SAFETY, REHABILITATION AND COMPENSATION (DEFENCE-RELATED CLAIMS) AMENDMENT (PRESCRIBED CANCERS) REGULATIONS 2023 (F2023L01357) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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SAFETY, REHABILITATION AND COMPENSATION (DEFENCE-RELATED CLAIMS) AMENDMENT (PRESCRIBED CANCERS) REGULATIONS 2023 (F2023L01357)

Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023

 

EXPLANATORY STATEMENT

 

Issued by authority of the Minister for Veterans' Affairs

under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

 

Purpose and operation of the Instrument

The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act) establishes a compensation and rehabilitation scheme for employees in relation to their employment as a member of the Defence Force prior to 1 July 2004.

Subject to the DRC Act, liability to provide treatment and rehabilitation and make certain compensation payments arises in respect of an 'injury' suffered by an employee. For the purposes of the DRC Act, an 'injury' is defined by section 5A to include a 'disease' suffered by a veteran. A disease is defined by section 5B of the DRC Act to mean an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by the employee's employment.

Section 7 of the DRC Act includes a number of provisions relating to diseases. Subsection 7(8) sets out circumstances in which employment as a firefighter, for a qualifying period, is deemed to have contributed, to a significant degree, to the contraction of a disease specified in the table to subsection 7(8) unless the contrary is established.

Item 13 of the table applies to additional cancers, and corresponding qualifying periods, prescribed for the table.

Section 122 of the DRC Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Pursuant to subsection 7(8) and section 122 of the DRC Act the Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023 (the Amendment Instrument) amends the Safety, Rehabilitation and Compensation (Defence-related Claims) Regulations 2019 to prescribe the following eight additional cancers and corresponding qualify periods for the purposes of subsection 7(8) of the SRC Act:

(1) Primary site lung cancer with a qualifying period of 15 years;

(2) Primary site skin cancer with a qualifying period of 15 years;

(3) Primary site cervical cancer with a qualifying period of 10 years;

(4) Primary site ovarian cancer with a qualifying period of 10 years;

(5) Primary site penile cancer with a qualifying period of 15 years;

(6) Primary site pancreatic cancer with a qualifying period of 10 years;

(7) Primary site thyroid cancer with a qualifying period of 10 years; and

(8) Malignant mesothelioma with a qualifying period of 15 years.

 

Consequently, if an employee suffers from one of the abovementioned cancers, and:

*         before the cancer was sustained, the employee was employed as a firefighter for the qualifying period mentioned for that cancer; and

*         was exposed to the hazards of a fire scene during the qualifying period;

that employment is taken to have contributed, to a significant degree, to the contraction of the cancer for the purposes of the DRC Act, unless the contrary is established.

The Amendment Instrument includes an application provision. It provides that the amendments apply to decisions made under the Act after the amendments commence, and apply to a prescribed cancer sustained by an employee on or after 4 July 2011.

The Amendment Instrument commences on the day after the instrument is registered on the Federal Register.

 

CONSULTATION

Consultation was undertaken with the Department of Employment and Workplace Relations (DEWR).  This is an alignment measure to reflect similar changes for firefighters covered under the Safety, Rehabilitation and Compensation Act 1988 made by the Safety, Rehabilitation and Compensation Amendment (Prescribed Cancers) Regulations 2023.

DEWR undertook consultation with relevant employee representatives, as well as the Australian Capital Territory Government.

 

REGULATION IMPACT STATEMENT

The Office of Impact analysis was consulted regarding this instrument. OIA indicated the Amendment Instrument is unlikely to have more than a minor regulatory impact as a relatively small cohort of firefighters would be affected, and the effect of the instrument is to require less evidence or information from these veterans for these diseases as part of the claims assessment process than for other veterans (OBPR23-04152 refers).

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023

This legislative instrument is compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act) establishes a compensation and rehabilitation scheme for employees in relation to their employment as a member of the Defence Force prior to 1 July 2004.

Subject to the DRC Act, liability to provide rehabilitation and make certain compensation payments arises in respect of an 'injury' suffered by an employee. For the purposes of the DRC Act, an 'injury' is defined by section 5A to include a 'disease' suffered by a veteran. A disease is defined by section 5B of the DRC Act to mean an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by the employee's employment.

Section 7 of the DRC Act includes a number of provisions relating to diseases. Subsection 7(8) sets out circumstances in which employment as a firefighter, for a qualifying period, is deemed to have contributed, to a significant degree, to the contraction of a disease specified in the table to subsection 7(8) unless the contrary is established.

Item 13 of the table applies to additional cancers, and corresponding qualifying periods, prescribed for the table.

Section 122 of the DRC Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Pursuant to subsection 7(8) and section 122 of the DRC Act the Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023 (the Amendment Instrument) amends the Safety, Rehabilitation and Compensation (Defence-related Claims) Regulations 2019 to prescribe the following eight additional cancers and corresponding qualify periods for the purposes of subsection 7(8) of the SRC Act:

(1) Primary site lung cancer with a qualifying period of 15 years;

(2) Primary site skin cancer with a qualifying period of 15 years;

(3) Primary site cervical cancer with a qualifying period of 10 years;

(4) Primary site ovarian cancer with a qualifying period of 10 years;

(5) Primary site penile cancer with a qualifying period of 15 years;

(6) Primary site pancreatic cancer with a qualifying period of 10 years;

(7) Primary site thyroid cancer with a qualifying period of 10 years; and

(8) Malignant mesothelioma with a qualifying period of 15 years.

 

Consequently, if an employee suffers from one of the abovementioned cancers, and:

*         before the cancer was sustained, the employee was employed as a firefighter for the qualifying period mentioned for that cancer; and

*         was exposed to the hazards of a fire scene during the qualifying period;

that employment is taken to have contributed, to a significant degree, to the contraction of the cancer for the purposes of the DRC Act, unless the contrary is established.

The Amendment Instrument includes an application provision. It provides that the amendments apply to decisions made under the Act after the amendments commence, and apply to a prescribed cancer sustained by an employee on or after 4 July 2011.

Human rights implications

Article 9 of the International Covenant on Economic, Social and Cultural Rights provides for the right of everyone to social security, including social insurance. General Comment 19 by the Committee on Economic, Social and Cultural Rights elaborates on Article 9, stating that the 'States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work'.[1]

Workers' compensation is analogous to social insurance in that it provides payment of wages and medical costs to employees for injuries occurring as a result of their employment.

The Amendment Instrument will assist firefighters covered by the DRC Act in relation to a claim made in respect of a disease of a kind specified in the instrument. It does this by enlivening subsection 7(8) of the DRC Act, which effectively reverses the onus of proof in relation to the specified disease. This reduces the evidentiary burden on the claimant for the purposes of establishing an entitlement to workers' compensation and other benefits under the DRC Act.

Conclusion

The legislative instrument is compatible with human rights because it promotes human rights.

 

The Hon Matt Keogh MP

Minister for Veterans' Affairs

Attachment A

NOTES ON SECTIONS

Section 1 - Name

Section 1 provides that the title of the instrument is the Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023.

Section 2 - Commencement

Section 2 provides that the instrument is to commence on the day after it is registered on the Federal Register of Legislation.

Section 3 - Authority

Section 3 provides that the instrument is made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.

Section 4 - Schedules

Section 4 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms

 

Schedule 1 - Amendments

Item 1 - Prescribed kinds of cancer

Item 1 amends Part 2 of the Safety, Rehabilitation and Compensation Regulations 2019 to insert a new section 5A. Section 5A provides that, for the purposes of item 13 in the table in subsection 7(8) of the DRC Act, a kind of cancer specified in an item of the table included in section 5A, and the qualifying period specified in the item for that kind of cancer, are prescribed.

The table in section 5A specifies the following cancers and qualifying periods for the purposes of subsection 7(8) of the DRC Act:

(i)                 Primary site lung cancer with a qualifying period of 15 years;

(ii)               Primary site skin cancer with a qualifying period of 15 years;

(iii)             Primary site cervical cancer with a qualifying period of 10 years;

(iv)             Primary site ovarian cancer with a qualifying period of 10 years;

(v)               Primary site penile cancer with a qualifying period of 15 years;

(vi)             Primary site pancreatic cancer with a qualifying period of 10 years;

(vii)           Primary site thyroid cancer with a qualifying period of 10 years; and

(viii)         Malignant mesothelioma with a qualifying period of 15 years.

Item 2 - Part 4 (heading)

Item 2 amends the heading to Part 4 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Regulations 2019. It replaces the heading "Transitional" with the new heading "Application, saving and transitional provisions", and adds a new Division 1 with the heading "Repeals". 

This is consequential to the insertion into Part 4 of Division 2 and section 12, by the Amendment Instrument. As new Division 2 and section 12 deal with application provisions, and section 11 deals with repeals, the heading to Part 4 is amended to reflect its wider purpose, and new Division 1 is created for the repeal made by section 11.

Item 3 - Application of amendments

Item 3 adds Division 2 and section 12 to Part 4 to provide for the application of section 5A inserted by the Safety, Rehabilitation and Compensation (Defence-related Claims) Amendment (Prescribed Cancers) Regulations 2023. Section 12 provides that section 5A applies in relation to a decision made under the Act (including a decision on reconsideration or review under Part VI of the Act), after the commencement of that instrument, in relation to a cancer mentioned in that section sustained by an employee on or after 4 July 2011.


[1] Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc E/C.12/GC/19 (2008), [17].

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