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26.7.3 Exclusionary factors

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In cases where a disease manifested itself during the currency of Commonwealth Employees' Compensation Act 1930 (that is prior to 1 September 1971), the claim should be denied.  Section 10 of the 1930 Act required that a disease be “due to the nature of the employee's employment” before there could be liability to pay compensation for that disease.  In effect, this meant that the disease had to be an occupational hazard of service in the ADF.  Diseases due to the effects of smoking would not qualify as an “occupational disease” for ADF members.

Liability should be denied where the Delegate is satisfied that a member was a smoker before commencing employment with the ADF

Delegates should bear in mind that after 1973, the provision of discounted tobacco products to ADF members (at rates cheaper than available to members of the general public) no longer occurred.  Therefore, any claims where the member commenced smoking after 1973 should be denied on this basis.

Section 36 of the MRCA precludes the admission of liability under that Act for smoking related diseases, in relation to periods of service on and after 1 July 2004.  This does not preclude smoking related conditions being accepted under the SRCA with a date of injury on or after 1 July 2004.

If the disease caused by the smoking has been contributed to in a material degree by employment occurring on or after 1 July 04 or before and on or after that date, SRCA does not apply and the MRCA exclusion will apply.