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.
The new Instrument applies to claims with a date of injury on or after 1 October 2017. If the date of injury is before this the earlier Instrument will apply.
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:
7(1) Where:
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.
Delegates should now refer directly to the Specified Diseases and Employment Instrument [3] and Explanatory Statement [4] . The current Instrument is also available at Appendix 2 at the end of this manual.
For historical reference, the previous Instrument; Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1) is also located at Appendix 2 at the end of this manual.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:
For declared diseases a connection is assumed, where the relevant requirements are met. Note there still needs to be evidence that the claimant's employment in the ADF involved exposure to the particular substance etc listed and they have met the relevant employment period – once this is demonstrated the disease should be accepted under the Act, unless there is evidence to prove to the contrary.
The table of current declared diseases is at Appendix 2.
Section 29 of the 1971 Act is entirely analogous to Subsection 7(1) of the SRCA. It also 'deems' the employee's disease to have been caused by employment if:
1. it is listed in the Schedule to that Act, and
2. he/she was ever exposed to the corresponding substance or conditions in Commonwealth employment.
Note that the diseases and ailments listed in the 1971 Act schedule are not the same as those declared under S7(1) of the SRCA. Note: The tables under these two Acts are not interchangeable. Delegates should not, therefore, apply the SRCA table to a case involving liability for a disease which arose during the currency of the 1971 Act.
The 1930 Act has no schedule of occupational diseases analogous to those declared for the purposes of the 1971 Act and the SRCA.
Delegates determining any disease claim relating to the 1930 Act must decide whether, on the balance of probabilities (i.e. is it more likely than not?) the disease arose due to the nature of military employment.
This type of service relates to F-111 Deseal/Reseal workers who were working on the fuel tanks of the F-111 jets at the Amberley RAAF Base in Queensland. As a result of the Study of Health Outcomes in Aircraft Maintenance Personnel (SHOAMP) the then government announced an three tiered ex-gratia scheme for those maintenance workers who fulfilled certain criteria, and an additional health care scheme which provided a white card for those eligible.
F-111 Deseal/Reseal workers, who already had access to the SRCA, were granted access under section 7(2) of the Act which provides for coverage of certain conditions where the incidence of those conditions is higher amongst those employees than others doing different work in the same workplace. As a result of the SHOAMP a number of conditions are covered under the s7(2) provisions. Essentially this means that if the claimant is an F-111 Deseal/Reseal worker, and they are diagnosed with one of the conditions, liability will be accepted under the SRCA.
These cases have traditionally been handled by a specialised team in the Brisbane Office. A recent Parliamentary Inquiry into the F-111 Deseal/Reseal matter has been finalised and a report produced. More information is available on the internet mirror. Delegates who work outside the Brisbane office should not commence investigation on an F-111 without first consulting with their manager. More information is available on TRIM.
During the 1950s, the British Government conducted a number of nuclear tests in Australia which involved Australian Defence Force personnel. The tests were conducted at Emu Field and Maralinga in South Australia and at the Monte Bello Islands off the West Australian coast from 1952 to 1957. A non-liability health care scheme has been established for those persons working, or who were a visitor, in at least one of the test areas while tests were conducted or were present within a 2 year period after the test. Those who participated in minor nuclear test trials conducted between 1953 and 1963 are also eligible.
The DVA website contains the details of who is eligible, thus providing a definition of who falls into this specific type of service:
Definition of British Nuclear Test Participants [11]
Those who have been exposed to the action of ionising radiation as a result of the British Nuclear Tests may have their claim assessed under s 7(1) of the Act. See section 22.1 [12] of this manual for information on how to assess claims under s 7(1).
Where a delegate proposes to use s 7(1) for a BNT claim, a minute with details must be prepared and forwarded to the Director, Liability & Service Eligibility Policy in the Rehabilitation, Compensation & Income Support Policy Group for approval. The policy area contains details on the BNT testing sites and decontamination areas and administers the non-liability health care scheme. Note that if the claimant was not exposed to ionizing radiation (contrast for example radiation heat), their claim must be determined by the usual methods and not under s 7(1).
Delegates should also make sure that the BNT check flag on Defcare has been ticked, whether the claim is being processed under s 7(1) or through normal means.
Further information on the detonation, ADF personnel involved and decontamination locations and process can be found at the following link on the DVA external website:
Dosimetry and Cancer & Mortality Reports on BNT [13]
The Centre for Military and Veterans' Health (CMVH) was tasked with creating a hazard exposure profile for Australian Oberon Class submarines that were in service between 1967-2000 (all of which have now been decommissioned).
Tables 4 and 5, Appendix 5, in the resulting report detail the exposure profiles and level of evidence of the hazards identified in the project. These tables should be used as guidance when assessing a claim for a submariner who served
The profile shown in Tables 4 and 5 illustrate that exposure to certain asphyxiants such as carbon monoxide, hydrogen cyanide and hydrogen sulphide occurred on the Oberon Class submarines (all of which are specified by the Minister under section 7(1)). Additionally, Oberon submariners were significantly exposed to the more traditional types of workplace hazards such as noise, heat, musculoskeletal and psychological hazards. Whilst these types of hazards are not unique to the Oberon submarine, the context (of confined spaces and 24 hour exposures) in which the submariners were exposed was unique.
When considering all future claims relating to service aboard Oberon Class submarines, delegates are now required to have regard to the Tables at the end of this Businessline and also be aware that the provisions contained in section 7(1) of the SRCA may apply in certain circumstances.
Between 1950 and 1985 machines known as 'Jason Pistols' were used on HMAS Supply and HMAS Melbourne to scour paint and rust from the ships' superstructure. Other vessels and bases may also have used Jason Pistols. From time to time the Jason Pistols may have included a compound that included Beryllium which was emitted as a dust when the pistols were in use. When inhaled in dust form Beryllium may caused pneumonia-like symptoms similar to asbestosis. The condition is known as Berylliosis.
Under s7(1) where a person suffers from a disease caused by beryllium and it is confirmed that they were exposed to beryllium, for example, by using Jason Pistols while serving in the RAN, then liability for compensation for the disease will be accepted.
If a delegate is intending to accept a claim for beryllium exposure as a result of service in the Navy, the relevant check-box in Defcare should be selected. As with all other conditions to be accepted under s7(1) clarification from Defence through SAM is required to confirm possible or likely exposure to Beryllium. Some Navy medical records have been stamped indicating possible exposure to Beryllium as a result of using these tools, however not all records are stamped. The presence of a stamp on the medical records can be taken as evidence of possible exposure. Where there is no such stamp normal investigation procedures (i.e. an official response from Defence on possible exposure and other relevant evidence) should be followed.
A specialist's opinion will also be required to determine if the condition claimed is indeed a condition caused by expos — ure to Beryllium. If the claimant does not have a treating specialist, delegates should refer the claimant to a Respiratory or Occupational Physician or an Immunologist in the first instance. If the results are normal, then no further investigation is necessary. If the results are abnormal then the assessor should follow any further suggestions made by the medical practitioner that are considered necessary to obtain an accurate diagnosis.
In cases where the abnormal results indicate the likelihood of a beryllium related disease, and only on the recommendation of an appropriate qualified medical specialist, additional specialist laboratory immunology tests may be required. This may necessitate obtaining a specialised blood test that is not currently commercially available in Australia. It is known as the Beryllium Lymphocyte Proliferation Test (BeLPT). It requires fresh whole blood that is not more than 36 hours. The overseas tests take about one week to undertake, and are expensive. The logistics of getting fresh whole blood to an overseas accredited laboratory within 36 hours are problematic.
It should be noted that urine beryllium tests are only useful for detecting very recent exposure and that the specialist blood test (BeLPT) only shows a “sensitisation” due to exposure to beryllium. This “sensitisation” is a marker of possible progression to the development of the severe lung disease (Berylliosis) but is not by itself a disease.
Where beryllium exposure is confirmed and a disease which is characteristic of such exposure is diagnosed then under subsection 7(1) the claimant's employment can be taken to be a material contribution to contracting the disease and liability can be accepted.
See also: ADF Firefighters Scheme [17].
The Safety, Rehabilitation and Compensation Amendment (Fair Protection for Fire-fighters) Bill 2011 was developed in recognition of the high level of exposure to toxins which is experienced by firefighters in the course of their employment and the subsequent medical conditions that may result from that exposure.
The Bill was introduced to the House of Representatives on 4 July 2011 and received Royal Assent on 6 December 2011.
The passage of the Bill resulted in amendments to the disease provisions contained in section 7 of the SRCA (now DRCA). Specifically, subsections 7(8) and 7(9) were included to create a legal presumption in situations where one of twelve “prescribed” types of cancer is contracted by a firefighter who has been employed in that capacity for a particular amount of time and who has been exposed to the hazards of a fire scene within that period. In situations where this is the case, their employment is taken to have contributed to a significant degree to the contraction of the disease for the purposes of the Act, unless the contrary can be established. Delegates should not actively seek to disprove a link to service.
A complete copy of the amendments to the SRCA which established subsections 7(8) and 7(9) is available to view online at http://www.comlaw.gov.au/Details/C2011A00182 [18]
The twelve primary cancer types and the minimum periods of service which a firefighter must have been employed, as set out in the legislation amendments commencing from 4 July 2011, are included in the following table. Item 13 also provides for additional types of cancer (and qualifying periods) to be prescribed at a later stage in accordance with section 122 of the Act.
Item | Disease | Qualifying period |
---|---|---|
1 | Brain cancer | 5 years |
2 | Bladder cancer | 15 years |
3 | Kidney cancer | 15 years |
4 | Non-Hodgkins lymphoma | 15 years |
5 | Leukaemia | 5 years |
6 | Breast cancer | 10 years |
7 | Testicular cancer | 10 years |
8 | Multiple myeloma | 15 years |
9 | Primary site prostate cancer | 15 years |
10 | Primary site ureter cancer | 15 years |
11 | Primary site colorectal cancer | 15 years |
12 | Primary site oesophageal cancer | 15 years |
13 | A cancer of a kind prescribed for this table | The period prescribed for such a cancer |
These DRCA provisions are not retrospective in application, meaning that the “presumptive” decision-making only applies to conditions that manifested after 4 July 2011. The amendments are therefore relevant to DVA clients if a former ADF member had the identified role of a firefighter and meets the requisite number of years of service prior to contracting one of the specified cancers.
Subsection 7(10) makes it clear that if a firefighter does not qualify under the new provisions then liability will continue to be assessed using the standard provisions in the Act (on the basis of specialist medical evidence).
From 5 October 2023, eight additional cancers were prescribed for the purposes of subsection 7(8) via amendments to the Safety, Rehabilitation and Compensation (Defence-related Claims) Regulations 2019. These changes are prescribed in accordance with the provision in Item 13 of the table at subsection 7(8) of the DRCA, which allows for further conditions and qualifying criteria to be established via Regulations.
The eight new prescribed cancers and their qualifying periods are as follows:
Item | Disease | Qualifying period |
---|---|---|
1 | Primary site lung cancer | 15 years |
2 | Primary site skin cancer | 15 years |
3 | Primary site cervical cancer | 10 years |
4 | Primary site ovarian cancer | 10 years |
5 | Primary site penile cancer | 15 years |
6 | Primary site pancreatic cancer | 10 years |
7 | Primary site thyroid cancer | 10 years |
8 | Malignant mesothelioma | 15 years |
The expanded prescribed conditions apply only to veterans covered by the DRCA. All service by ADF firefighters rendered on or after 1 July 2004, is covered under the Military Rehabilitation and Compensation Act 2004 (MRCA). Under the MRCA, there are no prescribed condition provisions. As such, all claims for liability relating to service after 1 July 2004 must be assessed according to the factors set out in the Statements of Principles for the relevant condition where these have been determined by the Repatriation Medical Authority.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20499%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20512%23comment-form
[3] https://www.legislation.gov.au/Details/F2017L01318
[4] https://www.legislation.gov.au/Details/F2017L01318/Explanatory%20Statement/Text
[5] https://clik.dva.gov.au/user/login?destination=node/20134%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20162%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20459%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20239%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=node/20434%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20086%23comment-form
[11] https://www.dva.gov.au/benefits-and-payments/british-nuclear-tests/definition
[12] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-22-declared-occupational-diseases/221-declared-occupational-diseases-s71-srca
[13] https://www.dva.gov.au/health-and-wellbeing/research-and-development/health-studies/british-nuclear-testing-australia
[14] https://clik.dva.gov.au/user/login?destination=node/20498%23comment-form
[15] https://clik.dva.gov.au/user/login?destination=node/20334%23comment-form
[16] https://clik.dva.gov.au/user/login?destination=node/20213%23comment-form
[17] http://auth-clik.dvastaff.dva.gov.au/military-compensation-srca-manuals-and-resources-library/point-cook-firefighters-adf-firefighters-scheme
[18] http://www.comlaw.gov.au/Details/C2011A00182
[19] http://auth-clik.dvastaff.dva.gov.au/compensation-and-support-reference-library/intent-paper/adf-firefighter-scheme