The Compensation (Commonwealth Government Employees) Act 1971 (No 48/1971) ('the 1971 Act') applied to Defence Force personnel throughout the life of the Act by virtue of S7(2)(b) which stated that the Act applied to 'a member of the Defence Force'.

Coverage by the 1971 Act of military and military-related personnel was determined by S7 of the Act as follows:

• S7(2)(b): members of the Defence Force (Permanent Force and Reservists)
• S7(5): Regulations may declare a class of employees. Cadets were declared under reg 11.

Section 7 stated:

7(1) Subject to this section, this Act applies to and in relation to a person who is employed by the Commonwealth or by a prescribed authority of the Commonwealth whether he is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.

(2) Without limiting by implication the generality of the last preceding subsection:

a)a member of the Australian Federal Police

b)a member of the Defence Force, or

c)... [declared office holders]

shall, for the purposes of this Act, be deemed to be employed by the Commonwealth, and his employment shall, for those purposes, be deemed to be constituted by his performance of his duties as such a member of the Australian Federal Police or member of the Defence Force or the duties of that office, as the case may be.

Cadets were covered by the 1971 Act by virtue of reg 11.

The Liability Handbook includes writings on the specific requirements when considering liability for claims lodged and considered under the 1971 Act. Claims relating to journeys have particular criteria that need to be considered in such claims.

Further writings at Section 70 of this manual concern Cadets.

A claimant may be entitled to lump-sum compensation under the 1971 Act if the claimed impairment is of a kind specified in Ss39 – 42 of that Act:

• S39(2) – loss of sight of one or both eyes
• S39(4) – specified losses set out in a Table (often referred to as a 'Table of Maims'), including losses of hearing, speech, arms, legs, fingers, toes, etc.
• S40 – loss of genitals, breasts or the capacity to engage in sexual intercourse
• S41 – facial disfigurement
• S42 – total and permanent loss of the sense of taste or smell.

More detailed commentary and guidance on 1971 Act permanent impairment claims, including the Table of Maims is available in the Permanent Impairment handbook, Chapter 8.1.1. [5]
This includes statutory rates of payment for various conditions and specific detail on claims against the conditions mentioned in the previous paragraph. The statutory rates for lump-sum compensation under the 1971 Act were increased on a regular basis to protect the value of the compensation from the effects of inflation.

References

• MCRI 18 : Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988.
• DCI 8 : MRCC Policy for Determination of Claims for Permanent Impairment Arising from Injuries Occurring Before 1 December 1988.

Coverage of Defence Force personnel under the Commonwealth Employees' Compensation Act 1930 commenced from 3 January 1949, as a result of amendments introduced by the Commonwealth Employees' Compensation Act 1948 (No 61/1948).

Prior to 3 January 1949, any claims for employees' compensation for injury sustained in the course of a member's duties were considered under the various Defence Act determinations of the time.

In those cases where a person submits a claim for compensation benefits relating to an injury sustained during ADF service prior to 3 January 1949 (where there is no compensation coverage under other legislation),  the person may wish to consider lodging a claim for an Act of Grace payment with the Department of Finance and Deregulation.

Further information about Act of Grace payments can be found at the Department of Finance and Deregulation website via the following link: http://www.finance.gov.au/financial-framework/discretionary-compensation/act-of-grace.html [8]

The site also includes an application form that the person can use if they wish to lodge a request.

Contact details for the relevant section within the Department of Finance and Deregulation are as follows:

Special Claims and Land Policy Branch

Department of Finance and Deregulation

John Gorton Building

King Edward Terrace

PARKES   ACT   2600

Telephone:  1800 227 572

Email:  SFC@finance.gov.au [9]

Please note that requests for Act of Grace payments do not have to be lodged with DVA as the first point of consideration.In the claims that are considered by the Department, there is evidence which indicates that the average time that elapses between the date an 'injury' occurs and the date on which a claim for compensation is lodged is something around ten years. Claims are not uncommonly received which relate to injuries that are alleged to have occurred forty or fifty years previously and for diseases that are attributed to service in the ADF in the 1950s. Consequently, it is not at all uncommon that Delegates are required to consider claims under the Transitional Provisions of the SRC Act, having regard to the relevant provisions of the 1930 Act (and, in many cases, the 1971 Act).

The importance of understanding the different legislative requirements of the 1930 Act in particular must be stressed since it would not be appropriate, for example, to consider a claim for a disease which first manifested in say 1962 under the disease provisions of the SRC Act. Such a case should be considered in accordance with the disease provisions of the Act that was in force in 1962, that is, the 1930 Act. The disease provisions of that Act were quite different to those contained in either the 1971 Act or in the SRC Act.

Section 16 of the 1930 Act

(The requirement to give notice of injury and to lodge a claim for compensation)

The 1930 Act had specific requirements regarding service of notice of an accident (that is, notice of an injury, or of a disease or of the death of an employee) and lodging a claim for compensation.

The practical effect of the provisions of S16 is that notice of an accident (remember that this includes notice of an injury, or of a disease or of the death of an employee) had to be served on the then Commissioner for Employees' Compensation (Comcare Australia is the current equivalent of the Commissioner) as soon as practicable after an injury occurred, or after the date on which an employee became aware that he/she was suffering from a disease or after the date on which a claimant became aware of the death of the employee.

The Liability Handbook has detailed writings on how to deal with claims that have been lodged outside the legislative timeframes, possible prejudice against the Commonwealth and consideration of claims generally under the 1930 Act.

A claimant may be entitled to lump-sum compensation under the 1930 Act if the claimed impairment is of a kind specified in S12 or Schedule 3 of that Act:

12(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in Part I. of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount of $12,000.

12(1AA) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of Part II. of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount equal to such percentage of the amount specified in the last preceding Subsection as is specified in the second column of that Part opposite the specification of the injury in the first column.

12(1A) Upon payment of an amount under this section the employee shall not be entitled to any payment in accordance with sub-paragraph (b) or sub-paragraph (c) of paragraph (1) of the First Schedule to this Act in respect of a period of incapacity for work resulting from the injury, but the amount payable under this section shall not be subject to any deduction in respect of any amount previously paid to the employee in accordance with either of those sub-paragraphs.

12(2) Where an employee habitually used his left hand and arm to perform work usually performed by an employee with his right hand and arm, the compensation payable to the first mentioned employee under this section shall be:

a)for the loss of his left arm or any part thereof– the amount which would have been payable to an employee for a similar loss in respect of his right arm or the corresponding part thereof, and

b)for the loss of his right arm or any part thereof– the amount which would have been payable to an employee for a similar loss in respect of his left arm or the corresponding part thereof.

12(3) Where an employee sustains an injury which causes the loss of the sight of both eyes or of an only useful eye, any compensation previously paid under this section in respect of loss of sight shall be deducted from the compensation payable under this section.

12(4) Where an employee sustains an injury which causes partial and permanent loss of the sight of one eye, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of the sight of one eye as is equal to the percentage of the diminution of sight.

12(5) Where an employee sustains an injury which causes partial and permanent loss of the efficient use of a part of the body specified in the Third Schedule to this Act in and for the purposes of his employment at the date of the injury, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the percentage of the diminution of the efficient use of that part.

12(6) For the purposes of this section and of the Third Schedule to this Act, the loss of a specified part of the body shall be deemed to include:

a)the permanent loss of the use of that part, and

b)the permanent loss of the efficient use of that part in and for the purposes of his or her employment.

Please refer to The Third Schedule, Section 12 of the 1930 Act for specific details of conditions covered for Permanent Impairment purposes. These details are also included in the Permanent Impairment Calculator.

References

Repealed Compensation Acts: Chapter 64

• MCRI 18 : Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988.
• JPA 2001/13 : Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (October 2001).
• JPA 2001/04 : Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (April 2001).
• DCI 8 : MRCC Policy for Determination of Claims for Permanent Impairment Arising from Injuries Occurring Before 1 December 1988.