform the duties of the office.
Minister may appoint person to act
(2) The Minister may appoint the following persons to act in the office of
the Commission member:
(a) if the vacant office is of the member described in subparagraph
364(1)(b)(ii)—a person who is nominated by the SRC Minister and is either
a person described in subsection 89E(1) of the Safety, Rehabilitation and
Compensation Act 1988 or engaged under the Public Service Act 1999
and performing duties in the Department of State administered by the SRC
Minister; or
(b) if the vacant office is of the member described in subparagraph
364(1)(b)(iii)—a person who is nominated by the Defence Minister and is
either a Permanent Forces member or engaged under the Public Service Act
1999 and performing duties in the Defence Department.
Note: For information about acting appointments, see
section 33A of the Acts Interpretation Act 1901.
Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) A Commission member is to be paid the remuneration that is determined
by the Remuneration Tribunal. If no determination of that remuneration by the
Tribunal is in operation, the member is to be paid the remuneration that is
prescribed by the regulations.
(2) A Commission member is to be paid the allowances that are prescribed
by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
Note: Subsection 7(11) of the Remuneration Tribunal Act
1973 significantly limits the entitlement of a Commission member to
remuneration under this section, because it provides that generally a person who
holds a Commonwealth office, or is employed by the Commonwealth, on a full-time
basis is not entitled to remuneration for a part-time office.
The Commission Chair may grant leave of absence to an appointed
Commission member on the terms and conditions that the Commission Chair
determines.
An appointed Commission member may resign his or her appointment by
giving the Governor-General a written resignation.
(1) The Governor-General may terminate the appointment of an appointed
Commission member for misbehaviour or physical or mental incapacity.
(2) The Governor-General must terminate the appointment of an appointed
Commission member if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) assigns his or her remuneration for the benefit of his or her
creditors; or
(b) the member is absent, except on leave of absence, from 3 consecutive
meetings of the Commission; or
(c) the member fails, without reasonable excuse, to comply with
section 379, 380 or 381; or
(d) the member is described in a subparagraph mentioned in an item of the
table and the circumstances described in that item exist.
|
Extra grounds for mandatory termination of appointment |
||
|
Item |
Subparagraph |
Circumstances in which termination is required |
|
1 |
364(1)(b)(i) |
The member ceases to be a member of the Repatriation Commission |
|
2 |
364(1)(b)(ii) |
Either: (a) the member is neither a person described in subsection 89E(1) of the
Safety, Rehabilitation and Compensation Act 1988 nor a person engaged
under the Public Service Act 1999 performing duties in the Department of
State administered by the SRC Minister; or (b) the Minister is asked by the SRC Minister to terminate the
member’s appointment (as a Commission member) |
|
3 |
364(1)(b)(iii) |
Either: (a) the member is neither a Permanent Forces member nor a person engaged
under the Public Service Act 1999 performing duties in the Defence
Department; or (b) the Minister is asked by the Defence Minister to terminate the
member’s appointment (as a Commission member) |
(1) The Commission Chair must convene such meetings of the Commission as
the Chair considers are necessary for the efficient performance of the
Commission’s functions.
(2) The Commission Chair must convene a meeting of the Commission within 4
weeks after receiving a written request signed by at least 3 Commission
members.
(1) The Commission Chair is to preside at meetings of the Commission at
which he or she is present.
(2) If the Commission Chair is absent, then the Commission member
described in subparagraph 364(1)(a)(ii) (the Deputy President of the
Repatriation Commission) is to preside at the meeting.
At a meeting of the Commission, 4 Commission members constitute a
quorum.
(1) A question arising at a meeting of the Commission is to be determined
by a majority of the votes of Commission members present and voting.
(2) The Commission member presiding at the meeting:
(a) has a deliberative vote; and
(b) if necessary, also a casting vote.
A resolution is taken to have been passed at a meeting of the Commission
if:
(a) the Commission has determined:
(i) that resolutions may be passed in accordance with this section;
and
(ii) the method of indicating agreement with a resolution proposed to be
passed in accordance with this section; and
(b) without meeting, a majority of the Commission members indicate
agreement with the proposed resolution in accordance with the method determined
by the Commission; and
(c) all Commission members were informed of the proposed resolution, or
reasonable efforts were made to inform all Commission members of the proposed
resolution.
(1) The Commission may regulate proceedings at its meetings as it
considers appropriate. However, proceedings must not be inconsistent with the
other provisions of this Chapter.
Note: Section 33B of the Acts Interpretation Act
1901 lets the Commission permit participation in meetings by various means
of communication (for example, by telephone).
(2) The Commission may invite a person to attend a meeting for the purpose
of advising or informing the Commission on any matter.
(3) The Commission must ensure that minutes of its meetings are
kept.
(1) This section applies to a Commission member who has an interest
(pecuniary or otherwise) that could conflict with the proper performance of his
or her functions in relation to the following matters:
(a) a claim for acceptance of liability or for compensation that the
Commission is considering or is to consider;
(b) a claim for acceptance of liability or for compensation that the
Commission is reviewing or is to review;
(c) a decision relating to:
(i) compensation or acceptance of liability; or
(ii) a claim for compensation or acceptance of liability;
that the Commission is reviewing, is to review or is considering whether
to review.
Note: This section also applies to acting Commission members
(see section 33A of the Acts Interpretation Act
1901).
(2) The Commission member must disclose the interest to:
(a) the person making the claim; and
(b) the Minister;
as soon as possible after becoming aware of the relevant facts.
(3) The Commission member must not take part in the Commission’s
consideration or review of the matter, except with the consent of the person
making the claim and the Minister.
(1) This section applies if the Minister becomes aware that:
(a) the Commission is considering or reviewing, or is to consider or
review, a matter mentioned in subsection 379(1); and
(b) a Commission member has an interest (pecuniary or otherwise) that
could conflict with the proper performance of his or her functions in relation
to the matter.
Note: This section also applies to acting Commission members
(see section 33A of the Acts Interpretation Act
1901).
(2) The Minister must cause the Commission member’s interest to be
disclosed to the person making the claim.
(3) The Commission member must not take part in the Commission’s
consideration or review of the matter, except with the consent of the person
making the claim and the Minister.
(1) A Commission member who has an interest (pecuniary or otherwise) in a
matter being considered, or about to be considered, by the Commission (other
than a matter mentioned in subsection 379(1)) must disclose the nature of the
interest at a meeting of the Commission as soon as possible after becoming aware
of the relevant facts.
Note: This section also applies to acting Commission members
(see section 33A of the Acts Interpretation Act
1901).
(2) The disclosure must be recorded in the minutes of the
meeting.
(3) The Commission member must not:
(a) be present during any deliberations of the Commission, or take part in
any decision of the Commission, with respect to that matter, unless the Minister
or the Commission determines otherwise; or
(b) be present during any deliberations of the Commission, or take part in
any decision of the Commission, with respect to whether to make the
determination mentioned in paragraph (a).
The staff required to assist the Commission are to be persons engaged
under the Public Service Act 1999 and made available for the purpose by
the Secretary of the Department.
(1) The Commission may engage persons having suitable qualifications and
experience as consultants to the Commission.
(2) The consultants are to be engaged on the terms and conditions that the
Commission determines.
The Commission may, by resolution, delegate any of its functions or
powers under a provision of this Act to:
(a) a member of the Commission; or
(b) a member of the staff assisting the Commission; or
(c) a consultant to, or an employee of a consultant to, the Commission;
or
(d) a person who is engaged under the Public Service Act 1999 and
performing duties in the Department that deals with the matters to which the
provision relates and is administered by the Minister administering the
provision; or
(e) a member of the Defence Force whose duties relate to matters to which
the provision relates.
As soon as possible after each 30 June, the Commission Chair must
give the Minister, for presentation to the Parliament, a report of the
Commission’s activities during the financial year that ended on that
day.
This Chapter deals with the situation where a person who is entitled to
compensation under this Act for an injury, disease, death or loss (the
compensable loss) has, or may have, a right to recover damages
apart from this Act for the compensable loss.
Part 2 prohibits actions against the Commonwealth for the compensable
loss. However, it allows the person a choice to take action against the
Commonwealth to recover limited damages for non-economic loss.
Part 3 deals with payment or recovery of compensation under this Act
if damages are recovered from a third party. It also allows the Commission to
make or take over claims in certain cases.
(1) In this Chapter:
potentially liable member, in relation to an action or other
proceeding, means a person who was, when the cause of action arose, acting in
the capacity of a member.
(2) Unless the contrary intention appears, a reference in this Chapter to
a person is, if the person has died, a reference to his or her legal personal
representative.
(1) Subject to section 389, an action or other proceeding for damages
does not lie against the Commonwealth, or a potentially liable member, in
respect of:
(a) a service injury sustained, or a service disease contracted, by
another member or a former member; or
(b) the loss of, or damage to, a medical aid used by another
member.
Note: However, a person may choose to institute an action
for damages for non-economic loss against the Commonwealth or the potentially
liable member under section 389.
(2) Subsection (1) applies whether that injury, disease, loss or
damage occurred before or after this section commences. However,
subsection (1) does not apply if an action or proceeding in respect of the
injury, disease, loss or damage is instituted before this section
commences.
(3) Subsection (1) does not prevent a dependant of a deceased member
from bringing an action in respect of a service death of the deceased member
(whether or not the deceased member had chosen to institute an action under
section 389 before his or her death).
(4) However, if such a dependant recovers damages (including damages
payable as a result of the settlement of a claim) from the Commonwealth or a
potentially liable member in respect of the service death, subsections (5)
and (6) have effect.
(5) If the dependant has received compensation under this Act in respect
of the service death before recovery of the damages, the dependant is liable to
pay to the Commonwealth the lesser of:
(a) the total of all amounts of compensation paid to the person under this
Act in respect of the service death before the recovery of the damages (except
telephone allowance under section 245 and compensation for dependants under
section 242, 253 or 255); and
(b) the amount of the damages.
(6) Compensation under this Act in respect of the service death is not
payable to the dependant after the recovery of the damages.
(1) A person may choose to institute an action or proceeding against the
Commonwealth or a potentially liable member for damages for non-economic loss
suffered by the person if:
(a) compensation is payable under section 68, 71 or 75 in respect of
a service injury or disease of the person but the compensation has not yet been
paid; and
(b) the Commonwealth or the potentially liable member would, apart from
subsection 388(1), be liable for damages for that loss.
(2) A choice must be in writing and must be given to the
Commission.
(3) A choice is irrevocable.
(4) If the person chooses to institute the action or proceeding:
(a) subsection 388(1) does not apply to the action or proceeding;
and
(b) compensation under section 68, 71 or 75 in respect of the injury
or disease is not payable after the date of the choice.
(5) In any action or proceeding instituted as a result of the
person’s choice, the court must not award the person damages of more than
$110,000 for non-economic loss suffered by the person.
(6) The person’s choice to institute an action or proceeding against
the Commonwealth or the potentially liable member does not prevent the person
from doing any other thing that constitutes an action for non-economic loss
before, or instead of, formally instituting such an action or
proceeding.
(1) This section applies if:
(a) compensation is payable under this Act in respect of a service injury,
disease or death of a person; and
(b) the person or a dependant of the person makes a claim for damages in
respect of the injury, disease or death against the Commonwealth or a
potentially liable member.
(2) The person or dependant must notify the Commission in writing of the
claim as soon as practicable, but not later than 7 days after the day on which
he or she makes the claim.
(3) A person commits an offence if the person contravenes
subsection (2).
Penalty: 5 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) This section applies if:
(a) compensation is payable under this Act in respect of:
(i) a service injury, disease or death of a person (the cause of
action); or
(ii) the loss of, or damage to, a medical aid used by a person (the
cause of action); and
(b) the person or a dependant of the person makes a claim for damages in
respect of the cause of action against a person other than the Commonwealth or a
potentially liable member.
(2) The person or dependant must notify the Commission in writing of the
claim as soon as practicable, but not later than 7 days after the day on which
he or she makes the claim.
(3) A person commits an offence if the person contravenes
subsection (2).
Penalty: 5 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) This Division applies if:
(a) compensation is paid under this Act in respect of:
(i) a service injury, disease or death of a person (the cause of
action); or
(ii) the loss of, or damage to, a medical aid used by a person (the
cause of action); and
(b) the cause of action occurred in circumstances that appear to create a
legal liability of another person (the defendant) other than the
Commonwealth or a potentially liable member to pay damages in respect of the
cause of action; and
(c) the person or a dependant of the person (as the case may be) (the
plaintiff):
(i) has not made a claim for damages against the defendant in respect of
the cause of action; or
(ii) has made such a claim, but has not prosecuted it.
(2) In paragraph (1)(c), a reference to a claim having been made or
not having been made by the plaintiff includes a reference to a claim having
been made or not having been made on behalf of the plaintiff.
The Commission may:
(a) make a claim or a fresh claim in the name of the plaintiff against the
defendant for the recovery of damages in respect of the cause of action;
or
(b) take over the conduct of the existing claim.
If the Commission takes over the conduct of a claim, the Commonwealth
becomes liable to pay the costs of or incidental to the claim that would
otherwise be payable by the plaintiff. However, the Commonwealth is not liable
for costs unreasonably incurred by the plaintiff.
If the Commission makes, or takes over the conduct of, the claim, the
Commission may do any one or more of the following:
(a) take whatever steps are appropriate to bring the claim to a
conclusion;
(b) if the claim is before a court—settle the proceedings either
with or without obtaining judgment;
(c) if judgment has been obtained in favour of the plaintiff—take
such steps as are necessary to enforce the judgment.
(1) If the Commission makes, or takes over the conduct of, the claim, the
plaintiff must sign any document relevant to the claim (including the settlement
of the claim or of any proceedings arising out of the claim) that the Commission
requires the plaintiff to sign.
(2) If the plaintiff does not do so:
(a) the Commission may apply to:
(i) if the claim is not before a court or tribunal at the time of the
failure—the Federal Court of Australia; or
(ii) otherwise—the court or tribunal in which proceedings relating
to the claim are being heard;
for a direction that the document be signed on the plaintiff’s
behalf by a person appointed by the Commission; and
(b) the court or tribunal may make the direction.
(3) If the Commission proposes to make an application under
subsection (2):
(a) the Commission must notify the plaintiff that it is proposing to do
so; and
(b) the plaintiff has a right of representation in the hearing of the
application.
(1) If the Commission makes, or takes over the conduct of, the
claim:
(a) the plaintiff must comply with any reasonable requirement of the
Commission for the purposes of the claim; and
(b) if the plaintiff fails to comply, the Commission may determine that
the person’s right to compensation (but not to treatment or compensation
for treatment under Chapter 6) under this Act in respect of the cause of
action to which the claim relates is suspended until the plaintiff does
so.
(2) A determination under subsection (1) must not be made in relation
to a failure to comply with a requirement if, before the date fixed for
complying with the requirement, the person gives to the Commission evidence of a
reasonable excuse for the failure.
(3) The Commission must determine that the suspension under
subsection (1) is terminated from a date determined by the Commission if,
within 14 days after the date fixed for complying with the requirement, the
person gives to the Commission evidence of a reasonable excuse for the
failure.
(4) If a determination under subsection (1) is made by a delegate of
the Commission, the Commission must ensure that any determination terminating
the suspension under subsection (3) also made by a delegate of the
Commission is made by a delegate other than a delegate who was involved in
making the determination under subsection (1).
(5) If a person’s right to compensation is suspended under
subsection (1), compensation is not payable in respect of the period of the
suspension.
(1) Any damages payable as a result of a claim made or taken over by the
Commission (including damages payable as a result of the settlement of such a
claim) must be paid to the Commonwealth.
(2) The Commonwealth must deduct from the amount of those
damages:
(a) an amount equal to the total of all amounts of compensation paid to
the plaintiff under this Act before the payment of the damages (except telephone
allowance under section 221 or 245 and compensation for dependants under
section 242, 253 or 255) in respect of the cause of action to which the
claim relates; and
(b) the amount of any costs incidental to the claim paid by the
Commonwealth.
(3) If a balance remains after the deductions have been made:
(a) the Commonwealth must pay the balance to the plaintiff; and
(b) the plaintiff is not entitled to any further compensation under this
Act in respect of the cause of action to which the claim related until the
amount of compensation that would have been payable for the period after payment
of the balance (apart from this paragraph) equals the amount paid under
paragraph (a).
This Division applies if:
(a) compensation is payable under this Act in respect of:
(i) a service injury, disease or death of a person (the cause of
action); or
(ii) the loss of, or damage to, a medical aid used by a person (the
cause of action); and
(b) the person or a dependant of the person recovers damages (including
damages payable as a result of the settlement of a claim) in respect of the
cause of action from a person other than the Commonwealth or a potentially
liable member.
(1) The person or dependant must, not later than 28 days after the day on
which the damages are recovered, notify the Commission in writing of the
recovery of the damages, the date of recovery and the amount of the
damages.
(2) A person commits an offence if the person contravenes
subsection (1).
Penalty: 5 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) This section applies if:
(a) compensation under this Act in respect of the cause of action is paid
to or for the benefit of a person; and
(b) the person later recovers damages in respect of that cause of
action.
(2) The person is liable to pay to the Commonwealth the lesser
of:
(a) the total of all amounts of compensation paid to the person under this
Act before the recovery of the damages (except telephone allowance under
section 221 or 245 and compensation for dependants under section 242,
253 or 255) in respect of the cause of action; and
(b) the amount of the damages.
(3) If the Commission is satisfied that a part of the damages does not
relate to an injury, disease or death, or a loss of, or damage to, a medical
aid, in respect of which compensation is payable under this Act, this
section only applies to so much of the damages as relates to an injury, disease,
death, loss or damage in respect of which compensation is payable under this
Act.
(1) This section applies if a person recovers damages in respect of the
cause of action (whether or not compensation in respect of the cause of action
has been paid under this Act to or for the benefit of the person).
(2) Compensation under this Act (except telephone allowance under
section 221 or 245 and compensation for dependants under section 242,
253 or 255) is not payable to the person in respect of the cause of action after
the day on which the damages were recovered.
(3) However, subsection (2) does not apply if the damages were
recovered as a result of:
(a) a claim, or a fresh claim, made by the Commission under
Division 2; or
(b) the Commission’s taking over, under Division 2, the conduct
of a claim.
(1) This section applies if a person other than the Commonwealth or a
potentially liable member (the defendant):
(a) appears to the Commission to be liable to pay damages:
(i) to a person (the plaintiff) in respect of a service
injury or disease of the plaintiff; or
(ii) to a person (the plaintiff) in respect of the loss of,
or damage to, a medical aid of the plaintiff; or
(iii) to a dependant (the plaintiff) of a person in respect
of a service death of the person;
in respect of which compensation has been paid under this Act;
or
(b) has agreed to pay damages of that kind to the plaintiff; or
(c) has had damages of that kind awarded against him or her in proceedings
arising out of a claim made by or on behalf of the plaintiff.
(2) The Commission may give the defendant a written notice requiring him
or her to pay to the Commonwealth the damages (if any) that he or she agrees to
pay or that are awarded against him or her.
(3) If the defendant is given a notice, the defendant must pay the
Commonwealth the lesser of:
(a) the amount of the damages; and
(b) the total amount of compensation paid to the plaintiff under this Act
in respect of the injury, disease, death, loss or damage (except telephone
allowance under section 221 or 245 and compensation for dependants under
section 242, 253 or 255).
(4) If the defendant is given a notice after paying to or for the benefit
of the plaintiff all of the damages to which the notice relates, the notice has
no effect.
(5) If the defendant is given a notice after paying to or for the benefit
of the plaintiff part of the damages to which the notice relates, the reference
in subsection (3) to the amount of the damages has effect as a reference to
so much of that amount as has not been paid.
(6) If the defendant fails to pay an amount to the Commonwealth in
accordance with the notice, the Commission may recover that amount from the
defendant in a court of competent jurisdiction as a debt due to the
Commonwealth.
(7) The payment of an amount to the Commonwealth by the defendant in
accordance with the notice discharges, to the extent of the amount
paid:
(a) the liability of the defendant to the plaintiff; and
(b) the liability (if any) of the plaintiff to the Commonwealth under
Division 3.
(1) This section applies to dollar amounts mentioned in the following
provisions:
(a) subsection 74(1);
(b) subsection 80(2);
(c) subsection 82(1);
(d) paragraph 138(1)(a);
(e) subsection 206(1);
(f) paragraph 216(b);
(g) paragraph 219(b);
(h) subsections 234(2) and (3);
(i) section 240;
(j) section 252;
(k) section 254;
(l) paragraphs 263(1)(a) and (b);
(m) section 267.
(2) The dollar amount mentioned in the provision, for an indexation year
in which the indexation factor is greater than one, is replaced by the amount
that is worked out using the following formula:
(3) The indexation factor for an indexation year is the
number worked out using the following formula:
(4) The indexation factor is to be calculated to 3 decimal places, but
increased by .001 if the fourth decimal place is more than 4.
(5) Calculations under subsection (3):
(a) are to be made using only the December index numbers published in
terms of the most recently published reference base for the Consumer Price
Index; and
(b) are to be made disregarding December index numbers that are published
in substitution for previously published December index numbers (except where
the substituted numbers are published to take account of changes in the
reference base).
(6) In this section:
December index number means the All Groups Consumer Price
Index number, being the weighted average of the 8 capital cities, published by
the Australian Statistician in respect of the 3 months ending on
31 December.
(1) This section applies to a person who has made a claim under
section 319 for:
(a) acceptance of liability for a service injury, disease or death or for
the loss of or damage to a medical aid; or
(b) compensation under this Act.
(2) The Commission may give the person a written notice:
(a) requiring the person to notify the Commission (or a specified staff
member assisting the Commission) if:
(i) a specified event or change of circumstance occurs; or
(ii) the person becomes aware that such an event or change is likely to
occur; or
(b) requiring that person to give the Commission (or a specified staff
member assisting the Commission) a statement relating to a specified
matter.
(3) The event, change of circumstances or matter:
(a) must be an event, change or matter that might affect or have
affected:
(i) the acceptance of liability for the service injury, disease or death
or for the loss of or damage to the medical aid; or
(ii) the payment or provision of compensation; and
(b) must be specified in either:
(i) the notice; or
(ii) any other document mentioned in the notice that is also given to the
person with the notice.
(4) The notice or other document must specify the period within which the
person must comply with the notice. The period must be:
(a) if paragraph (2)(a) applies—at least 14 days after the
occurrence of the event or change or after the person becomes aware of the
likelihood of the event or change; or
(b) if paragraph (2)(b) applies—at least 14 days after the
notice is given.
(5) The notice or other document must:
(a) if paragraph (2)(a) applies—specify the manner in which the
person must comply with the notice; or
(b) if paragraph (2)(b) applies—specify the form of the
statement.
(6) This section does not require a person to give information to the
extent that, in doing so, the person would contravene a law of the Commonwealth
(not being a law of a Territory).
Note: A law of a State or Territory cannot prevent a person
from giving information, producing documents or giving evidence for the purposes
of this Act (see section 409).
(7) A person commits an offence if the person fails to comply with a
notice under this section.
Penalty: 10 penalty units.
(8) An offence under subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(9) Subsection (7) does not apply to the extent that the person is
not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (9) (see subsection 13.3(3) of the Criminal
Code).
(1) The Commission may give a written notice to any person requiring the
person, for the purposes of this Act:
(a) to provide the Commission (or a specified staff member assisting the
Commission) such information as the Commission requires; or
(b) to produce to the Commission (or a specified staff member assisting
the Commission) any documents in the custody or under the control of the person;
or
(c) to appear before a specified staff member assisting the Commission to
answer questions.
(2) To avoid doubt, the person given the notice may be a person
employed:
(a) in or in connection with a Department of the Commonwealth, a State or
Territory; or
(b) by any authority of the Commonwealth, a State or Territory.
(3) The notice must specify:
(a) if paragraph (1)(a) or (b) applies:
(i) the period within which the person must comply with the notice;
and
(ii) the manner in which the person must comply with the notice;
or
(b) if paragraph (1)(c) applies:
(i) the time at which the person must appear before the staff member;
and
(ii) the place at which the person must appear before the staff
member.
(4) The specified period or the specified time mentioned in
subsection (3) must be at least 14 days after the notice is
given.
(5) The Commission may require the information or answers provided under
paragraph (1)(c) to be verified by, or given on, oath or affirmation and
either orally or in writing.
(6) A staff member to whom information or answers are verified or given
may administer the oath or affirmation.
(7) This section does not require a person to give information, produce a
document or give evidence to the extent that, in doing so, the person would
contravene a law of the Commonwealth (not being a law of a Territory).
Note: A law of a State or Territory cannot prevent a person
from giving information, producing documents or giving evidence for the purposes
of this Act (see section 409).
(8) This section binds the Crown in each of its capacities, but does not
make the Crown liable to be prosecuted for an offence.
(9) A person commits an offence if the person fails to comply with a
notice under this section.
Penalty: 10 penalty units.
(10) An offence under subsection (9) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(11) Subsection (9) does not apply to the extent that the person is
not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (11) (see subsection 13.3(3) of the Criminal
Code).
(1) An individual is not excused from giving information or evidence, or
producing a document or a copy of a document, under section 406 on the
ground that the information or evidence, or the production of the document or
copy, might tend to incriminate the individual or expose the individual to a
penalty.
(2) However:
(a) giving the information or evidence, or producing the document or copy;
or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or evidence, or producing the document or
copy;
is not admissible in evidence against the individual in any proceedings,
other than proceedings for an offence under section 137.1 or 137.2 of the
Criminal Code that relates to this Act.
(1) A person commits an offence if:
(a) the person is provided with goods under this Act for any
purpose; and
(b) the person sells the goods or otherwise disposes of, pledges,
mortgages, or deposits by way of security, the goods; and
(c) the person does so without the consent of the Commission.
Penalty: 10 penalty units.
(2) An offence under subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) Nothing in a law of a State or of a Territory may operate to prevent a
person from giving information, producing documents or giving evidence for the
purposes of this Act.
(2) The Commission (or a staff member assisting the Commission) may
provide any information obtained in the performance of his or her duties under
this Act to a person or agency specified in this table for the purpose specified
in the table:
|
Giving information |
||
|---|---|---|
|
Item |
Person or agency |
Purpose |
|
1 |
An employee of the Defence Department |
A purpose relating to litigation involving a service injury, disease or
death in relation to which a claim has been made under
section 319 |
|
2 |
A service chief |
A purpose relating to reconsideration or review under Chapter 8 of a
determination made under Chapter 2 about acceptance of liability for a
service injury, disease or death |
|
3 |
A person or agency specified in the regulations |
A purpose specified in the regulations in relation to that person or
agency |
(3) The person or agency must not:
(a) use the information for a purpose other than the specified purpose;
or
(b) further disclose the information for a purpose other than the
specified purpose.
(4) To avoid doubt, if information is disclosed or used in accordance with
this section, the disclosure or use is taken, for the purposes of the
Information Privacy Principles set out in section 14 of the Privacy Act
1988, to be authorised by law.
Judicial notice of signature
(1) All courts must take judicial notice of a signature that purports to
be attached or appended to any official document if it is the signature of a
person who:
(a) holds or has held the office of member of the Commission; or
(b) is or was a staff member assisting the Commission.
Judicial notice that person holds office
(2) If the signature of a person mentioned in subsection (1) purports
to be attached or appended to any official document, all courts must take
judicial notice of the fact that the person:
(a) holds or has held the office of member of the Commission; or
(b) is or was a staff member assisting the Commission.
(1) A statement in writing signed by a person who:
(a) holds or has held the office of member of the Commission; or
(b) is or was a staff member assisting the Commission;
that a person is or was receiving compensation, or compensation of a
particular kind, under this Act on a certain date or of a certain amount must be
received in all courts as prima facie evidence that the person is or was
receiving the compensation, or compensation of that kind, on the date or of the
amount stated.
(2) For the purposes of this section, a document purporting to be a
statement referred to in subsection (1) is, unless the contrary is
established, taken to be such a statement and to have been duly given.
Statement not to be admitted unless copy given to defendant 14 days
before statement to be admitted in evidence
(3) A statement must not be admitted in evidence under subsection (1)
in proceedings for an offence unless the person charged with the offence or a
solicitor who has appeared for the person in those proceedings has, at least 14
days before the statement is sought to be so admitted, been given a copy of the
statement together with reasonable evidence of the intention to produce the
statement as evidence in the proceedings.
Person giving statement may be called to give evidence
(4) Subject to subsection (5), if, under subsection (1), a
statement is admitted in evidence in proceedings for an offence, the person
charged with the offence may require the person giving the statement to be
called as a witness for the prosecution and cross-examined as if he or she had
given evidence of the matters stated in the statement.
(5) Subsection (4) does not entitle the person charged to require the
person giving a statement to be called as a witness for the prosecution unless
the Court, by order, allows the person charged to require the person giving the
statement to be so called.
Evidence in support of rebuttal of matters in statement to be considered
on its merits
(6) Any evidence given in support, or in rebuttal, of a matter stated in a
statement given under subsection (1) must be considered on its merits and
the credibility and probative value of such evidence must be neither increased
nor diminished by reason of this section.
Application of section
(1) This section applies to a person who is being paid compensation for
incapacity for service or work under Part 3 or 4 of
Chapter 4.
Commission may request person’s TFN
(2) If the person is in Australia, the Commission may request (but not
compel) the person:
(a) if the person has a tax file number—to give the Commission a
written statement of the person’s tax file number; or
(b) if the person does not have a tax file number:
(i) to apply to the Commissioner of Taxation for a tax file number;
and
(ii) to give the Commission a written statement of the person’s tax
file number after the Commissioner of Taxation has issued it.
Note: Section 413 sets out how to satisfy the
request.
Certain compensation not to be paid if request not complied
with
(3) The person must not be paid any compensation under Part 3 or 4 of
Chapter 4 that the person is otherwise entitled to receive if the request
under subsection (2) is not satisfied.
Note: Section 414 allows back pay if the request is
satisfied within 3 months.
(1) This section sets out how to satisfy a request under section 412
in respect of a person’s tax file number.
Compliance by giving a TFN declaration
(2) If the person is entitled to compensation for incapacity for service
or work and the compensation is assessable income for the purposes of the
Income Tax Assessment Act 1936 or the Income Tax Assessment Act
1997, the request is complied with if the person gives the Commission a TFN
(within the meaning of Part VA of the Income Tax Assessment Act
1936).
Compliance if a person has a TFN but does not know it
(3) If the person has a tax file number but the person does not know what
it is, the request is complied with if:
(a) the person gives the Commission a declaration:
(i) that the person has a tax file number but does not know what it is;
and
(ii) that the person has asked the Commissioner of Taxation to inform him
or her of the number; and
(b) the person gives the Commission a document authorising the
Commissioner of Taxation to tell the Commission:
(i) whether the person has a tax file number; and
(ii) if so—the tax file number; and
(c) the Commissioner of Taxation has not told the Commission that the
person has no tax file number.
Compliance if a person has applied for a TFN
(4) If the person has applied for a tax file number, the request is
complied with if:
(a) the person gives the Commission a declaration that he or she has
applied for a tax file number; and
(b) the person gives the Commission a document authorising the
Commissioner of Taxation to tell the Commission:
(i) if a tax file number is issued to the person—the tax file
number; or
(ii) if the application is refused—that the application has been
refused; or
(iii) if the application is withdrawn—that the application has been
withdrawn; and
(c) the Commissioner of Taxation has not told the Commission:
(i) that the person has not applied for a tax file number; or
(ii) that an application by the person for a tax file number has been
refused; or
(iii) that the application for a tax file number has been
withdrawn.
Declaration to be in approved form
(5) A declaration under this section must be in a form approved by the
Commission.
Back pay for those who comply within 3 months
(1) If:
(a) a person’s compensation for incapacity for service or work under
Part 3 or 4 of Chapter 4 ceases to be paid under subsection 412(3)
because the request under subsection 412(2) is not satisfied by a particular
day; and
(b) the request is satisfied within the period of 3 months from that
day;
then the compensation that would have been paid to the person during that
period if the request had been satisfied is to be paid to the person.
No back pay for those who do not comply within 3 months
(2) If the request is satisfied after that period of 3 months, the
person’s compensation is to be paid from the day on which the request is
satisfied.
(1) This section applies if:
(a) an amount of compensation is paid under this Act to a person as a
result of a false or misleading statement or representation, or a failure or
omission to comply with this Act; or
(b) an amount of compensation (other than an amount that the Commonwealth
is entitled to recover under Division 2) that has been paid to a person
under this Act should not have been paid; or
(c) a person is liable to pay an amount under this Act to the
Commonwealth.
(2) However, this section does not apply in respect of a person if one or
more of sections 315, 316 and 317 apply in respect of the person.
Note: Chapter 6 has its own recovery provisions for
overpayments (see sections 315, 316 and 317).
(3) The amount is recoverable by the Commission from the person in a court
of competent jurisdiction as a debt due to the Commonwealth.
(4) The recoverable amount may be deducted from an amount that is payable
to or for the benefit of the person under this Act.
(1) This section applies if:
(a) a person who is or was a member is receiving, or is entitled to
receive, compensation under this Act; and
(b) the person retires from his or her employment; and
(c) the person was a member of a Commonwealth superannuation scheme
immediately before retiring.
(2) The person must, within 14 days after the person retires from
his or her employment, give a written notice to the Commission:
(a) stating that the person has retired; and
(b) specifying the date of the retirement; and
(c) identifying the Commonwealth superannuation scheme of which the person
was a member immediately before his or her retirement.
Penalty: 5 penalty units.
(3) An offence under subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Section 418 applies if:
(a) a person (the retiree) retires from his or her
employment; and
(b) the retiree is or might be entitled to either or both a pension or a
lump sum under a Commonwealth superannuation scheme; and
(c) the Commission is of the opinion that it might pay, or might have
paid, more compensation under Part 4 or 5 of Chapter 4 to the retiree
than he or she is entitled to receive because of:
(i) Subdivision C of Division 2 of Part 4 of Chapter 4
(compensation where superannuation received); or
(ii) section 204 (reduction in rate of Special Rate Disability
Pension).
(1) The Commission may give a written notice to the administrator of the
Commonwealth superannuation scheme (the
administrator):
(a) stating that the Commission might make, or might have made, an
overpayment of compensation to the retiree; and
(b) requiring the administrator to tell the Commission whether:
(i) the retiree has received any payment in respect of his or her
entitlement mentioned in paragraph 417(b); and
(ii) all the retiree’s benefits under the scheme have been deferred;
and
(c) if the retiree has not received such payment and the retiree’s
benefits have not been deferred—requiring the administrator to do the
things mentioned in subsection (2).
(2) The notice may require the administrator:
(a) not to pay any pension or lump sum to the retiree until the
administrator receives a notice from the Commission under subsection 420(2);
and
(b) as soon as practicable, to give the Commission details of the
following amount that is payable to the retiree under the Commonwealth
superannuation scheme:
(i) the amount of the pension;
(ii) the amount of the lump sum worked out as at the date of
retirement;
(iii) the amount of the pension and the lump sum as so worked
out;
(as the case requires).
The Commission must give a written notice to the retiree stating that it
has given a notice to the administrator under section 418 and explaining
how this Division works.
(1) This section applies if:
(a) the retiree has not received any payment in respect of his or her
entitlement mentioned in paragraph 417(b); and
(b) the retiree’s benefits under the scheme have not been deferred;
and
(c) the Commission has received the details mentioned in paragraph
418(2)(b).
Note: Under paragraph 418(2)(b), the administrator is
required to give the Commission details of either or both the amount of the
pension or lump sum that is payable to the retiree.
(2) The Commission must do the following within 2 working days after
receiving the details:
(a) determine whether an overpayment of compensation to the retiree has
occurred;
(b) if it determines that no overpayment has occurred—give a written
notice to the administrator stating that fact;
(c) otherwise—give a written notice to the administrator:
(i) stating the amount of the overpayment; and
(ii) requiring the administrator to pay that amount to the Commonwealth in
accordance with section 421.
(3) The Commission must not reduce the rate or amount of compensation
payable to the retiree under this Act until it has given the notice mentioned in
paragraph (2)(b) or (c) to the administrator.
(4) For the purposes of subparagraph (2)(c)(i), the amount of
the overpayment is the difference between:
(a) the total amount of compensation paid under Part 4 or 5 of
Chapter 4 after the retirement of the retiree; and
(b) the total amount of compensation that should have been paid to the
retiree under that Part having regard to:
(i) Subdivision C of Division 2 of Part 4 of Chapter 4
(compensation where superannuation received); or
(ii) section 204 (reduction in rate of Special Rate Disability
Pension).
(1) If section 420 applies in respect of a retiree, the administrator
must pay the amount mentioned in subsection (2) to the Commonwealth out of
the payments of pension or lump sum that the administrator would otherwise have
made to the retiree.
(2) The administrator must pay on a particular day the lesser of the
following amounts:
(a) the amount of the payment of pension or lump sum (or both) that the
administrator would otherwise have made to the retiree on the day;
(b) the amount of the original overpayment less any amounts that the
administrator has paid to the Commonwealth before that day to reduce the
original overpayment.
(3) The payment of an amount by the administrator to the Commonwealth
discharges, to the extent of that amount:
(a) the liability of the administrator to pay that amount to the retiree;
and
(b) the liability of the retiree to pay that amount to the
Commonwealth.
(1) The administrator must comply with a requirement made of the
administrator under this Division by the Commission. However, a failure to
comply with a requirement is not an offence.
(2) This section has effect despite:
(a) sections 143 and 143A of the Superannuation Act 1922;
and
(b) sections 85 and 85A of the Defence Forces Retirement Benefits
Act 1948; and
(c) sections 129 and 130 of the Defence Force Retirement and Death
Benefits Act 1973; and
(d) sections 118 and 119 of the Superannuation Act
1976.
The Consolidated Revenue Fund is appropriated for the purposes of paying
the following:
(a) compensation under this Act (other than compensation under
section 212 or 258);
(b) costs incurred in respect of assessments, examinations, rehabilitation
and finding suitable work under Parts 1 to 4 of Chapter 3 but only to
the extent that the rehabilitation authority is the Commission;
(c) treatment and other services provided under Chapter 6;
(d) assistance or benefits granted under section 424 that are of a
similar nature to:
(i) compensation mentioned in paragraph (a); or
(ii) costs mentioned in paragraph (b); or
(iii) services mentioned in paragraph (c).
Note: The appropriation for compensation and other costs
incurred under sections 212 and 258, and for most other costs incurred
under this Act that are not mentioned in this section, is included in annual
Appropriation Acts.
(1) The Commission may, in the circumstances and subject to the conditions
(if any) prescribed by the regulations, grant assistance or benefits of the
kind, and the amount or value, that it considers reasonable to a
person:
(a) who is a member or former member; or
(b) who is or was a dependant of a member, former member or deceased
member.
(2) However, the Commission must not grant assistance or benefits in
circumstances in which a person:
(a) is entitled to compensation or another benefit under this Act or the
Veterans’ Entitlements Act 1986; or
(b) would be entitled to such compensation or benefit if a claim was made
in respect of the person.
(1) An assignment of any compensation payable under this Act is void as
against the Commonwealth.
Note: Some provisions of this Act allow a person to whom
compensation is payable to direct that the compensation be paid to another
person who provided services for the person (see, for example,
section 220).
(2) Except as provided by this Act, an amount payable by a member or
former member, or a dependant of a deceased member, to the Commonwealth must not
be set off against the amount of any compensation payable under this Act to the
member or former member or for the benefit of the dependant.
(3) Except as provided by the Maintenance Orders (Commonwealth
Officers) Act 1966, the Child Support (Registration and Collection) Act
1988 or the Social Security Act 1991, or by regulations under the
Family Law Act 1975, any compensation under this Act is not subject to
attachment.
(1) This section applies if the Commonwealth is given a notice under
Subdivision 260-A in Schedule 1 to the Taxation Administration Act
1953 in respect of a person who is entitled to compensation under this
Act.
Note: This means that the Commonwealth is the third party
referred to in section 260-5 of that Schedule and the person who is
entitled to compensation is the debtor referred to in that
section.
(2) The Commonwealth must:
(a) deduct amounts from the compensation payable to or for the benefit of
the person (except compensation for costs incurred by the person); and
(b) pay the amounts deducted to the Commissioner of Taxation;
in accordance with that Subdivision.
(1) The several courts of the States are invested with federal
jurisdiction, and jurisdiction is conferred on the several courts of the
external Territories, with respect to external offences.
(2) The jurisdiction invested in, or conferred on, courts by
subsection (1) is invested or conferred within the limits of their several
jurisdictions (other than limits based on the places at which offences are
committed), whether those limits are as to subject-matter or
otherwise.
(3) Jurisdiction with respect to an external offence is not conferred on a
court of an external Territory unless the offence was committed in that
Territory.
(4) Subject to this section, the Judiciary Act 1903 applies in
relation to offences in relation to which this section applies.
(5) In this section:
external offence means an offence against this Act committed
outside Australia.
(1) The Commission may decide, in writing, to write off a debt due to the
Commonwealth under this Act.
Note: If the Commission writes off a debt, this means an
administrative decision has been made that, in the circumstances, there is no
point in trying to recover the debt. In law, however, the debt still exists and
may later be pursued.
(2) The decision takes effect:
(a) on the day set out in the decision (which may be before, on or after
the day the decision is made); or
(b) if no day is set out in the decision—on the day the decision is
made.
(1) The Commission may decide, in writing, to waive the
Commonwealth’s right to recover from a person the whole or a part of a
debt due to the Commonwealth under this Act.
Note: If the Commission waives the Commonwealth’s
rights to recover, this is a permanent bar to recovery of the debt—the
debt effectively ceases to exist.
(2) The decision takes effect:
(a) on the day set out in the decision (which may be before, on or after
the day the decision is made); or
(b) if no day is set out in the decision—on the day the decision is
made.
(1) The Commission may direct that the whole or a part of a person’s
compensation is to be paid, at the intervals that the Commission specifies, to
the credit of an account with a bank.
(2) If the Commission does so, the person must nominate an account
maintained by the person (including an account maintained jointly or in common
with another person) to whom the compensation is payable.
(3) The compensation:
(a) must not be paid into an account until the person has nominated an
account; and
(b) must be paid in accordance with the Commission’s
direction.
(4) In this section:
account, in relation to a bank, means an account maintained
by a person with the bank to which is credited money received on deposit by the
bank from that person.
bank includes a body corporate that is an ADI (authorised
deposit-taking institution) for the purposes of the Banking Act
1959.
(1) A person who is entitled to weekly compensation may request, in
writing, the Commission to deduct a specified amount from the
compensation:
(a) to pay the Commissioner of Taxation; or
(b) for the purpose of making payments included in a class of payments
approved by the Minister.
(2) If such a request is made, the Commission may deduct the amount and,
if it does so, is to pay the amount deducted in accordance with the
request.
(3) The Minister may, by writing, approve classes of payments for the
purposes of paragraph (1)(b).
Note: The approval may be varied or revoked (see subsection
33(3) of the Acts Interpretation Act 1901).
(4) An approval, and any variation or revocation of an approval, is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(1) This section applies if:
(a) a person who is entitled to be paid compensation under Chapter 3,
4, 5 or 6 is under a legal disability; or
(b) if such a person is under 18—there is no person who has the
primary responsibility for the daily care of that person.
(2) The Commission may, in writing, appoint the Commonwealth or any other
person to be the trustee of the payments of compensation under this
Act.
Note: Section 433 sets out the powers of the
trustee.
(3) The Commission may, in writing, revoke the appointment.
(4) If the Commission revokes the appointment:
(a) the Commission may appoint a new trustee in writing; and
(b) the trust funds vest in the new trustee.
Note: Section 433 sets out the powers of the new
trustee.
(5) If the Commission revokes the appointment and does not appoint a new
trustee in writing, the trust is terminated.
(1) If a trustee is appointed under section 432 in respect of
payments of compensation under this Act, the compensation is payable to the
trustee.
(2) A trustee may invest those payments and interest on those payments in
accordance with section 434 or 435.
(3) The trust funds may be dealt with in the following ways:
(a) the funds may be applied for the benefit of the person who is entitled
to the compensation, a member of that person’s family, or a dependant of
that person, as the trustee sees fit;
(b) if the trust is terminated during the life of that person—the
trust funds must be transferred to that person;
(c) if that person dies before the trust is terminated—the trust
funds must be paid or transferred to:
(i) the legal personal representative of the deceased person as part of
the estate of the deceased person; or
(ii) if there is no legal personal representative and the Commission is
satisfied that no application will be made for probate of the will or letters of
administration of the estate of the deceased person—the person who the
Commission determines is best entitled to them.
(1) This section applies if a trustee appointed in respect of payments of
compensation under section 432 is the Commonwealth or an employee of the
Australian Public Service.
(2) A trustee may invest any trust funds not applied for the benefit of a
person in any manner prescribed by the regulations.
(3) If a trustee is a trustee in respect of 2 or more persons who are
entitled to compensation under this Act, then the trustee may pool those
persons’ trust funds for the purposes of investing the funds.
(4) However, a trustee must not pool trust funds or invest pooled trust
funds in a way that prevents the trust funds from being identified sufficiently
to allow paragraph 433(3)(a) to be complied with.
(5) A trustee in respect of payments of compensation may:
(a) arrange for another person to manage the trust funds; and
(b) transfer the funds to the other person for the purposes of the
arrangement.
However, making an arrangement or transferring funds does not relieve the
trustee of any duties or liabilities as trustee.
(6) The Commonwealth:
(a) may charge fees (whether by way of commission or otherwise) for the
services of a trustee in respect of payments of compensation in accordance with
the regulations; and
(b) is entitled to reasonable expenses incurred by the trustee in
rendering the services.
The fees and expenses may be paid from the trust funds.
(1) This section applies if a trustee appointed under section 432 in
respect of payments of compensation is not the Commonwealth or an employee of
the Australian Public Service.
(2) The trustee may invest any trust funds not applied under paragraph
433(3)(a) in any investments authorised for the investment of trust funds by the
law of the State or Territory where the person who is entitled to the
compensation resides.
(1) A payment of an amount of compensation in respect of a deceased person
forms part of the estate of the person.
(2) However, if the Commission determines that no application will be made
for probate of the will or letters of administration of the estate of the
deceased person, the Commonwealth is not liable to pay the
compensation.
An amount of compensation payable under this Act in respect of a service
injury, disease or death is in addition to any other amount of compensation paid
or payable under this Act in respect of that injury, disease or death.
A service chief may delegate in writing any of his or her functions or
powers under a provision of this Act to:
(a) a person:
(i) who is engaged under the Public Service Act 1999 and performing
duties in the Department administered by the Defence Minister or the
Veterans’ Affairs Minister; and
(ii) whose duties relate to matters to which the provision relates;
or
(b) a member of the Defence Force whose duties relate to matters to which
the provision relates.
(1) The regulations may provide for how Chapter 2 and Parts 3
and 4 of Chapter 4 apply in respect of cadets and declared
members.
(2) Without limiting the generality of subsection (1), the
regulations may provide that Chapter 2 and Parts 3 and 4 of
Chapter 4 apply with specified modifications.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.