The SRCA contains separate provisions with respect to the effect of awards from certain State 'specified laws' and awards under State worker's compensation legislation.
Note: This section of the Handbook deals only with the effect of awards from State workers compensation jurisdictions, as identified by S118 of the SRCA. Those Acts 'specified' by S119 therefore play no part in the following discussion:
SPECIAL NOTE – JUDICIAL DECISION – S118 NUGATORY
The above paragraphs detail the manner in which S118 was intended to operate. The SRCA contemplates the possibility that a dependant may make a claim under both the Commonwealth compensation jurisdiction, and also under a State workers compensation Act. The purpose of the Section is to ensure that a dependant does not achieve double compensation by applying for payment in two separate jurisdictions.
However, the very notion of a 'dual entitlement' under both Commonwealth and State Workers Compensation has now been subjected to legal scrutiny. The previous assumption – i.e. that State Workers Compensation may apply to a Commonwealth worker employed by the Commonwealth in that State – has, since 1999, been significantly weakened, and perhaps completely nullified.
In Worthing v Telstra Corporation Limited (1997), the NSW Compensation Court held that the SRCA does not provide an exclusive scheme for compensation for Commonwealth employees and that therefore the NSW Compensation Court has jurisdiction to determine claims in circumstances where a Commonwealth employee is injured at work in NSW.
However in Telstra Corporation Limited v Worthing (1999), the decision of the Court of Appeal was reversed by a unanimous decision of the High Court which held that the SRCA covers the field and that the NSW Worker's Compensation Act has no applicability to Commonwealth employees.
The High Court decision is applicable to the SRCA's relationship to State workers' compensation jurisdictions in every State or Territory not just NSW. Taken on its face, this means that no Commonwealth worker – and therefore no ADF member – has access to a State Workers Compensation Act.
In cases where clients inquire whether they may have a claim under State workers compensation in lieu of the SRCA, those clients should be referred to the decision in Telstra Corporation Ltd v Worthing. They should also be advised to seek professional legal advice as to the applicability of that case to their own circumstances.
If a delegate becomes aware that a dependent of a deceased ADF employee appears, (contrary to the Worthing decision), to have achieved a State Worker's Compensation payment in respect of that death, that Delegate should:
1.not only invoke S118, but
2.also refer the matter to Policy for consideration.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20634%23comment-form
[2] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/97-where-damages-recovered-state-laws-specified-law-and-s119