Safety, Rehabilitation and Compensation Act 1988

Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

If the Chief Minister for the Australian Capital Territory so requests in writing, the Minister may, in writing, declare the Australian Capital Territory to be a Commonwealth authority for the purposes of this Act.

The Minister may revoke a declaration under subsection (1).

The Minister may only revoke a declaration if either:

the Minister has given the Chief Minister at least 12 months’ notice in writing of his or her intention to revoke the declaration; or

the Chief Minister has given the Minister a written request that the declaration be revoked and:

a period of at least 12 months; or

such shorter period as is agreed on by the Minister and the Chief Minister;

In this Act, unless the contrary intention appears:

a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

a person who is employed by a licensed corporation.

For the purposes of paragraph (b) of the definition of employee in subsection (1), a person is taken to be employed by a licensed corporation if, and only if:

a person performs work for that corporation under a law or a contract; and

pursuant to that law or pursuant to the law that is the proper law of that contract, as the case may be, the person would, if that corporation were not a licensed corporation, be entitled to compensation in respect of injury, loss or damage suffered by, or in respect of the death of, the person in connection with that work.

Without limiting the generality of subsection (1):

the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979); or

a person (other than a person to whom subsection (3) applies) who is the holder of or is acting in:

an office established by a law of the Commonwealth, other than an office that is declared by the Minister, by legislative instrument, to be an office to which this Act does not apply; or

an office that is established by a law of a Territory (other than an ACT enactment or a law of the Northern Territory) and is declared by the Minister, by legislative instrument, to be an office to which this Act applies;

A person who:

constitutes, or is acting as the person constituting, a Commonwealth authority;

is, or is acting as, a member of such an authority; or

is a deputy of such a member;

the duties of the authority;

the person’s duties as such a member or acting member; or

the person’s duties as such a deputy;

A person:

who is ordinarily engaged for employment at a prearranged place at which employers engage persons for employment; and

whose last employer under an engagement at that place was the Commonwealth, a Commonwealth authority or a licensed corporation;

Subsection (4) does not operate to make Comcare liable to pay compensation in respect of an injury sustained by an employee during an attendance to which that subsection applies if the injury was sustained because the employee voluntarily and unreasonably subjected himself or herself to an abnormal risk of injury.

The Minister may, by legislative instrument (the notice), declare:

that persons specified in the notice, being persons who engage in activities or perform acts:

at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth; or

at the request or direction, or for the benefit, of a Commonwealth authority or a licensed corporation;

that the employment of the person shall, for those purposes, be taken to be constituted by the performance by the person of such acts as are specified in the notice;

For the purposes of the application of this Act in relation to a person employed by a Commonwealth authority, references in this Act to the Commonwealth shall be read as references to that authority.

This Act does not apply to:

a member of the Parliament or a Minister of State;

a person who is a Judge as defined by section 4 of the Judges’ Pensions Act 1968;

an officer or employee of the Public Service of an external Territory; or

a seaman to whom the Seafarers Rehabilitation and Compensation Act 1992 applies.

A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.

For the purposes of this Act, the following are taken to be employed by the Australian Capital Territory:

a person who is an officer or employee of an authority or body established by an ACT enactment, other than an authority or body in respect of which a declaration is in force under subsection (12);

a person who is an officer or employee of a body corporate incorporated under a law of the Commonwealth or a law in force in a State or Territory, being a body:

in which the Australian Capital Territory or an authority or body established by an ACT enactment has a controlling interest; and

in respect of which a declaration under subsection (13) is in force;

a person who is an officer or employee of a body corporate incorporated under a law of the Commonwealth or a law in force in a State or Territory, being a body:

in which a body corporate referred to in paragraph (b) has a controlling interest; and

in respect of which a declaration under subsection (13) is in force;

a person who is employed under the Legislative Assembly (Members’ Staff) Act 1989 of the Australian Capital Territory;

the Commissioner, Deputy Commissioner and members of the Australian Capital Territory Fire Brigade under the Fire Brigade (Administration) Act 1974 of the Australian Capital Territory;

a member of the ACT Fire and Rescue Service within the meaning of the Emergencies Act 2004 of the Australian Capital Territory;

a person who holds, or is acting in, an office established by an ACT enactment, other than an office in respect of which a declaration is in force under subsection (12).

If the Chief Minister so requests in writing, the Minister may, by legislative instrument, declare that:

an authority or body is not an authority or body to which subsection (11) applies; or

an office is not an office to which subsection (11) applies.

If the Chief Minister so requests in writing, the Minister may make a written declaration that a body corporate is a body to which subsection (11) applies.

A declaration under subsection (13) is not a legislative instrument.

Subsection (11) does not apply to the following offices established by the Australian Capital Territory (Self‑Government) Act 1988:

Chief Minister for the Australian Capital Territory;

Deputy Chief Minister for the Australian Capital Territory;

Minister;

Presiding Officer of the Legislative Assembly for the Australian Capital Territory;

deputy to the Presiding Officer of the Legislative Assembly for the Australian Capital Territory;

member of the Legislative Assembly for the Australian Capital Territory.

If the Chief Minister so requests in writing, the Minister may make a written declaration that persons specified in the declaration, when engaging in activities:

at the request or direction, or for the benefit, of the Australian Capital Territory; or

in accordance with a requirement made by or under an ACT enactment; or

at the request or direction, or for the benefit, of an authority or body established by an ACT enactment;

A declaration under subsection (15) is not a legislative instrument.

To avoid doubt, a member of the Defence Force is not an employee.

For members of the Defence Force, see the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.

In this Act:

a disease suffered by an employee; or

an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

a reasonable appraisal of the employee’s performance;

a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

a reasonable suspension action in respect of the employee’s employment;

a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

In this Act:

an ailment suffered by an employee; or

an aggravation of such an ailment;

In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

the duration of the employment;

the nature of, and particular tasks involved in, the employment;

any predisposition of the employee to the ailment or aggravation;

any activities of the employee not related to the employment;

any other matters affecting the employee’s health.

In this Act:

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or

while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or

while the employee was temporarily absent from the employee’s place of work undertaking an activity:

associated with the employee’s employment; or

at the direction or request of the Commonwealth or a licensee; or

while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or

while the employee was at a place of education, except while on leave without pay, in accordance with:

a condition of the employee’s employment by the Commonwealth or a licensee; or

a request or direction of the Commonwealth or a licensee; or

the approval of the Commonwealth or a licensee; or

while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with:

a condition of the employee’s employment by the Commonwealth or a licensee; or

a request or direction of the Commonwealth or a licensee; or

the approval of the Commonwealth or a licensee; or

while the employee was at a place for the purpose of:

obtaining a medical certificate for the purposes of this Act; or

receiving medical treatment for an injury; or

undergoing a rehabilitation program provided under this Act; or

receiving a payment of compensation under this Act; or

undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or

while the employee was travelling between the employee’s place of work and another place for the purpose of:

obtaining a medical certificate for the purposes of this Act; or

receiving medical treatment for an injury; or

undergoing a rehabilitation program provided under this Act; or

undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:

outside Australia and the external Territories; and

declared by the Minister by legislative instrument to be a place to which this paragraph applies; or

while the employee was:

at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and

a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies.

For the purposes of this section:

a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or

a journey to such a place of residence is taken to end at that boundary.

If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.

For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.

In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).

Subsection (1) does not apply where an employee sustains an injury:

while at a place referred to in that subsection; or

during an ordinary recess in his or her employment;

Where:

an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

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

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;

Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.

For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

the employee first sought medical treatment for the disease, or aggravation; or

the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.

An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

the incapacity or impairment would not have occurred;

the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

the extent of the incapacity or impairment would have been significantly less.

A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

If an employee:

suffers a disease mentioned in the following table; and

before the disease was sustained, was employed as a firefighter for the qualifying period mentioned for that disease; and

was exposed to the hazards of a fire scene during that period; and

in the case of a cancer of a kind covered by item 13 of the following table—satisfies the conditions (if any) prescribed for such a cancer;

For the purposes of subsection (8):

an employee is taken to have been employed as a firefighter if the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion of his or her duties; and

an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and

for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15)—the employee is taken to have been employed as a firefighter during any period for which the employee was a member of a firefighting service; and

an employee is taken to have been employed as a firefighter only if he or she was employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.

If a declaration under subsection (9B) is in force, then when determining for the purposes of paragraph 7(9)(a) whether firefighting or related duties made up a not insubstantial portion of the duties of an employee of the Australian Capital Territory, being an employee:

covered by paragraph 5(11)(e) or (ea) as a result of being a volunteer member (however described) of a body referred to in either of those paragraphs; or

specified in a declaration under subsection 5(15);

by writing, request the declared ACT firefighting advisory committee to give the relevant authority written advice in relation to the matter within a reasonable period specified in the request; and

have regard to any such advice provided within that period.

If the Chief Minister for the Australian Capital Territory so requests in writing, the Minister may, by legislative instrument, declare that a committee or other body (however described) that is established:

by or under an ACT enactment; or

by a written instrument made by a Minister (including the Chief Minister) of the Australian Capital Territory;

A reference in subsection (9) or (9A) to the duties of an employee includes, in relation to an employee of the Australian Capital Territory specified in a declaration under subsection 5(15), a reference to the activities to which that subsection applies that were engaged in by the employee.

Subsection (8) does not limit, and is not limited by, subsections (1) and (2).

If:

an employee has been diagnosed by a legally qualified medical practitioner or psychologist as suffering, or having suffered, from post‑traumatic stress disorder in accordance with the diagnostic criteria in:

the Diagnostic and Statistical Manual of Mental Disorders, fifth edition text revision (DSM‑5‑TR), published by the American Psychiatric Association in 2022; or

if a later edition of the Diagnostic and Statistical Manual of Mental Disorders is specified by the Minister by legislative instrument—that later edition of the Manual; and

at any time before symptoms of post‑traumatic stress disorder became apparent, the employee:

was employed as a first responder in accordance with subsection (13); or

was a member of a class of employees declared by the Minister, by legislative instrument made under subsection (13A), to be a class to which this subparagraph applies;

For the purposes of subparagraph (11)(b)(i), an employee was employed as a first responder at a time if, at that time, the employee:

was the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979); or

was employed as a firefighter; or

was employed as an ambulance officer (including as a paramedic); or

was employed as an emergency services communications operator; or

was a member of an emergency service (within the meaning of the Emergencies Act 2004 (ACT)); or

was the Australian Border Force Commissioner; or

was an APS employee in the Australian Border Force.

If the Minister is satisfied that the incidence of post‑traumatic stress disorder among a class of employees is significantly greater than the incidence of post‑traumatic stress disorder among the general public, the Minister may, by legislative instrument, declare that class of employees to be a class of employees to which subparagraph (11)(b)(ii) applies.

Subsection (11) does not limit, and is not limited by, subsections (1) and (2).

For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.

Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied as a result of:

the operation of a law of the Commonwealth or of a State or Territory; or

the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;

Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:

it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or

the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth or a licensed corporation before the injury;

If, during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.