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8.2.4 Procedures for injuries originating prior to 1 January 1949 and 'Act of Grace'
As alluded to in 9.2 below, the 1930 Act did not originally apply to Defence Force members and there was thus no Workers Compensation coverage of this category or Commonwealth employee until the 1930 Act was amended. That amendment only became effective on 3 January 1949.
RCG Delegates therefore have no delegation to award compensation for injuries originating before 3 January 1 — 949.
- Wartime ('operational') injuries of any date up until 30 June 2004 are covered by the Veterans' Entitlements Act (VEA) and S5(10) of the SRCA specifically excludes injuries covered by the VEA from additional Workers Compensation coverage.
- The Acts which formerly covered pre-1949 peacetime injuries (i.e. the Army, Navy and Air Force Acts) have been repealed and have not been included in the 'transitional provisions' of Part X of the SRCA.
The only recourse for a client with a pre-1949 peacetime injury, is to be considered by Department of Defence for an 'Act of Grace' payment under the Defence Act (1903). Act of Grace payments are only made in cases where there has been an inequity, i.e. a person has been disadvantaged in comparison to others (i.e. in the same class of person), by an obvious oversight or an absence or a defect of legislation. Act of Grace payments cover only those liability situations clearly inequitable and not intended by Parliament.
SRCA Delegates are not responsible for deciding any application for an Act of Grace payment. However, Delegates should investigate the merits of such cases i.e. against the same criteria as if they had coverage under the 1930 Act. The results of those investigations should then be forwarded to RCG Business Support, which will then make a submission to Compensation Policy at Department of Defence. It is Defence's decision as to whether or not to make such a payment.
In summary, the procedure for dealing with claims for pre-1949 injuries is:
- Delegates to investigate the claim i.e. as if it did have coverage under the 1930 Act
- Delegates then to formally determine 'no liability' due lack of legislative coverage
- the 'deny' determination to inform the client that the case is to be considered for 'Act of Grace', and it is Defence who will make the decision and if the case is successful, it is Defence who will make the payment
- forward synopsis of case to National Director of Liability Determinations, with any relevant evidence which would indicate liability in a 1930 Act case
- The case and a recommendation will be forwarded to Compensation Policy, for an Act of Grace payment under the Defence Act 1903
- further correspondence (and payment if appropriate) is the responsibility of Defence.