Approved by the Military Rehabilitation and Compensation Commission on 18 August 2014.
MILITARY REHABILITATION AND COMPENSATION COMMISSION GUIDELINES
Overarching principles guiding access to the MRCA under section 8
Purpose
- This Guideline outlines the Commission’s agreed principles on the operation of section 8 of the MRCA, which allows the Defence Minister to make a determination that a person or a class of persons are taken to be members for the purposes of the Act.
- These Guidelines are not directives and are not intended to limit the powers of the Defence Minister. They should not be used as a substitute for the proper application of the law to the particular circumstances of each case. They set out the Military Rehabilitation and Compensation Commission’s position on when determinations under section 8 should be made. They are based on the words of the legislation. The Guidelines indicate the way in which the Commission considers the legislation should be applied.
Background
3. Recommendation 30.2 of the Review of Military Compensation Arrangements was that civilians supporting the Australian Defence Force (ADF) should be provided with access to the MRCA. The Commission did not agree with this recommendation. The Government also rejected it and instead agreed that access to the MRCA should primarily be for military personnel, and that civilians should have compensation cover through the Safety Rehabilitation and Compensation Act 1988 ( SRCA) or other statutory rehabilitation and compensation schemes.
Principles Governing Access to the MRCA under
4. The Commission’s agreed principles are set out below:
Principle 1 – Who should be covered by the MRCA
MRCA cover should be provided to those defined in the MRCA as a “member”.
Principle 2 – Government employees
Government employees should use their existing statutory rehabilitation and compensation cover, unless the Minister for Defence has made a declaration under section 8 of the MRCA. It is open to the Minister for Defence to consider the following factors when making a determination under section 8 of the MRCA:
Without limiting the powers and discretion of the Minister for Defence, a determination under section 8 of the MRCA may be made by giving consideration to the following criteria:
· the person has accompanied or deployed with the ADF and is working closely with or for the benefit of the ADF for a period; and
· the person is attached to a unit of the ADF; and
· the person is regarded by Defence as part of a declared warlike service operation; and
· the person is an Australian civilian; and
· the person is a Defence civilian* as defined in the Defence Force Discipline Act 1982.
*A Defence civilian is a person (other than a defence member) who:
(a) with the authority of an authorized officer, accompanies a part of the Defence Force that is:
(i) outside Australia; or
(ii) on operations against the enemy; and
(b) has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force.
Principle 3 – Civilians with workers’ compensation cover
Other civilians working independently in the same location as the ADF will be expected to have their own workers’ compensation cover.
Principle 4 – Civilians without access to workers’ compensation cover
The Minister for Defence may request the Minister for Employment to make a determination under section 5(6) of the Safety, Rehabilitation and Compensation Act 1988 for a class of persons who:
- have accompanied or deployed with the Australian Defence Force (ADF) and are working closely with or for the benefit of the ADF for a period; and
- have no statutory workers’ compensation cover or access to other statutory workers’ compensation scheme at the time of them accompanying or deploying with the ADF.