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22.1 Declared Occupational Diseases - S7(1), SRCA
In this section
Note: The Department of Employment has issued a revised Specified Diseases and Employment Instrument under ss7(1) of the Safety, Rehabilitation and Compensation Act 1988. The Instrument came into effect on 1 October 2017.
Due to the commencement of the Safety, Rehabilitation and Compensation Act (Defence-related Claims) Act 1988 (DRCA) on 12 October 2017, the Instrument is now also part of the DRCA.
Subsection 7(1) relates to diseases in which there is a well established medical nexus between that disease and a particular type of work or exposure to a particular chemical substance.
The form of S7(1) is:
a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
b) the disease is of a kind specified by the Minister , by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
Subsection 7(1) acts through the action of a schedule signed by the Minister, which specifies occupational diseases associated with particular kinds of employment. The schedule consists of a list of specified conditions. Most items require employment involving work with a specified person, thing or agent. In addition, most of the items specify a minimum period of employment which must be met.
An explanatory statement is available explaning the intent,purpose and effect of the Instrument.
For historical reference, the previous Instrument; Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1) is also located at Appendix 2 at the end of this manual.
The effect of Subsection 7(1) is to cut short any additional investigation of whether a client's disease was in fact caused by employment in his/her individual case where their condition is deemed to be related to their employment.
The only matters now to be decided by the Delegate are:
1.Is the client's diagnosed disease of a kind specified in the Instrument?
2.Has the client, as part of his/her military service, engaged in employment of a specified kind at any time before symptoms of the disease first became apparent?
If both questions can be answered in the affirmative, liability MUST be conceded. The 'balance of probability' test is suspended where Subsection 7(1) applies. The Delegate does not have the power to decide differently:
- Even if for example the Delegate becomes aware that the client also had post-discharge exposure to the chemical or only minimal exposure during service.
- Unless it can be positively proven that employment did not contribute to the disease (i.e. a 'reverse onus' demonstration which is, for practical purposes, impossible under these circumstances and for these diseases).