Accident Compensation (Miscellaneous Amendment) Act 1997 (Vic)
Accident Compensation (Miscellaneous
Amendment) Act 1997
Act No. 107/1997
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 2 PART 2—AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985 3
3. Definition of "medical question" 3 4. Definition of "remuneration" 4 5. Amendments relating to superannuation benefits 5 5D. Superannuation benefits relating to services performed
before 1 January 1998 7 5E. Superannuation benefits not readily related to particular
workers or their periods of service 8
6. Definition of "worker" 9 7. Repeal of section 17 10 8. Sporting contestants 10 9. Functions of the Authority 11 10. Powers of the Authority 11 11. Amendments relating to jurisdiction 13
249C. Administrative Appeals Tribunal 14
12. Evidence 17 13. Certain proceedings referred for conciliation 17 14. Costs 18 15. Amendment of section 53 18 16. Procedures before Conciliation Officers 18 17. Disputes relating to weekly payments 19 18. Section 59 to apply to section 99 compensation 19 19. Certain evidence inadmissible in proceedings 20 20. Procedures and powers 20 21. Opinions on medical questions 20 22. Amendment of section 82 22 23. Entitlement to compensation 22 24. Amendment of section 89 24
i
Section Page
25. Assessment of impairment 24 26. Amendment of section 92 27 27. New sections 92A, 92B and 92C inserted 27
92A. Revised compensation for death of worker 27 92B. Weekly pensions for dependants of worker who dies 31 92C. Payment of weekly pensions 36
28. Section 93C substituted—Grandfather provision 38
93C. Sections 93A and 93B—Grandfather provision 38
29. Weekly payments 43 93CA. First entitlement period 43 93CB. After the first entitlement period and until the expiry of the second entitlement period
45
93CC. After the expiry of the second entitlement period 48 93CD. Application to continue to receive weekly payments after expiry of the second entitlement period
49
30. Weekly payments—consequential amendments 52 31. Injury near or after retirement 57 32. Provisions relating to the payment of compensation 57 33. Compensation for maims 58 34. Compensation for pain and suffering 58 35. Sections 98 and 98A claims—transitional 58 36. Non-economic loss compensation 60
98C. Compensation for non-economic loss 60 98D. Payment of Compensation 64 98E. No Disadvantage—Compensation Table 64
37. Consequentials relating to section 36—Non-economic loss 68 38. Section 98D substituted 68
98D. Payment of compensation 69
39. Compensation for medical and like services 72 40. Indexation 73 41. Amendment of section 100 74 42. Notice of injury 75
102. Notice of injury 75
43. Claims process for non-economic loss 76
104B. Claims for compensation under section 98C 76
44. Settlements 79 45. New section 134A inserted 80
134A. Actions for damages only in accordance with this Act 80
46. Amendment of section 135 81 47. Amendment of section 135A 81 48. New sections 135AB and 135AC inserted 91 135AB. Directions 91 135AC. Limitation of Actions Act 1958 91
ii
Section Page
49. New section 135C inserted 92
135C. Damages under Part III of Wrongs Act 1958 92
50. Indemnity by third party 94 51. New section 138A inserted 94 138A. Substantive law 94 52. Contents of return to work plan 94 53. Amendment of section 179—definitions-protected claim 95 54. Warrants to enter and search 95 55. Offences 96 56. False information 97 57. Refunding money to the Authority 98 58. Institution of prosecutions 98 59. Prosecution guidelines 99 60. New section 252C inserted 99
252C. Supreme Court-limitation of jurisdiction 99
61. Spent Schedule 99 62. Supreme Court-limitation of jurisdiction-amendment of Accident Compensation (WorkCover) Act 1992 100 63. Supreme Court-limitation of jurisdiction-amendment of Constitution Act 1975 100
PART 3—AMENDMENT OF OTHER ACTS 102
64. Compulsory WorkCover Insurance 102 65. Rateable remuneration 102 66. Rateable remuneration—transitional 103
19. Rateable remuneration—transitional 103
67. Certificate of rateable remuneration 103 68. Warrants to enter and search 104 69. Dangerous Goods Act 1985—Guidelines 105 70. Equipment (Public Safety) Act 1994—penalties 105 71. Equipment (Public Safety) Act 1994—Guidelines 105 72. Occupational Health and Safety Act 1985—employee 105 73. Occupational Health and Safety Act 1985—penalties 106 74. Occupational Health and Safety Act 1985—Guidelines 106 75. Magistrates' Court Act 1989—penalties 106 76. Workers Compensation Act 1958 107 77. Consequential amendment 107
═══════════════
NOTES 108
iii
Victoria
No. 107 of 1997
Accident Compensation (Miscellaneous
Amendment) Act 1997†
[Assented to 23 December 1997]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is—
(a)
to amend the Accident Compensation Act 1985 for the purpose of changing the scheme for compensation;
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 2
(b)
to abolish certain rights of action at common law;
(c)
to make related amendments to certain other Acts.
2. Commencement
(1) This Part and sections 4, 7, 8, 9, 10, 12, 14, 16(2),
19, 20, 21, 31, 32, 39(2), 60, 61, 62, 63, 67, 70,
73, 75, 76 and 77 come into operation on the day
on which this Act receives the Royal Assent.
(2) Sections 3, 11(1), 15, 22, 24, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 43, 45, 46, 47, 48, 49, 50 and 51 are deemed to have come into operation on
12 November 1997.
(3) Sections 5, 65 and 66 come into operation on 1 January 1998.
(4) Sections 6, 38 and 72 come into operation on a day or days to be proclaimed.
(5) Section 25 comes into operation on 1 September
1998.
(6) Subject to sub-section (7), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.(7) If a provision referred to in sub-section (6) does
not come into operation before 1 July 1998, it
comes into operation on that day.
_______________
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 3 | Act No. 107/1997 |
PART 2—AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985
3. Definition of "medical question"
(1) In section 5(1) of the Accident Compensation
Act 1985 in the definition of "medical question"—
(a) after paragraph (ab) insert—
"(aba) a question as to whether a worker has a current work capacity or has no current work capacity and what employment
would or would not constitute suitable
employment; or
(abb) a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no
current work capacity; or
(abc) a question as to whether a worker has a
current work capacity and because of the injury, is, and is likely to continue indefinitely to be, incapable of
undertaking further or additional
employment or work, and if not so
incapable, what further or additional
employment or work the worker iscapable of undertaking; or".
(b) in paragraph (ac) after "provided" insert ", or to be provided,"; (c) for paragraphs (b) and (ba) substitute— "(b) a question whether a worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury; or
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 4 (ba) if paragraph (b) does not apply, a
question whether a worker's
employment was in fact, or could
possibly have been, a contributing
factor to an injury or alleged injury, or
to a similar injury; or";
(d)
for paragraphs (c), (d) and (e) substitute— "(c) a question as to the extent to which any
physical or mental condition, including
any impairment, resulted from or was
materially contributed to by the injury;or
(d) a question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with section 91 and a question as to whether or not that impairment is permanent; or
(e)
a question as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1); or ".
(2) After section 5(1B) of the Accident
Compensation Act 1985 insert—
'(1C) The definition of "medical question" as
amended by section 3(1) of the Accident any referral lodged on or after the commencement of that section.'.
Compensation (Miscellaneous
4. Definition of "remuneration"
In section 5(1) of the Accident Compensation
Act 1985—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 5 | Act No. 107/1997 |
(a) after the definition of "books" insert— ' "company", for the purposes of the definition of "remuneration", includes all bodies and associations (corporate and unincorporate) and partnerships;';
(b)
in the definition of "remuneration" in paragraph (d) omit "within the meaning of section 179".
5. Amendments relating to superannuation benefits
(1) In section 5(1) of the Accident Compensation
Act 1985—
(a) in the definition of "remuneration"—
(i) omit "or" after paragraph (m);
(ii) paragraph (n) is repealed;
(b) after the definition of "suitable employment" ' "superannuation benefit" means money
paid or payable by an employer in
respect of a worker—
(a) within the meaning of the
Superannuation Industryto or as a superannuation fund Commonwealth; or
(b) as a superannuation guarantee
charge within the meaning of the
Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth; or(c)
to or as any other form of superannuation, provident or
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 5 retirement fund or scheme
including—
(i) a Superannuation Holding
Accounts Reserve within the
meaning of the Small
Superannuation Accounts
Act 1995 of the
Commonwealth; and(ii) a retirement savings account
within the meaning of the
Retirement Savings
Accounts Act 1997 of the
Commonwealth; and(iii) a wholly or partly unfunded fund or scheme;';
(2) In section 5(9) of the Accident Compensation Act 1985 after "Commonwealth" insert "(other than deposits to a Superannuation Holding
Accounts Reserve within the meaning of the
Small Superannuation Accounts Act 1995 of the
Commonwealth)".(3) After section 5(14) of the Accident Compensation Act 1985 insert— '(15) A reference in the definition of
"superannuation benefit" in sub-section (1)
to a worker includes a reference to any
person to whom, by virtue of a paragraph of
the definition of "remuneration" in sub-
section (1), an amount paid or payable in the
circumstances referred to in that paragraph
constitutes remuneration.
(16) For the purposes of this Act, a reference to
remuneration includes a reference to
superannuation benefits, other than those
paid or payable in respect of services
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 5 | Act No. 107/1997 |
performed or rendered by a worker before
1 January 1998.
(17) For the purposes of this Act, a
superannuation, provident or retirement fund
or scheme is unfunded to the extent that
money paid or payable by an employer in
respect of a worker covered by the fund or
scheme is not paid or payable during the
worker's period of service with the
employer.'.(4) After section 5C of the Accident Compensation
Act 1985 insert—
"5D. Superannuation benefits relating to services
performed before 1 January 1998
(1) Money paid by an employer on or after
1 January 1998 as a superannuation benefit that is alleged by the employer to be paid in respect of services performed or rendered by a worker before that day, must be evidenced to the satisfaction of the Authority or
authorised insurer in the employer's records
for the calculation of premiums under the
Accident Compensation (WorkCover
Insurance) Act 1993.(2) In particular, the employer's records must
show the manner of calculation of the benefit
and any actuarial basis for it.
(3) For the purposes of sub-section (2) and of any calculation of premiums to which that sub-section is material, the certificate of a fellow or accredited member of the Institute
of Actuaries of Australia to the effect that the
actuarial basis on which an amount is
calculated is justified is evidence and, in the
absence of evidence to the contrary, proof of
that fact.
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 5 (4) If records are not kept as required by this
section, the Authority or authorised insurer is
entitled to assume for the purposes of the
calculation of premiums, that a payment of
money by an employer as a superannuation
benefit on or after 1 January 1998 is an
amount payable in respect of services
performed or rendered by a worker on or
after that day.
5E. Superannuation benefits not readily related
to particular workers or their periods of
service
For the purposes of any calculation of premiums, the Authority or authorised insurer may determine—
(a)
whether, and the extent to which, any money paid or payable by an employer to a superannuation, provident or retirement fund or scheme that is not identified by the employer as paid or payable in respect of a particular worker (and whether or not purporting to be so paid or payable on any actuarial basis) is to be regarded as a superannuation benefit paid or payable in respect of a particular worker; and
(b)
subject to section 5D, the portion of any money paid on or after 1 January 1998 by an employer as a superannuation benefit to a wholly or partly unfunded fund or scheme, being money paid in respect of a worker (or that is to be regarded under paragraph (a) to have been so paid) who performed or rendered services to the employer on or after, as well as before, 1 January 1998, that is to be regarded
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 6 | Act No. 107/1997 |
| as having been paid in respect of services performed or rendered before that date.". |
(5) In section 6(1) of the Accident Compensation Act 1985 after "remuneration" insert "and shall be deemed to include any payment that would be a
superannuation benefit if made in relation to a
person in the capacity of an employee".(6) In section 8(1) of the Accident Compensation Act 1985 after "remuneration" insert "and shall be deemed to include any payment that would be a
superannuation benefit if made in relation to a
person in the capacity of an employee".
(7) After section 9(2)(d) of the Accident
Compensation Act 1985 insert—
"; and
(e)
an amount paid or payable for or in relation to the performance of work under a relevant contract is deemed to include any payment
made by a person who is deemed to be an
employer under a relevant contract in
relation to a person who is deemed to be a
worker under the relevant contract that
would be a superannuation benefit if made in
relation to a person in the capacity of an
employee.".
6. Definition of "worker"
In section 5(1) of the Accident Compensation
Act 1985, in the definition of "worker", at the end
of the definition insert—
"—
but does not include a person participating in an
approved program of work for unemployment
payment under the Commonwealth Social
Security Act 1991.".
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 7
7. Repeal of section 17
Section 17 of the Accident Compensation Act
1985 is repealed.
8. Sporting contestants
(1) In section 16 of the Accident Compensation Act
1985—
(a) "and" after sub-section (1)(a) is repealed;
(b) sub-section (1)(b) is repealed;
(c) sub-section (2) is repealed.
(2) In section 5(1) of the Accident Compensation
Act 1985, in the definition of "remuneration"
before paragraph (i) insert—
"(h) remuneration paid or payable to a person
within the meaning of section 16(1) engaged by an employer to participate as a contestant in a sporting or athletic activity in respect of the services provided by the person while the person is—
(i) participating as a contestant in a sporting or athletic activity; or
(ii) engaged in training or preparation with a view to so participating; or
(iii) travelling between a place of residence and the place at which the person is so participating or so engaged;".
(3) After section 5A(11) of the Accident
Compensation Act 1985 insert—
"(12) For the purposes of sub-section (1), if at the
time of the relevant injury the worker is a
person within the meaning of section 16(1)
engaged by an employer to participate as a
contestant in a sporting or athletic activity
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 9 | Act No. 107/1997 |
and the relevant injury is not received while
the person is—
(a) participating as a contestant in a sporting or athletic activity; or (b) engaged in training or preparation with a view to so participating; or (c) travelling between a place of residence and the place at which the person is so participating or so engaged— any remuneration paid or payable for those activities is to be disregarded in calculating the worker's average weekly earnings.".
9. Functions of the Authority
After section 20(1)(d) of the Accident
Compensation Act 1985 insert—"(da) establish and fund a WorkCover Advisory
Service;".
10. Powers of the Authority
(1) After section 20B(c) of the Accident
Compensation Act 1985 insert—
"; and
(d)
the power to enter into agreements or contracts with a corresponding Authority for or with respect to—
(i) the Authority performing the functions corresponding Authority as its agent;
(ii) the Authority performing any works or corresponding Authority;
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 10
(iii) the Authority providing the its facilities or the services of its staff;
(iv) the corresponding Authority
performing the functions or exercising
the powers of the Authority as its agent;(v) the corresponding Authority
performing any works or providing
services for the Authority;(vi)
in addition to, and not limited by, any other power under this section, the power to provide related and ancillary services.".the corresponding Authority providing facilities or the services of its staff;
(e)
(2) At the end of section 20B of the Accident
Compensation Act 1985 insert—
'(2) For the purposes of sub-section (1)(d),"corresponding Authority" means a Government department or a statutory authority of the Commonwealth Government
or of the Government of another State or of a
Territory which is responsible for
administering a law corresponding to the
Acts specified in section 19(b).(3) An agreement or contract entered into or a
service provided before the commencement
of section 10 of the Accident Compensation
(Miscellaneous Amendment) Act 1997 is to
be deemed to be as validly entered into or
provided as it would have been if this Act as
amended by that section had been in force at
the time the agreement or contract was
entered into or the service was provided.'.
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 11 | Act No. 107/1997 |
11. Amendments relating to jurisdiction
(1) After section 39(1) of the Accident
Compensation Act 1985 insert—"(1A) Sub-section (1) does not apply to a question
or matter arising out of a decision of the
Authority under section 135A(6A).".
(2) For section 39(2) of the Accident Compensation
Act 1985 substitute—
"(2) Sub-section (1) does not apply to any
question or matter arising under—
(a) Division 6 or 6A of Part IV; or
(b) Part V; or(c) Part VII.
(3) This section as amended by section 11 of the
Accident Compensation (Miscellaneous any proceedings commenced on or after the commencement of that section.
(4) Any proceedings commenced before the
Accident Compensation (Miscellaneous
commencement of section 11 of the if that section had not been enacted.".
(3) Sections 40(2) and 41 of the Accident
Compensation Act 1985 are repealed.
(4) Sections 99AA, 99AB, 99AC and 99AD of the
Accident Compensation Act 1985 are repealed. (5) After section 129G(16) of the Accident
Compensation Act 1985 insert—
"(17) The service of a notice of intention to appeal,
and the lodging of an appeal to the Supreme
Court under section 52 of the
Administrative Appeals Tribunal Act
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 11
1984 against a decision of the Tribunal under a stay of a determination of the Tribunal or of the liability of a contributor to make such payment as is, or payments as are, determined to be payable.".
this Division by a person other than the
(6) After section 249B of the Accident
Compensation Act 1985 insert—
'249C. Administrative Appeals Tribunal
(1) A person who is aggrieved by a decision of
within 12 months after becoming aware of
the decision, apply to the Administrativethe Authority under section 249B may, decision. (2) An application under this section must be in the prescribed form and give reasons for the application.
(3) The Registrar of the Tribunal must cause a copy of an application to be served on the Authority forthwith.
(4) The Tribunal may fix a date for the hearing
of an application but must not commence
any proceedings in relation to the application
until the expiration of 28 days after a copy of
the application has been served on the
Authority.
(5) The Authority must, within 28 days after
receiving a copy of an application under this section for review of its decision, reconsider the decision.
(6) For the purposes of reconsidering a decision,
the Authority may by notice given to the
applicant, require the applicant to give
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 11 | Act No. 107/1997 |
further and better particulars about the
reasons for the application to the Tribunal
and such further information relating to the
application as the Authority requires.(7) If an applicant fails, without reasonable
excuse, to give the further and better
particulars or further information requested
by the Authority or fails to give those
particulars or that information within a
reasonable time, the Tribunal may take the
failure into account when making an order
for costs in respect of the proceedings.
(8) The Tribunal may make an order requiring a
representative of a party who appeared
before the Tribunal to pay costs.
(9) If, after re-considering its decision, the Authority determines that the decision should be varied or revoked, it may vary or
revoke the decision accordingly.
(10) The Authority must give notice in writing to
the applicant of a determination to vary or
revoke its decision.
(11) Unless the applicant has withdrawn the
application, the Tribunal may proceed to
hear it after the expiration of the period of 28
days after a copy of the application was
served on the Authority.
(12) Where the Tribunal exercises jurisdiction under this section—
(a)
the Tribunal may refer a medical question to a Medical Panel for an opinion; and
(b)
if a party to the proceedings so requests, the Tribunal must refer a
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 11 medical question to a Medical Panel for
an opinion; and
(c) the opinion of the Panel on that question shall, subject to this section, be adopted by the Tribunal as the answer to that question.
(13) If the Tribunal refers a medical question to the Panel, the Tribunal must give the Panel, and each party to the proceedings, copies of all documents in the possession of the
Tribunal relating to the medical question. (14) If the Tribunal refers a medical question to a
Medical Panel, the Tribunal must give a copy of the Panel's opinion to each party to the proceedings.
(15) Where the Tribunal exercises jurisdiction
under this Part, section 35 of the
Administrative Appeals Tribunal Act
1984 applies as if—
(a)
in sub-section (2), for "at or in connexion with the hearing of a proceeding" there were substituted "in connection with, or at the hearing of a proceeding";
(b)
in sub-section (3) and (4) "the hearing of" (wherever occurring) was omitted.
(16) If a provision of the Administrative
Appeals Tribunal Act 1984 is inconsistent with this section, this section prevails.
(17) The service of a notice of intention to appeal,
and the lodging of an appeal to the Supreme
Court under section 52 of the
Administrative Appeals Tribunal Act
1984 against a decision of the Tribunal under
this section by a person other than the
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 12 | Act No. 107/1997 |
Authority, do not operate as a stay of a determination of the Tribunal.'.
(7) In the Accident Compensation Act 1985—
(a)
in section 57(2) omit "or Administrative Appeals Tribunal";
(b)
(c) sections 249B(5) and 249B(6) are repealed.in section 112(2)(b)(ii) for ", Magistrates' substitute "or Magistrates' Court";
12. Evidence
In section 44(3) of the Accident Compensation
Act 1985, for paragraphs (b) and (c) substitute—"(b) for an offence against the Crimes Act 1958
which arises in connection with a claim for
compensation under this Act.".
13. Certain proceedings referred for conciliation
(1) For section 49(b) of the Accident Compensation
Act 1985 substitute—
"(b) until the Conciliation Officer has issued a
certificate, which the Conciliation Officer
must issue if the Conciliation Officer is
satisfied that all reasonable steps have beentaken by the claimant to settle the dispute.".
(2) At the end of section 49 of the Accident
Compensation Act 1985 insert—
"(2) This section as amended by section 13 of the
Accident Compensation (Miscellaneous any referral lodged on or after the commencement of that section.".
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 14
14. Costs
In section 50(1) of the Accident Compensation
Act 1985—
(a) before "In" insert "Subject to this Act,";
(b)
for paragraph (a) substitute— "(a) must award costs against the party
against whom a judgement or decision
is made; and".
15. Amendment of section 53
In section 53 of the Accident Compensation Act 1985, in the definition of "dispute" after paragraph (d) insert—
"(e) the Authority, in the case of section
93CD(2)(a).".
16. Procedures before Conciliation Officers
(1) Section 55(4) of the Accident Compensation Act 1985 is repealed.
(2) In section 56(5) of the Accident Compensation
Act 1985 for ", 99A or 99B" substitute "or 99A".(3) For section 56(9) of the Accident Compensation
Act 1985 substitute—
"(9) The Conciliation Officer may request a party
who participates in a conciliation to produce
a document or a class of documents
specified, or provide information or
information of a kind specified, that the
Conciliation Officer considers may be
relevant to the resolution of the dispute.
(9A) If a party refuses or fails to produce any
document or provide any information
requested under sub-section (9), the
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 17 | Act No. 107/1997 |
document or information cannot be tendered as evidence by that party in any proceedings under this Act which relate to the dispute.".
17. Disputes relating to weekly payments
In section 59(7) of the Accident Compensation
Act 1985—
(a)
before "A" insert "In addition to the power conferred by sub-section (5),";
(b) for "10 weeks" substitute "24 weeks".
18. Section 59 to apply to section 99 compensation
(1) After section 59(2)(b) of the Accident
Compensation Act 1985 insert—
"; or
(c) a claim for the payment of compensation under section 99—". (2) After section 59(7) of the Accident Compensation Act 1985 insert— "(8) If a Conciliation Officer gives a direction or
further direction to pay or continue to pay weekly payments, the Conciliation Officer may also give a general direction to the
Authority, authorised insurer, employer or self-insurer, to pay subject to and in accordance with section 99 the reasonable costs of services specified in that section that were or are to be provided during the period specified in the direction under sub-section (5) or (7) as the case may be.
(9) If the dispute is, or includes, a dispute as to
the liability for the payment of compensation
under section 99 in respect of an injury and
the Conciliation Officer is satisfied that there
is no genuine dispute with respect to such
liability, the Conciliation Officer, unless sub-
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 19
s. 21
Act No. 107/1997
section (8) applies, may give a general
direction to the Authority, authorised insurer,
employer or self-insurer, to pay subject to
and in accordance with section 99 the
reasonable costs of services specified in that
section up to a total of $2000 in respect ofthe relevant injury.
(10) For the purposes of this section a
Conciliation Officer is to be taken to be satisfied that—
(a)
there is a genuine dispute if the Conciliation Officer is satisfied that there is an arguable case in support of the denial of liability;
(b)
there is no genuine dispute if the Conciliation Officer is satisfied that there is no arguable case in support of the denial of liability.".
(3) In section 128(1) of the Accident Compensation
Act 1985 after "weekly payments" insert "or compensation under section 99".
19. Certain evidence inadmissible in proceedings
In section 61A of the Accident Compensation
Act 1985, for paragraph (e) substitute—
"(e) an offence against the Crimes Act 1958
which arises in connection with a claim for
compensation under this Act.".
20. Procedures and powers
In section 65(3) of the Accident Compensation
Act 1985, for paragraphs (c) and (d) substitute— "(c) for an offence against the Crimes Act 1958
which arises in connection with a claim for
compensation under this Act.".
21. Opinions on medical questions
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
(1) After section 67(1) of the Accident
Compensation Act 1985 insert—"(1A) A Medical Panel must give its opinion on a
medical question in accordance with this
Division.
(1B) This Division as amended by section 21 of
(Miscellaneous Amendment) Act 1997
applies to and in respect of the opinion of athe Accident Compensation referred to a Medical Panel on or after the commencement of that section.".
(2) After section 67(4) of the Accident
Compensation Act 1985 insert—
"(4A) A person referring a medical question to a
Medical Panel must provide copies of all documents relating to the medical question in the possession of that person to the Medical Panel.".
(3) In section 68(1) of the Accident Compensation Act 1985 for "21 days" substitute "60 days".
(4) After section 68(3) of the Accident Compensation Act 1985 insert— "(4) For the purposes of determining any question
or matter, the opinion of a Medical Panel on court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.".
a medical question referred to the Medical
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 22
s. 23
Act No. 107/1997
(5) For section 45(1) of the Accident Compensation
Act 1985 substitute—
"(1) Where the County Court exercises
jurisdiction under this Part, the County
Court—
(a) may refer a medical question; or
(b)
if a party to the proceedings requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions—
to a Medical Panel for an opinion under this
Division.".(6) In section 45(2) of the Accident Compensation Act 1985 omit "the Panel, and".
(7) Section 45(3) of the Accident Compensation Act 1985 is repealed.
(8) For sections 56(6) and 56(7) of the Accident
Compensation Act 1985 substitute—
"(6) A Conciliation Officer may refer a medical
question to a Medical Panel for an opinion
under this Division.".(9) In section 65(5)(b) of the Accident
Compensation Act 1985 for "relevant
documents" substitute "copies of all documents
in the possession of the worker which relate to the
medical question".
22. Amendment of section 82
In section 82(2) of the Accident Compensation Act 1985, after "entitled" insert ", subject to this Act,".
23. Entitlement to compensation
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
After section 82(6) of the Accident Compensation Act 1985 insert— "(7) If it is proved that before commencing
employment with the employer—
(a)
a worker had a pre-existing injury or disease of which the worker was aware; and
(b) the employer in writing—
(i) advised the worker as to the employment; and
(ii) all pre-existing injuries and
diseases suffered by the worker of
which the worker was aware and
could reasonably be expected to
foresee could be affected by therequested the worker to disclose employment; and
(iii) advised the worker that sub- section (8) will apply to a failure to make such a disclosure or the making of a false or misleading disclosure; and
(iv) advised the worker as to the effect of sub-section (8) on the worker's entitlement to compensation; and
(c)
the worker failed to make such a disclosure or made a false or misleading disclosure—
sub-section (8) applies.
(8) If this sub-section applies, any recurrence,
aggravation, acceleration, exacerbation or
deterioration of the pre-existing injury or
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 24 disease arising out of or in the course of or
due to the nature of employment with the
employer does not entitle the worker to
compensation under this Act.(9) If this section operates to prevent a worker or
the worker's dependants recovering
compensation in respect of an injury, the
worker or the worker's dependants cannot
rely on this section to claim to be entitled to
take any other action or proceedings in
respect of the injury whether under this Act
or otherwise.".
24. Amendment of section 89
After section 89(4) of the Accident Compensation Act 1985 insert— "(5) This section does not apply to a further
injury suffered on or after 12 November
1997.".
25. Assessment of impairment
(1) In section 91(1)(a)(i) of the Accident
Compensation Act 1985 for "American Medical
Association's Guides to the Evaluation of
Permanent Impairment (Second Edition)"
substitute "A.M.A Guides".(2) After section 91(2) of the Accident Compensation Act 1985 insert— '(3) For the purposes of assessing the degree of
impairment of the whole person resulting
from binaural hearing impairment, the
percentage of the diminution of hearing
determined in accordance with sub-section(4) is to be converted as follows—
(a)
if the binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is zero;
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 25 | Act No. 107/1997 |
(b) if the binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent; (c) if the binaural loss of hearing is more than 10 per cent NAL, the degree of impairment is the percentage equivalent of the number (rounded up to the next whole number) given by the formula— 10 + [0.278 (NAL − 10)]—
where NAL is the percentage of diminution
of hearing determined in accordance withsub-section (4).
(4) For the purposes of this section, the
percentage of diminution of hearing—
(a) shall be determined—
(i) by a person or class of persons approved; and
(ii) in the manner approved—
by the Minister; and
(b) the Improved Procedure for
Determination of Percentage Loss of
Hearing (1988 Edition or a latershall be determined in accordance with National Acoustic Laboratory.
(5) An approval by the Minister for the purposes of sub-section (4)(a)(i) continues in force for the period not exceeding 12 months as is
specified by the Minister in the approval
unless revoked by the Minister.(6) For the purposes of assessing the degree of psychiatric impairment, the A.M.A Guides apply as if for Chapter 14 there were
substituted the Clinical Guidelines to the
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 25 Rating of Psychiatric Impairment prepared
by the Medical Panel (Psychiatry)
Melbourne, Victoria October 1997 andpublished in the Government Gazette.
(7) For the purposes of section 98C—
(a) impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be
assessed together using the
combination tables in the A.M.A
Guides;(b) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (c) impairments from unrelated injuries or causes are to be disregarded in making an assessment. (8) In this section "A.M.A Guides" means the American Medical Association's Guides to the Evaluation of Permanent Impairment
(Fourth Edition) (other than Chapter 15) as
modified by this Act.
(9) This section as amended by section 25 of the
Accident Compensation (Miscellaneous for compensation under section 98C, irrespective of when the injury occurred or the claim is made.
(10) This section as in force immediately before
the commencement of section 25 of the
Accident Compensation (Miscellaneous
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 26 | Act No. 107/1997 |
Amendment) Act 1997 continues to
apply—
(a)
to claims for compensation under section 98;
(b)
to applications for determinations under section 135A(3);
(c)
to all claims for weekly payments to which section 93C applies—
irrespective of when the injury occurred or
the claim is made.'.(3) In section 104B(4) of the Accident
Compensation Act 1985 after "medical
practitioner" insert "referred to in section
91(1)(b)".
26. Amendment of section 92
In section 92 of the Accident Compensation Act
1985, before sub-section (1) insert—"(1A) This section does not apply in respect of a
death occurring on or after 12 November
1997.".
27. New sections 92A, 92B and 92C inserted
(1) After section 92 of the Accident Compensation Act 1985 insert—
'92A. Revised compensation for death of worker
(1) In this section—
"child" means a person who—
(a) is under the age of 16 years; or
(b)
is 16 years or more but under the age of 21 years and is a full-time student;
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 27 "dependent child" means a child, including
an orphan child, wholly, mainly or
partly dependent on the worker's
earnings;
"dependent spouse" means a spouse wholly
or mainly dependent on the worker's
earnings;
"orphan child" means a child—
(a) who is a child of the worker and whose other parent— (i) was dead before the death of the worker; or
(ii) death of the worker, a
dependent spouse of the
worker and did not at that
time wholly, mainly or inwas not, at the time of the support for the child; or
(b)
who is not a child of the worker and—
(i) whose parents were both
dead before the worker died;
or(ii) neither of whose parents, at the time of the death of the worker, wholly, mainly or in
part provided economic support for the child and neither of whom was at that
time a dependent spouse of
the worker.
(2) In determining, for the purposes of this
section, whether a spouse was wholly or
mainly dependent on the worker's earnings at
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 27 | Act No. 107/1997 |
the time of the death of the worker or other relevant time, no regard shall be had to any money which the spouse had earned or was earning by his or her own personal exertion or to any savings arising from any such
earnings.
(3) If a worker's death results from or is
materially contributed to by an injury which
entitles the worker's dependants to
compensation, compensation under this
section is as determined by the County Court
in accordance with this section.
(4) If the worker leaves a dependent spouse, or dependent spouses, and no dependent child, the amount of compensation is $175 000
payable to the dependent spouse or, if there
is more than one, in equal shares to the
dependent spouses.(5) If the worker leaves no dependent spouse
and no dependent children other than an
orphan child or orphan children, the amount
of compensation is $175 000 payable to that
orphan child or, if there are 2 or more, in
equal shares for those children.
(6) If the worker leaves a dependent spouse, or dependent spouses, and one, and only one, dependent child, the amount of
compensation is—
(a)
$157 500 payable to the dependent spouse or, if more than one, in equal shares to the dependent spouses; and
(b) $17 500 payable to the dependent child.
(7) If the worker leaves a dependent spouse, or dependent spouses, and more than one and not more than 5 dependent children, the
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 27 amount of compensation is $175 000 payable
in the following shares—
(a) $8750 to each dependent child; and
(b) the balance to the dependent spouse or, if more than one, in equal shares to the dependent spouses. (8) If the worker leaves a dependent spouse, or
dependent spouses, and more than 5
dependent children, the amount of
compensation is $175 000 payable in the
following shares—
(a) $131 250 to the dependent spouse or, if more than one, in equal shares to the dependent spouses; and (b) $43 750 to the dependent children in equal shares. (9) If the worker does not leave any dependent
spouse or dependent child but leaves any
other person who is to any extent dependent
on the worker's earnings, the amount of
compensation is a sum not exceeding
$175 000 which the County Court considers
is reasonable and appropriate to the injury to
that person or, if more than one, to those
persons in such shares as the Court
determines.
(10) If the worker, being under the age of 21 years at the time of the injury, leaves no dependent spouse or dependent child but,
immediately before the injury, was
contributing to the maintenance of the home
of the members of his or her family, the
members of his or her family are deemed to
be dependants of the worker partly
dependent on the worker's earnings.
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 27
| s. 27 | Act No. 107/1997 |
(11) If, under this section, compensation is
payable to a child, the compensation must be
paid to a trustee for the child appointed by
the County Court to be invested, applied or
otherwise dealt with for the benefit of the
child as the trustee thinks fit.
(12) A claimant is entitled to interest at the
compensation determined by the County
prescribed rate on an amount of respect of the period beginning on the date the claim for compensation was lodged in accordance with section 103 and ending on the date of the determination.
92B. Weekly pensions for dependants of worker
who dies
(1) Words and expressions defined in section
92A have the same meaning in this section
as in that section.
(2) In addition to compensation under section 92A, compensation in the form of weekly payments of pension is payable subject to and in accordance with this section.
(3) If the worker leaves one, and only one,
dependent spouse, the spouse is entitled to a
weekly pension at the rate of—
(a) during the first 13 weeks after death—
(i) 95 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser; and
(b)
from the end of the first 13 weeks after the death until the end of 3 years after the death—
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
(i) applies, 50 per cent of the
worker's pre-injury averageunless sub-paragraph (ii) or (iii) whichever is the lesser; or
(ii) 5 dependent children who are
entitled to a pension under this
section and sub-section (11)if the worker leaves not more than accordance with the formula—
50
$850 ×
50 5N +
where— children so entitled; or
(iii) dependent children who are
entitled to a pension under thisif the worker leaves more than 5 applies, $567.
(4) If the worker leaves 2 or more dependent
spouses, each spouse is entitled to a weekly pension at the rate of an equal of share of—
(a) during the first 13 weeks after death—
(i) 95 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser; and
(b)
from the end of the first 13 weeks after the death until the end of 3 years after the death—
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 27
| s. 27 | Act No. 107/1997 |
(i) applies, 50 per cent of the
worker's pre-injury averageunless sub-paragraph (ii) or (iii) whichever is the lesser; or
(ii) 5 dependent children who are
entitled to a pension under this
section and sub-section (11)if the worker leaves not more than accordance with the formula—
50
$850 ×
50 + 5N
where— children so entitled; or
(iii) dependent children who are
entitled to a pension under thisif the worker leaves more than 5 applies, $567.
(5) If the worker leaves no dependent child other
than one, and only one, orphan child, the
orphan child is entitled, subject to this
section, to a weekly pension at the rate of—
(a) during the first 13 weeks after the death or until the orphan child ceases to be eligible, whichever first occurs— (i) 95 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser; and
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
(b) if still eligible, from the end of the first 13 weeks after the death until the orphan child ceases to be eligible— (i) 50 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser.
(6) If the worker leaves no dependent children other than 2 or more orphan children, each such child is entitled, subject to this section,
to a weekly pension at the rate of an equal
share of—
(a) during the first 13 weeks after the death or until the orphan child ceases to be eligible, whichever first occurs— (i) 95 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser; and
(b) if still eligible, from the end of the first 13 weeks after the death until the orphan child ceases to be eligible— (i) 50 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser.
(7) If the worker leaves not more than 5
dependent children, each such child is
entitled, from the end of the first 13 weeks
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 27 | Act No. 107/1997 |
after the death until the child ceases to be
eligible, to a weekly pension at the rate of—
(a) unless sub-section (11) applies, 5 per cent of the worker's pre-injury average weekly earnings; or (b) if sub-section (11) applies, an amount formula—
5
$850 ×
50 + 5N
where— so entitled.
(8) If a worker leaves more than 5 dependent
children, each such child is entitled, from the end of the first 13 weeks after the death until the child ceases to be eligible, to a weekly
pension at the rate of an equal share of—
(a)
unless sub-section (11) applies, 25 per cent of the worker's pre-injury average weekly earnings; or
(b) if sub-section (11) applies, $283.
(9) A child ceases to be eligible under this
section—
(a) on attaining the age of 16 years; or
(b) if the child is a full-time student on attaining 16 years— (i) on ceasing to be a full-time student; or
(ii) at the end of the calendar year in which he or she attains the age of 21 years—
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 27 whichever first occurs. (10) If the worker's death occurred more than one
year after the date of the injury, the pre-
injury average weekly earnings of the worker
shall be varied in accordance with section
100 as at the first anniversary of the injury as
well as in respect of each subsequent
anniversary.
(11) This sub-section applies if the total amount
of weekly pensions payable to the dependent
spouse, dependent spouses, and the
dependent child, or dependent children, of a
worker under—
(a) sub-sections (3)(b) and (7) or (8); or (b) sub-sections (4)(b) and (7) or (8)—
would, but for the application of this sub-
section, exceed $850.
92C. Payment of weekly pensions
(1) A weekly pension under section 92B must be
paid by fortnightly, monthly, quarterly or
annual instalments in accordance with this
section, as the Authority, employer,
authorised insurer or self-insurer determines.
(2) The first payment of amounts due as weekly
pension must be made within 14 days after
the amount is determined and subsequent
amounts are payable—
(a)
on the 1st and 15th days of each month; or
(b) on the 1st day of each month; or
(c)
on 1 January, 1 April, 1 July and 1 September in each year; or
(d) on 1 July in each year—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 27 | Act No. 107/1997 |
as the case requires, and must be paid within
7 days.(3) A weekly pension to which a child under the age of 18 is entitled is payable to the parent of the child who has custody of the child or, if there is no such parent, to the guardian of the child.
(4) A payment of a weekly pension may be
made by post by properly addressing,
prepaying and posting to the person entitled
to the weekly pension a letter containing a
cheque for the amount.
(5) A payment of a weekly pension in
accordance with sub-section (4) is deemed to
have been made when the letter was posted.
(6) The liability to the person entitled to a
weekly pension is not satisfied until the
person receives the amount.
(7) If the Authority, employer, authorised
insurer or self-insurer fails to make a
payment before the end of the period within
which it is required by this section to be
paid, the Authority, employer, authorised
insurer or self-insurer must make the
payment together with interest calculated at
the prescribed rate in respect of the period
beginning when the payment was first
payable and ending on the day before the
payment was made.'.
(2) In the Accident Compensation Act 1985—
(a)
in section 103(1)(b) after "92," insert "92A, 92B,";
(b)
in section 103(7)(b) after "92," insert "92A or 92B,";
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 28
(c)
in section 108(1)(a) after "92" insert ", 92A or 92B";
(d)
in section 128(1) after "92," insert "92A, 92B,";
(e)
in section 128(3)(a) after "92," insert "92A,";
(f)
after section 128(3)(b) insert— "(c) in the case of weekly pensions under
section 92B—one-tenth of the total
amount of the weekly pensions accrued
due at the date of the assessment ofcompensation.".
28. Section 93C substituted—Grandfather provision
For section 93C of the Accident Compensation
Act 1985 substitute—
"93C. Sections 93A and 93B—Grandfather
provision
(1) On and after 12 November 1997, subject to
this section, sections 93A and 93B apply
only to a worker who—
(a) has before 12 November 1997 given, served or lodged a claim for weekly payments in respect of an injury; and (b) was as at 12 November 1997 entitled, or is on or after 12 November 1997 determined to have been entitled as at 12 November 1997, or would but for the operation of section 96 have been entitled as at 12 November 1997, to weekly payments in accordance with section 93A or 93B. (2) Sections 93CA to 93CD only apply in respect of a claim for weekly payments
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 28 | Act No. 107/1997 |
specified in sub-section (1) to the extent
necessary to give effect to this section.(3) If in accordance with sub-section (1), section
93A(2)(a) applies to a worker, the worker is
deemed to have no current work capacity
until the Authority, authorised insurer or
self-insurer has reviewed the worker's
classification in accordance with this Act as
in force on 12 November 1997.
(4) If in accordance with sub-section (1), section 93A(2)(b) applies to a worker, the worker is deemed to have a current work capacity until the Authority, authorised insurer or self-
insurer has reviewed the worker's
classification in accordance with this Act as
in force on 12 November 1997.(5) A worker specified in sub-section (3) or (4) is entitled to weekly payments at whichever of the following rates apply—
(a) until the expiry of the first 26 weeks of incapacity within the meaning of section 93A— (i) if the worker has no current work capacity, the rate specified in section 93A(2)(a);
(ii) if the worker has a current work capacity, the rate specified in section 93A(2)(b);
(b) until the expiry of the entitlement period within the meaning of section 93B— (i) if the worker has a serious injury, the rate specified in section 93B(1)(a);
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 28 (ii) if the worker does not have a serious injury and has no current work capacity, the rate specified in section 93B(1)(b);
(iii) if the worker does not have a serious injury and has a current work capacity, the rate specified in section 93B(1)(c);
(c) after the expiry of the entitlement period within the meaning of section 93B— (i) if the worker has a serious injury, the rate specified in section 93B(1)(a);
(ii) serious injury and has no current
work capacity and is likely to
continue indefinitely to have noif the worker does not have a specified in section 93B(1)(b);
(iii) if the worker does not have a serious injury and has a current work capacity and has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $100 and is determined to be working to their full capacity, the rate specified in section 93B(1)(c).
(6) If after the expiry of the entitlement period
within the meaning of section 93B, a worker
specified in sub-section (3) or (4) does not
satisfy the requirements specified in sub-
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 28 | Act No. 107/1997 |
section (5)(c), the worker ceases to be
entitled to weekly payments.(7) If in accordance with sub-section (1), section
93B(1)(a) applies to a worker, the worker is
deemed to remain entitled to weekly
payments under that section until the
Authority, authorised insurer or self-insurer
has reviewed the worker's classification in
accordance with this Act as in force on
12 November 1997.
(8) If, in accordance with sub-section (1),
basis that the worker is totally and
permanently incapacitated, the worker is
deemed to have no current work capacity
and to be likely to continue indefinitely to
have no current work capacity until thesection 93B(1)(b) applies to a worker on the has reviewed the worker's classification in accordance with this Act as in force on 12 November 1997.
(9) If in accordance with sub-section (1), section
93B(1)(b) applies to a worker on the basis that the worker is totally incapacitated, the worker is deemed to have no current work capacity until the Authority, authorised
insurer or self-insurer has reviewed the
worker's classification in accordance with
this Act as in force on 12 November 1997.(10) If in accordance with sub-section (1), section
93B(1)(c) applies to a worker, the worker is
deemed to have a current work capacity until
the Authority, authorised insurer or self-
insurer has reviewed the worker's
classification in accordance with this Act as
in force on 12 November 1997.
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 28 (11) A worker specified in sub-section (7), (8),
(9) or (10) is entitled to weekly payments at
whichever of the following rates apply—
(a) until the expiry of the entitlement period within the meaning of section 93B— (i) if the worker has a serious injury, the rate specified in section 93B(1)(a);
(ii) if the worker does not have a serious injury and has no current work capacity, the rate specified in section 93B(1)(b);
(iii) if the worker does not have a serious injury and has a current work capacity, the rate specified in section 93B(1)(c);
(b) after the expiry of the entitlement period within the meaning of section 93B— (i) if the worker has a serious injury, the rate specified in section 93B(1)(a);
(ii) serious injury and has no current
work capacity and is likely to
continue indefinitely to have noif the worker does not have a specified in section 93B(1)(b);
(iii) serious injury and has a current
work capacity and has returned to
work (whether in self-employmentif the worker does not have a of not less than 15 hours per week
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 29 | Act No. 107/1997 |
and is in receipt of current weekly
earnings of at least $100 and is
determined to be working to their
full capacity, the rate specified in
section 93B(1)(c).(12) If after the expiry of the entitlement period
within the meaning of section 93B, a worker
specified in sub-section (7), (8), (9) or (10)
does not satisfy the requirements specified in
sub-section (11)(b), the worker ceases to be
entitled to weekly payments.
(13) A worker to whom section 93B(3) applies is entitled to apply for a settlement under, and in accordance with, section 115.
(14) Where it is necessary to do so to give effect
to this section, this Act applies as if it had
not been amended by section 30 of the
Accident Compensation (Miscellaneous
Amendment) Act 1997.".
29. Weekly payments
After 93C of the Accident Compensation Act
1985 insert—
'93CA. First entitlement period
(1) In this section "the first entitlement
period" means an aggregate period not
exceeding 13 weeks (whether consecutive or
not) in respect of which a weekly payment
has been paid or is payable to the worker.
(2) A worker is entitled, subject to and in
accordance with this Part, to weekly
payments while incapacitated for work
during the first entitlement period at
whichever of the following rates apply—
(a)
if the worker has no current work capacity, the rate of—
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 29 (i) 95 per cent of the worker's pre- injury average weekly earning; or
(ii) $850—
whichever is the lesser;
(b) if the worker has a current work capacity, the rate of— (i) the difference between 95 per cent of the worker's pre-injury average weekly earnings and the worker's notional earnings; or
(ii) the difference between $850 and the worker's notional earnings—
whichever is the lesser.
(3) A worker is entitled to receive weekly
payments under this section only if—
(a)
where sub-section (2)(a) applies, the worker—
(i) participate in an occupational
makes every reasonable effort to work plan; and
(ii) makes every reasonable effort to employment; and
(iii) worker's capacity, rehabilitation
progress and future employmentparticipates in assessments of the from time to time by the employer or self-insurer or the Authority or authorised insurer;
(b)
where sub-section (2)(b) applies, the worker—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 29 | Act No. 107/1997 |
(i) participates in an occupational work plan; and
(ii) return to work in suitable
employment at the worker's place
of employment in co-operation
with the employer and the
Authority or authorised insurer ormakes every reasonable effort to may be); and
(iii) where the worker's employer
cannot provide suitable
employment, makes every effort
to return to work in suitable
employment at another place of
employment; and(iv) worker's capacity, rehabilitation
progress and future employment
prospects when required by theparticipates in assessments of the Authority or authorised insurer.
(4) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or
her case, the worker's entitlements to further
weekly payments in respect of the injuryshall cease and determine.
93CB. After the first entitlement period and until
the expiry of the second entitlement period(1) In this section "second entitlement period"
means an aggregate period of 104 weeks
(whether consecutive or not and including
the first entitlement period within the
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 29 meaning of section 93CA(1)) in respect of
which a weekly payment has been paid or is
payable to the worker.(2) A worker is entitled, subject to and in
accordance with this Part, to weekly
payments while incapacitated for work (not
being a period during the first entitlement
period within the meaning of section
93CA(1)) until the expiry of the second
entitlement period at whichever of the
following rates apply—
(a) if the worker has no current work capacity, the rate of— (i) 75 per cent of the worker's pre- injury average weekly earnings; or
(ii) $850—
whichever is the lesser;
(b) if the worker has a current work capacity, the rate of— (i) the difference between 60 per cent of the worker's pre-injury average weekly earnings and 60 per cent
of the worker's notional earnings;
or
whichever is the lesser. the difference between $510 and notional earnings— (ii)
(3) A worker is entitled to receive weekly
payments under this section only if—
(a)
where sub-section (2)(a) applies, the worker—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 29 | Act No. 107/1997 |
(i) participate in an occupational
makes every reasonable effort to work plan; and
(ii) makes every reasonable effort to employment; and
(iii) worker's capacity, rehabilitation
progress and future employmentparticipates in assessments of the from time to time by the employer or the Authority or authorised insurer or self-insurer;
(b)
where sub-section (2)(b) applies, the worker—
(i) participates in an occupational work plan; and
(ii) return to work in suitable
employment at the worker's place
of employment in co-operation
with the employer and the
Authority or authorised insurer ormakes every reasonable effort to may be);
(iii) where the worker's employer
cannot provide suitable
employment, makes every effort
to return to work in suitable
employment at another place of
employment; and(iv) participates in assessments of the worker's capacity, rehabilitation
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 29 progress and future employment
prospects when required by the
Authority or authorised insurer or
self-insurer.(4) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or
her case, the worker's entitlement to further
weekly payments in respect of the injuryshall thereupon cease and determine.
93CC. After the expiry of the second entitlement
period
(1) Subject to section 93CD, a worker's
entitlement to weekly payments under this entitlement period within the meaning of section 93CB(1) unless the worker is assessed by the Authority, authorised insurer or self-insurer as—
(a) having no current work capacity; and
(b) likely to continue indefinitely to have no current work capacity. (2) Subject to and in accordance with this Part, a
worker to whom this section applies is
entitled to weekly payments at the rate of—
(a)
75 per cent of the worker's pre-injury average weekly earnings; or
(b) $850—
whichever is the lesser.
(3) A worker is entitled to receive weekly payments under this section only if the worker—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 29 | Act No. 107/1997 |
(a) participate in an occupational
makes every reasonable effort to work plan; and
(b) makes every reasonable effort to return to work in suitable employment; and (c) worker's capacity, rehabilitation
participates in assessments of the prospects when requested to do so from time to time by the employer or the Authority or authorised insurer or self- insurer.
(4) A review of the assessment of a worker
under this section may be conducted by the Authority, authorised insurer or self-insurer at any time and must be conducted as often as may be reasonably necessary being at
least once every 2 years.(5) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or
her case, the worker's entitlement to further
weekly payments in respect of the injury
shall thereupon cease and determine.93CD. Application to continue to receive weekly
payments after expiry of the second
entitlement period
(1) A worker who has a current work capacity
and is, or has been, entitled to weekly
payments under section 93CB or 93CC may
apply to the Authority or a self-insurer in
accordance with this section for a
determination that the worker's entitlement
to weekly payments under this Part does not
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 29 cease after the expiry of the second
entitlement period within the meaning ofsection 93CB(1).
(2) An application must be made—
(a) if liability to pay the weekly payments lies with the employer (not being a self- insurer or a subsidiary of a self- insurer), an authorised insurer or the Authority—to the Authority; or (b) if liability to pay the weekly payments lies with a self-insurer—to the self- insurer. (3) The Authority or self-insurer may determine
that the worker's entitlement to weekly
payments under this Part does not cease after
the expiry of the second entitlement period
within the meaning of section 93CB(1), if
the Authority or self-insurer is satisfied
that—
(a)
the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $100; and
(b)
because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings.
(4) The Authority or self-insurer—
(a)
must within 90 days of receiving an application under sub-section (1), make or refuse to make a determination under
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 29 | Act No. 107/1997 |
| sub-section (3) and advise the worker in writing of its decision; and |
(b) determination under sub-section (3) on
must not refuse to make a insurer is not satisfied that sub-section (3)(b) applies, unless—
(i) referred the medical question
whether because of the injury, the
worker is, and is likely to continue
indefinitely to be, incapable of
undertaking further or additional
employment or work, and if not so
incapable, what further or
additional employment or work
the worker is capable ofthe Authority or self-insurer has Medical Panel under Division 3 of Part III; and
(ii) is that the worker is not so
incapable and specifies what
further or additional employmentthe opinion of the Medical Panel undertaking.
(5) If the Authority or self-insurer makes a
determination under sub-section (3), subject
to and in accordance with this Part, the
worker is entitled to weekly payments at the
rate of—
(a)
the difference between 60 per cent of the worker's pre-injury average weekly earnings and 60 per cent of the worker's current weekly earnings; or
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 30
(b)
the difference between $510 and 60 per cent of the worker's current weekly earnings—
whichever is the lesser.
(6) The entitlement to weekly payments under sub-section (5) continues until—
(a)
the Authority or self-insurer ceases to be satisfied as to the matters specified in sub-section (3); or
(b)
the worker otherwise ceases to be entitled to weekly payments.'.
30. Weekly payments—consequential amendments
(1) In section 5(1) of the Accident Compensation
Act 1985—
(a)
before the definition of "dependant" insert— ' "current work capacity", in relation to a
worker, means a present inability
arising from an injury such that the
worker is not able to return to his or her
pre-injury employment but is able to
return to work in suitableemployment;';
(b) after the definition of "member of a family" ' "no current work capacity", in relation to
a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury
employment or in suitableemployment;';
(c)
the definition of "partial incapacity" is repealed;
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 30 | Act No. 107/1997 |
(d) in the definition of "suitable employment" after "worker is" insert "currently"; (e) the definition of "total incapacity" is repealed; (f) in the definition of "weekly payment" after "93C" insert "or under section 93CA, 93CB, 93CC or 93CD". (2) In section 5A(8) of the Accident Compensation Act 1985 for "$650" substitute "$850".
(3) For section 5A(9)(b) of the Accident
Compensation Act 1985 substitute—
"(b) as from the time that the worker would have
completed the course of studies in which the
worker was a full-time student shall be
calculated as if the worker's pre-injury
average weekly earnings were $850.".
(4) For section 5A(10) of the Accident
Compensation Act 1985 substitute—
'(10) For the purposes of sub-section (9), "full-
time student" means a person who—
(a) is undertaking a course of studies in respect of which a participant can qualify for Austudy; and (b) is a full-time student within the and Youth Assistance Act 1973.
(11) Where a worker at the time of the injury was a full-time student at a primary or secondary school, the worker's pre-injury average
weekly earnings under Division 2 of Part
IV—
(a)
until the time that the worker would have completed secondary school shall
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 30 be calculated in accordance with sub-
section (1); and
(b)
as from the time that the worker would have completed secondary school shall be calculated as if the worker's pre-
injury average weekly earnings were
$680.'.
(5) In the Accident Compensation Act 1985—
(a) in section 57(1)(b) for "with respect to weekly payments" substitute "to which section 59 applies"; (b) in section 59(1) for "is or should be treated as totally or partially incapacitated for work" substitute "has no current work capacity or has a current work capacity"; (c) in sections 60(2) and 60(3) for "weekly compensation".
(6) In sections 93D(3) and 93DA(1) of the Accident
Compensation Act 1985 for "93A or 93B" substitute "93CA, 93CB or 93CC".
(7) In section 93DA of the Accident Compensation
Act 1985—
(a) in sub-section (1) for "partially incapacitated worker" substitute "worker who has a current work capacity"; (b) in sub-section (1) for "entitlement period within the meaning of section 93B(3A)" substitute "second entitlement period within the meaning of section 93CB(1)";
(c)
in sub-section (2)(a) for "93B" substitute "93CA, 93CB or 93CC".
(8) In sections 97(2), 97(2AA) and 97(3) of the
Accident Compensation Act 1985 for "a serious
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 30 | Act No. 107/1997 |
injury or is totally and permanently incapacitated or both" substitute "no current work capacity and is likely to continue indefinitely to have no current work capacity".
(9) In section 105(1)(c) of the Accident
Compensation Act 1985 after "incapacity" insert
"and whether the worker has a current workcapacity or has no current work capacity".
(10) In section 111(2)(b) of the Accident
Compensation Act 1985 after "incapacity for work" insert "and whether the worker has a current work capacity or has no current work capacity".
(11) In the Accident Compensation Act 1985—
(a) in section 114(7) for "93A(4) or 93B(4)" substitute "section 93CA(4), 93CB(4) or 93CC(5)"; (b) in section 114(8) for "26 weeks of incapacity" substitute "the first entitlement period within the meaning of section 93CA(1)"; (c) in section 114(9) for "entitlement period within the meaning of section 93B(3A)" substitute "second entitlement period within the meaning of section 93CB(1)";
(d)
in section 114A for "26 weeks of incapacity" (wherever occurring) substitute "the first entitlement period within the meaning of section 93CA(1)";
(e)
in section 114A(1)(a) for "section 93B" substitute "section 93CB";
(f)
in section 114A(3) for "26 weeks" substitute "13 weeks";
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 30
(g)
in sections 114A(3) and 114A(6) for "section 93B(1)" substitute "section 93CB(2)";
(h)
in section 114A(3) for "section 93B(1)(b)" substitute "section 93CB(2)(a)";
(i) section 114A(4) is repealed;
(j)
in section 114A(5) for ", (3) and (4)" substitute "and (3)";
(k) section 114A(5)(a) is repealed;
(l) in section 114A(6) omit "sub-section (5)(a) commenced or";
(m) within the meaning of section 93B(3A)"
(wherever occurring) substitute "secondin section 114B for "entitlement period section 93CB(1)";
(n)
in section 114B(3) for "section 93B(3)" substitute "section 93CC(1)";
(o)
in section 114B(3) for "section 93B" substitute "section 93CB";
(p)
in section 114B(5) for "section 93B(3)" substitute "section 93CC(1)";
(q)
for section 115(1)(a)(ii) substitute— "(ii) has no current work capacity and is
likely to continue indefinitely to have
no current work capacity;";
(r) in section 122(1)(b) for "partial incapacity capacity";
(s)
in section 123(1)(a) for "total incapacity" substitute "no current work capacity";
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 31 | Act No. 107/1997 |
(t) in section 123(1)(b) for "partial incapacity" substitute "current work capacity"; (u) in section 123(3) for "incapacity" substitute "no current work capacity"; (v) in sections 125(1)(a)(i), 125(1)(a)(ii), 125A(3)(a) and 125A(3)(b) for "the total or partial incapacity of a worker" substitute "a worker who has no current work capacity or has a current work capacity";
(w) in section 156(2) for "been totally current work capacity";
(x) in section 156(2) for "total incapacity" (where twice occurring) substitute "no current work capacity".
31. Injury near or after retirement
In section 93E of the Accident Compensation of 52 weeks before attaining retirement age or".
32. Provisions relating to the payment of compensation
After section 97(4A) of the Accident
Compensation Act 1985 insert—
"(4B) Despite sub-section (4), the Authority,
to set off against any weekly payments to
which a worker is entitled the amount
awarded to the Authority, authorised insurer
or self-insurer by an order made by a court
under this Act or section 86 of theauthorised insurer or self-insurer is entitled convicted, or found guilty, of an offence under this Act or of an offence under the Crimes Act 1958 in connection with a claim for compensation under this Act.".
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 34
33. Compensation for maims
After section 98(5) of the Accident Compensation Act 1985 insert— "(6) Compensation under this section is payable
only in respect of an injury that arose before
12 November 1997.".
34. Compensation for pain and suffering
After section 98A(5) of the Accident
Compensation Act 1985 insert—
"(6) Compensation under this section is payable
only in respect of an injury that arose before
12 November 1997."
35. Sections 98 and 98A claims—transitional
(1) In section 104(2) of the Accident Compensation Act 1985 for "60 days" substitute "90 days".
(2) In sections 104(9), 104(10) and 104(11) of the
Accident Compensation Act 1985 for "final offer" substitute "statutory offer".
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 47 insurer under sub-section (2DE), the worker must pay the party and party costs of the Authority, authorised
insurer or self-insurer and the worker's
own costs;
(d)
if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority, authorised insurer or self-insurer under sub-section (2DE) but less than 90 per cent of the worker's statutory counter offer under that sub- section, each party bears its own costs—
and the court must not otherwise make an
order as to costs.
(13B) For the purpose of the taxing of costs in
proceedings to which this section applies,
that are commenced on or after 12 November
1997 any applicable scale of costs has effect
as if amounts in the scale were reduced by
10 per cent.
(13C) A person who represents or acts on behalf of a worker is not entitled—
(a) respect of any proceedings under this
to recover any costs from that worker in 12 November 1997; or
(b) to claim a lien in respect of those costs; or (c) to deduct those costs from any sum awarded as damages— unless an award of costs has been made by the court in respect of those costs or those
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 47 | Act No. 107/1997 |
costs are payable in accordance with this
section by the worker.
(13D) The court, on the application of—
(a) the worker; or
(b)
the person representing or acting on behalf of the worker—
may determine the amount of costs to be
awarded to the person representing or acting
on behalf of the worker.".(11) After section 135A(18) of the Accident Compensation Act 1985 insert—
"(18A) If—
(a) determination under sub-section (3)
a written application for a a worker to the Authority, an authorised insurer or self-insurer; and
(b) the advice of the Authority, authorised insurer or self-insurer was not given before that date; and (c) application was received by the
the period of 60 days after the insurer expires on or after that date—
the Authority, authorised insurer or self-
insurer must advise the worker in accordance
with sub-sections (2D) and (2DA) within120 days after receiving from the worker—
(d) a copy of all medical reports; and
(e)
affidavits attesting to such other material—
existing when the worker gives copies of any
such reports and affidavits to the Authority
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 47 and of which the worker or his or her legal
representative is aware and on which the
worker intends to rely, or the substance of
which the worker intends to adduce in
evidence, in proceedings in accordance withthis section or in any related proceedings.
(18B) If sub-section (18A) applies to an
application, this section, as amended by
section 47 of the Accident Compensation
(Miscellaneous Amendment) Act 1997,
applies, subject to sub-section (18A), as if
the application had been made under thissection as so amended.".
(12) In section 135A(19) of the Accident
Compensation Act 1985 insert—
' "determination date", in relation to an injury,
means the date on which—
(a)
the injury is determined, or deemed, in accordance with this section, or declared by a court, to be a serious injury; or
(b)
a certificate is issued under sub-section (4)(a) in relation to the injury;
"medical report" means—
(a) a statement in writing on medical by a medical practitioner; and
(b)
includes any document which the medical practitioner intends should be read with the statement, whether the document was in existence at the time the statement was made or was a document which he or she obtained or caused to be brought into existence subsequently;
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 48 | Act No. 107/1997 |
"response date" means the date on which the period of 28 days after the determination date expires.'.
48. New sections 135AB and 135AC inserted
After section 135A of the Accident Compensation Act 1985 insert—
"135AB. Directions
(1) For the purposes of section 135A, the
Minister may issue directions for or with respect to procedures under that section.
(2) The directions must be published in the Government Gazette.
(3) The directions may include directions about the provision of information by affidavit and the attending of conferences.
(4) A person to whom a direction under this
section applies, and the legal representatives
and agents of such a person, must comply
with the direction.
(5) The directions may specify that a failure to
comply with a particular provision of the
directions has the effect of altering a period
applicable under that section.
135AC. Limitation of Actions Act 1958
Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced after—
(a) unless paragraph (b) applies—
(i) the expiration of the period within which, but for this sub-section, the proceedings could have been
brought in accordance with the
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 49 Limitation of Actions Act 1958;
or
(ii) 31 December 2000—
whichever first occurs; or
(b) if—
(i) the cause of action arose before 12 November 1997; and
(ii) the incapacity arising from the that commencement—
after the expiration of 3 years after the
incapacity was known.".
49. New section 135C inserted
After section 135B of the Accident Compensation Act 1985 insert—
"135C. Damages under Part III of Wrongs Act
1958
(1) A dependant of a worker may recover
damages under Part III of the Wrongs Act
1958 in respect of the death of a worker
arising otherwise than out of a transport
accident within the meaning of the
Transport Accident Act 1986.
(2) A court must not, in proceedings under Part III of the Wrongs Act 1958, award damages in accordance with sub-section (1) in respect of the death of a person in excess of
$500 000.
(3) If an award of damages in accordance with
sub-section (1) is to include an amount,
assessed as a lump sum, in respect of
damages for future loss which is referable
to—
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 49 | Act No. 107/1997 |
(a)
deprivation or impairment of earning capacity; or
(b)
loss of the expectation of financial support; or
(c)
a liability to incur expenditure in the future; or
(d) any loss suffered by a dependant—
the present value of the future loss must be
qualified by adopting a discount rate of 3 per
cent in order to make appropriate allowance
for inflation, the income from investment of
the sum awarded and the effect of taxation
on that income.(4) Except as provided in sub-section (3),
nothing in that sub-section affects any other
law relating to the discounting of sums
awarded as damages.
(5) A court must not, in relation to an award of
damages in accordance with this section,
order the payment of interest, and no interest
is payable, on any amount of damages, other
than damages referable to loss actually
suffered before the date of the award, in
respect of the period from the date of the
death of the person in respect of whom the
award is made, to the date of the award.
(6) Except as provided in sub-section (5),
nothing in that sub-section affects any other
law relating to the payment of interest on any
amount of damages, other than special
damages.
(7) If a judgment, order for damages, settlement or compromise is made or entered in favour of a dependant of a worker in respect of
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 50 proceedings in respect of the death of the
worker—
(a) the amount of the judgment, order for damages, settlement or compromise must be reduced by the sum of the compensation (if any) paid under section 92, 92A or 92B in respect of the death; and (b) the Authority, an authorised insurer, the employer or self-insurer is not liable to pay compensation, or further compensation, in respect of the death.".
50. Indemnity by third party
In section 138(1) of the Accident Compensation Act 1985, after "damages" insert "or that would, but for section 134A, create such a liability".
51. New section 138A inserted
After section 138 of the Accident Compensation
Act 1985 insert—
"138A. Substantive law
For the avoidance of doubt, it is hereby declared that all the provisions of this Division contain matters that are substantive law and are not procedural in nature.".
52. Contents of return to work plan
(1) After section 160(1)(b) of the Accident Compensation Act 1985 insert—
"; and
(c) be prepared in accordance with guidelines issued by the Authority for the purposes of this section.".
(2) In section 160(2) of the Accident Compensation Act 1985 after "revised" insert "in accordance
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 53
| s. 54 | Act No. 107/1997 |
with guidelines issued by the Authority for the
purposes of this section".
53. Amendment of section 179—definitions-protected
claim(1) In section 179(1) of the Accident Compensation Act 1985 for the definition of "protected claim" substitute— ' "protected claim" means—
(a)
a claim under section 98 for loss of hearing;
(b)
a claim under section 99 for the cost of provision of a hearing aid;
(c)
a claim under section 11 of the Workers Compensation Act 1958 for loss of hearing;
(d)
a claim under section 26 of the Workers Compensation Act 1958 for the cost of provision of a hearing aid;
(e)
any other claim under this Act or the Workers Compensation Act 1958 that is declared by the regulations to be a protected claim for the purposes of this section.'.
(2) After section 179(1) of the Accident
Compensation Act 1985 insert—
"(1A) A reference in this Part to a claim includes a reference to a prospective claim irrespective of whether a claim is subsequently made.".
54. Warrants to enter and search
After section 240A(3) of the Accident
Compensation Act 1985 insert—
'(3A) If the Authority considers that it may be
necessary to prove the physical properties of
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 55
any books or of the contents of any books of specified in the order until the criminal proceedings are concluded.
which possession has been retained under
sub-section (3)(b) in any criminal
proceedings, the Authority may apply to the
magistrate who issued the warrant under sub-
section (1) for an order authorising the
(3B) If the magistrate is satisfied that there is
reasonable ground to believe that the
physical properties of the books or of the
contents of the books are material evidence
in the proposed criminal proceedings, the
magistrate may make the order specified in
sub-section (3A).
(3C) For the purposes of sub-sections (3A) and (3B), "physical properties" includes, but is not limited to—
(a)
whether or not any of the books or contents of the books have been forged or tampered with;
(b)
whether or not there are finger prints on the books which establish who had physical possession of the books before the books were seized under this section;
(c)
whether or not handwriting in any of the books belongs to a particular person.'.
55. Offences
(1) After section 242(5) of the Accident
Compensation Act 1985 insert—
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
"(6) An employer must not fail to comply with a
provision of Part VI.
Penalty: 120 penalty units.
(7) An employer must not fail to comply with a
direction under section 163(2).
Penalty: 120 penalty units.
(8) A worker must not fail to comply with a
requirement under section 162(1).
Penalty: 20 penalty units.".
(2) Section 164 of the Accident Compensation Act 1985 is repealed.
(3) In the Accident Compensation Act 1985—
(a)
in sections 239(1)(e) and 240(1), for "are being contravened" substitute "are being or have been contravened";
(b) in section 242(3)—
(i) for "15 penalty units" substitute "25 penalty units";
(ii) for "30 penalty units" substitute "50 penalty units".
56. False information
(1) For section 249(1) of the Accident
Compensation Act 1985 substitute—
"(1) A person must not provide orally or in
writing any false or misleading information
under this Act or the Accident
Compensation (WorkCover Insurance)
Act 1993.
Penalty:20 penalty units or imprisonment
for one month.
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 57 (1A) Sub-section (1) is not limited to information
in or in connection with any claim,
application, certificate or notice under this
Act or the Accident Compensation
(WorkCover Insurance) Act 1993.".
(2) In section 249(2)(c) of the Accident
Compensation Act 1985 after "accompany"
insert "or".
57. Refunding money to the Authority
(1) In section 249A(1) of the Accident
Compensation Act 1985 for "convicted of an offence under this Act or the Crimes Act 1958" substitute "convicted or found guilty of an offence against this Act or of an offence against the Crimes Act 1958 which occurs in connection with a claim for compensation under this Act".
(2) In section 249A(2) of the Accident
an offence under this Part" substitute "convicts,
or finds guilty, a person, of an offence against thisCompensation Act 1985 for "convicts a person of which occurs in connection with a claim for compensation under this Act". (3) In section 249A(3) of the Accident
Compensation Act 1985 after "convicted" insert
"or found guilty".
58. Institution of prosecutions
For sections 252(1) and 252(1A) of the Accident
Compensation Act 1985 substitute—
"(1) A charge for an offence against this Act
(other than a provision of Division 2 of against the Crimes Act 1958 which occurs
Part III), or for an offence against the
Accident Compensation (WorkCover
Accident Compensation (Miscellaneous Amendment) Act 1997
s. 59
| s. 61 | Act No. 107/1997 |
in connection with a claim for compensation under this Act, may be filed by the Authority or by any person authorised by the Authority to file charges on behalf of the Authority.
(1A) A charge for an offence against a provision of Division 2 of Part III may be filed by the Senior Conciliation Officer.
(1B) An affidavit for use in proceedings relating to a charge specified in sub-section (1) may be sworn and taken before a person
authorised by the Authority for this
purpose.".
59. Prosecution guidelines
After section 252(4) of the Accident
Compensation Act 1985 insert—"(5) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
(6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
60. New section 252C inserted
After section 252B of the Accident Compensation Act 1985 insert—
"252C. Supreme Court-limitation of jurisdiction
It is the intention of sections 39, 134A, 135, section 85 of the Constitution Act 1975.".
135A, 135AB, 135AC, 135C and 249C, as
inserted or amended by the Accident
Compensation (Miscellaneous
61. Spent Schedule
Schedule One of the Accident Compensation
Act 1985 is repealed.
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 63
62. Supreme Court-limitation of jurisdiction-amendment
of Accident Compensation (WorkCover) Act 1992In section 63(1) of the Accident Compensation
(WorkCover) Act 1992—
(a)
in paragraph (a), after "this Act" insert "and as amended by section 11 of the Accident Compensation (Miscellaneous Amendment) Act 1997";
(b) in paragraph (d)—
(i) insert "and as amended by section 46
of the Accident Compensationafter "1994" (where first occurring) 1997";
(ii) after "1996" (where secondly
occurring) insert "and as amended by
section 47 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997".
63. Supreme Court-limitation of jurisdiction-amendment
of Constitution Act 1975(1) In section 85(9) of the Constitution Act 1975, after "1996" (where secondly occurring) insert "and as amended by sections 11, 45, 46, 47 and 48 of the Accident Compensation (Miscellaneous Amendment) Act 1997".
(2) After section 85(9) of the Constitution Act 1975
insert—
"(10) Section 252C of the Accident
Compensation Act 1985 alters or varies this
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997
section and has effect as a direct amendment
of this section.".
_______________
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 64
PART 3—AMENDMENT OF OTHER ACTS
64. Compulsory WorkCover Insurance
(1) In sections 7(4A) and 7(4B) of the Accident
Compensation (WorkCover Insurance) Act
1993 for "Directorate of School Education"
(whenever occurring) substitute "Department of
Education".
(2) In section 7(4B) of the Accident Compensation
(WorkCover Insurance) Act 1993 after "is
payable" insert "as part of the premium payable
for the WorkCover insurance policy held by the
Department of Education".
(3) In section 7(4D) of the Accident Compensation
(WorkCover Insurance) Act 1993 after "is
payable" insert "as part of the premium payable
for the WorkCover insurance policy held by the
Transport Accident Commission".
65. Rateable remuneration
After section 8(2A) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert—"(2B) Remuneration that is superannuation benefits
that are not paid in respect of services
performed or rendered by a worker in a
particular month is rateable remuneration
under this Act as if it were paid or payable in
respect of services performed or rendered
during the month in which it is paid or
became payable.
(2C) Nothing in sub-section (2B) applies to render remuneration that is superannuation benefits paid or payable in respect of services
performed or rendered in respect of services
performed or rendered by a worker before
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 66 | Act No. 107/1997 |
1 January 1998 to be rateable
remuneration.".
66. Rateable remuneration—transitional
For section 19 of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute—
'19. Rateable remuneration—transitional(1) The WorkCover Insurance Premiums Order
1997/98 is to be construed as if references to
"remuneration", "assessable remuneration"
and "rateable remuneration" in respect of
remuneration paid or payable in respect of
services performed or rendered on or after
1 January 1998 were references to
"remuneration" within the meaning of the
Accident Compensation Act 1985 as
amended by section 5 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997.(2) A revised estimate of rateable remuneration
is not required under section 20 if the only
reason that the actual rateable remuneration
paid or payable exceeds the amounts referred
to in that section is because of the
amendment of the Accident Compensation
Act 1985 by section 5 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997.'.
67. Certificate of rateable remuneration
In section 23(2) of the Accident Compensation (WorkCover Insurance) Act 1993 after "hold" insert ", or has not held,".
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 68
68. Warrants to enter and search
After section 70(3) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert—
'(3A) If the Authority considers that it may benecessary to prove the physical properties of any books or of the contents of any books of which possession has been retained under
sub-section (3)(b) in any criminal specified in the order until the criminal proceedings are concluded.
proceedings, the Authority may apply to the
magistrate who issued the warrant under sub-
section (1) for an order authorising the
(3B) If the magistrate is satisfied that there is
reasonable ground to believe that the
physical properties of the books or of the
contents of the books are material evidence
in the proposed criminal proceedings, the
magistrate may make the order specified in
sub-section (3A).
(3C) For the purposes of sub-sections (3A) and (3B), "physical properties" includes, but is not limited to—
(a)
whether or not the books or any of the contents of the books have been forged or tampered with;
(b)
whether or not there are finger prints on the books which establish who had physical possession of the books before the books were seized under this section;
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 69 | Act No. 107/1997 |
(c)
whether or not handwriting in any of the books belongs to a particular person.'.
69. Dangerous Goods Act 1985—Guidelines
For sections 40(2) and 40(3) of the Dangerous
Goods Act 1985 substitute—
"(2) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
(3) The Authority must publish guidelines under
sub-section (2) in the Government Gazette.".
70. Equipment (Public Safety) Act 1994—penalties In section 26(2) of the Equipment (Public Safety) Act 1994—
(a) in paragraph (a) after "400 penalty units" insert "if the offence is not an indictable offence, and 2500 penalty units if the offence is an indictable offence";
(b) in paragraph (b) after "100 penalty units" insert "if the offence is not an indictable offence, and 500 penalty units if the offence is an indictable offence".
71. Equipment (Public Safety) Act 1994—Guidelines
For sections 28(5) and 28(6) of the Equipment
(Public Safety) Act 1994 substitute—
"(5) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
(6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
72. Occupational Health and Safety Act 1985—employee
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 s. 73 In section 4 of the Occupational Health and Safety Act 1985, in the definition of "employee", at the end of the definition insert "but does not include a person participating in an approved program of work for unemployment payment under the Commonwealth Social Security Act 1991".
73. Occupational Health and Safety Act 1985—penalties In section 47(2) of the Occupational Health and Safety Act 1985—
(a) in paragraph (a) after "400 penalty units" insert "if the offence is not an indictable offence, and 2500 penalty units if the offence is an indictable offence";
(b) in paragraph (b) after "100 penalty units" insert "if the offence is not an indictable offence, and 500 penalty units if the offence is an indictable offence".
74. Occupational Health and Safety Act 1985— Guidelines
For sections 48(5) and 48(6) of the Occupational
Health and Safety Act 1985 substitute—"(5) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
(6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
75. Magistrates' Court Act 1989—penalties
In the Magistrates' Court Act 1989, in
Schedule 4—
(a)
in clauses 52A, 53 and 53A for "400 penalty units" (wherever occurring) substitute "1000 penalty units";
Accident Compensation (Miscellaneous Amendment) Act 1997
| s. 76 | Act No. 107/1997 |
(b)
in clauses 52A(b)(ii) and 53(b)(ii) for "100 penalty units" substitute "200 penalty units".
76. Workers Compensation Act 1958
(1) In section 16(3) of the Workers Compensation
Act 1958 after "section" insert "who is not an insurer with which the employer was insured at the relevant time".
(2) In section 25E(4) of the Workers Compensation
Act 1958 after "section" insert "who is not an insurer with which the employer was insured at the relevant time".
77. Consequential amendment
In section 21 of the Accident Compensation
(Further Amendment) Act 1996—
(a)
for "section 138" substitute "Division 9 of Part IV";
(b)
in the proposed section 138A to be inserted in the Accident Compensation Act 1985 for "138A." substitute "138B.".
═══════════════
Accident Compensation (Miscellaneous Amendment) Act 1997
Act No. 107/1997 Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 12 November 1997
Legislative Council: 9 December 1997
The long title for the Bill for this Act was "to amend the Accident
Compensation Act 1985, the Accident Compensation (WorkCover
Insurance) Act 1993, the Dangerous Goods Act 1985, the Equipment
(Public Safety) Act 1994, the Magistrates' Court Act 1989, the
Occupational Health and Safety Act 1985 and the WorkersCompensation Act 1958 and for other purposes."
Constitution Act 1975:
Absolute majorities:
Legislative Assembly: 4 December 1997
Legislative Council: 11 December 1997
0
0
0