Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVE S

 

 

 

 

 

 

 

SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (EXIT ARRANGEMENTS) BILL 2015

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Honourable Eric Abetz)

 

 

 

 

 

 

 

 



SAFETY, REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT (EXIT ARRANGEMENTS) BILL 2015

OUTLINE

The Safety, Rehabilitation and Compensation Act 1988 (the Act) establishes a scheme (the Comcare scheme) to provide compensation and rehabilitation support to injured Australian Government and Australian Capital Territory employees, as well as employees of private corporations that hold a licence under the Act.

The Act also establishes Comcare and the Safety, Rehabilitation and Compensation Commission (the Commission). The Commission administers the regulatory functions of the Act, other than those ascribed to Comcare, and has an oversight role under the Work Health and Safety Act 2011 (WHS Act). Comcare also has responsibility for regulation of the WHS Act, which prescribes the work health and safety requirements for employers and employees covered by the Act.

The Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 (the Bill) will amend the Act to provide for financial and other arrangements for a Commonwealth authority to exit the Comcare scheme. The framework established by these amendments will:

·          enable Comcare to determine and collect ‘exit contributions’ from former Commonwealth authorities and successors of former Commonwealth authorities. This will ensure that an exiting employer does not leave the Comcare scheme without contributing an appropriate amount to cover any current or prospective liabilities that are not funded by premiums the employer has paid before exit

·          ensure that employees injured before the employer’s exit continue to be supported by an appropriate rehabilitation authority

·          enable Comcare to determine and collect ongoing regulatory contributions from exited employers or successor bodies.

The Bill also amends the Act to clarify that premiums for current Commonwealth authorities and entities should be calculated having regard to the principle that current and prospective liabilities should be fully funded by Comcare-retained funds and so much of the Consolidated Revenue Fund as would be available under section 90C of the Act.

Part 2 of Schedule 1 sets out minor contingent amendments related to the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014.

Schedule 2 amends provisions related to the Commission. The amendments streamline appointment processes and ensure appropriate membership of the Commission.

 



Financial Impact Statement

Nil.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015

The Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Safety, Rehabilitation and Compensation Act 1988 (the Act) establishes a scheme (the Comcare scheme) to provide compensation and rehabilitation support to injured Australian Government and Australian Capital Territory employees, as well as employees of private corporations that hold a licence under the Act.

The Bill will amend the Act to provide for financial and other arrangements for a Commonwealth authority to exit the Comcare scheme. The framework established by these amendments will:

·          enable Comcare to determine and collect ‘exit contributions’ from former Commonwealth authorities and successors of former Commonwealth authorities. This will ensure that an exiting employer does not leave the Comcare scheme without contributing an appropriate amount to cover any current or prospective liabilities that are not funded by premiums the employer has paid before exit

·          ensure that employees injured before the employer’s exit continue to be supported by an appropriate rehabilitation authority

·          enable Comcare to determine and collect ongoing regulatory contributions from exited employers or successor bodies.

While the Bill sets out a framework that will apply when a Commonwealth authority exits the Comcare scheme, it does not provide for the exit of any employers from the scheme. This usually occurs by the introduction of specific legislation and the Bill makes provision for future exit arrangements. As such, the Bill does not affect any employee’s existing entitlement to compensation, other than to provide for rehabilitation obligations and arrangements to continue. Rehabilitation arrangements are discussed below.

The Bill also amends the Act to clarify that premiums for current Commonwealth authorities and entities should be calculated having regard to the principle that current and prospective liabilities should be fully funded by Comcare-retained funds and so much of the Consolidated Revenue Fund as would be available under section 90C of the Act.

Part 2 of Schedule 1 sets out minor contingent amendments related to the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014.

Schedule 2 amends provisions related to the Safety, Rehabilitation and Compensation Commission. The amendments streamline appointment processes and ensure appropriate membership of the Commission.

Human rights implications

The Bill engages the following rights:

·          the right to work, under Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the rights of persons with disabilities to rehabilitation and to work and employment, under Articles 26 and 27 of the Convention on the Rights of Persons with Disabilities (CRPD)

·          the right to social security, including social insurance under Article 9 of the ICESCR.

 

The right to work and rights of persons with disabilities

Article 6 of the ICESCR provides for the right to work and obliges State Parties to take steps to safeguard the right. The steps that a State may take include the provision of services and programs to support individuals to find and maintain employment and the provision of just and favourable conditions of work (Article 7). The right to work is significant because of the importance of work for personal development as well as for social and economic inclusion. [1]

The rights of persons with disabilities to work must also be protected and promoted with targeted measures. The Committee provides that ‘States parties must take measures enabling persons with disabilities to secure and retain appropriate employment and to progress in their occupational field, thus facilitating their integration or reintegration into society’. [2]

Article 26 of the CRPD provides that States ‘shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services’ for persons with disabilities. Article 27 of the CRPD reiterates the right of persons with disabilities for the opportunity to gain a living by work freely chosen or accepted in a labour market and a work environment that is open, inclusive and accessible. State Parties have responsibilities to, among other things, provide assistance in returning to employment and promoting vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. [3]

Item 4 of the Bill positively engages the right to work and the rights of persons with disabilities to access rehabilitation and employment. Item 4 will ensure that where an employer exits the Comcare scheme, arrangements are established for the most appropriate entity (an injured employee’s current employer or other appropriate person) to continue to perform the role of rehabilitation authority and relevant employer under the Act.

Part 3 of the Act places a number of obligations on rehabilitation authorities and relevant employers to support employees in their rehabilitation. For example, a rehabilitation authority is responsible for determining appropriate rehabilitation programs for employees, paying reasonable compensation for modifications to the workplace and providing compensation for required aids and appliances (see sections 37 and 39 of the Act). Relevant employers are required to take all reasonable steps to provide employees with suitable employment (see section 40 of the Act). The Act also establishes a framework for review of determinations related to rehabilitation that ensures employees are able to challenge decisions made by their rehabilitation authority.

It is important that existing arrangements and protections for injured employees are not affected by an employer exiting the Comcare scheme and that injured employees continue to be supported to return to work and participate in employment. By preserving the obligations that employers owe to injured employees and retaining oversight of the performance of these obligations, the Bill protects and promotes these rights.

The right to social security

Article 9 of ICESCR states that ‘States Parties … recognize the right of everyone to social security’. General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including that ‘States Parties should … ensure the protection of workers who are injured in the course of employment or other productive work’.

The Bill positively engages the right to social security by ensuring the long term viability of the Comcare scheme. The Act provides for a scheme of workers compensation for injured employees that must be fully funded by contributions from employers and it is essential that the scheme remain appropriately funded into the future. A number of measures in the Bill will protect the financial viability of the scheme, for example the Bill will:

·          enable Comcare to determine and collect ‘exit contributions’ from former Commonwealth authorities and successors of former Commonwealth authorities. This will ensure that an exiting employer does not leave the Comcare scheme without contributing an appropriate amount to cover any current or prospective liabilities that are not funded by premiums the employer has paid before exit (see Item 12 of Schedule 1)

·          enable Comcare to determine and collect ongoing regulatory contributions from exited employers or successor bodies (see Item 14 of Schedule 1)

·          amend the Act to clarify that premiums for current Commonwealth authorities and Entities should be calculated having regard to the principle that current and prospective liabilities should be fully funded by Comcare retained funds and so much of the Consolidated Revenue Fund as would be available under section 90C of the Act (see Item 10 of Schedule 1).

Maintaining the financial sustainability of the Comcare scheme through appropriate exit contributions for ongoing claims management and liabilities is integral to protecting the right to social security as it ensures the long-term sustainability of the scheme to pay claims and support injured employees.

Conclusion

The amendments are compatible with human rights because they advance the protection of human rights. The amendments do not limit human rights.

 

Minister for Employment, Senator the Hon. Eric Abetz

 

 



NOTES ON CLAUSES

In these notes on clauses, the following abbreviations are used:

 

the Act

Safety, Rehabilitation and Compensation Act 1988

the Bill

Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015

the Commission

Safety, Rehabilitation and Compensation Commission

the Comcare scheme

The scheme established by the Safety, Rehabilitation and Compensation Act 1988

 

Clause 1 - Short title

1.                   This is a formal provision specifying the short title.

Clause 2 - Commencement 

2.                   The table in this clause sets out when the provisions of the Bill commence.

3.                   Item 3 of the table provides that the contingent amendments in Part 2 of Schedule 1 will commence either immediately after the commencement of Part 1 of Schedule 1 or the commencement of Schedule 2 of the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015 , whichever happens later. The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 is currently before parliament and will be cited as the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015 if it is enacted in 2015.

Clause 3 - Schedule(s)

4.                   Clause 3 of the Bill provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.  



Schedule 1 - Amendments



Schedule 1 - GENERAL AMENDMENT

Overview

1.              Schedule 1 to the Bill amends the Act to provide arrangements to deal with former Commonwealth authorities and their successors (if any) in the event that they exit the Comcare scheme (the ‘cessation time’). Broadly, Schedule 1 will establish a framework to enable Comcare to determine and collect ‘exit contributions’ from former Commonwealth authorities and their successors (if any) and any regulatory contributions from former Commonwealth authorities.

2.              The Schedule will provide for the continuation of a former Commonwealth authority, or other appropriate body, as the rehabilitation authority under the Act in relation to their employees who suffered injury prior to the cessation time.

3.              Schedule 1 also amends the Act to clarify that premiums for current Commonwealth authorities and Entities should be calculated having regard to the principle that current and prospective liabilities should be fully funded by Comcare-retained funds and so much of the Consolidated Revenue Fund as would be available under section 90C of the Act.

Part 1 - Main amendments

Item 1 - Subsection 4(1) (definition of exit contribution )

4.              This item inserts a definition for exit contribution meaning an exit contribution under Division 4A of Part VII of the Act. Exit contributions are provided for in Item 12 of Part 1, Schedule 1.

Item 2 - Subsection 4(14)

5.              This amendment will ensure that, if the Australian Capital Territory exits the Comcare scheme, the principal officer of the Australian Capital Territory would continue to be identified using the same rules that currently apply.

Item 3 - Subsection 4(15) (at the end of section 4)

6.              This provision inserts new subsection 4(15) into the definition of principal officer to ensure that a principal officer may be clearly identified for exited employers that are a body corporate and continue in existence. A principal officer will be identified using the same criteria that would apply if the body corporate was still a Commonwealth authority.

Item 2 and new section 96C (Item 9) ensure that a principal officer may be clearly identified for successors of exited employers.

Item 4 - Sections 41B, 41C and 41D (at the end of Division 3 of Part III)

7.              This item provides for arrangements to ensure that the most appropriate entity (an injured employee’s current employer or other appropriate person) continues to perform the role of rehabilitation authority and relevant employer under the Act. The provisions apply in relation to injuries suffered prior to the cessation time even where the injury is not notified to Comcare until after the cessation time.

8.              Part 3 of the Act places a number of obligations on rehabilitation authorities and relevant employers to support employees in their rehabilitation and it is important that these arrangements are not affected by the employer’s exit and that injured employees continue to be supported. When employers exit the Comcare scheme they, or an appropriate successor, will remain subject to the Act in relation to the rehabilitation of employees that were injured before the cessation time .

9.              New section 41B applies where a body corporate ceases to be a Commonwealth authority at a particular time (the cessation time ) but continues in existence. The body corporate will continue to be the rehabilitation authority for the purposes of subsection 4(1) and sections 36, 37, 38, 39, 40 and 41 of the Act, if, before the cessation time, an employee of the body corporate suffered an injury.

10.          Subsection 41B(e) provides that if, after the cessation time, the employee is undertaking or has completed a rehabilitation program in relation to the injury, the body corporate is taken to be the relevant employer of the employee for the purposes of section 40 (duty to provide suitable employment) of the Act.

11.          Section 41C applies where a body corporate ceases to exist at the cessation time. The Minister will be able to make a legislative instrument to specify that, for the purposes of section 41C:

·          a specified Commonwealth authority or Entity is taken to be the successor of the body corporate (41(1)(c)); or

·          a specified body, person, organisation or group of persons is taken to be the successor of the body corporate (41(2)(c)).

12.          In each case the successor will be deemed to be the rehabilitation authority and relevant employer for the purposes of the Act. The Minister’s ability to deem successors in a legislative instrument is not constrained by any criteria in order to allow for the most appropriate entity, body, person, organisation or group of persons to be identified. It is important that employees continue to receive support from a rehabilitation authority and relevant employer that is well placed to provide the support and, ideally, has a continuing relationship with the employee. The broad deeming provisions will ensure that the instrument making power is flexible enough to respond to various arrangements and the Minister’s exercise of this power will be subject to parliamentary oversight.

13.          Section 41D applies where the Australia Capital Territory ceases to be a Commonwealth authority. The Australian Capital Territory will be deemed to be the rehabilitation authority and relevant employer for employees injured before the cessation time.

Item 5 - After paragraph 69(ec)

14.           This item adds to the list of Comcare’s functions as set out in section 69 of the Act.

15.          Subsection 69(eca) provides that a function of Comcare is to determine the amount of any exit contributions payable (under new sections 97CA, 97CB or 97CC) by bodies corporate, and by the Australian Capital Territory, and to collect those contributions.

16.          Subsection 69(ecb) provides that a function of Comcare is to apply exit contributions paid by a body corporate or the Australian Capital Territory together with interest earned on those amounts in the same way that premiums and interest from premiums are applied (see paragraph 69(ec) of the Act). This will allow Comcare to use exit contributions to meet its liabilities under the Act.

Item 6 - After subsection 69(ed)

17.          This item inserts subsection 69(eda) to make it a function of Comcare to determine, under new section 97DA, the amount of any regulatory contributions payable by bodies corporate or the Australian Capital Territory, and to collect such contributions (see Item 14).

Item 7 - Paragraph 69(ef)(i)

18.          This item makes amendments to subsection 69(ec) consequential to the insertion of new subsections (eca), (ecb) and (eda).

Item 8 - Subsection 90C(5) (at the end of the definition of Comcare-retained funds)

19.          Comcare-retained funds are so much of the funds from time to time standing to Comcare’s credit in a bank account that are attributable to premiums paid to Comcare by Entities and Commonwealth authorities from the financial year commencing 1 July 2002 and subsequent financial years and any special premiums paid in respect of one or more of the financial years starting on 1 July 1999, 1 July 2000 or 1 July 2001 and any interest earned on the premiums and special premiums (see subsection 90C(5)).

20.          Item 8 provides for any exit contributions paid to Comcare and interest earned on those contributions to be included in the calculation of the total amount of Comcare-retained funds.

Item 9 - After section 96

21.          This item inserts new section 96A that provides for the new definition of available scheme funds as being the aggregate of Comcare-retained funds and the portion of the Consolidated Revenue Fund as represents the amount that would be worked out using the formula provided in current subsection 90C(3) if it were assumed that an amount was payable to Comcare under the mechanism provided in subsection 90C(2).

22.          The item also provides (subsection 96A(2)) that where applying a provision of this Division requires the calculation of so much of available scheme funds and Comcare does not have sufficient information to make the calculation, then Comcare may make such assumptions and estimates as it considers reasonable and the calculation may rely on those assumptions and estimates.

23.          New section 96B provides that for the purposes of this Division, Comcare-retained funds has the same meaning as in existing section 90C (as modified by Item 8).

24.          New section 96C provides that for the purposes of the Division the principal officer of a body corporate (other than a Commonwealth authority or a licenced corporation) is the principal executive officer of the body corporate. This provision will apply to body corporates that are successors to an exited employer. It is appropriate that determinations related to exit contributions or regulatory contributions be given to the principal executive officer of these bodies.

Item 10 - After paragraph 97A(1)(a)

25.          Existing section 97A requires Comcare to have regard to the prescribed amount and any penalty amount or bonus amount in relation to a Commonwealth authority or Entity when determining the amount of premium payable under section 97. The prescribed amount, in relation to an Entity or Commonwealth authority in a particular financial year means the amount worked out in accordance with the formula set out in subsection (3). The penalty amount means the amount determined by Comcare to be the appropriate amount to be added to the prescribed amount having regard to the number of claims made by or in relation to employees of an Entity or authority in each previous financial year and the amount of compensation paid to or in relation to such employees under the Act. The bonus amount refers to the amount determined by Comcare to be an appropriate amount to be deducted from the prescribed amount in relation to the Entity or authority having regard to the number of claims made by an Entity or authority in each previous financial year and the amount of compensation paid to an Entity or authority in relation to employees. The purpose of these definitions is to describe components of a premium which, together, enable Comcare to recover amounts equating to its liabilities under the Act.

26.          Item 10 inserts a new provision that requires Comcare, when determining the amount of premium payable by an Entity or Commonwealth authority in respect of a financial year, to also have regard to the principle that the total amount of available scheme funds attributable to premiums and special premiums plus interest, should, as far as practicable, be sufficient to meet Comcare’s liability (if any) under the Act. This liability may encompass injuries which have not yet been notified to Comcare but occurred prior to an exited employer’s cessation time. It may also encompass the recovery of amounts required to meet prospective liabilities (see Item 11).

This item clarifies that it is the intention of the Act that current and prospective liabilities be fully funded at all times and that it is appropriate for Comcare to calculate premiums having regard to this principle. Since 2001, liabilities for Entities and Commonwealth authorities (other than those authorities that hold a licence) have been met by Comcare-retained funds rather than the Consolidated Revenue Fund and it is essential that available scheme funds be sufficient to ensure the scheme is fully funded into the future through the determination and collection of premiums.

Item 11 - After subsection 97A(1)

27.          This item inserts a definition of liability for the purposes of paragraph 97A(1)(aa) to make it clear that liability includes prospective liability and that it should be assumed that Comcare’s liability is not contingent on the making of a claim for compensation or the giving of a notice under section 53 of the Act.

Item 12 - After section 97C

28.          Subsection 97CA(1) provides that if, after the cessation time, the amount of Comcare’s liability under the Act for injuries suffered by employees of the body corporate before the cessation time exceeds the amount of available scheme funds —which is attributable to premiums, special premiums and any exit contributions (plus interest on those payments) already paid by the body corporate to Comcare—Comcare may make a determination of the amount of the exit contribution the body corporate must pay in addition.

29.          Subsection 97CA(2) provides that the amount of the exit contribution must be equal to or less than the excess.

30.          Subsection 97CA(3) provides that Comcare may make determination(s) under subsection (1) for up to seven years after the cessation time. This means that Comcare may make one or more exit contribution determinations in respect of a body corporate at any time within the seven-year period beginning at the cessation time, depending on what is appropriate.

31.          Providing for determinations to be made at appropriate intervals serves a number of purposes. Firstly, seven years is an appropriate run-off period for ongoing claims referable to injuries suffered prior to the cessation time and to accommodate injuries that occur shortly before exit. Secondly, a longer timeframe will provide an incentive for exited employers to continue to support rehabilitation arrangements for injured employees and drive down the cost of injuries through effective rehabilitation and good return to work outcomes. Thirdly, the approach may be varied depending on what is appropriate in the circumstances. Some exiting employers will have less complex injury profiles and determining the extent of the costs associated with ongoing liabilities may warrant a short term payment arrangement whereas it may be more difficult to assess existing and prospective liabilities for other employers.

32.          Subparagraph 97CA(4) inserts a definition of liability for the purposes of paragraph 97CA(1)(c). The definition makes clear that liability includes prospective liability and that it should be assumed that Comcare’s liability is not contingent on the making of a claim for compensation or the giving of a notice under section 53 of the Act.

33.          Note: Items 19-40 also set out administrative matters related to determinations of exit contributions such as notice requirements and review.

34.          New section 97CB provides for Comcare to make exit contribution determinations in respect of successors of former Commonwealth authorities. This section would apply where under a law of the Commonwealth that was in force at the cessation time, another body corporate (the successor ) becomes the successor in law of the liabilities of the first body corporate, the former Commonwealth authority (subsection 97CB(1)(c)).

35.          This provision enables Comcare to make exit contribution determinations calculated in the same manner as in relation to former Commonwealth authorities under section 97CA. That is, by reference to the premiums and exit contributions (plus interest) already paid by the body corporate. Subsection (4) provides that liability for the purposes of paragraph (1)(c) means any liability, duty or obligation, whether actual, contingent or prospective. This is a standard provision that appears in rules related to the transfer of liabilities to successor bodies.

36.          New section 97CC provides for Comcare to make exit contribution determinations in respect of the Australian Capital Territory if it ceases to be a Commonwealth authority. The exit contribution determination is calculated in the same manner as for other former Commonwealth authorities and any successors (subsections 97CC(1) to (3)). As in relation to other former Commonwealth authorities, Comcare may make one or more exit contribution determinations in respect of the Australian Capital Territory in the seven year period beginning at the cessation time (subsection 97CC(3)).



Item 13 - Section 97D (heading)

37.           This item repeals the heading to section 97D and substitutes the new heading ‘Regulatory contributions payable by an Entity or a Commonwealth authority’.

Item 14 - After section 97D

38.          This item inserts new section 97DA. Section 97DA provides that Comcare may make a determination of the amount of the regulatory contribution to be paid by a body corporate or the Australian Capital Territory if either ceased to be a Commonwealth authority. The section also permits determinations to be made in relation to the successor of an exited employer. The amount may be determined in respect of the financial year in which the cessation time occurred or a later financial year. While determinations may continue to be made for a number of years, the amount must reflect the estimated costs incurred by Comcare, which would reduce over time as injuries resolved and investigations are completed.

39.          Subsection 97DA(3) provides that the amount of regulatory contribution to be paid by a body corporate or the Australian Capital Territory if either ceased to be a Commonwealth authority must not exceed the sum of the estimated cost incurred by the Commission and Comcare in carrying out their respective functions under the Act, the Occupational Health and Safety Act 1991 , the Work Health and Safety Act 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 . For example, Comcare will incur costs in providing support to exited employers that continue to support the rehabilitation of employees and may incur costs in the early years following exit as work health and safety investigations for incidents that occurred before exit are finalised. Comcare must determine the estimated costs in accordance with the principles under section 97E and ensure that estimated costs are referrable to the body corporate or the Australian Capital Territory.

40.          Note: Items 19-40 also set out administrative matters related to determinations of regulatory contributions such as notice requirements and review.

41.          Subsection 97DA(4) provides for the same arrangements to apply in respect of a successor (under a law of the Commonwealth) body corporate to a former Commonwealth authority.

42.          For the purposes of paragraph (4)(c), an extended definition of liability also applies. This is a standard provision that appears in rules related to the transfer of liabilities to successor bodies.

Item 15 - Before section 97E

43.          Item 15 inserts section 97DB which provides that the Division has no effect to the extent (if any) to which it imposes taxation or would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) other than on just terms. This clause reflects the intention that the Bill not operate beyond the limits of the constitutional powers of the Commonwealth. The clause enables any invalid application of the Bill to be read down so that only the valid application is taken to have been intended.

Item 16 - Section 97E (heading)

44.          Item 16 repeals the heading to section 97E and replaces it with new heading ‘Guidelines and principles’.

Item 17 - At the end of section 97E

45.          This item inserts new subsections (5) to (7) at the end of section 97E to extend the ability of the Commission to prepare and issue to the Chief Executive Officer of Comcare written guidelines in relation to the determination of regulatory contributions. Written principles may be issued in relation to the determination by Comcare of regulatory contributions to be paid under new section 97DA. The new subsections refer to ‘principles’ rather than ‘guidelines’ to reflect modern drafting practice however it is intended that the issuing of principles would operate in a similar way to the issuing of guidelines.

46.          For the avoidance of doubt, new subsection (8) clarifies that an instrument under subsection (5) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

Item 18 - After subsection 97F(2)

47.          This item inserts new subsections 97F(2A) to (2C) that provide that the principal officer (see Item 2 and Item 9 of the Bill) of a body corporate or a successor body corporate or the Australian Capital Territory must, on request by Comcare, give Comcare the information specified in the request when the information is needed by Comcare to enable it to determine an exit contribution under section 97CB or a regulatory contribution under section 97DA in relation to the body corporate, or a successor body corporate or the Australian Capital Territory.

48.          Subsection 97F(2D) provides that an extended definition of liability applies for the purposes of paragraph (2B)(c). This is a standard provision that appears in rules related to the transfer of liabilities to a successor body.

Item 19 - At the end of section 97G

49.          Item 19 adds new subsections 97G(3) to (4) that require Comcare to give a copy of a determination made under sections 97CA, 97CB or 97DA in relation to a body corporate (including a body corporate that is the successor of an exited employer) or the Australian Capital Territory to the relevant principal officer. For the meaning of principal officer see Item 2 and Item 9.

Item 20 - Section 97H (heading)

50.          This item repeals the heading to section 97H and substitutes the new heading ‘Payment of premium or regulatory contribution by an Entity or Commonwealth authority’.

Items 21 and 22 - After section 97H and after subsection 97J(1)

51.          Item 21 inserts new section 97HA which is modelled on the existing notice of determination and review provisions contained in sections 97H to 97K of the Act. Subsection 97HA(1) provides that if an exit determination or regulatory contribution determination has been made under sections 97CA, 97CB, 97CC or 97DA relating to a body corporate or the Australian Capital Territory, the determination takes effect 28 days after the day on which the body corporate or the Australian Capital Territory receives a copy of the determination. Section 97H of the Act provides that a determination of a premium or regulatory contribution takes effect 14 days after the determination is received; a longer timeframe (28 days) has been chosen because exit contributions may be more complicated and variable than a standard premium determination and the exiting employer may need a longer timeframe to arrange for payments to be made.

52.          Additionally, subsections 97HA(2) to (3) provide that the Commission may give directions, in writing, to the principal officer of the body corporate or the Australian Capital Territory relating to the payment of the exit contribution or regulatory contribution. The principal officer must comply with any direction given to him or her.

53.          Subsection (4) provides that the Commission may vary a direction given to the principal officer of the body corporate or the Australian Capital Territory on the written request of the principal officer.

54.          Subsection 97HA(5) provides that Comcare may permit an amount of exit contribution payable by the body corporate or the Australian Capital Territory to be paid in instalments. The last instalment must be payable within three years after the day on which the determination of the exit contribution is made.

55.          Item 22 inserts subsection (1A) that provides that the principal officer of a body corporate or the Australian Capital Territory may, by written notice of objection, ask Comcare to review the determination made under sections 97CA, 97CB, 97CC or 97DA. The principal officer has 14 days after the day on which it received a copy of the determination to give notice to Comcare of objection.

Items 23 and 24 - Subsection 97J(2) and subsection 97(4)

56.          These items provide for consequential amendments resulting from the insertion of subsections 97HA and 97J(6).

Item 25 - At the end of section 97J

57.          Item 25 provides that Comcare must notify a principal officer of the outcome of a notice of objection lodged under new subsection 97J(1A). New subsection (7) makes clear that even if the principal officer of a body corporate or the Australian Capital Territory gives a notice of objection to a determination of the exit contribution or regulatory contribution, it is still obliged to pay the exit contribution or regulatory contribution in accordance with any directions given under section 97HA.

Item 26 - After subsection 97K(1)

58.          This item inserts new subsection (1A) which is modelled on existing provisions in section 97K of the Act relating to review by the Commission of objections to determinations. Subsection (1A) provides that when a determination under sections 97CA, 97CB, 97CC or 97DA has been reviewed by Comcare under section 97J (as amended), the principal officer of the body corporate or the Australian Capital Territory may, by written notice of objection ask the Commission to review the determination or the determination as varied. A notice must be provided to the Commission within 14 days of Comcare’s review notice being provided to the body corporate or the Australian Capital Territory.

Items 27 and 28 - Subsection 97K(2) and subsection 97K(4)

59.          These items amend subsection 97K(2) and subsection 97K(4) consequential to the insertion of subsection 97K(1A).



Item 29 - Section 97L (heading)

60.          This item repeals the heading to section 97L and substitutes a new heading ‘Refund of premium or regulatory contribution paid by an Entity or Commonwealth authority’.

Item 30 - After section 97L

61.          Item 30 inserts new section 97LA which provides for a refund of exit contribution or regulatory contribution paid by a former Commonwealth authority where the amount paid by the authority is later reduced as a result of a review under section 97J or 97K. This provision is modelled on existing provisions in section 97L of the Act.

Item 31 - Section 97M (heading)

62.          This item repeals the heading to section 97M and inserts the new heading ‘Variation of determination of premium or regulatory contribution payable by an Entity or Commonwealth authority’, consequential to subsequent amendments.

Item 32 - After section 97M

63.          This item inserts new section 97MA which provides for the variation of a determination of exit contribution or regulatory contribution payable by a former Commonwealth authority. This variation provision is modelled on existing section 97M. Subsection 97MA(1) provides that Comcare may, in writing vary a determination only when there is an error in information given to Comcare under section 97F that affected the determination or Comcare has made an error in determining the amount of the exit contribution or contribution.

64.          Subsection (2) provides that Comcare must send a copy of the variation, together with a statement of reasons for the variation, to the relevant principal officer (for meaning of principal officer see Item 2 and Item 9). Subsection (3) provides that sections 97J and 97K apply to a variation of a determination in the same way as they apply to a determination.

65.          Subsections (4) and (5) require Comcare to repay to the body corporate or the Australian Capital Territory an amount equal to the difference between the exit contribution or regulatory contribution that has been paid and the amount as later reduced by the variation under this section.

66.          Subsections (6) and (7) provide for the payment of interest in addition to the repaying of the amount of the excess, where Comcare erroneously charged a body corporate or the Australian Capital Territory a contribution in excess of the maximum.

Items 33 and 34 - Subsection 97N(1)

67.          These items make consequential amendments to subsection 97N(1).

Item 35 - Section 97P (heading)

68.          This item repeals the heading to section 97P and substitutes the new heading, ‘Late payment penalty’.



 

Items 36 to 38

69.          These items make consequential amendments to section 97P as a result of the insertion of subsection 97P(2) (see Item 39).

Item 39 - At the end of section 97P

70.          This item inserts new subsection (2) which applies the existing late payment penalty arrangements set out in section 97P to the payment of exit contributions or regulatory contributions.

71.          Subsections (3) and (4) adapt the rule in subsection 97P(2) for cases where Comcare permits an amount to be paid by instalments. Where the last instalment is not paid within 28 days after the day on which the last instalment becomes payable interest will apply.

Item 40 - At the end of Division 4A of Part VII

72.          This item inserts new sections 97Q, 97QA, 97QB and 97QC. These sections provide for arrangements for the refund of premiums to former Commonwealth authorities, successors of former Commonwealth authorities and the Australian Capital Territory if it ceases to be a Commonwealth authority.

73.          Under the arrangements, Comcare may make a determination that an amount equal to an excess is payable to the successor by way of a refund of premiums paid to Comcare. This is provided for where the amount that represents so much of available scheme funds as is attributable to premiums, special premiums and interest earned on those premiums exceeds Comcare’s liability (if any) under the Act in respect of injuries suffered before the cessation time.

74.          Section 97QC makes clear that Comcare must make any refund payment under sections 97Q, 97QA or 97QB from Comcare-retained funds. Subsection 97QC(2) provides that if there is insufficient money in Comcare-retained funds to make the payment, there is payable to Comcare, out of the Consolidated Revenue Fund, such an amount as it necessary to enable Comcare to make that payment. This provision is modelled on the existing appropriation provision in section 90C.

Part 2 - Amendments contingent on the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015

Items 41-59

75.          Part 2 of Schedule 1 to the Bill provides for a number of amendments that would be required when the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015 commences. The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 is currently before Parliament and, when passed, would introduce group employer licenses and make a number of other changes to the licensing provisions in the Act.

76.          The amendments in Schedule 2 are contingent amendments and will ensure that the new provisions inserted by Part 1 are not affected by the amendments made by the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014.

 



SCHEDULE 2- MEMBERSHIP OF THE SAFETY, REHABILITATION AND COMPENSATION COMMISSION

Part 1 - New member of the Commission

Items 1 and 2

77.          Items 1 and 2 would have effect immediately after the revocation of a declaration under subsection 4A(1) of the Act and the exit of the Australian Capital Territory from the Comcare scheme (see Item 4 of clause 2). The Items provide that the member that represents the Australian Capital Territory’s public sector employers is then replaced with another member who, in the Minister’s opinion represents the Commonwealth, and Commonwealth authorities other than licensed authorities.

Part 2- Technical amendments

Item 3- Subsection 89F(1)

78.          Item 3 provides that members are to be appointed by the Minister rather than the Governor-General. In practice, the Minister is responsible for making decisions about appointments and this change will make appointment processes more efficient and reduce an unnecessary workload for the Governor-General and the Federal Executive Council.

79.          The Minister will not be responsible for appointing the Chief Executive Officer of Safe Work Australia to the Commission because the position will now be an ex-officio appointment. There is only one Chief Executive Officer of Safe Work Australia and it is unnecessary for that member to be formally appointed to the Commission.

80.          Item 9 provides that these new requirements will apply in relation to appointments made after the commencement of Item 9 (the day after the Bill receives Royal Assent- see Clause 2).

Item 4- Subsection 89F(2)

81.          This amendment corrects an error in the Act.

Items 5 to 6 and Item 8

82.          These items are consequential to the amendments made by Item 3.

Item 7- Subsection 89P(3)

83.          This amendment corrects an error in the Act.

Item 9

84.          This item makes clear that the amendments to section 89F of the Act made by this Part only apply in relation to appointments made after the commencement of this item.

 




[1] Committee on Economic, Social and Cultural Rights, General Comment No. 18 para 4.

[2] Committee on Economic, Social and Cultural Rights, General Comment No. 18 para 17, citing General Comment No. 5.

[3] CERD, Article 27(1).