Untitled document

Accident Compensation (Further Amendment) Act

1996

Act No. 60/1996

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—ACCIDENT COMPENSATION ACT 1985 3

3.	Principal Act	3
4.	Definitions	3
5.	Delegation	3
6.	Contributions by self-insurers	4
7.	Costs	4
8.	Medical panels	5
9.	New section 91 inserted	5

91. Assessment of impairment 5

10.	Amendment of section 93B	6
11.	Impairment	6
12.	Notional earnings	7
13.	Superannuation and termination payments	8
14.	New section 98B inserted	9

98B. Payment of compensation 9

15.	Compensation for medical and like services	12
16.	Amendment of section 99	13
17.	New section 99AAA inserted	13
99AAA. Co-ordinated care programs	13
18.	References to section 99AAA	18
19.	Amendment of section 100	18
20.	Amendment of section 104A	18
21.	New division 10 inserted in Part IV	19
DIVISION 10—AGENCY ARRANGEMENTS	19
138A. Arrangements between authorised insurer and employer	19
22.	Indemnity by third party	20
23.	Approval as self-insurer	21
24.	Approval of self-insurers	21

i

Section Page

25.	Penalties	22
26.	New Part VIIA inserted	23
PART VIIA—PROHIBITED CONDUCT RELATING TO
TOUTING FOR CLAIMS	23

179.	Definitions	23
180.	Prohibited conduct by agents	24
181.	Offence of engaging in prohibited conduct	26
182.	Consequences of prohibited conduct for recovery of fees
by agents	26
183.	Consequences of prohibited conduct for legal
practitioners	27
184.	Legal practitioner and agents can be requested to certify
as to prohibited conduct	29
185.	Power to restrict or ban recovery of costs by agents who
engage in prohibited conduct	30
186.	Power to restrict or ban agents who engage in prohibited
conduct	31
187.	Past conduct included in assessing persistent conduct	33
188.	Duty of claimants to comply with requests for
information about agents and legal practitioners	33

27.	Warrants to enter search	33
28.	Secrecy	34
29.	Institution of prosecutions	34
30.	Supreme Court-limitation of jurisdiction	34

PART 3—AMENDMENT OF OTHER ACTS 35

31. Section 18 substituted 35

18. Estimate of rateable remuneration 35

32.      Amendment of Accident Compensation (WorkCover

Insurance) Act 1993 36

22A. Reduction of premium where Division 10 agreement

entered into 36

33.      Accident Compensation (Occupational Health and Safety)

Act 1996 36
34.	Amendment of Transport Accident Act 1986 37
35.	New section 46B 38
46B. Assessment of impairment 38

═══════════════

NOTES 39

ii

Victoria

No. 60 of 1996

Accident Compensation (Further

†

Amendment) Act 1996

[Assented to 17 December 1996]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to amend the Accident
Compensation Act 1985 and the Accident
Compensation (WorkCover Insurance) Act
1993.

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2. Commencement

(1) This Part and sections 3, 4(2), 5, 7, 8, 13, 16, 20, 22, 24, 27 and 31 come into operation on the day on which this Act receives the Royal Assent.

(2) Section 33 is deemed to have come into operation on 28 June 1996.

(3) Sections 9, 11, 30, and 35 come into operation on 14 November 1996.

(4) Sections 21, 23, 25 and 32 come into operation on a day or days to be proclaimed.

(5) Subject to sub-section (5), the remaining

provisions of this Act come into operation on a
day or days to be proclaimed.

(6) If a provision referred to in sub-section (5) does

not come into operation before 1 July 1997, it
comes into operation on that day.

_______________
Accident Compensation (Further Amendment) Act 1996

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PART 2—ACCIDENT COMPENSATION ACT 1985

3. Principal Act

No. 10191.

In this Part, the Accident Compensation Act

Reprinted to

No. 42/1995	1985 is called the Principal Act.
and subsequently
amended by Nos 85/1995,
98/1995, 100/1995,
7/1996 and 13/1996.

4. Definitions

(1) In section 5(1) of the Principal Act, after

paragraph (f) of the definition of "medical
question" insert—

"(g) a question whether a proposal under section

99AAA for a co-ordinated care program, or
an alteration of such a program should be
approved or such a program should be

cancelled.".

(2) In section 5(1) of the Principal Act, in the

definition of "notional earnings", after "whichever
is the greater" insert "but does not include an
amount paid to the worker by the Authority in
respect of an employment programme provided or
arranged by the Authority for the purposes of this

Act".

5. Delegation

In section 21(10) of the Principal Act, after "other than" insert "a Director of the Board appointed under section 25 or 26 or".

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6. Contributions by self-insurers

In section 33A(7) of the Principal Act, for
"32(4)(c), (d) or (fa)" substitute "32(4)(d), (e), (f),

(fa) or (i)".

7. Costs

(1) In section 50 of the Principal Act—

(a)	in sub-section (2A), omit "Notwithstanding anything to the contrary in any court rules,";
(b)	in sub-section (3), omit "Despite anything to the contrary in any other Act or law,".

(2) In section 50(4) of the Principal Act, for ", sub-

sections (5) and (6) apply in respect of that
settlement or compromise" substitute—
"(a) sub-sections (5) and (6) apply in respect of

that settlement or compromise; and

(b) sub-section (5) is entered into, the worker or
claimant or his or her legal practitioner is not
entitled to receive either directly or indirectly

whether or not an agreement referred to in amount for or in respect of the legal practitioner appearing for or acting on behalf of the worker or claimant in the proceedings that exceeds the amount the worker or claimant or legal practitioner could have been awarded if the scale of costs applicable in the Magistrates' Court applied.".

(3) After section 50(6) of the Principal Act insert— "(7) This section has effect despite anything to

the contrary in any other Act or law.".

(4) Section 50(4) of the Accident Compensation Act
1985 as amended by this section applies in respect

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of a settlement or compromise made on or after

the commencement of this section.

8. Medical panels

In section 63(5) of the Principal Act, after
"examine a worker" insert "(otherwise than in his

or her capacity as a member of a Medical Panel)".

9. New section 91 inserted

After section 90 of the Principal Act insert—

"91. Assessment of impairment

(1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment—

(a) made in accordance with—

(i) sub-paragraph (ii) are in force, the
American Medical Association's
Guides to the Evaluation of

unless regulations referred to in Edition); or

(ii)  methods prescribed for the purposes of this section—

and in accordance with operational
guidelines (if any) as to the use of those
Guides or methods issued by the

Minister; and

(b) if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course.

(2) In assessing a degree of impairment under sub-section (1), regard must not be had to any psychiatric or psychological injury,

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impairment or symptoms arising as a
consequence of, or secondary to, a physical

injury.".

10. Amendment of section 93B

(1) In section 93B(1) of the Principal Act, for

paragraph (a) substitute—

"(a) if the worker has a serious injury, the rate

of—

(i)  the difference between 90 per cent of the worker's pre-injury average weekly earnings and 90 per cent of the worker's notional earnings; or

whichever is the lesser;". the difference between $664 and 90 per earnings—

(ii) 

(2) In section 93B(2) of the Principal Act—

(a) paragraph (a) is repealed;

(b) in paragraph (b), for "sub-section (1)(b)" substitute "sub-section (1)(a) or (b)".

11. Impairment

(1) In section 93B of the Principal Act, for sub-

section (5) substitute—
'(5) In this section—

"serious injury", in relation to a worker,

means an injury which entitles the
worker to compensation under this Act
and in respect of which the worker's
degree of impairment, if assessed by the
Authority, authorised insurer or self-
insurer in accordance with section 91,
would be 30 per cent or more.'.

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(2) In the Table to section 98(1) of the Principal Act,

for paragraph (e) substitute—
"(e) the degree of impairment in the case of

injuries to the back, neck or pelvis is to be

assessed in accordance with section 91.".

(3) In section 135A(3) of the Principal Act, for "the

American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition or any subsequent prescribed edition)" substitute "section 91".

(4) Section 98 of the Principal Act, as amended by sub-section (2), applies in respect of a claim for compensation under that section made on or after

the commencement of that sub-section.

(5) Section 135A of the Principal Act, as amended by

sub-section (3), applies in respect of proceedings
brought on or after the commencement of that
sub-section.

12. Notional earnings

(1) In section 93DA of the Principal Act, before "For the purposes of" insert "(1)".

(2) At the end of section 93DA of the Principal Act

insert—

'(2) For the purposes of assessing the notional

earnings of a worker who has a serious
injury, in the calculation of that worker's
weekly payments any notional earnings of
the worker within the meaning of paragraph
(b) of the definition of "notional earnings" in
section 5(1) are not to be taken into account
during any period or periods during which
the worker is incapacitated for work and in
which any of the following circumstances
apply—

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(a)	the employer has failed to provide the worker with suitable employment and the worker is complying with the
requirements of section 93B relating to returning to work in suitable employment;
(b)

the worker is participating in an return to work plan.'.

13. Superannuation and termination payments

(1) In section 96 of the Principal Act, for sub-section

(1) substitute—
"(1) The amount of any weekly payment payable

to a worker under this Part must be reduced

by the weekly amount of—

(a)	any disability, retirement or superannuation pension received by the worker; and
(b)	any redundancy or severance payment received by the worker—

which relates to the worker's retirement
from, or the cessation or termination of, the
employment out of, or in the course of
which, or due to the nature of which, the

injury arose.".

(2) In section 96(2) of the Principal Act, for

paragraphs (a) and (b) substitute—

"(a) receives a lump sum amount on termination,

by reason of redundancy or severance, of the
employment out of, or in the course of
which, or due to the nature of which, the

injury arose; or

(b) receives a superannuation or retirement benefit lump sum amount—

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(i)  that relates to the worker's retirement from, or the cessation or termination of, the employment out of, or in the course of which, or due to the nature of which, the injury arose; and

(ii) that is an eligible termination payment for the purposes of the Income Tax Assessment Act 1936 of the Commonwealth—

which has not been deposited with a complying superannuation fund or a complying approved deposit fund or used to

purchase an eligible annuity within the
meaning of section 27A(1) of that Act; or".

(3) Section 96(1) and (2) of the Principal Act as in

force after the commencement of this section
applies to and in respect of all weekly payments
payable to a worker on or after the commencement
of this section.

14. New section 98B inserted

After section 98A of the Principal Act insert—

"98B. Payment of compensation

(1) If an amount payable under section 98 in respect of an injury exceeds $5000, that amount, and any amount payable under section 98A, must be paid by 60 equal instalments in accordance with this section.

(2) The amount of each instalment is the amount calculated in accordance with the formula— A x F

60

where—

(a) A is—

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(i)  if amounts are payable under sections 98 and 98A, the sum of those amounts; or

(ii)  the amount payable under section 98 (if any); or

(iii)  the amount payable under section 98A (if any)—

as the case requires.

(b)

F is 1.2 or such other number, being not time being by the Minister, by notice published in the Government Gazette, as the factor to be applied for the purposes of this section.

(3) If the amount calculated under sub-section (2) includes a fraction of a whole number, the amount shall be deemed to have been calculated in accordance with this section if

the calculation is made—

(a)	if the amount is less than $1000, to the nearest whole $1; or
(b)	if the amount is $1000 or more, to the nearest whole $10.

(4) In determining a factor for the purposes of

sub-section (2), the Minister must have
regard to prevailing interest rates.

(5) The payment of the first instalment of an

amount payable by instalments in accordance
with this section must be made within 14
days after the amounts payable under
sections 98 and 98A are determined or
agreed and each subsequent instalment is
payable on the first day of each following
month and must be paid within 7 days.

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(6) A payment of an instalment may be made by

post by properly addressing, prepaying and
posting to the worker a letter containing a
cheque for the amount of the instalment.

(7) A payment of an instalment made in

accordance with sub-section (6) is deemed to
have been made when the letter was posted.

(8) The liability to a worker is not satisfied until the worker receives the instalment.

(9) If the Authority, employer, authorised insurer

or self-insurer fails to make a payment of an
instalment before the end of the period
within which it is required by this section to
be made, the Authority, employer, authorised
insurer or self-insurer must pay the
instalment together with interest calculated at
the prescribed rate in respect of the period
beginning when the instalment was first
payable and ending on the day before the
payment was made.

(10) If a worker dies before all instalments

payable to the worker in accordance with this
section have been paid, an amount equal to
the sum of the outstanding instalments is
payable on application by the personal
representative of the worker.

(11) This section applies to the payment of

amounts under sections 98 and 98A if the
amount payable under section 98 is
determined or agreed on or after the
commencement of this section, irrespective
of when the injury occurred.".

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15. Compensation for medical and like services

(1) In section 99 of the Principal Act, for sub-sections (2) and (2A) substitute—

'(2) In sub-section (1), "reasonable costs", in

relation to a service, burial or cremation
means an amount—

(a)	that is determined by the Authority, employer, authorised insurer or self- insurer as a reasonable amount in
relation to that service, burial or cremation; and
(b)	specified in, or an amount determined

that does not exceed the amount (if any) in, an Order of the Governor in Council made on the recommendation of the Authority and published in the Government Gazette, as the maximum amount of costs payable in respect of a service of that kind or a burial or cremation and which maximum amount in the case of a service must not be less than the amount of the fee specified in a Table within the meaning of the Health Insurance Act 1973 of the Commonwealth applicable in respect of a service of that kind provided in Victoria; and

(c)	that is determined by the Authority, employer, authorised insurer or self- insurer as a reasonable cost of the
service, burial or cremation having regard to—

(i)  the service or provision actually rendered; and

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(ii)

the necessity of the service or and

(iii)

any guidelines issued by the provision of that kind.

(2A) Guidelines issued by the Authority for the

purposes of sub-section (2)(c) apply in
relation to the cost of a service provided or a
burial or cremation carried out after the issue
of the Guidelines, irrespective of the date of
the injury.'.

(2) Section 99 of the Principal Act as amended by this section applies in respect of services provided and burials and cremations carried out on or after the

commencement of this section.

16. Amendment of section 99

After section 99(3) of the Principal Act insert—

"(3A) A worker shall be entitled to receive an

occupational rehabilitation service referred to
in sub-section (1)—

(a)

if the Authority, employer, authorised that service from a provider approved by the Authority, from that provider; or

(b) if the Authority, employer, authorised insurer or self-insurer does not so offer or provide, from a provider approved by the Authority of the worker's choice.".

17. New section 99AAA inserted

After section 99 of the Principal Act insert—

"99AAA. Co-ordinated care programs
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(1) The Authority, an authorised insurer or a

self-insurer may, in accordance with
guidelines issued by the Authority, by notice
in writing given to a worker with an injury
which entitles the worker to compensation,
require the worker to submit a proposal in
writing for a co-ordinated care program to
the Authority, authorised insurer or self-
insurer within a period specified in the notice
but not less than 28 days after the notice was
given.

(2) The proposal under sub-section (1)—

(a)	must be prepared by a medical practitioner nominated by the worker;
(b)	nursing, personal and household, occupational rehabilitation and ambulance services that the medical

must specify the medical, hospital, the worker because of the injury;

(c)	must specify such details as the Authority, authorised insurer or self- insurer requests of the type and extent of those services, or frequency of their provision, or as are necessary to define the proposal;
(d)

may, subject to section 99(3A)(a), are to provide those services.

(3) If a worker does not comply with a

requirement under sub-sections (1) and (2),

the Authority, authorised insurer or self-
insurer may appoint a medical practitioner to
prepare a proposal in writing for a
co-ordinated care program which—

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(a) personal and household, occupational
rehabilitation and ambulance services

specifies the medical, hospital, nursing, are required by the worker because of the injury; and

(b)	specifies such details as the Authority, authorised insurer or self-insurer requests of the type and extent of those services, or frequency of their provision, or as are necessary to define the proposal;
(c)	determines, may, subject to section 99(3A)(a), specify the provider or

if the medical practitioner so services.

(4) A proposal under sub-section (3) must be

submitted by the medical practitioner to the Authority, authorised insurer or self-insurer within the period specified by the Authority or self-insurer when the medical practitioner was appointed.

(5) For the purposes of preparing a proposal

under sub-section (3), the medical
practitioner—

(a)

may require the worker to submit to practitioner; and

(b) may require the worker and any

provider of a medical, hospital, nursing, personal and household or occupational rehabilitation service to the worker to

provide to the medical practitioner
relevant information and documents.

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(6) If—

(a) to, or unreasonably obstructs, an

a worker unreasonably fails to submit appointed under sub-section (3); or

(b) a worker or provider of a service unreasonably fails to comply with a requirement of such a medical practitioner under sub-section (5)(b)—

the Authority, employer, authorised insurer
or self-insurer is not liable to pay
compensation under section 99 in respect of
services received by the worker because of
the relevant injury, being services provided
after the failure or obstruction and before the
examination takes place or after the making
of the requirement and before it is met.

(7) The Authority, authorised insurer or self-

insurer must determine whether to approve,
or refuse to approve, a proposal for a co-
ordinated care program submitted under this
section and must give notice in writing to the
worker of its determination.

(8) The Authority, authorised insurer or self-

insurer must not make a determination under
sub-section (7) to refuse to approve a
proposal under sub-section (1) unless—

(a) self-insurer has referred the proposal to
a medical practitioner (other than the
medical practitioner who prepared the
proposal or a medical practitioner who
is employed by the Authority,

the Authority, authorised insurer or case requires)); and

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(b)	that medical practitioner, after consultation with the medical practitioner who prepared the proposal,
has made a recommendation that a determination should be made to refuse to approve the proposal.

(9) If the Authority, authorised insurer or self- insurer refuses to approve a proposal under sub-section (1), the Authority, employer,

authorised insurer or self-insurer is not liable
to pay compensation under section 99 in
respect of a service received by the worker
because of the relevant injury, being a
service provided after the refusal and, if a
later proposal for a co-ordinated care
program for that worker in respect of that

injury is approved, before that approval.

(10) If the Authority, authorised insurer or self-

co-ordinated care program, the Authority,
employer, authorised insurer or self-insurer
is not liable to pay compensation under
section 99 in respect of a service provided to
the worker on or after the date of that
approval in respect of the injury (whether the
injury occurred before or after the
commencement of section 17 of the
Accident Compensation (Further

insurer approves a proposal for a provided in accordance with the program.

(11) The Authority, authorised insurer or self-

insurer, on its own motion, or on the
application of the worker—

(a)

may approve an alteration of a co- this section if satisfied that the

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alteration is necessary to improve the
care and treatment provided to the

worker by the services;

(b) may cancel the co-ordinated care program if satisfied that services are no longer required to be provided to the worker in respect of the injury in accordance with the program.

(12) A co-ordinated care program under this

section ceases to have effect at the end of the
period for which it is approved or on 31
December 1998, whichever first occurs,

unless it is sooner cancelled.

(13) This section ceases to have effect on 1

January 1999.".

18. References to section 99AAA

In the Principal Act—

(a) in section 39(2)(a), after "99," insert "99AAA,";

(b) in section 41, after "99," insert "99AAA,";

(c) in section 99AA(1), after "99," insert "99AAA,".

19. Amendment of section 100

After section 100(6)(d) of the Principal Act, insert—

"; or

(e) an amount of an instalment under section 98B.".

20. Amendment of section 104A

In section 104A of the Principal Act, for
"resolution of disputes in connection with"
substitute "determination of".

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21. New division 10 inserted in Part IV

After section 138 of the Principal Act insert—

'DIVISION 10—AGENCY

ARRANGEMENTS

138A. Arrangements between authorised insurer

and employer

(1) Subject to sub-section (2), an authorised

insurer and an employer may, in accordance with any guidelines issued by the Authority, enter into an arrangement in writing under

which the authorised insurer appoints the
employer as its agent in relation to the
carrying out of specified functions and
powers of the authorised insurer under the
provisions of this Act referred to in sub-

section (8).

(2) Sub-section (1) does not apply to an

authorised insurer if the Authority, by notice
in writing given to the authorised insurer,
determines that the authorised insurer may
not enter into arrangements under this
section.

(3) A copy of an arrangement under sub-section (1) must be lodged with the Authority.

(4) An arrangement under sub-section (1)—

(a)	comes into force on the date specified in it or on the day on which a copy of it is lodged with the Authority, whichever is the later;
(b)	continues in force until revoked by the parties or terminated under this section by the Authority.

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(5) The Authority may, by notice in writing

given to the authorised insurer and the
employer—

(a) vary; or

(b) terminate—

an arrangement entered into under this
section.

(6) An arrangement in force under this section has effect according to its tenor.

(7) Nothing in this section, or in an arrangement

under this section, affects the liability of an
authorised insurer or employer under this Act
or the Accident Compensation
(WorkCover Insurance) Act 1993.

(8) For the purposes of sub-section (1), the provisions of this Act are—

(a) the definitions of "medical service" and "notional earnings" in section 5(1);

(b) sections 9 and 10;

(c) this Part, other than this Division and sections 106, 108, 114D, 114F, 123, 127, 128(2), Divisions 6A and 6B, sections 134, 135A, 135B and 138.'.

22. Indemnity by third party

In section 138(3)(b) of the Principal Act—

(a) for the formula substitute—

X

"[A - (B + C)] x ";

100

(b) "(disregarding the extent, if any, whereby

after "the amount of damages" insert caused or contributed to the injury or death)".

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23. Approval as self-insurer

(1) In section 141 of the Principal Act, for sub-section

(2) substitute—
"(2) A body corporate shall not make an

application under sub-section (1) unless it
satisfies the prescribed minimum
requirements as to financial strength and

viability.".

(2) In the Principal Act—

(a) sub-sections (4) and (5) of section 141 are repealed;

(b) sub-section (2) of section 141A is repealed. (3) After section 142B(3) of the Principal Act

insert—

"(3A) A partnership must not make an application

under sub-section (3) unless it satisfies the
prescribed minimum requirements as to
financial strength and viability.".

(4) Sub-sections (4) and (6) of section 142B of the Principal Act are repealed.

24. Approval of self-insurers

(1) In the Principal Act—

(a)	in section 142(1), for "the Minister may, on the recommendation of the Authority" substitute "the Authority may";
(b)	in section 142A(1), for "the Minister may, on the recommendation of the Authority" substitute "the Authority may";
(c)	in section 142C(1), for "the Minister may, on the recommendation of the Authority" substitute "the Authority may";

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(d) in section 144—

(i) for "Minister" substitute "Authority";

(ii)  for "recommend that the Minister refuse" substitute "refuse";

(e)	in section 148(4), for "Minister may, on the recommendation of the Authority, by Order" substitute "Authority may";
(f)	in section 148(5) for "Minister" substitute "Authority";
(g)	in section 149(1), for "Minister may, on the recommendation of the Authority, by Order" substitute "Authority may";
(h)	in section 149(2), for "Minister" substitute "Authority";

(i)  in section 151(2) and (3)(b), for "Minister" substitute "Authority".

(2) The Principal Act, as amended by this section, applies in respect of all approvals, refusals and revocations made on or after the commencement

of this section.

25. Penalties

In the Principal Act—

(a)	in the penalty at the foot of section 155(1), for "10" substitute "100";
(b)	in the penalty at the foot of section 242A, for "10" substitute "100";
(c)	in the penalty at the foot of section 243(1), for "10" substitute "100";
(d)	in the penalty at the foot of section 244(1), for "10" substitute "100".

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26. New Part VIIA inserted

After section 164 of the Principal Act insert—

'PART VIIA—PROHIBITED CONDUCT RELATING TO TOUTING FOR CLAIMS

179. Definitions

(1) In this Part—

"agent" means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not

(unless the regulations otherwise

provide) include a legal practitioner;

"claim" means a claim for compensation

under this Act;

"prohibited conduct" has the same

meaning as in section 180;

"protected claim" means—

(a)	a claim under section 98 for loss of hearing; and
(b)	any other claim that is declared by the regulations to be a protected claim for the purposes of this section.

(2) Each of the following activities is considered

to constitute acting as agent for a person in
connection with a claim—

(a)	advising the person with respect to the making of a claim;
(b)	assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form,

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correspondence or other document

concerning a claim;

(c) medical examination or medical

making arrangements for any test or entitlement to compensation;

(d) arranging referral of the person to a legal practitioner for the performance of legal work in connection with a claim;

(e) any prescribed activity.

(3) The regulations may provide that persons

who engage in specified activities are not to
be regarded as agents for the purposes of this
Part.

180. Prohibited conduct by agents

(1) The following conduct by an agent is

prohibited conduct for the purposes of this

Part—

(a) knowing that the statement is false or
misleading in a material particular, for
the purpose of encouraging the person
or any other person to make a protected
claim and to use (in connection with the

making a statement to a person, agent or of some other person from whom the agent receives any payment in connection with the protected claim;

(b) in connection with a claim to contact
any other person for the purpose of
encouraging that other person to make a
protected claim and to use (in

using information obtained by the agent the services of the agent or of some

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other person from whom the agent
receives any payment in connection

with the protected claim;

(c) seeking to obtain information from a client of the agent for the purpose of using that information as described in

paragraph (b);

(d)	inducing or attempting to induce a client of the agent to encourage any other person to make a claim (whether or not it is a protected claim) and to use (in connection with the claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the claim;
(e)	telephone, personal approach or other prescribed means with a person who is not a client of the agent, for the purpose

making any unsolicited contact by protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim;

(f) such other conduct as is prescribed by the regulations as prohibited conduct for the purposes of this section.

(2) The regulations may specify circumstances

in which conduct that would otherwise be
prohibited conduct under sub-section (1) is
not to be regarded as prohibited conduct for
the purposes of this Part.

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(3) For the purposes of this Part any conduct

engaged in by a person on behalf of an agent,
or that an agent has caused or procured the
person to engage in, is taken to have been
engaged in by the agent.

181.  Offence of engaging in prohibited conduct

An agent must not engage in prohibited

conduct.

Penalty:  For a first offence, 20 penalty
units.
For a second or subsequent
offence, 50 penalty units.

182.  Consequences of prohibited conduct for recovery of fees by agents

(1) An agent is not entitled to recover from a

person any fees, costs or other charges that
would otherwise be payable by the person in
connection with services made use of by the
person if the services were made use of as a
result of prohibited conduct engaged in by
the agent, regardless of whether the agent has
been proceeded against or convicted for an
offence in respect of that prohibited conduct.

(2) If prohibited conduct engaged in by an agent

involved encouraging a person to make use
of services and the person makes use of those
services after the conduct is engaged in, it is
to be presumed for the purposes of this
section that the services were made use of as
a result of that prohibited conduct, unless the
agent concerned establishes otherwise.

(3) If the services of an agent were made use of as a result of prohibited conduct engaged in by the agent in connection with a claim

under section 98 for loss of hearing, it is to

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be presumed for the purposes of this section that any services of the agent made use of in connection with a subsequent claim for

further loss of hearing made by the same worker (whether or not made against the same employer) were made use of as a result

of prohibited conduct engaged in by the
agent, unless the agent concerned establishes
otherwise.

(4) A person who has paid any amount in respect

of fees, costs or other charges to an agent
that the agent would not have been entitled to
recover because of this section is entitled to
recover the amount from the agent as a debt
in a court of competent jurisdiction.

183.  Consequences of prohibited conduct for legal practitioners

(1) A legal practitioner who acts for a person on a claim must not include in any bill given to the person, and must not otherwise seek to

recover from the person, any amount by way of disbursements for fees paid to an agent in connection with referral of the person to the legal practitioner by the agent if the legal

practitioner knows or has reasonable cause to
suspect that the agent engaged in prohibited
conduct that involved encouraging the
person to make the claim, regardless of
whether the agent has been proceeded
against or convicted for an offence in respect

of that prohibited conduct.

Penalty:  For a first offence, 20 penalty
units.
For a second or subsequent
offence, 50 penalty units.

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(2) A legal practitioner who acts for a person on

a claim is not entitled to recover from any
person any amount by way of disbursements
for fees paid to an agent in connection with
the claim if the claim was made as a result of
prohibited conduct engaged in by the agent,
regardless of whether the agent has been
proceeded against or convicted for an
offence in respect of that prohibited conduct.

(3) If prohibited conduct engaged in by an agent

involved encouraging a person to make a
claim and the person makes a claim after the
conduct is engaged in, it is to be presumed
for the purposes of sub-section (2) that the
claim was made as a result of that prohibited
conduct unless the legal practitioner
establishes otherwise.

(4) If a claim under section 98 for loss of hearing

was made as a result of prohibited conduct
engaged in by an agent, it is to be presumed
for the purposes of sub-section (2) that any
subsequent claim for further loss of hearing
made by the same worker (whether or not
made against the same employer) in
connection with which that agent performed
any service was made as a result of
prohibited conduct engaged in by that agent,
unless the legal practitioner concerned
establishes otherwise.

(5) A person who has paid any amount in respect

of disbursements to a legal practitioner that
the legal practitioner would not have been
entitled to recover because of sub-section (2)
is entitled to recover the amount from the
legal practitioner as a debt in a court of
competent jurisdiction.

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184.  Legal practitioner and agents can be requested to certify as to prohibited conduct

(1) If the Authority, an authorised insurer,

employer or self-insurer is liable to pay a self-insurer is entitled to request (in writing) the legal practitioner or agent to provide a certificate under this section about the claim (unless the legal practitioner or agent has already provided it).
legal practitioner or agent any fees, costs or
other charges incurred in connection with a
protected claim made by a person, the

(2) A certificate under this section is a certificate that to the best of the legal practitioner's or agent's knowledge, no agent has engaged in prohibited conduct that involved encouraging

that person to make the claim or any
previous claim, except as may be disclosed

in the certificate.

(3) If a certificate is requested—

(a)	the legal practitioner or agent is not entitled to be paid by or recover from the Authority, employer, authorised insurer or self-insurer any fees, costs or other charges incurred in connection with the claim concerned until the certificate is provided (even if the fees, costs or other charges are payable under an award or order of a court); and
(b)	no interest that might otherwise be payable on those fees, costs or other charges is payable for the period from when the certificate is requested until it is provided (despite any order or award

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of a court for the payment of that

interest).

(4) A legal practitioner or agent can provide the

Authority, an authorised insurer, employer or self-insurer with a certificate under this section even if the Authority, authorised insurer or self-insurer has not requested it.

(5) A legal practitioner or agent who gives a

certificate under this section about a claim made by a person is guilty of an offence if the legal practitioner or agent—

(a) suspect that an agent had engaged in
prohibited conduct that involved

knew or had reasonable cause to claim; and

(b) did not disclose that fact in the certificate.

Penalty applying to this sub-section: For a penalty units.

first offence, 20 penalty units.

185.  Power to restrict or ban recovery of costs by agents who engage in prohibited conduct

(1) The Authority may by notification given to authorised insurers and self-insurers direct that an agent specified in the notification is not entitled to recover any fees, costs or other

charges in connection with any claims or in
connection with a class of claims specified in
the notification, or is not so entitled unless
specified conditions have been complied
with.

(2) Such a notification cannot be given unless the Authority is satisfied that—

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(a) conduct that constitutes or may

the agent has persistently engaged in 181; or

(b) in the case of an agent that is a corporation, a director of the corporation or other person concerned in the management of the corporation has persistently engaged in any such conduct.

(3) Before the Authority gives such a

notification, it must give the agent a
reasonable opportunity to make written

submissions to the Authority on the matter.

(4) The effect of a notification under this section

is that the agent specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the

notification is in force.

(5) An agent aggrieved by a notification under

this section may apply to the Administrative Appeals Tribunal for review of the decision to give the notification.

(6) A notification remains in force until it is withdrawn and may be withdrawn at any time by the Authority by giving notice of withdrawal in writing to authorised insurers

and self-insurers and to the agent to whom it
applies.

186.  Power to restrict or ban agents who engage in prohibited conduct

(1) The Authority may by direction in writing

given to an agent prohibit either absolutely or
in specified circumstances the agent from

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acting for any person in connection with any claims or in connection with specified types of claims.

(2) Such a direction must not be given unless—

(a) the Authority is satisfied that the agent concerned has persistently engaged in conduct that constitutes or may

constitute a contravention of section 181(5) and as a result is not a fit and proper person to act in connection with

claims to which the direction relates; and
(b)	the Authority has given the agent a reasonable opportunity to make written submission to the Authority on the matter.

(3) An agent must not act in contravention of a

direction given under this section.
Penalty: 200 penalty units.

(4) An agent who acts in contravention of a direction given under this section is not entitled to recover any fees, costs or other

charges from a person for anything done by the agent in contravention of the direction.

(5) A person aggrieved by a direction under this section may apply to the Administrative to give the direction.

(6) A direction remains in force until it is

withdrawn and may be withdrawn at any
time by the Authority by giving written
notice of withdrawal to the agent concerned.

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187.  Past conduct included in assessing persistent conduct

(1) A reference in sections 185 and 186 to

conduct that constitutes or may constitute a after that commencement, would have constituted a contravention of the provision.

contravention of section 181 includes a
reference to conduct engaged in by a person
before the commencement of section 26 of
the Accident Compensation (Further

(2) A person cannot be considered to have

persistently engaged in conduct that
constitutes or may constitute a contravention
of section 181 unless at least one instance of
that conduct occurred after the
commencement of this section.

188.  Duty of claimants to comply with requests for information about agents and legal practitioners

(1) A person who makes a protected claim must

comply with a request from the Authority,
authorised insurer or self-insurer concerned
for information as to whether the person
made use of the services of an agent or legal
practitioner in respect of the claim and how
the person came to make use of those
services.

(2) The regulations may make provision for

limiting the operation of this section with

respect to legal practitioners.'.

27. Warrants to enter search

In section 240A(1) of the Principal Act, for "are being contravened" substitute "are being or have been contravened".

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28. Secrecy

After section 243(2)(aa) of the Principal Act insert—

"(ab) producing a document or divulging

information to a medical practitioner nominated or appointed under section 99AAA to prepare a proposal for a co- ordinated care program;".

29. Institution of prosecutions

After section 252(1)(d) of the Principal Act insert—

"(da) any provision of Part VIIA may be filed in

the name of the Authority by the Authority or
a person authorised by the Authority to file
charges on behalf of the Authority;".

30. Supreme Court-limitation of jurisdiction

(1) In section 63(1)(d) of the Accident

Compensation (WorkCover) Act 1992 after
"1996" insert "and as amended by section 11 of
the Accident Compensation (Further
Amendment) Act 1996".

(2) In section 85(9) of the Constitution Act 1975

after "1996" insert "and as amended by section
30 of the Accident Compensation (Further
Amendment) Act 1996".

_______________
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PART 3—AMENDMENT OF OTHER ACTS

31. Section 18 substituted

For section 18 of the Accident Compensation

(WorkCover Insurance) Act 1993 substitute—

"18. Estimate of rateable remuneration

(1) If—

(a)	an employer receives a notice from an authorised insurer with which the employer holds, or to which the employer has applied for the issue of, a WorkCover insurance policy; and
(b)	the notice includes an estimate of rateable remuneration that the employer will be liable to pay to workers during the period not exceeding 12 months specified in the notice—

the estimate is deemed for the purposes of this Act to be the estimate provided by the employer unless the employer, within 28

days after receiving the notice, or such longer
period as may be specified in the notice,
provides to the authorised insurer another
estimate of rateable remuneration in a form
approved by the Authority which the
employer estimates that the employer will be
liable to pay to workers during the period

referred to in paragraph (b).

(2) If—

(a) an employer receives a notice from an authorised insurer with which the employer holds, or to which the employer has applied for the issue of, a WorkCover insurance policy; and

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(b) the notice does not include an estimate of rateable remuneration referred to in sub-section (1)(b)—

the employer must, within 28 days after the employer will be liable to pay to workers during the period not exceeding 12 months specified in the notice.

receiving the notice, or such longer period as
is specified in the notice, provide to the
authorised insurer an estimate of rateable
remuneration in a form approved by the

Penalty: 20 penalty units.".

32. Amendment of Accident Compensation (WorkCover Insurance) Act 1993

After section 22 of the Accident Compensation
(WorkCover Insurance) Act 1993 insert—

"22A. Reduction of premium where Division 10 agreement entered into

If an arrangement under Division 10 of Part IV of the Accident Compensation Act 1985 is in force between an authorised insurer and an employer, the authorised insurer may, in accordance with guidelines issued by the Authority, reduce the premium payable by the employer for a WorkCover insurance policy by an amount not exceeding the amount, or an amount calculated by a method, determined by the Authority.".

33. Accident Compensation (Occupational Health and Safety) Act 1996

After section 2(3) of the Accident Compensation
(Occupational Health and Safety) Act 1996
insert—

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"(4) The day fixed by proclamation for the

commencement of the remaining provisions
of this Act is 2 July 1996.".

34. Amendment of Transport Accident Act 1986

In section 3(1) of the Transport Accident Act
1986, for the definition of "reasonable"
substitute—

' "reasonable", in respect of costs, expenses or

fees of a service or provision means
reasonable having regard to—

(a)	costs, expenses or fees determined by the Commission as a reasonable amount in relation to that service or provision; and
(b)	amount determined in accordance with a method specified in, an Order of the Governor in Council made on the recommendation of the Commission

the amount (if any) specified in, or an Gazette, as the maximum amount of costs, expenses or fees payable in respect of that service or provision, which maximum amount must not be less than the amount of the fee specified in a Table within the meaning of the Health Insurance Act 1973 of the Commonwealth applicable in respect of a service or provision of that kind provided in Victoria; and

(c) the determination by the Commission of reasonable costs or expenses of, or fees for, the service or provision having

regard to—
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Act No. 60/1996

(i)  the service or provision actually rendered; and

(ii) provision, or of the incurring of

the necessity of the service or circumstances.'.

35. New section 46B

After section 46A of the Transport Accident Act

1986 insert—

"46B. Assessment of impairment

(1) In determining a degree of impairment of a

person, regard must not be had to any
psychiatric or psychological injury,
impairment or symptoms arising as a
consequence of, or secondary to, a physical
injury.

(2) Sub-section (1) applies to a determination of a degree of impairment under this Act made on or after the commencement of section 35 of the Accident Compensation (Further

Amendment) Act 1996, other than a determination made by the Administrative Appeals Tribunal in respect of an application for review under section 77 of this Act made before that commencement.".

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Accident Compensation (Further Amendment) Act 1996

Notes

Act No. 60/1996

NOTES

†

Minister's second reading speech—

Legislative Assembly: 14 November 1996

Legislative Council: 4 December 1996

The long title for the Bill for this Act was "to make further amendments to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 and certain other Acts and for other purposes."

Constitution Act 1975:

Absolute majorities:

Legislative Assembly: 4 December 1996

Legislative Council: 10 December 1996