Transport Accident and Accident Compensation
Legislation Amendment Act 2010
No. 80 of 2010
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purposes
Commencement
1
2
PART 2—TRANSPORT ACCIDENT ACT 1986
3
4
5
6
7
8
9
10
11
12
13
14
4
No liability to pay compensation in certain circumstances
Compensation not payable or reduced
Determination of impairment
New section 56A inserted
56A
Redemption of impairment benefit annuity in respect
of pre 16/12/2004 transport accidents
Medical and like benefits
Form of claim
Time for making claim
Actions for damages
New section 93A inserted
93A
Abolition of per quod servitium amisit
Access to documents
126B Use of documents relating to claims
New section 132D inserted
132D Supreme Court—limitation of jurisdiction
New Division 6 inserted in Part 11
6
8
8
8
9
9
9
9
9
10
10
10
Division 6—Transport Accident and Accident
Compensation Legislation Amendment Act 2010
10
199
200
201
202
203
204
205
10
11
11
11
11
11
12
Definitions
Section 39 (No entitlement to compensation)
Section 40 (Compensation not payable)
Section 46A (Degree of impairment)
Section 60 (Medical and like benefits)
Section 68 (Time for making claims)
Section 93 (Actions for damages)
i
4
4
5
6
Section
Page
PART 3—ACCIDENT COMPENSATION ACT 1985
13
Division 1—General Amendment of Part I
13
15
16
17
18
19
20
21
New Division in Part I
13
"Division 1—General".
13
New section 3A inserted
3A
Act binds the Crown
Amendment of section 5(1)
Consequential amendments relating to professional service
Amendment of section 5
Further amendment of section 5
New sections 5A to 5AE substituted
13
13
14
17
17
17
18
Division 2—Pre-injury average weekly earnings and
current weekly earnings
18
5A
5AA
22
23
24
Definition—pre-injury average weekly earnings
Definitions applying to pre-injury average weekly
earnings—relevant period
5AB
Definitions applying to pre-injury average weekly
earnings—ordinary earnings
5AC
Definition applying to pre-injury average weekly
earnings and current weekly earnings—base rate of
pay
5AD Definitions applying to pre-injury average weekly
earnings—earnings enhancement and enhancement
period
5AE
Definition applying to pre-injury average weekly
earnings and current weekly earnings—ordinary hours
of work
New section 5B substituted
5B
Definition—current weekly earnings
New Schedule 1A inserted
18
SCHEDULE 1A—Pre-injury Average Weekly Earnings
28
New Division 3 inserted in Part I
33
Division 3—Workers, employers and contractors
33
22
24
25
26
27
27
28
5F
25
Students etc. deemed to be workers and their deemed
employers
5G
Declared training programs
5H
Persons attending certain employment programs
deemed to be workers
5I
Co-operatives—deemed workers and employers
5J
Door to door sellers
New section 6—timber contractors
6
Timber contractors
20
ii
33
35
36
36
37
38
38
Section
26
27
28
29
30
31
32
33
34
35
Page
Passenger vehicles, owner drivers and transport services
7
Drivers carrying passengers for reward
7A
Owner drivers carrying goods for reward
Contractors
8
Contractors
9
Remuneration and contractual arrangements
10
Claims to be made against principal's policy
New section 11—share farmers substituted
11
Share farmers
New section 12 substituted
12
Religious bodies and organisations
Repeal of sections 13 and 14A
Amendment of section 14
Amendment of section 14AA—Municipal Councillors
Amendment of section 15—places of pick-up
Amendment of sections 16 and 16A
Amendment of section 17—Outworkers
Division 2—Amendment of Part 2 of the Accident Compensation
Act 1985
36
37
38
39
40
Repeal of section 18A
Amendment of section 20C—Accountability of the Authority
Repeal of section 23A
Meetings of the Board
WorkCover Authority Fund—amendment of section 32
Division 3—Amendment of Parts 3 and 4
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
Amendment of section 39
Repeal of redundant provisions
Appeals to Court of Appeal—amendment of sections 51 and 52
Amendment of section 59
Amendment of section 62(5)
Payment of compensation—offshore area
Amendment of section 82C
Amendment of section 82D
Amendment of section 86
Benefits—deductible amount
New section 91EA inserted
91EA Twice State average weekly earnings
Amendment of section 92A
Amendments relating to death benefits
Amendment of section 92D
Amendment of section 93CA(2)
Amendment of section 93CE
Amendment of section 96(2) and (3)
iii
39
39
40
42
42
45
45
46
46
48
48
49
49
50
51
51
51
53
53
53
53
53
53
54
54
54
55
57
57
58
58
58
59
60
61
61
62
63
65
65
65
66
Section
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
Page
New Division 2A
67
"Division 2A—Compensation for maims, pain and suffering
and non-economic loss".
67
Amendment of sections 98, 98A and 103
Amendment of section 98C
Amendment of section 98E
Consequential amendments relating to section 98E
Claim for compensation
Amendment of section 134AB
Repeal of section 107
General right of access to information under this Act—
amendment of section 107A
Amendment of section 114
Amendment of section 114C
Amendment of section 114F—Recovery of payments
Amendment of section 114N
New section 114S inserted
114S Position of worker following decision under section
114N
Consequential amendment
Repeal of sections 117C to 117G
Amendment of section 127
Amendment of section 137A
New Schedules 3A and 3B inserted
67
67
68
68
69
69
70
SCHEDULE 3A—Compensation for Maims
75
SCHEDULE 3B—No Disadvantage—Compensation Table
80
New Division 2B inserted in Part IV
83
Division 2B—Compensation for medical and like services
83
99AAA Definitions
99
Liability of Authority and self-insurer
99AA Medical and like services outside Australia
99AB Occupational rehabilitation services
99AC Modification of cars and homes
99AD Duration of compensation under this Division
99AE Termination of payment for professional services
obtained fraudulently
Consequential amendments
New Division 2C
83
86
91
92
94
97
99
99
101
"Division 2C—Rehabilitation services prior to acceptance
of claim".
101
iv
70
71
71
71
72
73
73
74
74
74
74
75
Section
80
81
82
83
84
Page
New Division 2D
101
Division 2D—Indexation
101
100
100A
101
Indexation—weekly payments
Indexation of weekly pensions for dependants of a
worker who dies
100B Indexation of certain amounts—according to average
weekly earnings
100C Indexation of certain amounts—consumer price index
100D Indexation—no reduction
100E Indexation—rounding
Amendments consequential on new Division 2D of Part IV
Dollar amounts as at 1 July 2010—benefits
Dollar amounts as at 1 July 2010—payment, contributions etc.
Dollar amounts as at 1 July 2010—self-insurers
Division 4—Compensation for impairment, hearing loss
and non-economic loss
85
86
87
88
89
90
91
Amendment of section 5
Amendment of section 88
Amendment of section 89
Amendment of section 91
Further amendments relating to diminution of hearing
Amendment of section 98C—non economic loss
New section 98DA inserted
98DA Effect of payment of compensation under section 98C
or 98E
Division 5—Further amendment of Parts 4 to 8 of Accident
Compensation Act 1985
92
93
94
95
96
97
98
99
100
101
Repeal of section 123
Amendment of section 134ABA
New section 134AFA inserted
134AFALegal practitioner may recover costs
Amendment of section 134AG
New sections 134AGA and 134AGB inserted
134AGALitigated claims legal costs order—workers
134AGBLitigated claims legal costs order—Authority and
self-insurers
Amendment of section 135BBA
Determination of eligibility to apply for approval as
self-insurer
Application for approval as self-insurer
New section 144A inserted—Approval of new holding
company as self-insurer
144A Approval of new holding company as self-insurer
Liabilities of self-insurer to be guaranteed
v
104
106
109
114
115
115
115
119
119
120
120
120
121
121
122
123
125
125
126
126
126
127
127
127
127
127
129
131
131
131
132
132
133
Section
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
Page
Acquisition of scheme-insured body corporate by self-insurer—
amendment of section 150A
Provision of guarantees
Amendments consequential on amendment of section 7 of
Accident Compensation (WorkCover Insurance) Act 1993
Amendment of definition of tail claims
Penalty inserted in section 248(1)
Sections 192 and 195
New section 198A inserted
198A Employer to notify Authority of return to work of
worker
Amendment of section 208
Amendment of section 239
Amendment of section 239AAB(1)
Amendment of section 240A—Warrants to enter and search
Amendment of section 243
Amendment of section 242AD
Indemnity—amendment of section 248C
Amendment of section 249BA
Sections 249B(5) and 249BA(2) aligned
New sections 250A and 250AA inserted
250A Imputing conduct of bodies corporate
250AA Liability of officers of bodies corporate
Institution of prosecutions—amendment of section 252
New sections 252O to 252R inserted
252O Supreme Court—limitation of jurisdiction
252P Supreme Court—limitation of jurisdiction
252Q Supreme Court—Limitation of jurisdiction
252R Supreme Court—limitation of jurisdiction
New sections 253AA and 253AB inserted
253AA Directions
253AB Guidelines
Consequential amendments
Regulations—New section 253 substituted
253
Regulations
Amendment of section 313—transitional provision in relation
to section 93CD
Amendment of section 325—transitional provision in relation
to section 134AB
Amendment of section 326—transitional provision in relation
to section 134AB
Amendment of section 327—transitional provision in relation
to section 135A
327
Section 135A (Actions for damages)
vi
134
134
134
135
136
136
136
136
137
138
138
139
140
142
142
142
143
145
145
145
147
148
148
148
148
148
149
149
150
150
151
151
152
152
152
153
153
Section
Page
128
Amendment of section 328—transitional provision in relation
to section 135BBA
328
Section 135BBA (Actions by terminally ill workers
continued after death of worker)
Division 6—Transitional Provisions
129
153
154
Savings and Transitional Provisions
154
Division 13—Transport Accident and Accident
Compensation Legislation Amendment Act 2010
154
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
Definitions
Sections 5A to 5AE, 5B and Schedule 1A
Part 1, Division 3 and sections 6 to 12, 14 and 15
Section 82D (Road traffic offences)
Section 91E (Benefits—definitions)
Section 92A (Death of a worker)
Section 93CE (Superannuation contributions)
Section 98C (Non-economic loss)
Section 98E (Total loss)
Part IV, Division 2B (Compensation for medical and
like services)
Sections 117C to 117G
Section 52 (Appeals to Court of Appeal)
Section 103(4C) (Claim for compensation)
Section 134AB (Actions for damages)
Section 107A (General right of access to information
under this Act)
Section 114N
Section 114S
Section 125A(3)
Section 144A
Section 148
Section 150A
Section 208
Section 240A
Section 92B
Guidelines under section 14AA
Division 7—New Schedule 6 inserted
130
153
154
154
155
155
155
156
156
156
156
157
157
157
157
157
158
158
158
158
159
159
159
159
159
160
160
160
New Schedule 6 inserted
160
SCHEDULE 6—Persons to whom document may be
produced or information communicated
or divulged
160
vii
Section
Page
PART 4—ACCIDENT COMPENSATION (WORKCOVER
INSURANCE) ACT 1993
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
Amendment of definition of WorkCover insurance policy
Amendment of section 3
Remuneration—new section 3AA
3AA Remuneration
Consequential amendments to section 3
New section 4 substituted
4
Act does not apply to certain self-insurers
Definition—deemed policy amendment
Compulsory WorkCover Insurance
Repeal of section 7(4A) and (4B)
Premiums to be calculated in accordance with premiums
order
Compulsory WorkCover insurance—amendment of section 7
WorkCover Insurance Policy—amendment of section 9
Estimate of rateable remuneration—amendment of section 18
Amendments to section 36H
Authority may recover amount in relation to claim—
amendment of section 61
Amendment of section 66
Amendment of section 68
Repeal of section 70
Amendment of section 82
Amendment of section 87
163
163
163
164
164
166
167
167
167
167
168
168
168
168
169
169
169
170
170
171
171
171
PART 5—MISCELLANEOUS
172
Division 1—Amendment of transitional provisions
172
150
151
152
153
154
155
156
157
158
Amendment of transitional provision in relation to section 7
Amendment of transitional provision in relation to section 103
Amendment of transitional provision in relation to sections 105
and 108
Amendment of transitional provision in relation to
section 55AA
Amendment of transitional provision in relation to section 43
Amendment of transitional provision in relation to section 45
Amendment of transitional provision in relation to
section 134AB
Amendment of transitional provision in relation to section 138
Amendment of transitional provision in relation to Part VIIB
Division 2—Statute law revision
159
172
172
172
172
173
173
173
173
173
174
Statute law revision
174
viii
Section
Page
Division 3—Amendment of other Acts
160
161
Wrongs Act 1958
24AAA When employer not liable to indemnify third party
in relation to an injury
Offshore Petroleum and Greenhouse Gas Storage Act 2010
PART 6—REPEAL OF ACT
162
176
176
176
176
177
Repeal of Act
177
═══════════════
ENDNOTES
178
ix
Victoria
Transport Accident and Accident
Compensation Legislation Amendment
Act 2010†
No. 80 of 2010
[Assented to 19 October 2010]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Transport Accident Act 1986
to improve its efficient operation;
1
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
s. 2
Part 1—Preliminary
(b) to make further amendments to the Accident
Compensation Act 1985 and the Accident
Compensation (WorkCover Insurance)
Act 1993 to provide for further improvement
in the operation of those Acts.
2 Commencement
(1) This Part, Part 2 (other than sections 6 and 8),
Part 3 (other than sections 17(4), 17(5), 17(6),
17(7), 17(8), 19(2), 20, 21, 22, 23, 24, 25, 26, 27,
28, 29, 30(2), 31, 33, 46, 48, 50, 51, 53(2), 61, 62,
63, 64, 80, 81, 82, 83, 84, 90, 107, 108, 109 and
124), Part 4 (other than sections 132, 133, 134,
136, 137, 138, 139, 140, 141, 143, 144, 148
and 149), sections 156 and 158, Division 3 of
Part 5 and Part 6 come into operation on the day
after the day on which this Act receives the Royal
Assent.
(2) Sections 90 is deemed to have come into
operation on 10 December 2009.
(3) Sections 48, 53(2), 63, 124, 151, 152, 153, 154,
155, 157 and 159 are deemed to have come into
operation on 5 April 2010.
(4) Sections 107, 108, 109, 136, 137, 139, 140, 141,
143, 144, 148, 149 and 150 are deemed to have
come into operation on 1 July 2010.
(5) Section 64 is deemed to have come into operation
on 29 July 2010.
(6) Sections 17(4), 17(5), 17(6), 17(7), 17(8), 19(2),
20, 24, 25, 26, 27, 28, 29, 30(2), 31, 33, 61, 62,
132, 133, 134 and 138 come into operation on
1 July 2011.
(7) Sections 6, 8, 21, 22, 23, 50, 51, 80, 81, 82, 83
and 84 come into operation on a day or days to be
proclaimed.
2
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
Part 1—Preliminary
(8) Section 46 comes into operation on the day on
which section 799 of the Offshore Petroleum
and Greenhouse Gas Storage Act 2010 comes
into operation.
(9) If a provision referred to in subsection (7) does
not come into operation before 1 July 2011, it
comes into operation on that day.
__________________
3
s. 2
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
s. 3
Part 2—Transport Accident Act 1986
PART 2—TRANSPORT ACCIDENT ACT 1986
3 No liability to pay compensation in certain
circumstances
See:
Act No.
111/1986.
Reprint No. 11
as at
17 April 2008
and
amending
Act Nos
12/2008,
65/2008,
4/2009,
68/2009,
69/2009,
6/2010, 9/2010,
13/2010 and
26/2010.
LawToday:
www.
legislation.
vic.gov.au
In section 39(3)(b) of the Transport Accident
Act 1986, after "section 318(1)" insert
"or 319(1)".
4 Compensation not payable or reduced
(1) In section 40(2)(b) of the Transport Accident
Act 1986, for "section 49(1)(c), 49(1)(d), 49
(1)(e)," substitute "49(1)(ba), (c), (ca), (d), (e),
(ea) or (eb),".
(2) After section 40(4) of the Transport Accident
Act 1986 insert—
"(4A) Subsection (5A) applies if a person who is
injured in a transport accident was driving a
motor vehicle at the time of the transport
accident and is convicted in respect of
driving the motor vehicle at the time of an
offence under section 49(1)(bb), (h) or (i) of
the Road Safety Act 1986 or under a law
that is in relation to that Act a corresponding
law.".
4
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
Part 2—Transport Accident Act 1986
(3) After section 40(5) of the Transport Accident
Act 1986 insert—
"(5A) The compensation under section 44 or 45 in
respect of a person to whom subsection (4A)
applies is reduced by one-third unless the
person satisfies the Commission that the
concentration of drugs in the blood of the
person did not contribute in any way to the
transport accident.".
5 Determination of impairment
(1) In section 46A of the Transport Accident Act
1986, for subsection (1A) substitute—
"(1A) If the Commission—
(a) has not made a determination under this
section of the degree of impairment of a
person injured as a result of a transport
accident within the period of 6 years
after the later of—
(i) the date of the transport accident;
or
(ii) the date on which the injury to the
person resulting from the transport
accident first manifests itself; and
(b) within that period of 6 years—
(i) has not advised the person that he
or she appears likely to be entitled
to an impairment benefit; and
(ii) has not received an application in
writing from the person requesting
the Commission to carry out an
impairment assessment—
the Commission is to be taken to have made
a determination that the degree of
impairment is 0%.".
5
s. 5
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
s. 6
Part 2—Transport Accident Act 1986
(2) In section 46A(1B) of the Transport Accident
Act 1986—
(a) in paragraph (b), for "occurs." substitute
"occurs; and";
(b) after paragraph (b) insert—
"(c) in the case of an injury to a person who
was a minor at the time of the transport
accident, from the day on which the
person attains the age of 18 years.".
6 New section 56A inserted
After section 56 of the Transport Accident Act
1986 insert—
"56A Redemption of impairment benefit
annuity in respect of pre 16/12/2004
transport accidents
(1) This section applies to a person who,
immediately before the commencement of
section 13 of the Transport Accident
(Amendment) Act 2004—
(a) was receiving periodic payments in
accordance with section 48 as then in
force; or
(b) had an accrued entitlement to such
payments, regardless of whether or not
the person's impairment benefit had
been assessed.
(2) Unless the periodic payments are redeemed
in accordance with this section or the person
accepts an offer made under subsection (4),
the person is entitled to continue to receive
periodic payments in accordance with
section 48 as if sections 11 and 13 of the
Transport Accident (Amendment) Act
2004 had not been enacted.
6
Transport Accident and Accident Compensation Legislation Amendment Act
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No. 80 of 2010
Part 2—Transport Accident Act 1986
(3) The Commission must make an offer to each
person who is, or on attaining the age of 65,
will be, entitled to periodic payments in
accordance with section 48 as in force
immediately before the commencement of
section 13 of the Transport Accident
(Amendment) Act 2004 to redeem those
payments and pay to the person an amount
determined in accordance with
subsection (5).
(4) Until a person to whom an offer is made
under subsection (3) accepts the offer, the
person continues to be entitled to periodic
payments in accordance with subsection (2)
as calculated in accordance with this Act and
the Transport Accident (Impairment)
Regulations 2010.
(5) The amount payable to a person on
redemption of periodic payments is the
amount determined in accordance with the
formula—
AB
where—
A is the weekly payment of impairment
annuity to which the person is or would
become entitled under this section;
B is the number of weeks in respect of
which the person would be entitled to
periodic benefits but for the
redemption—
and qualified by adopting a discount rate of
3 per centum in order to make appropriate
allowance for inflation, the income from
investment of the sum awarded and the effect
of taxation on that income.
7
s. 6
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
s. 7
Part 2—Transport Accident Act 1986
(6) In determining the number of weeks for the
purposes of subsection (5), a period of less
than one week is to be taken to be a complete
week.".
7 Medical and like benefits
In section 60 of the Transport Accident Act
1986, for subsection (2AB) substitute—
"(2AB) For the purposes of subsection (2)(c), a
person who is injured as a result of a
transport accident and is—
(a) a woman who was pregnant at the time
of the transport accident; or
(b) a domestic partner of a woman who
was pregnant at the time of the
transport accident—
is deemed to have been engaged in the care
of a child in the 30 days before the transport
accident.".
8 Form of claim
In section 67(1) of the Transport Accident Act
1986, for paragraph (a) substitute—
"(a) must be in a form approved by the
Commission; and".
9 Time for making claim
In section 68(3) of the Transport Accident Act
1986, for "within one year of attaining the age of
18 years" substitute "before attaining the age of
21 years or within 3 years after the transport
accident, whichever is the later".
8
Transport Accident and Accident Compensation Legislation Amendment Act
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No. 80 of 2010
Part 2—Transport Accident Act 1986
10 Actions for damages
After section 93(1A) of the Transport Accident
Act 1986 insert—
"(1B) For the avoidance of doubt, nothing in
subsection (1) or (1A) is to be taken to
prevent a legal personal representative (not
being a natural person) of a person who dies
as a result of a transport accident recovering
damages in any proceedings in respect of
that death.".
11 New section 93A inserted
After section 93 of the Transport Accident Act
1986 insert—
"93A Abolition of per quod servitium amisit
Proceedings cannot be brought in respect of
the loss of the services of a person—
(a) who is injured or dies as a result of a
transport accident; or
(b) whose injury or death is caused by, or
arises out of, the use of a motor
vehicle.".
12 Access to documents
After section 126A of the Transport Accident
Act 1986 insert—
"126B Use of documents relating to claims
Despite anything to the contrary in any Act
(other than the Charter of Human Rights
and Responsibilities) or at common law, a
document produced or served or information
acquired in respect of a proceeding or claim
for compensation, damages, indemnity or
other payment under, or in accordance with,
this Act, whether before, on or after the
commencement of section 12 of the
9
s. 10
Transport Accident and Accident Compensation Legislation Amendment Act
2010
No. 80 of 2010
s. 13
Part 2—Transport Accident Act 1986
Transport Accident and Accident
Compensation Legislation Amendment
Act 2010, may be used in, and for the
purposes of, any other proceeding or claim
for compensation, damages, indemnity or
other payment under, or in accordance with,
this Act.".
13 New section 132D inserted
After section 132C of the Transport Accident
Act 1986 insert—
"132D Supreme Court—limitation of jurisdiction
It is the intention of section 93A as inserted
by section 11 of the Transport Accident
and Accident Compensation Legislation
Amendment Act 2010 to alter or vary
section 85 of the Constitution Act 1975.".
14 New Division 6 inserted in Part 11
After Division 5 of Part 11 of the Transport
Accident Act 1986 insert—
"Division 6—Transport Accident and Accident
Compensation Legislation Amendment
Act 2010
199 Definitions
(1) In this Division—
amending Act means the Transport
Accident and Accident
Compensation Legislation
Amendment Act 2010;
amending provision means a provision of
the amending Act specified in a section
of this Division;
10
Transport Accident and Accident Compensation Legislation Amendment Act
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No. 80 of 2010
Part 2—Transport Accident Act 1986
commencement date means the date on
which the amending provision comes
into operation.
(2) Nothing in this Division limits or otherwise
affects the operation of the Interpretation of
Legislation Act 1984.
200 Section 39 (No entitlement to
compensation)
Section 39, as amended by section 3 of the
amending Act, applies in respect of a
transport accident that occurs on or after the
commencement date.
201 Section 40 (Compensation not payable)
Section 40, as amended by section 4 of the
amending Act, applies in respect of a
transport accident that occurs on or after the
commencement date.
202 Section 46A (Degree of impairment)
Section 46A as amended by section 5 of the
amending Act, applies in respect of a
transport accident that occurs on or after the
commencement date.
203 Section 60 (Medical and like benefits)
Section 60, as amended by section 7 of the
amending Act, applies in respect of a
transport accident that occurs on or after the
commencement date.
204 Section 68 (Time for making claims)
Section 68, as amended by section 9 of the
amending Act applies in respect of claims
made on or after the commencement date
relating to a transport accident whenever it
occurred.
11
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s. 14
Part 2—Transport Accident Act 1986
205 Section 93 (Actions for damages)
Section 93, as amended by section 10 of the
amending Act, applies to proceedings
commenced on or after the commencement
date relating to a transport accident
whenever it occurred.".
__________________
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Part 3—Accident Compensation Act 1985
s. 15
PART 3—ACCIDENT COMPENSATION ACT 1985
Division 1—General Amendment of Part I
15 New Division in Part I
In Part I of the Accident Compensation Act
1985, before section 1, insert—
"Division 1—General".
16 New section 3A inserted
After section 3 of the Accident Compensation
Act 1985 insert—
"3A Act binds the Crown
(1) This Act binds the Crown—
(a) in right of the State of Victoria; and
(b) to the extent that the legislative power
of the Parliament permits, in all its
other capacities.
(2) To avoid doubt, the Crown is a body
corporate for the purposes of this Act and the
regulations.".
13
See:
Act No.
10191.
Reprint No. 16
as at
1 July 2010
and
amending
Act Nos
107/1997 and
10/2010.
LawToday:
www.
legislation.
vic.gov.au
Transport Accident and Accident Compensation Legislation Amendment Act
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No. 80 of 2010
s. 17
Part 3—Accident Compensation Act 1985
17 Amendment of section 5(1)
(1) In section 5(1) of the Accident Compensation
Act 1985, insert the following definitions—
"professional service means—
(a) a hospital service, medical service,
ambulance service, nursing service,
accident rescue service, personal and
household service or occupational
rehabilitation service; or
(b) legal services provided by a legal
practitioner; or
(c) a service, provision of goods or any
other matter referred to in Division 2B
of Part IV in relation to the costs of
which a liability arises, or may arise,
under that Division;
shift allowance means an allowance or loading
paid or payable for shift work or working on
public holidays, Saturdays or Sundays;".
(2) In section 5(1) of the Accident Compensation
Act 1985, for the definition of domestic partner
substitute—
"domestic partner of a person means—
(a) a person who is in a registered domestic
relationship within the meaning of the
Relationships Act 2008 with the
person; or
(b) a person to whom the person is not
married but with whom the person is
living as a couple on a genuine
domestic basis (irrespective of gender),
taking into account all the
circumstances of their relationship,
including any one or more of the
matters referred to in section 35(2) of
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the Relationships Act 2008 as may be
relevant in a particular case;".
(3) In section 5(1) of the Accident Compensation
Act 1985, in the definition of occupational
rehabilitation service, for paragraph (k)
substitute—
"(k) advice or assistance in return to work
planning;".
(4) In section 5(1) of the Accident Compensation
Act 1985, insert the following definitions—
"applicable prescribed percentage, in relation to
the amount paid or payable to a class of
worker, means the percentage of
remuneration prescribed by the regulations
as not being attributable to the performance
of work by a worker of that class;
declared training program means a training
program in respect of which a declaration
under section 5G is in force;".
(5) In section 5(1) of the Accident Compensation
Act 1985, for the definition of employer
substitute—
"employer includes—
(a) a person—
(i) for whom a worker works; or
(ii) with whom a worker agrees to
perform work—
at the person's direction, instruction or
request, whether under a contract of
employment (whether express, implied
oral or in writing) or otherwise; and
15
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(b) a person who is deemed to be an
employer under this Act; and
(c) if the services of a worker are
temporarily lent or let on hire to
another person by, or with the consent
of, the person with whom the worker
has entered into a contract of
employment or apprenticeship or
otherwise—the last mentioned person,
while the worker is working for that
other person; and
(d) the legal personal representative of an
employer who is dead;".
(6) In section 5(1) of the Accident Compensation
Act 1985, in the definition of remuneration, for
"section 3(1)" substitute "section 3AA".
(7) In section 5(1) of the Accident Compensation
Act 1985, for the definition of student worker
substitute—
"student worker means a worker within the
meaning of section 5F(1)(a) or (b);".
(8) In section 5(1) of the Accident Compensation
Act 1985, for the definition of worker
substitute—
"worker means an individual—
(a) who—
(i) performs work for an employer; or
(ii) agrees with an employer to
perform work—
at the employer's direction, instruction
or request, whether under a contract of
employment (whether express, implied,
oral or in writing) or otherwise; or
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(b) who is deemed to be a worker under
this Act;".
18 Consequential amendments relating to professional
service
In the Accident Compensation Act 1985—
(a) in section 248A, subsection (3) is repealed;
(b) in section 249AA(7), the definition of
professional service is repealed;
(c) in section 249AB(3), the definition of
professional service is repealed;
(d) in section 249B(11), the definition of
professional service is repealed;
(e) in section 249BA(4), the definition of
professional service is repealed;
(f) in section 249BC—
(i) for "(1) The Authority" substitute
"The Authority";
(ii) subsection (2) is repealed.
19 Amendment of section 5
(1) In section 5 of the Accident Compensation Act
1985, subsections (2), (6), (7) and (18) are
repealed.
(2) In section 5 of the Accident Compensation Act
1985, subsections (4), (4A), (4B), (4C), (4D),
(4E), (8), (8A) and (9) are repealed.
20 Further amendment of section 5
In section 5(11) of the Accident Compensation
Act 1985, for "paragraph (e)" substitute
"subsection (1)(a)".
17
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21 New sections 5A to 5AE substituted
For section 5A of the Accident Compensation
Act 1985 substitute—
"Division 2—Pre-injury average weekly
earnings and current weekly earnings
5A Definition—pre-injury average weekly
earnings
(1) In this Act, pre-injury average weekly
earnings, in respect of a relevant period in
relation to a worker, means, subject to this
section, the sum of—
(a) the average of the worker's ordinary
earnings during the relevant period
(excluding any week during which the
worker did not actually work and was
not on paid leave) expressed as a
weekly sum; and
(b) the worker's earnings enhancement
(if any) in the relevant enhancement
period.
(2) If a worker has been continuously employed
by the same employer for less than 4 weeks
before the injury, pre-injury average weekly
earnings, in relation to that worker, may be
calculated having regard to—
(a) the average of the worker's ordinary
earnings that the worker could
reasonably have been expected to have
earned in that employment, but for the
injury, during the period of 52 weeks
after the injury expressed as a weekly
sum; and
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(b) the worker's earnings enhancement
(if any) in the relevant enhancement
period.
(3) If a worker—
(a) was not a full time worker immediately
before the injury; and
(b) at the time of the injury was seeking
full time employment; and
(c) had been predominantly a full time
worker during the period of 78 weeks
immediately before the injury—
pre-injury average weekly earnings, in
relation to that worker, means the sum of—
(d) the average of the worker's ordinary
earnings while employed during the
period of 78 weeks immediately before
the injury (excluding any week during
which the worker did not actually work
and was not on paid leave) (the
qualifying period), whether or not the
employer is the same employer as at the
time of the injury expressed as a
weekly sum; and
(e) the worker's earnings enhancement
(if any) in the relevant enhancement
period.
(4) If a worker is a person engaged by an
employer to participate as a contestant in a
sporting or athletic activity within the
meaning of section 16(1) and the injury is
not received while the person is—
(a) participating, or training for or
preparing to participate, as a contestant
in a sporting or athletic activity; or
19
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(b) travelling between a place of residence
and a place where the activity, training
or preparation is held—
any remuneration paid or payable in respect
of such participation, training, preparation or
travel is not to be taken into account in
calculating the worker's pre-injury average
weekly earnings.
(5) In relation to a worker of a class referred to
in column 2 of an item in Schedule 1A,
pre-injury average weekly earnings means
the amount determined in accordance with
column 3 of that item, expressed as a weekly
sum.
(6) In relation to a worker to whom section 7
or 7A applies, the worker's pre-injury
average weekly earnings must be calculated
with reference to the amounts payable to the
worker and deemed to be remuneration
under that section, expressed as a weekly
sum.
(7) In relation to a worker to whom section 6 or
8 applies, the worker's pre-injury average
weekly earnings must be calculated with
reference to the amounts payable to the
contractor and deemed to be remuneration
under that section, expressed as a weekly
sum.
5AA Definitions applying to pre-injury average
weekly earnings—relevant period
(1) Subject to this section, a reference to the
relevant period in relation to pre-injury
average weekly earnings of a worker is a
reference to—
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(a) in the case of a worker who has been
continuously employed by the same
employer for the period of 52 weeks
immediately before the injury, that
period of 52 weeks;
(b) in the case of a worker who has been
continuously employed by the same
employer for less than 52 weeks
immediately before the injury, the
period of continuous employment by
that employer.
(2) The relevant period, in relation to pre-injury
average weekly earnings of a worker who,
during the 52 weeks immediately before the
injury, voluntarily (otherwise than by reason
of an incapacity for work resulting from, or
materially contributed to by, an injury which
entitles the worker to compensation under
this Act)—
(a) alters the ordinary hours of work; or
(b) alters the nature of the work performed
by the worker—
and, as a result, the worker's ordinary
earnings are reduced, does not include the
period before the reduction takes effect.
(3) If, during the period of 52 weeks
immediately before the injury, a worker—
(a) is promoted; or
(b) is appointed to a different position—
(otherwise than on a temporary basis) and, as
a result, the worker's ordinary earnings are
increased, the relevant period in relation to
the worker begins on the day on which the
promotion or appointment takes effect.
21
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5AB Definitions applying to pre-injury average
weekly earnings—ordinary earnings
(1) Subject to this section, in relation to
pre-injury average weekly earnings, the
ordinary earnings of a worker in relation to
a week during the relevant period are—
(a) if the worker's base rate of pay is
calculated on the basis of ordinary
hours worked, the sum of—
(i) the worker's earnings calculated at
that rate for ordinary hours in that
week during which the worker
worked or was on paid leave; and
(ii) if the worker receives a piece rate
payment or a commission or both
a piece rate payment and a
commission, the amount of piece
rate payments and commissions
the worker receives in respect of
that week; or
(b) if paragraph (a) does not apply, the
actual earnings (other than an amount
of a kind referred to in section
5AC(1)(a), (b), (c), (e) or (f)) paid or
payable to the worker in respect of that
week—
and include—
(c) any other amount (other than an amount
of a kind referred to in section
5AC(1)(a), (b), (c), (e) or (f)) for the
performance of work by the worker,
that, under the worker's terms of
employment, the employer is required
to apply or deal with on behalf of the
worker in accordance with the worker's
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instructions, in respect of that week;
and
(d) the monetary value of—
(i) residential accommodation; and
(ii) use of a motor vehicle; and
(iii) health insurance; and
(iv) education fees—
provided in respect of that week to the
worker by the employer for the
performance of work by the worker
(non-pecuniary benefit).
(2) For the purposes of subsection (1)(d), the
monetary value of a non-pecuniary benefit
is—
(a) the value that would be the value as a
fringe benefit for the purposes of the
Fringe Benefits Tax Assessment Act
1986 of the Commonwealth, calculated
in accordance with section 5C of this
Act, divided by 52; or
(b) in the case of residential
accommodation that is not a fringe
benefit or is otherwise not subject to
fringe benefits tax, the amount that
would reasonably be payable for that
accommodation, or equivalent
accommodation in the same area, in
respect of that week if it were let on
commercial terms.
(3) A reference to ordinary earnings does not
include, and is deemed never to have
included, a reference to any employer
superannuation contribution.
23
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5AC Definition applying to pre-injury average
weekly earnings and current weekly
earnings—base rate of pay
(1) In relation to pre-injury average weekly
earnings and current weekly earnings, a
reference to a base rate of pay is a reference
to the rate of pay payable to a worker for his
or her ordinary hours of work but does not
include—
(a) incentive based payments or bonuses;
(b) loadings;
(c) monetary allowances;
(d) piece rates or commissions;
(e) overtime or shift allowances;
(f) any separately identifiable amount not
referred to in paragraphs (a) to (e).
(2) In relation to pre-injury average weekly
earnings and current weekly earnings, if, at
the time of the injury—
(a) a worker's base rate of pay is prescribed
by an industrial award that applies to
the worker; and
(b) the worker's actual rate of pay for
ordinary hours is higher than that rate
of pay—
the worker's actual rate of pay is to be taken
to be the worker's base rate of pay.
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5AD Definitions applying to pre-injury average
weekly earnings—earnings enhancement
and enhancement period
In relation to pre-injury average weekly
earnings—
earnings enhancement, in relation to a
worker who—
(a) during the relevant period, worked
paid overtime or carried out work
that attracted a shift allowance;
and
(b) but for the worker's injury or
death, would have been likely, at
any time during the enhancement
period, to have worked paid
overtime or carried out work that
attracted a shift allowance—
means the amount calculated in
accordance with the formula—
A
B
where—
A is the total amount paid or payable
to the worker for paid overtime
and shift allowances in respect of
the relevant period;
B is the number of weeks during the
relevant period during which the
worker worked or was on paid
annual leave;
25
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enhancement period means—
(a) in relation to compensation in the
form of weekly payments to the
worker under section 93A or
93B—the first 52 weeks in respect
of which such compensation is
paid or payable to the worker;
(b) in relation to compensation in the
form of weekly payments of
pension under section 92B—the
first 52 weeks after the death of
the worker.
5AE Definition applying to pre-injury average
weekly earnings and current weekly
earnings—ordinary hours of work
In relation to pre-injury average weekly
earnings and current weekly earnings, the
ordinary hours of work—
(a) in the case of a worker to whom an
industrial award applies are—
(i) if the ordinary hours of work in
relation to a week are agreed or
determined in accordance with an
industrial award between the
worker and the employer—those
hours;
(ii) in any other case, the worker's
average weekly hours (excluding
any week during which the worker
did not actually work and was not
on paid leave) during the relevant
period;
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(b) in the case of a worker to whom an
industrial award does not apply—
(i) if the ordinary hours of work are
agreed between the worker and
the employer, those hours;
(ii) in any other case, the worker's
average weekly hours (excluding
any week during which the worker
did not actually work and was not
on paid leave) during the relevant
period.".
22 New section 5B substituted
For section 5B of the Accident Compensation
Act 1985 substitute—
"5B Definition—current weekly earnings
In this Act, current weekly earnings of a
worker in relation to a week means—
(a) if the worker's base rate of pay is
calculated on the basis of ordinary
hours worked, the sum of—
(i) the worker's earnings so
calculated for the ordinary hours
worked during that week; and
(ii) amounts paid or payable for
overtime or shift allowances in
respect of that week; and
(iii) amounts paid or payable as piece
rates or commissions in respect of
that week; or
(b) if paragraph (a) does not apply, the
worker's actual earnings (other than an
amount of a kind referred to in section
5AC(1)(a), (b), (c) or (f)) in respect of
that week.".
27
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s. 23
23 New Schedule 1A inserted
In the Accident Compensation Act 1985, insert
the following Schedule before Schedule 1—
"SCHEDULE 1A
Section. 5A(5)
PRE-INJURY AVERAGE WEEKLY EARNINGS
Column 1
Column 2
Item
Class of worker at time of injury
1
Worker who is—
(a) under the age of 21 years; or
(b) an apprentice; or
(c) working under a contract of
employment under which
the worker is required to
undergo training, instruction
or examination in order to
become qualified to carry
on an occupation—
and who, but for the injury,
would have been entitled to
increments in earnings at certain
ages or stages during the course
of employment to become
qualified.
Column 3
Calculation of pre-injury
average weekly earnings
(a) Until the worker
attains the age or
stage or, but for the
injury would have
attained the stage at
which the highest rate
is payable—the
worker's pre-injury
average weekly
earnings are the
earnings that the
worker would have
been entitled to
receive in respect of a
relevant week if the
worker had not
sustained the injury
and had continued in
the employment.
(b) On and after the
worker attains the age
or stage or, but for the
injury, would have
attained the age or
stage at which the
highest rate is
payable—the worker's
pre-injury average
weekly earnings are to
be calculated as if, at
the time of the injury,
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Column 1
Column 2
Item
Class of worker at time of injury
Column 3
Calculation of pre-injury
average weekly earnings
the worker were being
paid at the highest rate
applicable to that age
or stage.
(c) If (a) or (b) applies
but there is no rate
applicable to a worker
who has attained the
age of 21 years, the
worker's pre-injury
average weekly
earnings are twice the
State average weekly
earnings.
2
Worker employed by 2 or more
employers and who works for
one of those employers for at
least the ordinary hours fixed in
any applicable industrial award.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the work for
the employer for whom
the worker works for at
least the ordinary hours
fixed in the industrial
award.
3
Worker employed by 2 or more
employers who works for one of
those employers for at least the
prescribed number of hours
each week and to whom no
industrial award is applicable.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the work for
the employer for whom
the worker works for at
least the prescribed
number of hours.
29
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s. 23
Column 1
Column 2
Item
Class of worker at time of injury
4
Worker employed by 2 or more
employers for at least the
ordinary hours fixed in any
applicable industrial award.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the work
which yields the higher
weekly ordinary earnings.
5
Worker employed by 2 or more
employers who works for one of
those employers for at least the
ordinary hours fixed in an
applicable industrial award and
works for another of those
employers for at least the
prescribed number of hours
each week.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the work
which yields the higher
weekly ordinary earnings.
6
Worker employed by 2 or more
employers for at least the
prescribed number of hours
each week and to whom no
industrial award is applicable.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the work
which yields the higher
weekly ordinary earnings.
7
Worker employed by 2 or more
employers who sustains an
injury that results in an
incapacity to work for one or
more of those employers but not
for all those employers
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to earnings from
work with all the
employers
8
Worker employed by 2 or more
employers in circumstances
other than those described in the
preceding provisions of this
Schedule.
The worker's pre-injury
average weekly earnings
are the worker's average
ordinary earnings
expressed as an amount
per hour for all work
carried out by the worker
30
Column 3
Calculation of pre-injury
average weekly earnings
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Column 1
Column 2
Item
Class of worker at time of injury
Column 3
Calculation of pre-injury
average weekly earnings
for all employers
multiplied by—
(a) the prescribed number
of hours per week; or
(b) the total of the
worker's ordinary
hours per week—
whichever is the lesser.
9
Worker who, during the period
of 52 weeks immediately before
the injury, receives advice in
writing from the employer that
the worker is to be promoted or
otherwise appointed to a new
position (otherwise than on a
temporary basis) with the effect
that the worker's ordinary
earnings will be increased but
has not been so promoted or
appointed.
The worker's pre-injury
average weekly earnings
are to be calculated in
accordance with
Division 2 of Part I with
reference to the amount
that is the average of the
earnings expressed as a
weekly sum that the
worker could reasonably
be expected to have
earned after the
promotion or appointment
had taken effect as if the
promotion or appointment
had taken effect 52 weeks
before the injury.
10
Full time student at a postsecondary education institution
within the meaning of the
Education and Training
Reform Act 2006.
(a) Until the worker, but
for the injury, would
have completed the
course as a full time
student, pre-injury
average weekly
earnings are to be
calculated in
accordance with
Division 2 of Part I.
31
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s. 23
Column 1
Column 2
Item
Class of worker at time of injury
Column 3
Calculation of pre-injury
average weekly earnings
(b) As from the time the
worker, but for the
injury, would have
completed the course
in which the worker
was a full time
student, pre-injury
average weekly
earnings are twice the
State average weekly
earnings.
11
Full time student at primary or
secondary school.
(a) Until the worker, but
for the injury, would
have completed
secondary school, preinjury average weekly
earnings are to be
calculated in
accordance with
Division 2 of Part I.
(b) As from the time the
worker, but for the
injury, would have
completed secondary
school, pre-injury
average weekly
earnings are $1070.
12
Worker (not being a worker to
whom another item of this
Schedule applies) who is a
student at a school within the
meaning of Part 5.4 of the
Education and Training
Reform Act 2006 and is
employed under a work
experience arrangement or a
structured workplace learning
arrangement under that Part.
32
The worker's pre-injury
average weekly earnings
is the amount deemed by
operation of section
5.4.9(6) of the Education
and Training Reform
Act 2006.
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Column 1
Column 2
Item
Class of worker at time of injury
13
Worker (not being a worker to
whom another item of this
Schedule applies) who is a postsecondary student within the
meaning of Part 5.4 of the
Education and Training
Reform Act 2006 and is
employed under a practical
placement agreement under that
Part.
s. 24
Column 3
Calculation of pre-injury
average weekly earnings
The worker's pre-injury
average weekly earnings
is the amount deemed by
operation of section
5.4.16(5) of the
Education and Training
Reform Act 2006.
".
24 New Division 3 inserted in Part I
In Part I of the Accident Compensation Act
1985, before section 6, insert—
"Division 3—Workers, employers and
contractors
5F Students etc. deemed to be workers and
their deemed employers
(1) For the purposes of this Act, each of the
following is deemed to be a worker to the
extent specified—
(a) a student at a school within the
meaning of Division 1 of Part 5.4 of the
Education and Training Reform Act
2006 while employed under a work
experience arrangement under that Part;
(b) a post-secondary student of a TAFE
provider within the meaning of
Division 2 of Part 5.4 of the Education
and Training Reform Act 2006 while
employed under a practical placement
agreement under that Part;
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(c) an apprentice—
(i) within the meaning of the
Education and Training Reform
Act 2006 while employed under
an approved training scheme
within the meaning of Part 5.5 of
that Act; or
(ii) employed under a contract of
apprenticeship, while so
employed;
(d) a person who is a participant in a
declared training program, while so
participating.
(2) For the purposes of this Act—
(a) in relation to a student who, under
subsection (1)(a) or (b), is deemed to be
a worker—
(i) the Department of Education and
Early Childhood Development is
deemed to be the employer of that
student; and
(ii) the amount paid or payable to the
student for services rendered
under the work experience
arrangement or practical
placement agreement, as the case
requires, is deemed to be
remuneration;
(b) in relation to an apprentice referred to
in subsection (1)(c)—
(i) the person who enters into the
approved training scheme or
contract of apprenticeship with the
apprentice is deemed to be the
employer of the apprentice; and
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(ii) the amount paid or payable to the
apprentice under the approved
training scheme or contract of
apprenticeship is deemed to be
remuneration;
(c) in relation to a person referred to in
subsection (1)(d), the provider of the
declared training program is deemed to
be the employer of that person.
5G Declared training programs
(1) The Governor in Council may, by Order in
Council published in the Government
Gazette, declare a training program provided
by a person or body specified in the Order
that includes the provision of workplace
based training to be a declared training
program.
(2) The Governor in Council may, by Order in
Council published in the Government
Gazette, specify, in relation to a declared
training program—
(a) a class of payments; or
(b) a training allowance—
payable to participants in that declared
training program.
(3) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, a payment of a class
or a training allowance, specified in an Order
under subsection (2) is deemed to be
remuneration paid or payable in respect of a
participant in the training program to which
that Order applies.
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5H Persons attending certain employment
programs deemed to be workers
If a person (not being a worker within the
meaning of any other provision of this
Division) is injured while attending an
employment program provided or arranged
by the Authority—
(a) for the purposes of this Act—
(i) the person is deemed to be a
worker; and
(ii) the Authority is deemed to be the
employer of the person; and
(b) for the purposes of Division 2 of
Part IV, the person's pre-injury average
weekly earnings are deemed to be the
pre-injury average weekly earnings of
the person as calculated for the
purposes of this Act in relation to the
injury suffered by that person by reason
of which the person is attending the
employment program as indexed in
accordance with this Act.
5I Co-operatives—deemed workers and
employers
For the purposes of this Act, a person who—
(a) is a secretary of a co-operative housing
society within the meaning of the
Co-operative Housing Societies Act
1958 or a co-operative within the
meaning of the Co-operatives Act
1996; and
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(b) is entitled, as secretary, to be paid more
than $400 per annum (other than in
respect of expenses)—
is deemed to be a worker and—
(c) the co-operative, or co-operative
society, is deemed to be the employer
of that person; and
(d) the amount (other than in respect of
expenses) paid or payable to that person
by the employer is deemed to be
remuneration.
5J Door to door sellers
If—
(a) a person (the seller) is engaged under a
contract or arrangement (not being a
contract of employment with an
employer)—
(i) to sell goods door to door; or
(ii) to party plan on-sell goods; or
(iii) to sell services ancillary to a sale
or on-sale of goods referred to in
subparagraph (i) or (ii); and
(b) the Authority determines that the
contract or arrangement was entered
into with an intention of directly or
indirectly avoiding or evading the
payment of premium by any person—
then, for the purposes of this Act—
(c) the seller is deemed to be a worker; and
(d) the person who engaged the seller is
deemed to be the employer of the
seller; and
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(e) the amount paid or payable to the seller
by the person who engaged the seller is
deemed to be remuneration.".
25 New section 6—timber contractors
For section 6 of the Accident Compensation Act
1985 substitute—
"6 Timber contractors
(1) For the purposes of this Act, if a person who,
in the course of, or for the purposes of, a
trade or business carried on by the person
(principal), enters into a timber contract with
one or more individuals (timber
contractor)—
(a) each timber contractor is deemed to be
a worker; and
(b) the principal is deemed to be the
employer of each timber contractor.
(2) Subsection (1) does not apply if—
(a) the timber contractor—
(i) subcontracts the timber contract in
its entirety; or
(ii) does not perform personally any
work under the contract and
employs or engages persons to
perform all the work under the
timber contract; or
(b) where the timber contractor is a
partnership of 2 or more individuals, no
part of the work under the timber
contract is performed personally by a
member of the partnership.
(3) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, in relation to a timber
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contractor who is deemed to be a worker, the
amount payable by the principal to the
timber contractor, less the applicable
prescribed percentage (if any), is deemed to
be remuneration.
(4) In this section—
timber contract means a contract under
which one or more individuals agree
with another person (principal) to do
all or any of the following—
(a) fell trees and deliver the timber to
the principal;
(b) cut firewood and deliver the
firewood to the principal;
(c) fell trees or cut scrub on land of
which the principal is the
occupier;
(d) clear stumps or logs from land of
which the principal is the
occupier;
(e) remove stumps or logs from land,
whether by loading them onto a
vehicle or otherwise.".
26 Passenger vehicles, owner drivers and transport
services
For section 7 of the Accident Compensation Act
1985 substitute—
"7 Drivers carrying passengers for reward
(1) For the purposes of this Act, a person
engaged in driving a motor vehicle is
deemed to be a worker if the person
(driver)—
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(a) has the use of a motor vehicle under a
contract of bailment entered into with
another person (the operator) (other
than a bona fide contract for the
purchase of the vehicle); and
(b) uses the motor vehicle to carry
passengers for reward; and
(c) is required under the contract to make
payments to the operator for the use of
the motor vehicle.
(2) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, if, under subsection
(1), a driver is a worker—
(a) the operator is deemed to be the
employer of the driver; and
(b) the amount received by the driver for
carrying passengers, less the amount
paid or payable to the operator for the
use of the motor vehicle, is deemed to
be remuneration.
7A Owner drivers carrying goods for reward
(1) For the purposes of this Act but subject to
this section, an individual (owner-driver) is
deemed to be a worker if under a contract
(not being a contract of employment) entered
into by the individual with another person
(principal), the owner-driver drives a motor
vehicle, of which he or she is the owner,
mainly for the purposes of providing
transport services to the principal.
(2) This section does not apply in respect of an
individual who is an owner-driver if the
Authority determines that, in providing
transport services to the principal, the owner-
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driver is carrying on an independent trade or
business.
(3) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, if, under subsection
(1), an owner-driver is deemed to be, a
worker—
(a) the principal is deemed to be the
employer of the owner-driver; and
(b) the amount paid or payable by the
principal for transport services to the
owner-driver, less the percentage
deduction (if any) applicable to ownerdrivers and specified in guidelines
issued by the Authority, is deemed to
be remuneration.
(4) The Authority may issue guidelines—
(a) as to the circumstances in which it may
determine that an individual, in
providing transport services to a
principal, is carrying on an independent
trade or business;
(b) as to the determination of a percentage
deduction for the purposes of
subsection (3)(b).
(5) In this section—
"owner, in relation to a motor vehicle, has
the same meaning as in the Road
Safety Act 1986;
transport services means the service of
transporting and delivering goods.".
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27 Contractors
For sections 8, 9, 10 and 10A of the Accident
Compensation Act 1985 substitute—
"8 Contractors
(1) This section applies where—
(a) an entity (the principal), in the course
of, and for the purposes of, a trade or
business carried on by the entity, enters
into a contractual arrangement with
another entity (the contractor) for the
provision by the contractor of services
(not being transport services within the
meaning of section 7A) to the principal
for reward in respect of a relevant
period; and
(b) the provision of the services by the
contractor under the contractual
arrangement is not ancillary to the
provision of materials or equipment by
the contractor to the principal under the
contractual arrangement; and
(c) at least 80% of those services are, or
are to be, pursuant to the contractual
arrangement, provided by the same
individual (the individual) being—
(i) the contractor; or
(ii) if the contractor is a partnership,
an individual member of the
partnership; or
(iii) if the contractor is a body
corporate—a member, director,
shareholder or employee of the
body corporate; or
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(iv) if the contractor is the trustee of a
trust—a person who may benefit
under that trust or is an employee
of the trustee; and
(d) the gross income of the contractor that
is, or is to be, derived from the
provision of the services pursuant to the
contractual arrangement is, or is to be,
at least 80% of the total gross income
of the contractor earned from services
of the same class provided by or on
behalf of the contractor in the relevant
period.
(2) This section does not apply in respect of a
contractual arrangement if the Authority
determines that, in providing services to the
principal, the contractor is carrying on an
independent trade or business.
(3) The Authority may issue guidelines as to the
circumstances in which it may determine that
a contractor, in providing services to a
principal, is carrying on an independent trade
or business.
(4) If subsection (1) applies—
(a) the individual is deemed to be a worker
in respect of the relevant period; and
(b) the principal is deemed to be the
employer of the individual in respect of
the relevant period; and
(c) the total amount paid or payable by the
principal to the contractor under the
contractual arrangement, less—
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(i) the applicable prescribed
percentage (if any); or
(ii) if there is no applicable prescribed
percentage, the part of that total
amount not attributable to the
provision of labour—
is deemed to be remuneration for the
purposes of this Act and the Accident
Compensation (WorkCover
Insurance) Act 1993.
(5) In this section—
principal includes a group, or one or more
members of a group, within the
meaning of section 66 of the Accident
Compensation (WorkCover
Insurance) Act 1993;
relevant period, in relation to services
provided under a contractual
arrangement referred to in subsection
(1), means—
(a) the financial year in which those
services are, or are to be,
provided; or
(b) if those services are, or are to be,
provided in two consecutive
financial years, the twelve month
period beginning on the date on
which those services are first
provided pursuant to the
contractual arrangement;
services includes results (whether goods or
services) of work performed.
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9 Remuneration and contractual
arrangements
If—
(a) a person (the principal) enters into a
contract with a body corporate
(the contractor) under which the
contractor agrees to provide services to
the principal; and
(b) the contractor engages an individual to
perform work for the purposes of the
contract; and
(c) the individual engaged is deemed under
section 8 to be a worker employed by
the principal—
the amount of remuneration for the purposes
of this Act and the Accident Compensation
(WorkCover Insurance) Act 1993 is the
total amount paid or payable by the principal
to the contractor under the contract, less—
(d) the applicable prescribed percentage; or
(e) if there is no applicable prescribed
percentage, the part of that total amount
not attributable to the provision of
labour.
10 Claims to be made against principal's
policy
If an individual referred to in section
8(1)(c)(iii) or (iv)—
(a) is deemed under section 8(4) to be a
worker employed by the principal; and
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(b) makes a claim for compensation under
this Act in relation to an injury arising
out of, or in the course of being so
employed—
the claim must be made against the principal
within the meaning of section 8.".
28 New section 11—share farmers substituted
For section 11 of the Accident Compensation
Act 1985 substitute—
"11 Share farmers
(1) For the purposes of this Act—
(a) if, under a contract entered into
between an owner of land and a share
farmer, the share farmer is engaged by
the owner and—
(i) is entitled to receive as
consideration a share of the
income (being less than one third
of that income) derived from the
land whether in cash or in kind or
partly in cash and partly in kind;
or
(ii) if the contract is in writing, the
contract provides that the owner is
liable to pay compensation under
this Act in respect of any injury
arising out of or in the course of
any work carried out by the share
farmer in the performance of the
contract—
then, for the purposes of this Act—
(b) the share farmer is deemed to be a
worker; and
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(c) the owner is deemed to be the employer
of the share farmer.
(2) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, where, under this
section, a share farmer is deemed to be a
worker and an owner of land is deemed to be
that share farmer's employer in respect of a
particular contract, then only the cash paid or
payable under the contract by the owner to
the share farmer is deemed to be
remuneration.
(3) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, a share farmer
engaged by an owner of land is not a worker
unless subsection (1) applies.
(4) A member of a share farmer's family who is
employed by, or assists, the share farmer,
whether for remuneration or otherwise, in the
performance of the duties of the share
farmer, whether pursuant to the contract
between the share farmer and the owner of
the land or otherwise, is not to be deemed to
be a worker employed by the owner of the
land by reason of the performance of such
duties.
(5) In this section—
income, in relation to land, means the gross
value of the production derived from
the land;
owner, in relation to land, includes a person
in possession of, or entitled to the
receipt of, the rents and profits from the
land;
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primary production means agriculture,
pasturage, horticulture, viticulture,
apiculture, poultry farming, dairy
farming, cultivation of soils, gathering
in of crops or rearing of livestock;
share farmer means a person who, under a
contract with the owner of land used
substantially for primary production—
(a) is to perform work in relation to
that land; and
(b) is to be remunerated in whole or
in part by receiving a share of the
income, whether in cash or in
kind, derived from that land.".
29 New section 12 substituted
For section 12 of the Accident Compensation
Act 1985 substitute—
"12 Religious bodies and organisations
(1) If, by Order in Council published in the
Government Gazette at the request of a
religious body or organisation specified in
the Order as having made the request, the
Governor in Council declares that—
(a) persons within a class specified in the
Order, who are not otherwise workers
within the meaning of this Act, are
workers of that body or organisation;
and
(b) the employer of those persons is the
person specified in the Order as the
employer—
then, for the purposes of this Act—
(c) the persons referred to in paragraph (a)
are deemed to be workers; and
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(d) the person specified in paragraph (b) is
deemed to be the employer of those
workers.
(2) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, where an Order in
Council is made under this section in relation
to a religious body or organisation, such
amounts as are determined by agreement
between the Authority and the religious body
or organisation are deemed to be
remuneration.".
30 Repeal of sections 13 and 14A
(1) Section 14A of the Accident Compensation Act
1985 is repealed.
(2) Section 13 of the Accident Compensation Act
1985 is repealed.
31 Amendment of section 14
(1) In section 14 of the Accident Compensation Act
1985, for subsection (4) substitute—
"(4) For the purposes of this Act, a member of
police personnel within the meaning of the
Police Regulation Act 1958 is deemed to be
employed by the Crown under a contract of
employment and, despite any rule of law to
the contrary, that contract of employment
and the relationship of master and servant is
deemed to exist between the Crown and each
such member in respect of the exercise and
performance of the powers and duties as
such a member, whether arising at common
law or under any statute or by the
instructions of superiors or otherwise.".
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(2) After section 14(4) of the Accident
Compensation Act 1985 insert—
"(5) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, amounts paid or
payable by the Crown as deemed employer
to a member of police personnel within the
meaning of the Police Regulation Act 1958
are deemed to be remuneration.".
32 Amendment of section 14AA—Municipal
Councillors
(1) In section 14AA of the Accident Compensation
Act 1985, for subsections (1) and (2) substitute—
"(1) For the purposes of this Act—
(a) a Councillor, while carrying out duties
as a Councillor, is deemed to be a
worker; and
(b) the Council of which the Councillor is a
member is deemed, while the
Councillor is carrying out duties as a
Councillor, to be the employer of the
Councillor.
(2) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, allowances
determined by the Governor in Council by
Order made under section 74B of the Local
Government Act 1989 and paid or payable
to the Councillor are deemed to be
remuneration.".
(2) In section 14AA(4) of the Accident
Compensation Act 1985, for "taken not to be"
substitute "taken to be, or not to be,".
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33 Amendment of section 15—places of pick-up
In section 15 of the Accident Compensation Act
1985—
(a) for "contract of service" substitute "contract
of employment";
(b) after "deemed to be that employer" insert
"and, for the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, amounts paid or
payable by the deemed employer to that
person are deemed to be remuneration".
34 Amendment of sections 16 and 16A
(1) In section 16(4)(a) of the Accident
Compensation Act 1985, for "horse race at a race
meeting" substitute "horse race conducted as part
of a race meeting".
(2) In section 16A of the Accident Compensation
Act 1985—
(a) in paragraph (d) for "driver." substitute
"driver; and";
(b) after paragraph (d) insert—
"(e) amounts paid or payable to the rider or
driver for so participating are deemed
to be remuneration for the purposes of
this Act and the Accident
Compensation (WorkCover
Insurance) Act 1993.".
35 Amendment of section 17—Outworkers
(1) In section 17 of the Accident Compensation Act
1985—
(a) in subsection (1)(b), after "a family entity"
insert "or a family business";
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(b) in subsection (1)(b)(i), after "the family
entity" insert "or family business";
(c) in subsection (2), after "person" insert
"or persons";
(d) in subsection (3), for "the family entity"
(where first occurring) substitute "a family
entity".
(2) After section 17(4) of the Accident
Compensation Act 1985 insert—
"(4A) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, an amount paid or
payable for the performance of outwork—
(a) to a person who, under subsection
(1)(a)(i) is deemed to be a worker; or
(b) to a family entity or family business
referred to in subsection (1)(b)(i)—
by the person deemed under subsection
(1)(a)(ii) or (b)(ii), as the case requires, to be
the employer, is deemed to be
remuneration.".
(3) In section 17(5) of the Accident Compensation
Act 1985, insert the following definition—
"family business means an unincorporated
business—
(a) of which a natural person who is an
outworker is the sole proprietor; and
(b) that does not engage any person other
than the outworker or a member of the
outworker's family;".
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Division 2—Amendment of Part 2 of the Accident
Compensation Act 1985
36 Repeal of section 18A
Section 18A of the Accident Compensation Act
1985 is repealed.
37 Amendment of section 20C—Accountability of the
Authority
Section 20C(2) of the Accident Compensation
Act 1985 is repealed.
38 Repeal of section 23A
Section 23A of the Accident Compensation Act
1985 is repealed.
39 Meetings of the Board
In section 28(1) of the Accident Compensation
Act 1985, for paragraph (b) substitute—
"(b) must, if requested to do so by a Director—".
40 WorkCover Authority Fund—amendment of
section 32
For section 32(4)(d) of the Accident
Compensation Act 1985 substitute—
"(d) payments to the Consolidated Fund of
amounts certified by the Treasurer, after
consultation with the Minister, representing
the costs incurred, or to be incurred, annually
by the County Court, the Magistrates' Court
or the Tribunal arising out of the operation of
the Act;".
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Division 3—Amendment of Parts 3 and 4
41 Amendment of section 39
(1) In section 39 of the Accident Compensation Act
1985, for subsection (1A) substitute—
"(1A) Proceedings must not be brought in respect
of any question or matter arising out of a
decision of the Authority under section
134AB(20), 134AB(20A), 135A(6A)
or 135A(6B).
(1B) In subsection (1A), proceedings includes—
(a) the inquiry into, hearing and
determination of any question or matter
under this Act;
(b) seeking the grant of any relief or
remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a declaration
of right or an injunction;
(c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.".
(2) In section 39(2)(b) of the Accident
Compensation Act 1985, for "V; or" substitute
"V.".
(3) Section 39(2)(c) of the Accident Compensation
Act 1985 is repealed.
42 Repeal of redundant provisions
Sections 42, 42A and 42B of the Accident
Compensation Act 1985 are repealed.
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43 Appeals to Court of Appeal—amendment of
sections 51 and 52
(1) Insert the following heading to section 51 of the
Accident Compensation Act 1985—
"Appeals to the Court of Appeal".
(2) In section 51 of the Accident Compensation Act
1985, for "Supreme Court" (wherever occurring)
substitute "Court of Appeal".
(3) In section 52(1) of the Accident Compensation
Act 1985, for "Any" substitute "Subject to
subsection (1A), any".
(4) After section 52(1) of the Accident
Compensation Act 1985 insert—
"(1A) If the judgement, decision or determination a
person intends to appeal against was in
respect of an interlocutory matter, the person
may only appeal to the Court of Appeal with
leave of the Court of Appeal.".
(5) For section 52(2), (3) and (4) of the Accident
Compensation Act 1985 substitute—
"(2) If a person intends to appeal to the Court of
Appeal under subsection (1), the person,
within 21 days after the giving of the
judgement or making of the decision or
determination, must—
(a) serve a notice of appeal on the County
Court and on each other party to the
proceedings; and
(b) lodge the notice of appeal with the
Court of Appeal.
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(3) A person who intends to appeal to the Court
of Appeal in accordance with subsection (2),
may apply to the Court of Appeal for an
extension of time to serve and lodge the
notice of appeal as required by that
subsection within 21 days after the giving of
the judgement or making of the decision or
determination that the person intends to
appeal.
(4) The Court of Appeal may extend the time by
which a person must serve and lodge a notice
of appeal under subsection (2) whether or
not—
(a) an application has been made to extend
that time;
(b) the time for lodging and serving the
notice of appeal has expired.
(5) The Court of Appeal must not consider an
appeal if the notice of appeal has not been
served and lodged as required by this
section.".
(6) For section 52(6) of the Accident Compensation
Act 1985 substitute—
"(6) If the judgement, decision or determination
appealed against included a finding that
compensation in the form of weekly
payments be paid, the weekly payments must
continue despite service of a notice of appeal
or the lodging of that notice until the County
Court reviews the judgement, decision or
determination in accordance with
subsection (8).".
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(7) In section 52(7) of the Accident Compensation
Act 1985—
(a) after "If the" insert "judgement, decision
or";
(b) for paragraphs (b) and (c) substitute—
"(b) if a notice of appeal has been served
and lodged under subsection (2) or
within a period of time extended under
subsection (4), must not be paid until
the Court of Appeal has considered the
appeal and the County Court has made
a determination under subsection (8) or
the appeal has been withdrawn.".
(8) For section 52(8) of the Accident Compensation
Act 1985 substitute—
"(8) On the making of a determination by the
Court of Appeal on an appeal under this
section, the County Court must review its
judgement, decision or determination and
make a new determination not inconsistent
with the Court of Appeal's determination.".
44 Amendment of section 59
Insert the following heading to section 59 of the
Accident Compensation Act 1985—
"Disputes relating to compensation".
45 Amendment of section 62(5)
In section 62(5) of the Accident Compensation
Act 1985—
(a) in paragraph (c), after "section 138" insert
"or any other indemnity under this Act";
(b) in paragraph (d), after "section 249A" insert
"or any other amount relating to the recovery
of payments under this Act".
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46 Payment of compensation—offshore area
(1) In section 80(9) of the Accident Compensation
Act 1985, for the definition of State substitute—
"State includes—
(a) Territory; and
(b) the offshore area, within the meaning of
the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 of
the Commonwealth, of the relevant
State or Territory.".
(2) Schedule 3 of the Accident Compensation Act
1985 is repealed.
47 Amendment of section 82C
(1) In section 82C(1)(b)(iii) of the Accident
Compensation Act 1985, for "1958." substitute
"1958;".
(2) After section 82C(1)(b)(iii) of the Accident
Compensation Act 1985 insert—
"(iv) a law of another State or of a Territory that is
declared to be a corresponding law under
section 47A(2) of the Road Safety Act
1986.".
48 Amendment of section 82D
In section 82D of the Accident Compensation
Act 1985—
(a) in paragraph (c), for "paid." substitute
"paid; and";
(b) after paragraph (c) insert—
"(d) all amounts of compensation not paid in
accordance with section 82C and to
which, but for the conviction or finding
of guilt, the worker would have been
entitled.".
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49 Amendment of section 86
In section 86 of the Accident Compensation Act
1985, for subsection (1) substitute—
"(1) Subject to section 82(2B), if—
(a) a worker suffers a disease that results
in, or materially contributes to, the
worker having either a current work
capacity or no current work capacity; or
(b) the death of a worker is caused, or
materially contributed to, by a
disease—
and the disease is due to the nature of any
employment in which the worker was
employed at any time before notice of an
injury relating to the disease is given under
section 102, the worker or the worker's
dependants are entitled to compensation
under this Act as if the disease were an
injury arising out of or in the course of
employment.
Note
current work capacity is defined (section 5(1)) as 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 suitable
employment.
(1A) For the purposes of subsection (1), a disease
suffered by a worker is to be regarded as due
to the nature of employment if, and only if,
the nature of the employment gave rise to a
significantly greater risk of the worker
contracting the disease than had the worker
not been employed in employment of that
nature.".
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50 Benefits—deductible amount
(1) In section 91E of the Accident Compensation
Act 1985, insert the following definition—
"deductible amount means the sum of the value,
in respect of a week, of each other amount
referred to in section 5AB(1)(c) and each
non-pecuniary benefit referred to in section
5AB(1)(d) that is provided by the employer
to a worker in respect of that week (whether
or not received by the worker during the
relevant period), being such other amount or
non-pecuniary benefit that—
(a) was provided by the employer to the
worker for the performance of work by
the worker before the worker sustained
the relevant injury and continues after
the injury to be provided by the
employer for the benefit of the worker
or a member of the family of the
worker; or
(b) was not provided by the employer
before the worker sustained the relevant
injury but is provided by the employer
after the injury for the benefit of the
worker or a member of the family of
the worker;".
(2) In the Accident Compensation Act 1985—
(a) in section 93A(3)(a)(i), after "earnings"
insert ", less the deductible amount";
(b) in section 93A(3)(b)(i), after "pre-injury
average weekly earnings" insert ", less the
deductible amount";
(c) in section 93B(3)(a)(i), after "earnings"
insert ", less the deductible amount";
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(d) in section 93B(3)(b)(i), after "pre-injury
average weekly earnings" insert ", less the
deductible amount";
(e) in section 93C(2)(d)(i), after "earnings"
insert ", less the deductible amount";
(f) in section 93CA(1)(c), after "earnings"
insert ", or current weekly earnings together
with a deductible amount,";
(g) in section 93CD(4)(a), after "current weekly
earnings" insert ", or current weekly
earnings together with non-pecuniary
benefits within the meaning of section
5AB(1)(d),";
(h) in section 93CD(5)(c)(i), after "earnings"
insert ", less the deductible amount".
51 New section 91EA inserted
After section 91E of the Accident Compensation
Act 1985 insert—
"91EA Twice State average weekly earnings
(1) Where, under this Division—
(a) a person is entitled, in relation to a
financial year, to an amount at the rate
of the whole or a part of twice the State
average weekly earnings; and
(b) continues to be so entitled; and
(c) the amount of State average weekly
earnings is reduced in respect of a
subsequent financial year—
the person's entitlement, in respect of that
subsequent financial year, is to be calculated
as if the reduction had not taken effect,
except for the purposes of this section.
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(2) If the amount of State average weekly
earnings—
(a) is reduced in respect of a financial year;
and
(b) is increased in respect of a subsequent
financial year—
that increase has effect in relation to a person
to whom subsection (1) applies only to the
extent (if any) to which the amount of the
increase exceeds the amount of the reduction
in respect of the previous financial year, or
that part of the reduction that has not been
set off against a previous increase.
(3) For the purposes of this Act, if twice the
State average weekly earnings is an amount
that includes a fraction of a dollar, a
reference in this Act to twice the State
average weekly earnings is a reference to
that amount calculated—
(a) if that amount is less than $1000, to the
nearest whole dollar;
(b) if that amount is more than $1000, to
the nearest $10.".
52 Amendment of section 92A
(1) In section 92A(1) of the Accident Compensation
Act 1985—
(a) for the definition of dependent partner
substitute—
"dependent partner means a partner who is,
or would be but for the incapacity of
the worker due to injury, wholly or
mainly dependent on the worker's
earnings;";
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(b) for the definition of partially dependent
partner substitute—
"partially dependent partner means a
partner who is, or would be but for the
incapacity of the worker due to injury,
to any extent dependent on the worker's
earnings.".
(2) In section 92A(2) of the Accident Compensation
Act 1985, for "wholly or mainly dependent on the
worker's earnings" substitute "a dependent
partner".
(3) In section 92A of the Accident Compensation
Act 1985, for subsection (8B) substitute—
"(8B) If the worker leaves any one or more—
(a) dependent children;
(b) dependent partners;
(c) partially dependent partners—
and none of subsections (4), (5), (6), (7), (8)
or (8A) apply, each such dependent is
entitled to the amount of compensation,
being such share of a sum not exceeding
$511 920 which the court, the Authority or
self-insurer considers is reasonable and
appropriate to the injury to that dependant.".
53 Amendments relating to death benefits
(1) In section 92AA of the Accident Compensation
Act 1985—
(a) in subsection (1), in paragraph (c) of the
definition of expenses, for "the cost of"
substitute "an expense incurred as a result
of";
(b) in subsection (2)(b), omit "(including any
dependent child within the meaning of
section 92A(1))";
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(c) in subsection (8)(c), after "section 138"
insert "or any other indemnity under this
Act";
(d) in subsection (8)(d), after "section 249A"
insert "or any other amount relating to the
recovery of payments under this Act".
(2) After section 92B(11) of the Accident
Compensation Act 1985 insert—
"(12) In relation to a claim for compensation made
before 5 April 2010—
(a) a reference in subsection (3)(a)(ii),
(3)(b)(i) or (ii), (4)(a)(ii), (4)(b)(i) or
(ii), (5)(a)(ii), (5)(b)(ii), (6)(a)(ii),
(6)(b)(ii), (7)(b) or (11) to twice the
State average weekly earnings is—
(i) in relation to a period on or after
5 April 2010 and before 1 July
2010, a reference to $1130;
(ii) in relation to a period beginning
on or after 5 April 2010, a
reference to $1330;
(b) a reference in subsection (3)(b)(iii)
or (4)(b)(iii) to two thirds of twice the
State average weekly earnings is—
(i) in relation to a period on or after
5 April 2010 and before 1 July
2010, a reference to $754;
(ii) in relation to a period beginning
on or after 5 April 2010, a
reference to $887;
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(c) a reference in subsection (8)(b) to one
third of the State average weekly
earnings is—
(i) in relation to a period on or after
5 April 2010 and before 1 July
2010, a reference to $374;
(ii) in relation to a period beginning
on or after 5 April 2010, a
reference to $441.".
54 Amendment of section 92D
In section 92D(4) of the Accident Compensation
Act 1985—
(a) in subsection (4)(d), after "section 138"
insert "or any other indemnity under this
Act";
(b) in subsection (4)(e), after "section 249A"
insert "or any other amount relating to the
recovery of payments under this Act".
55 Amendment of section 93CA(2)
In section 93CA(2) of the Accident
Compensation Act 1985, for "has been ceased or
terminated" substitute "has ceased (otherwise
than under section 93C) or been terminated".
56 Amendment of section 93CE
In the Accident Compensation Act 1985—
(a) in section 93CE(4), for "The Authority"
substitute "Subject to subsection (1), the
Authority";
(b) in section 93CE(5), for "Payment"
substitute "Subject to subsection (1),
payment".
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57 Amendment of section 96(2) and (3)
In section 96 of the Accident Compensation Act
1985, for subsections (2) and (3) substitute—
"(2) If a worker—
(a) receives a superannuation or retirement
benefit lump sum that—
(i) relates to the worker's retirement
from, or cessation or termination
of, the employment out of, or in
the course of which, the injury
arose; and
(ii) has not been deposited with a
complying superannuation fund or
a complying approved deposit
fund; or
(b) withdraws or redeems any part of, or
withdraws or redeems any interest, or
part of any interest on, such a
superannuation or retirement benefit
lump sum that has been deposited with
a complying superannuation fund or a
complying approved deposit fund—
the worker is not entitled to weekly
payments under this Part during the specified
period after the date on which he or she
received the lump sum or made the
withdrawal or redemption, as the case
requires, or became eligible to receive
weekly payments, whichever is the later.
(3) The specified period for the purposes of
subsection (2) is the number of weeks
determined by dividing the amount received,
withdrawn or redeemed by the worker's preinjury average weekly earnings as varied in
accordance with Division 2D of Part IV.".
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58 New Division 2A
Before section 98 of the Accident Compensation
Act 1985 insert—
"Division 2A—Compensation for maims, pain
and suffering and non-economic loss".
59 Amendment of sections 98, 98A and 103
(1) In section 98 of the Accident Compensation Act
1985—
(a) in subsection (1), for "Table to this
subsection" substitute "Table in
Schedule 3A";
(b) in subsection (1), the Table and all words
and expressions after the Table and before
subsection (2) are repealed;
(c) in subsections (3) and (4), for "Table"
substitute "Table in Schedule 3A".
(2) In section 98A(1) of the Accident Compensation
Act 1985, for "Table in section 98" substitute
"Table in Schedule 3A".
(3) In section 103(9) of the Accident Compensation
Act 1985, for "Table to section 98(1)" substitute
"Table in Schedule 3A".
60 Amendment of section 98C
(1) In section 98C(2)(c)(ii)(B) of the Accident
Compensation Act 1985, for "$68 240"
substitute "the amount determined in accordance
with the formula $17 340 + [20 × $2610]".
(2) In section 98C(6B) of the Accident
Compensation Act 1985, after "sustains an
injury" insert ", other than industrial deafness,".
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61 Amendment of section 98E
(1) In section 98E of the Accident Compensation
Act 1985—
(a) in subsection (1), for "Table to this
subsection" substitute "Table in
Schedule 3B";
(b) in subsection (1), the Table is repealed;
(c) subsection (2) is repealed;
(d) in subsection (5)—
(i) for "Table" substitute "Table in
Schedule 3B";
(ii) for "$214 390" substitute "$252 250".
(2) After section 98E(6) of the Accident
Compensation Act 1985 insert—
"(7) The amount of compensation for an injury
that is a total loss mentioned in the Table in
Schedule 3B is to be calculated as at the date
of the relevant injury.".
62 Consequential amendments relating to section 98E
In the Accident Compensation Act 1985—
(a) in section 5(1), in paragraph (e) of the
definition of medical question, for "Table to
section 98E(1)" substitute "Table in
Schedule 3B";
(b) in section 104B(2)(d) and (f)(ii), (7)(c) and
(e)(ii), (9)(b), (11) and (12)(b), for "Table to
section 98E(1)" substitute "Table in
Schedule 3B".
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63 Claim for compensation
For section 103(4C) of the Accident
Compensation Act 1985 substitute—
"(4C) The Minister may make guidelines for the
purposes of this section and section 108
specifying—
(a) the manner and form in which a claim
for compensation may be given, served
or lodged by a worker;
(b) the manner in which a claim for
compensation may be forwarded by an
employer to the Authority.".
64 Amendment of section 134AB
(1) In section 134AB of the Accident Compensation
Act 1985—
(a) in subsection (3), for "A worker" substitute
"Subject to subsection (4A), a worker";
(b) in subsection (4), for "A worker" substitute
"Subject to subsection (4A), a worker".
(2) After section 134AB(4) of the Accident
Compensation Act 1985 insert—
"(4A) If a worker has made a claim for
compensation under section 98C in respect
of an injury, the worker must not make an
application under subsection (4) in respect of
that injury unless—
(a) the degree of impairment resulting from
the injury has been determined in
accordance with section 104B; and
(b) the worker has accepted the
determination of the degree of
impairment; and
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(c) the worker has accepted the entitlement
to compensation.".
65 Repeal of section 107
Section 107 of the Accident Compensation Act
1985 is repealed.
66 General right of access to information under this
Act—amendment of section 107A
(1) For section 107A(2) of the Accident
Compensation Act 1985 substitute—
"(2) The Authority, a self-insurer or an employer
must, at the request of a person who has
made a claim for compensation, give that
person any information received from a
provider to that person of a medical service
or hospital service, being information
regarding that service and relevant to the
claim.".
(2) In section 107A(3) of the Accident
Compensation Act 1985—
(a) for "or self-insurer" substitute ", a selfinsurer or an employer";
(b) in paragraph (b), after "subsection (1)" insert
"or (2)".
(3) In section 107A(6) of the Accident
Compensation Act 1985—
(a) for "or self-insurer" (where first occurring)
substitute ", a self-insurer or an employer";
(b) after "subsection (1)" insert "or (2)";
(c) in paragraph (a), for "or self-insurer"
substitute "a self-insurer or an employer".
(4) In section 107A(7) of the Accident
Compensation Act 1985, for "or a self-insurer"
substitute ", a self-insurer or an employer".
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67 Amendment of section 114
In section 114(5) of the Accident Compensation
Act 1985, for "or 97(7)" substitute ", 97(7),
134AB(36) or 135A(18)".
68 Amendment of section 114C
In section 114C of the Accident Compensation
Act 1985, for subsection (1) substitute—
"(1) If a Conciliation Officer directs, or the
Magistrates' Court or the County Court
determines, that weekly payments are
payable by the Authority or a self-insurer,
the Authority or self-insurer must commence
payment, including amounts payable under
section 114E, no later than 7 days after the
direction or determination.".
69 Amendment of section 114F—Recovery of payments
(1) After section 114F(1) of the Accident
Compensation Act 1985 insert—
"(1A) If the Authority recovers from a worker any
amount paid as compensation to the worker
by the worker's employer to which the
worker is not entitled, the Authority may
reimburse that amount to the employer.".
(2) After section 114F(2) of the Accident
Compensation Act 1985 insert—
"(3) If—
(a) an amount of compensation under this
Act has been paid to a person in
consequence of a false or misleading
statement or representation or in
consequence of a failure or omission to
comply with a provision of this Act; or
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(b) a person is liable to pay an amount to
the Authority or a self-insurer under
this Act—
the amount concerned is recoverable by the
Authority or a self-insurer from a person in a
court of competent jurisdiction as a debt due
to the Authority or self-insurer.
(4) Where an amount is recoverable from a
person under subsection (3) and an amount is
payable under this Act to or for the benefit of
that person, the recoverable amount may be
deducted from the amount so payable,
despite anything to the contrary in
section 97(4).".
70 Amendment of section 114N
(1) In section 114N(1)(b) of the Accident
Compensation Act 1985, after "claimed
employer" insert "and subject to subsection (4),
cease any payments of compensation being made
arising from the Authority's original decision to
accept the claim".
(2) After section 114N(3) of the Accident
Compensation Act 1985 insert—
"(4) If the worker has been receiving payments of
compensation under a claim before the
Authority sets aside the decision to accept
the claim under subsection (1)(b), the
Authority must give the worker 28 days
written notice before ceasing to make
payments.
(5) If the Authority sets aside the decision to
accept the claim under subsection (1)(b) and
the worker subsequently makes a claim
against an employer that is not the claimed
employer in respect of the injury that was the
subject of the set aside claim—
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(a) the entitlement periods specified in
section 91E; and
(b) the enhancement period specified in
section 5AD—
must be calculated from the date of the first
claim the worker made in respect of the
injury the subject of the claim which was set
aside.".
71 New section 114S inserted
After section 114R of the Accident
Compensation Act 1985 insert—
"114S Position of worker following decision
under section 114N
(1) If the Authority sets aside its decision under
section 114N(1)(b) to accept a claim made
by a worker for compensation against the
claimed employer—
(a) for the purposes of the worker
accessing dispute resolution procedures
under Part III, the Authority's decision
under section 114N(1)(b) is taken to be
a rejection of the worker's claim; and
(b) subject to the workers' rights to dispute
resolution procedures under Part III, the
worker is not entitled to lodge another
claim in respect of the same injury the
subject of the set aside claim under
section 114N(1)(b) against the first
claimed employer.
(2) Despite the Authority's decision under
section 114N(1)(b) to set aside its original
decision to accept a claim made by a worker
for compensation against the claimed
employer, the claimed employer is not
entitled to recover any compensation
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payments made to the worker before that
decision under section 114N(1)(b) was
made.".
72 Consequential amendment
After section 125A(3A) of the Accident
Compensation Act 1985 insert—
"(3B) If the Authority has set aside its decision to
accept a claim for compensation against a
claimed employer under section 114N(1)(b),
the claimed employer—
(a) is not liable for any excess under
subsection (3); and
(b) may request a reimbursement of the
excess from the Authority.".
73 Repeal of sections 117C to 117G
Sections 117C, 117D, 117E, 117F and 117G of
the Accident Compensation Act 1985 are
repealed.
74 Amendment of section 127
In section 127 of the Accident Compensation
Act 1985—
(a) in subsection (1), for "the Authority shall
assume that liability" substitute "the liability
becomes a liability of the Authority";
(b) in subsections (2) and (3), for "the Authority
has assumed the employer's liability"
substitute "the liability has become a
liability of the Authority".
75 Amendment of section 137A
In section 137A(1) of the Accident
Compensation Act 1985, for "section 137(2)"
(where 3 times occurring) substitute
"section 137(1)".
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76 New Schedules 3A and 3B inserted
Before Schedule 4 to the Accident
Compensation Act 1985, insert—
"SCHEDULE 3A
COMPENSATION FOR MAIMS
Section 98
THE TABLE
Injury
Percentage
Total loss of the sight of both eyes
Total loss of the sight of an only eye
Loss of both hands
Loss of both feet
Loss of a hand and a foot
Permanent brain damage (being an
injury which is not or is not wholly an
injury otherwise compensable under
this Table)
Total loss of the right arm or of the
greater part of the right arm
Total loss of the left arm or of the
greater part of the left arm
Total loss of the right hand or of five
fingers of the right hand, or of the
lower part of the right arm
Total loss of the same for the left hand
and arm
Total loss of a leg
Total loss of a foot
Total loss of the lower part of the leg
Total loss of the sight of one eye,
together with the serious diminution of
the sight of the other eye
Total loss of hearing
Total loss of the sight of one eye
Loss of binocular vision
75
100
100
100
100
100
0–100
80
75
70
65
75
65
70
75
65
40
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Injury
Percentage
Loss of eyeball (in addition to
compensation for loss of sight of an
eye)
Total loss of power of speech
Total loss of sense of taste or smell
Total loss of senses of both taste and
smell
Total loss of sexual organs
Total loss of both breasts
Total loss of one breast
Total loss of the thumb of the right
hand
Total loss of the thumb of the left hand
Total loss of the forefinger of the right
hand
Total loss of the forefinger of the left
hand
Total loss of two joints of the
forefinger of the right hand
Total loss of two joints of the
forefinger of the left hand
Total loss of a joint of the thumb
Total loss of the first joint of the
forefinger of the right hand
Total loss of the first joint of the
forefinger of the left hand
Total loss of the first joint of the
middle or little or ring finger of either
hand
Total loss of the middle finger of
either hand
Total loss of the little or ring finger of
either hand
Total loss of two joints of the middle
finger of either hand
Total loss of two joints of the little or
ring finger of either hand
Total loss of the great toe of either foot
Total loss of a joint of the great toe of
either foot
Total loss of any other toe
76
22
60
17
34
47
47
30
30
26
21
18
16
12
16
10
9
6
12
11
10
9
22
10
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Injury
Total loss of a joint of any other toe
Partial loss of the sight of both eyes or
of an only eye
Partial loss of the sight of one eye
Partial loss of hearing
Quadraplegia, paraplegia or total
impairment of the spine
Impairment of the back
Impairment of the neck
Impairment of the pelvis
77
s. 76
Percentage
2
Such
percentage of
the maximum
amount payable
for total loss as
is equal to the
percentage of
the diminution
of sight
measured
without the aid
of a correcting
lens.
Such
percentage of
the maximum
amount payable
for total loss as
is equal to the
percentage of
the diminution
of sight
measured
without the aid
of a correcting
lens.
Such
percentage of
the maximum
amount payable
for total loss as
is equal to the
percentage
(being not less
than 7) of the
diminution of
hearing.
100
0–60
0–40
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Injury
Percentage
Severe facial disfigurement (being an
injury which is not or is not wholly an
injury otherwise compensable under
this Table)
Severe bodily disfigurement (being an
injury which is not or is not wholly an
injury otherwise compensable under
this Table)
0–26
0–22
For the purposes of this Table—
(a) the total loss of a limb, hand, foot, finger,
thumb, toe or joint or any part thereof is
deemed to include the permanent total loss of
the use of such limb, hand, foot, finger,
thumb, toe, joint or part;
(b) where a worker habitually uses the left hand
and arm to perform work usually performed
by a worker with the right hand and arm the
compensation payable for the loss of such
left arm or the greater part of the arm or for
the total loss of the left hand or of five
fingers thereof or of the lower part of that
arm or of a finger or part of a finger of the
left hand is such amount as would have been
payable for a similar loss in respect of the
right arm or the part or parts thereof, but in
any such case the compensation for the loss
of the right arm or the greater part of that
arm or for the total loss of the right hand or
of five fingers thereof or of the lower part of
that arm or of a finger or part of a finger of
the right hand is such amount as would have
been payable for a similar loss in respect of
the left arm or the part or parts thereof if the
worker did not habitually use the left hand
and arm to perform work usually performed
by a worker with the right hand and arm; and
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(c) where, under the heading "Percentage", a
range is provided, the highest and lowest
percentages are reserved for injuries
resulting in maximum or minimal
impairment;
(d) in the case of loss of sexual organs (subject
to the maximum percentage of 47 per cent
and without limiting compensation for other
losses of sexual organs)—
(i) the percentage payable for loss of the
penis is 47 per cent;
(ii) the percentage payable for loss of
1 testicle is 10 per cent; and
(iii) the percentage payable for loss of
2 testicles or an only testicle is 47 per
cent;
(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.
__________________
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SCHEDULE 3B
NO DISADVANTAGE—COMPENSATION
TABLE
Section 98E
TABLE
Injury
Total Losses—
Minimum
Compensation
Payable for
Total Loss
$
Total loss of the sight of both eyes
Total loss of the sight of an only eye
Loss of both hands
Loss of both feet
Loss of a hand and a foot
Total loss of the right arm or of the
greater part of the right arm
Total loss of the left arm or of the
greater part of the left arm
Total loss of the right hand or of five
fingers of the right hand, or of the
lower part of the right arm
Total loss of the left hand or of five
fingers of the left hand, or of the lower
part of the left arm
Total loss of a leg
Total loss of a foot
Total loss of the lower part of the leg
Total loss of the sight of one eye,
together with the serious diminution of
the sight of the other eye
Total loss of hearing
Total loss of the sight of one eye
Loss of binocular vision
Loss of eyeball (in addition to
compensation for loss of sight of an
eye)
252 250
252 250
252 250
252 250
252 250
80
201 800
189 180
176 550
163 980
189 180
163 980
176 550
189 180
163 980
100 880
100 880
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Injury
Total Losses—
Minimum
Compensation
Payable for
Total Loss
$
Total loss of power of speech
Total loss of sense of taste or smell
Total loss of senses of both taste and
smell
Total loss of male sexual organs
Total loss of penis
Total loss of one testicle
Total loss of two testicles or an only
testicle
Total loss of female sexual organs
Total loss of both breasts
Total loss of one breast
Total loss of the thumb of the right
hand
Total loss of the thumb of the left hand
Total loss of the forefinger of the right
hand
Total loss of the forefinger of the left
hand
Total loss of two joints of the
forefinger of the right hand
Total loss of two joints of the
forefinger of the left hand
Total loss of a joint of the thumb
Total loss of the first joint of the
forefinger of the right hand
Total loss of the first joint of the
forefinger of the left hand
Total loss of the first joint of the
middle or little or ring finger of either
hand
Total loss of the middle finger of
either hand
151 350
42 890
81
85 770
118 570
118 570
25 200
118 570
118 570
118 570
75 660
75 660
65 590
53 000
45 390
40 350
30 260
40 350
25 200
22 710
15 120
30 260
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Injury
Total Losses—
Minimum
Compensation
Payable for
Total Loss
$
Total loss of the little or ring finger of
either hand
Total loss of two joints of the middle
finger of either hand
Total loss of two joints of the little or
ring finger of either hand
Total loss of the great toe of either foot
Total loss of a joint of the great toe of
either foot
Total loss of any other toe
Total loss of a joint of any other toe
Quadriplegia
Paraplegia
Total impairment of the spine
27 770
25 200
22 710
55 500
25 200
15 120
5050
252 250
252 250
252 250
For the purposes of this Table—
(a) the total loss of a limb, hand, foot, finger,
thumb, toe or joint or any part thereof is
deemed to include the permanent total loss of
the use of such limb, hand, foot, finger,
thumb, toe, joint or part;
(b) where a worker habitually uses the left hand
and arm to perform work usually performed
by a worker with the right hand and the arm,
the compensation payable for the loss of
such left arm or the greater part of the arm or
for the total loss of the left hand or of five
fingers thereof or of the lower part of that
arm or of a finger or part of a finger of the
left hand is such amount as would have been
payable for a similar loss in respect of the
right arm or the part or parts thereof, but in
any such case the compensation for the loss
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of the right arm or the greater part of that
arm or for the total loss of the right hand or
of five fingers thereof or of the lower part of
that arm or of a finger or part of a finger of
the right hand is such amount as would have
been payable for a similar loss in respect of
the left arm or the part or parts thereof if the
worker did not habitually use the left hand
and arm to perform work usually performed
by a worker with the right hand and arm.
Note
Amounts are indexed to the year in which the injury
occurred.
__________________".
77 New Division 2B inserted in Part IV
For section 99 of the Accident Compensation
Act 1985 substitute—
"Division 2B—Compensation for medical and
like services
99AAA Definitions
(1) In this Division—
family member means a partner, parent,
sibling or child of the worker or of the
worker's partner;
parent of a worker includes a person who
has day to day care and control of the
worker;
severe injury means—
(a) paraplegia;
(b) quadriplegia;
(c) amputation of a limb;
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(d) amputation of a hand or foot;
(e) severe head injury;
(f) severe eye injury;
(g) separation of a worker's skin from
an underlying tissue (such as degloving or scalping);
(h) severe burns;
(i) severe lacerations;
(j) severe injuries arising out of an
electric shock;
(k) any other work related injury
giving rise to an imminent risk of
death;
supported accommodation means—
(a) a residential facility in which
residential care is provided under
the Aged Care Act 1997 of the
Commonwealth;
(b) a supported residential service
within the meaning of section 3(1)
of the Health Services Act 1988;
(c) a community residential unit
within the meaning of section 3(1)
of the Disability Act 2006;
(d) a group home or other residential
facility approved by the Authority
for the purposes of this section.
(2) In this Division, reasonable costs, in relation
to a service (including modification of a car
or home), burial or cremation means an
amount—
(a) that is determined by the Authority,
employer or self-insurer as a reasonable
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amount in relation to that service, burial
or cremation; and
(b) that does not exceed the amount
(if any) specified in, or an amount
determined in accordance with a
method specified 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 or self-insurer as a reasonable
cost of the service, burial or cremation
having regard to—
(i) the service or provision actually
rendered; and
(ii) the necessity of the service or
provision in the circumstances;
and
(iii) any guidelines issued by the
Authority in respect of services or
provision of that kind.
(3) Guidelines issued by the Authority for the
purposes of subsection (2)(c)(iii) apply in
relation to the cost of a service provided or a
burial or cremation carried out after the issue
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of the guidelines, irrespective of the date of
the injury.
99 Liability of Authority and self-insurer
(1) If there is caused to a worker an injury which
entitles a worker to compensation, the
Authority or a self-insurer and the employer
in respect of the employer's liability under
section 125(1)(a)(iii) or 125A(3)(c) is liable,
unless a determination or order referred to in
section 249AA or a determination under
section 249AB, 249B or 249BA applies, to
pay as compensation—
(a) the reasonable costs of the road
accident rescue services, medical,
hospital, nursing, personal and
household, occupational rehabilitation
and ambulance services received
because of the injury; and
(b) if the injury is a severe injury for which
immediate in-patient treatment in a
hospital is received or where death
results from the injury, the reasonable
costs incurred in Australia of family
counselling services provided to family
members by—
(i) a medical practitioner; or
(ii) a registered psychologist; or
(iii) a social worker approved by the
Authority to provide counselling
services for the purposes of this
section—
not exceeding $5410 in respect of that
severe injury or death; and
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(c) the reasonable costs of burial or
cremation where death results from the
injury—
which is in addition to any other
compensation payable under this Act.
(2) The Authority may issue guidelines
identifying services, or services of a class of
services, referred to in subsection (1)(a)
or (b) for which approval should be sought
from the Authority or self-insurer before the
services are provided.
(3) A worker is entitled to receive a service
referred to in subsection (1) (other than an
occupational rehabilitation service) from the
provider of the worker's choice
notwithstanding that an employer or the
Authority or a self-insurer, as the case may
be, offers or provides a service to the worker
for the worker's use.
(4) If a worker receives services from an
employer who has made adequate
arrangements to provide workers in the
employer's employment with gratuitous
medical, hospital, nursing, ambulance or
personal and household, occupational
rehabilitation services, the employer is to the
extent of the value of the services deemed to
have discharged any liability of the employer
under section 125(1)(a)(iii) or 125A(3)(c).
(5) If the employer is not a self-insurer and the
value of the services provided under
subsection (4) exceeds $592 the employer
may claim the amount by which the value of
the services exceeds $592 from the
Authority.
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(6) A payment of compensation under this
section must be made to the person lawfully
entitled to payment.
(7) If the liability to the person lawfully entitled
to payment of the costs specified in this
Division has already been discharged in
whole or in part by a payment by the worker
or any other person whether legally liable to
make the payment or not, the amount by
which the liability has been so discharged
must be paid to the worker or other person
who made the payment.
(8) If a worker or a worker's dependants is or are
entitled to any of the services (including
burial or cremation) specified in this
Division free of charge or at a reduced rate
or charge because the worker entered into
any prior contract, agreement or arrangement
or was a contributor or subscriber to any
institution, fund or scheme, the payment in
respect of those services must not be reduced
but after payment of the amount, if any,
actually owing to the person lawfully entitled
to payment the balance of the reasonable cost
must be paid to the worker or the worker's
dependants.
(9) The payment of the whole of the reasonable
costs of any service or of burial or cremation
specified in this Division wholly and finally
discharges the worker or the worker's
dependants and any other person from all
liability whatsoever in respect of those costs.
(10) An action, suit or other proceeding against a
worker or the legal personal representative of
a worker or a dependant of a worker for the
payment or recovery of any costs which the
Authority, a self-insurer or an employer is
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liable to pay under this section or to which a
notice, determination or order referred to in
section 249AA, 249AB, 249B or 249BA
applies must not be entertained by any court.
(11) Subsection (10) does not apply in relation to
a worker or a worker's legal personal
representative or a dependant in respect of
the payment or recovery of costs of
professional services provided by a person
after the worker, representative or dependant
has been informed in writing by the
Authority or self-insurer that a determination
or order against that person has been made
under section 249AA, 249AB, 249B
or 249BA.
(12) Nothing in this section renders the Authority,
a self-insurer or the employer liable to pay as
compensation the cost of the provision to, or
for, a worker of any of the following things
unless the provision of a particular thing to
the worker is a medical service, or a hospital
service, provided as a result of the injury—
(a) accommodation (including
accommodation-related costs such as
rent, bonds, rates, accommodation costs
levied in accordance with
Commonwealth legislation, capital
contributions and costs associated with
the buying or selling of property, but
not including contributions or costs for
which the Authority is liable under
section 99AC(5));
(b) food or household or personal items;
(c) power, water or any other service
provided by a utility;
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(d) room temperature controls;
(e) any other thing specified by the
regulations for the purposes of this
subsection.
(13) Subsection (12) does not apply in the case of
a person—
(a) who is under 18 years of age and who,
as a result of his or her injury, is unable
to reside at the place at which he or she
resided before the injury; or
(b) who is receiving respite care as a result
of his or her injury; or
(c) who receives a hospital service as a
result of his or her injury and, after
being discharged from hospital for the
first time after suffering the injury,
resides in supported accommodation
but only while so residing during the
first 18 months after being so
discharged.
(14) If, during the period of 18 months referred to
in subsection (13), the person receives a
hospital service or hospital services, a
reference in that subsection to 18 months has
effect, in relation to that person, as a
reference to that period as extended by the
period, or periods, during which the person
receives the hospital service or hospital
services.
(15) Despite subsection (12), the Governor in
Council may, by Order published in the
Government Gazette, fix limits in respect of
contributions to be made by a worker
towards the cost of supported
accommodation.
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(16) An Order made under subsection (15)—
(a) may fix limits that vary according to
the type of supported accommodation
in which the worker is residing;
(b) takes effect on the date on which the
Order is published in the Government
Gazette or, if a later date is specified in
the Order, on that later date.
99AA Medical and like services outside
Australia
(1) Notwithstanding anything to the contrary in
this Division, unless subsection (3) or (4)
applies, the Authority, employer or selfinsurer is not liable to pay as compensation
the costs of any service or of burial or
cremation specified in section 99(1) which is
provided or carried out outside Australia,
unless the worker or claimant obtained the
approval of the Authority, employer or selfinsurer before the service or burial or
cremation specified in section 99(1) was
provided or carried out.
(2) In determining whether to approve the
provision or carrying out of a service or
burial or cremation specified in section 99(1)
for the purposes of subsection (1), the
Authority, employer or self-insurer must
have regard to the matters specified in the
definition of reasonable costs in section
99AAA(2)(c) and to section 99AD(2), (4)
and (5).
(3) Subsection (1) does not apply if the worker
or claimant satisfies the Authority, employer
or self-insurer that because of an emergency
situation—
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(a) it was necessary to immediately
provide or carry out a service or burial
or cremation specified in section 99(1);
and
(b) it was not reasonably practicable to first
obtain approval.
(4) In the case of a worker who resides outside
Australia, the Authority, employer or selfinsurer may for the purposes of subsection
(1) give a general approval specifying a class
or classes of services, burials or cremations.
(5) The requirement imposed by subsection (1)
is in addition to any other relevant
requirements under this Division.
99AB Occupational rehabilitation services
(1) A worker is entitled to receive occupational
rehabilitation services referred to in this
Division from—
(a) a provider of occupational
rehabilitation services chosen by the
worker from a list of approved
providers of those services nominated
by the Authority, employer or
self-insurer in accordance with
subsection (2); or
(b) if the Authority, employer or selfinsurer does not nominate a list of
approved providers of those services
for the purposes of this subsection,
from an approved provider of those
services of the worker's choice.
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(2) A list of providers of occupational
rehabilitation services referred to in section
99(1) must consist of the names of not less
than 3 approved providers of those services
nominated by the Authority, employer or
self-insurer having regard as far as is
possible to—
(a) the type of injury the worker has
suffered;
(b) the type of occupational rehabilitation
services required;
(c) where the worker resides;
(d) where the provider is requested by the
Authority, self-insurer or employer to
provide the services.
(3) If 3 approved providers of particular
occupational rehabilitation services are not
available, it is sufficient compliance with
subsection (2) if the list consists of the
names of the available approved provider or
providers of those occupational rehabilitation
services.
(4) If—
(a) the Authority, employer or self-insurer
offers occupational rehabilitation
services from an approved provider of
occupational rehabilitation services to
be chosen by the worker from a list of
providers of those services nominated
by the Authority, employer or
self-insurer in accordance with
subsection (2) or (3); and
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(b) the worker does not choose an
approved provider of those
occupational rehabilitation services
within 14 days of the offer of
occupational rehabilitation services—
the occupational rehabilitation services will
be offered or provided to the worker by an
approved provider of occupational
rehabilitation services nominated by the
Authority, employer or self-insurer in
accordance with subsection (2).
99AC Modification of cars and homes
(1) Unless the Authority or self-insurer
otherwise determines, the Authority or a selfinsurer is not liable to pay the reasonable
costs, or contribute a reasonable amount,
referred to in subsection (2), (3) or (5) unless
the Authority or self-insurer approved the
worker's requirement, and its costs, before
the costs were incurred.
(2) If a worker, as a result of his or her injury,
reasonably requires a car used by him or her
in Australia to be modified, the Authority or
self-insurer is liable—
(a) to pay the reasonable costs of
modifying the car; or
(b) if the car is not capable of being
modified, to contribute a reasonable
amount to the purchase cost of a
suitably modified car selected by the
Authority or self-insurer.
(3) If a worker, as a result of his or her injury,
reasonably requires access to a car, and he or
she does not have access to a car, the
Authority or self-insurer is liable to
contribute a reasonable amount to the
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purchase cost of a suitable car selected by
the Authority or self-insurer.
(4) Without limiting the factors the Authority or
self-insurer may consider in determining
what is a reasonable amount for the purposes
of subsections (2)(b) and (3), the Authority
or self-insurer must have regard to any of the
following factors that are applicable—
(a) the market value now of the car used by
the worker at the time of the injury;
(b) if that car is no longer used by the
worker, the market value of the car at
the time of the injury;
(c) how often the worker was using a car at
the time of the injury;
(d) how often the worker will, or is likely
to, use a car in future;
(e) the market value of any other car that
the worker uses.
(5) If a worker, as a result of his or her injury,
reasonably requires that a home in which he
or she resides in Australia be modified, the
Authority or self-insurer is liable—
(a) to pay the reasonable costs of
modifying the home; or
(b) if for any reason the home cannot be
reasonably modified, to contribute a
reasonable amount—
(i) to the purchase costs of a semidetachable portable unit; or
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(ii) to the costs of relocating the
worker to another home that is
suitable for the worker or that is
capable of being reasonably
modified.
(6) Without limiting the factors the Authority or
self-insurer may consider in determining the
reasonable costs or amount for the purposes
of subsection (5), the Authority or selfinsurer must have regard to the following
factors—
(a) whether the home in which the worker
resides is structurally suitable for
modification;
(b) the nature of the worker's injuries;
(c) how those injuries restrict, or are likely
to restrict, the worker's ability—
(i) to enter and leave the home in
which the worker resides; and
(ii) to move about the home for
necessary purposes;
(d) the extent of the modifications that will
be needed to address those restrictions
or likely restrictions;
(e) any complex, unique or unusual
circumstances associated with those
modifications;
(f) whether the cost of those modifications
is likely to exceed the value of the
home in which the worker resides.
(7) If a worker moves from a home that has
modifications to which the Authority or selfinsurer made a contribution, in assessing
whether to make a payment in respect of
modifications to the worker's new home, the
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Authority or self-insurer must have regard to
the appropriateness of that home for
modification, having regard to all relevant
circumstances, with respect to the
modifications that are needed.
(8) The Authority or self-insurer must not make
a payment or contribution under subsection
(2), (3) or (5) which exceeds $10 000 or a
greater amount as may be prescribed, unless
the worker enters into an agreement with the
Authority or self-insurer in relation to the
ownership of, and maintenance of
modifications to, the car, home or semidetachable portable unit.
(9) Without limiting what may be included in an
agreement under subsection (8), the
agreement must include provisions in respect
of—
(a) subsequent modifications;
(b) changes of ownership;
(c) the frequency of modifications and
changes of ownership.
99AD Duration of compensation under this
Division
(1) Subject to subsection (4), if weekly
payments are payable, compensation under
this Division ceases after 52 weeks after the
entitlement to weekly payments ceases,
unless subsection (5) applies.
(2) Subject to subsection (4), if compensation is
payable only under this Division,
compensation under this Division ceases
after 52 weeks after the entitlement arises,
unless subsection (5) applies.
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(3) Before compensation under subsection (1)
or (2) ceases, the Authority or self-insurer—
(a) must give at least 28 days written
notice to the worker; and
(b) must state in the notice—
(i) the reasons for giving the notice;
and
(ii) the date when the entitlement will
cease.
(4) If a worker receives a settlement or award of
pecuniary loss damages within the meaning
of section 134AB or 135A of this Act or
section 93 of the Transport Accident Act
1986 or accepts a voluntary settlement of
weekly payments under Division 3A of
Part IV of this Act in respect of an injury, the
worker is entitled, subject to this Act, to
continue to receive compensation under this
section.
(5) Compensation under this Division does not
cease if—
(a) the worker has returned to work but—
(i) could not remain at work if a
service under section 99 was not
provided; or
(ii) surgery is required for the worker;
or
(iii) the worker has a serious injury
within the meaning of
section 91E; or
(b) the worker requires modification of a
prosthesis; or
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(c) the service provided under
section 99(1) is essential to ensuring
that the worker's health or ability to
undertake the necessary activities of
daily living does not significantly
deteriorate.
99AE Termination of payment for professional
services obtained fraudulently
(1) If the Authority or a self-insurer determines
that payment for professional services was
obtained by the worker fraudulently, the
Authority or self-insurer may terminate
payment of those professional services by
giving to the worker, within 7 days after the
determination is made, written notice stating
the date on which, and the grounds on which,
the determination was made.
(2) The termination of payment of professional
services under subsection (1) takes effect
from the date of the determination.".
78 Consequential amendments
In the Accident Compensation Act 1985—
(a) in section 56(5) for "section 99 or 99A"
substitute "Division 2B of Part IV or
section 99A";
(b) in section 59(2), (8) and (9) for "section 99"
substitute "Division 2B of Part IV";
(c) in section 92AA(1), in paragraph (a) of the
definition of expenses, for "section 99"
substitute "Division 2B of Part IV";
(d) in section 92D(1)(c) and (6)(c) for
"99(1)(aa)" substitute "99(1)(b)";
(e) in section 92D(1)(d) and (6)(d) for
"99(1)(b)" substitute "99(1)(c)";
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(f) in section 103(7)(d) for "section 99"
substitute "Division 2B of Part IV";
(g) in section 108(1)(ba) and (c) and (3), for
"section 99" substitute "Division 2B of
Part IV";
(h) in section 109(3), for "section 99" substitute
"Division 2B of Part IV";
(i) in section 115A(1), for "section 99"
substitute "Division 2B of Part IV";
(j) in section 116A(1), for "section 99"
substitute "Division 2B of Part IV";
(k) in section 117, for "section 99" substitute
"Division 2B of Part IV";
(l) in section 117A, for "section 99" substitute
"Division 2B of Part IV";
(m) in section 118, for "section 99" substitute
"Division 2B of Part IV";
(n) in section 118A, for "section 99" substitute
"Division 2B of Part IV";
(o) in section 119J(1)(a), (2)(a) and (3)(a), for
"section 99" substitute "Division 2B of
Part IV";
(p) in section 128(1), for "section 99" substitute
"Division 2B of Part IV";
(q) in section 134AB(24)(a) and (25)(a), for
"section 99" substitute "Division 2B of
Part IV";
(r) in section 135A(10)(a), for "section 99"
substitute "Division 2B of Part IV";
(s) in section 135A(11)(a), for "sections 98, 98A
and 99" substitute "sections 98 and 98A and
Division 2B of Part IV";
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(t) in section 179(1), in the definition of
protected claim, for "section 99" substitute
"Division 2B of Part IV";
(u) in section 196(1)(c), for "section 99 and
99A" substitute "Division 2B of Part IV and
section 99A";
(v) in section 201, for "sections 99 and 99A"
substitute "Division 2B of Part IV and
section 99A";
(w) in section 209(3), for "section 99" substitute
"Division 2B of Part IV";
(x) in section 238(1), for "section 99" substitute
"Division 2B of Part IV".
79 New Division 2C
(1) Before section 99A of the Accident
Compensation Act 1985 insert—
"Division 2C—Rehabilitation services prior to
acceptance of claim".
(2) Insert the following heading to section 99A—
"Authority or self-insurer may pay for
rehabilitation service".
80 New Division 2D
For section 100 of the Accident Compensation
Act 1985 substitute—
"Division 2D—Indexation
100 Indexation—weekly payments
(1) Subject to this section, the amount of a
weekly payment to a worker in respect of an
injury under this Part must be varied, in
respect of each year beginning on the
anniversary of the day on which the worker
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became entitled to weekly payments in
respect of that injury, by varying the amount
of the worker's pre-injury average weekly
earnings for the purposes of the calculation
of the amount of the weekly payment in
accordance with the formula—
A
B
C
where—
A is the amount of the worker's pre-injury
average weekly earnings within the
meaning of Division 2 of Part I or, if
that amount has been varied in
accordance with this section, that
amount as last so varied.
B is the latest average weekly earnings as
at the 15th day of the month (the
relevant month) preceding the month
in which the anniversary falls of all
employees in Victoria published by the
Australian Statistician in respect of the
latest available quarter before that
anniversary.
C is the average weekly earnings of all
employees for Victoria as at the
15th day of the relevant month in the
year preceding the year in which that
anniversary falls published by the
Australian Statistician in respect of the
quarter before that relevant month
corresponding to the quarter referred to
above.
(2) A variation of an amount of a worker's preinjury average weekly earnings under this
section does not take effect to the extent
(if any) to which it increases that amount to
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more than 100 per cent of the worker's
ordinary earnings (calculated in accordance
with Division 2 of Part I) expressed as a
weekly sum to which the worker would be
entitled if he or she were employed in the
same position or positions (if it or they can
be identified) as he or she was employed in
immediately before the injury, being the
position or positions on the basis of which
the calculation of the worker's pre-injury
average weekly earnings was made
(whether before, on or after the
commencement of section 80 of the
Transport Accident and Accident
Compensation Legislation Amendment
Act 2010).
(3) In the case of a worker who became
entitled to weekly payments before the
commencement of section 10 of the
Accident Compensation (General
Amendment) Act 1989, the anniversary of
the day on which the worker became so
entitled is deemed, for the purposes of this
section, to be 1 July.
(4) In the case of a worker who became entitled
to weekly payments before the
commencement of section 80 of the
Transport Accident and Accident
Compensation Legislation Amendment
Act 2010, a reference in subsection (1) to the
amount of the worker's pre-injury average
weekly earnings within the meaning of
Division 2 of Part I is a reference to the
worker's pre-injury average weekly earnings
as determined under this Act as in force
immediately before that date.
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100A Indexation of weekly pensions for
dependants of a worker who dies
(1) Subject to subsection (2), the amount of any
compensation in the form of weekly
payments of pension payable under
section 92B to a deceased worker's
dependants must be varied—
(a) on 1 July 2011 in respect of the
financial year commencing on that
date; and
(b) on 1 July in each subsequent year in
respect of the financial year
commencing on that date—
by varying the amount of the worker's preinjury average weekly earnings for the
purposes of the calculation of the amount of
the weekly pension in accordance with the
formula—
A
B
C
where—
A is the amount of the worker's pre-injury
average weekly earnings or, if that
amount had been varied in accordance
with section 100 as in force
immediately before the commencement
of section 80 of the Transport
Accident and Accident
Compensation Legislation
Amendment Act 2010 or in
accordance with this section or
otherwise, that amount as last so varied.
B is the latest average weekly earnings as
for all employees in Victoria published
by the Australian Statistician in respect
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of the December quarter in the year
before that 1 July.
C is the average weekly earnings of all
employees in Victoria published by the
Australian Statistician in respect of the
December quarter of the year that is
2 years before that 1 July.
(2) If a worker's death resulted from or was
materially contributed to by an injury arising
out of or in the course of employment and
the deceased worker died more than one year
after the date of the injury, the amount of any
compensation in the form of weekly
payments of pension payable to the
dependants of the deceased worker under
section 92B must be varied on the
anniversary date of the injury in respect of
the year beginning on that date by varying
the amount of the deceased worker's preinjury average weekly earnings for the
purposes of the calculation of the amount of
the weekly pension in accordance with the
formula—
D
E
F
where—
D is the amount of the worker's pre-injury
average weekly earnings or, if that
amount had been varied in accordance
with section 100 as in force before the
commencement of section 80 of the
Transport Accident and Accident
Compensation Legislation
Amendment Act 2010 or in
accordance with this section or
otherwise, that amount as last so varied.
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E is the latest average weekly earnings as
at the 15th day of the month (the
relevant month) preceding the month
in which the anniversary falls of all
employees in Victoria published by the
Australian Statistician in respect of the
latest available quarter before that
anniversary.
F is the average weekly earnings of all
employees for Victoria as at the 15th
day of the relevant month in the year
preceding the year in which that
anniversary falls published by the
Australian Statistician in respect of the
quarter before that relevant month
corresponding to the quarter referred to
above.
100B Indexation of certain amounts—according
to average weekly earnings
An amount specified in column 2 of the
Table to this section must be varied, in
respect of the financial year beginning on the
date specified in column 3 of that item and
each subsequent financial year, in
accordance with the formula—
A
B
C
where—
A is the amount specified in column 2 of
that item or, if that amount has been
varied in accordance with this section,
that amount as last so varied.
B is the latest average weekly earnings as
at 30 May in the preceding financial
year of all employees for Victoria
published by the Australian Statistician
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in respect of the December quarter of
that financial year or, if that is not
available, the latest available quarter.
C is the average weekly earnings of all
employees for Victoria as at 30 May in
the year preceding the preceding
financial year published by the
Australian Statistician in respect of the
quarter preceding that 30 May
corresponding to the quarter referred to
above.
THE TABLE
Column 1
Item
Column 2
Amount
Column 3
Financial Year
1
Section
92B(12)(a)(ii)—
$1330
1 July 2011
2
Section
92B(12)(b)(ii)—
$887
1 July 2011
3
Section
92B(12(c)(ii)—
$441
1 July 2011
4
Section
93A(1)(a)(ii)—
$1070
1 July 2011
5
Section
93A(2)(a)(ii)—
$1330
1 July 2011
6
Section
93A(1)(b)(ii)—
$1070
1 July 2011
7
Section
93A(2)(b)(ii)—
$1330
1 July 2011
8
Section
93B(1)(a)(ii)—
$1070
1 July 2011
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Column 1
Item
Column 2
Amount
Column 3
Financial Year
9
Section
93B(1)(b)(ii)—
$1070
1 July 2011
10
Section
93B(2)(a)(ii)—
$1330
1 July 2011
11
Section
93B(1)(c)(ii)—
$1070
1 July 2011
12
Section
93B(2)(b)(ii)—
$1330
1 July 2011
13
Section
93C(2)(a)(ii)—
$1070
1 July 2011
14
Section
93C(2)(b)(ii)—
$1070
1 July 2011
15
Section
93C(2)(c)(ii)—
$1330
1 July 2011
16
Section
93CA(1)(c)—
$155
1 July 2011
17
Section
93CD(4)(a)—
$155
1 July 2011
18
Section
93CD(5)(a)(ii)—
$1070
1 July 2011
19
Section
93CD(5)(b)(ii)—
$1330
1 July 2011
20
Section
129B(7)—
$13 220
1 July 2011
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Column 1
Item
Column 2
Amount
Column 3
Financial Year
21
Section
135A(7)(a)(i)—
$52 610
1 July 2011
22
Section
135A(7)(a)(ii)—
$1 184 600
1 July 2011
23
Section
135C(2)—
$781 480
1 July 2011
24
Schedule 1A,
item 11—$1070
1 July 2011
25
Schedule 5,
clauses 3(1) and
(2)—$48 780
1 July 2011
100C Indexation of certain amounts—consumer
price index
An amount in dollars specified in column 2
of an item in the Table to this section must
be varied, in respect of the financial year
beginning on the date specified in column 3
of that item and each subsequent financial
year, in accordance with the formula—
A
B
C
where—
A is the amount specified in column 2 or,
if that amount has been varied in
accordance with this section, that
amount as last so varied.
B is the all groups consumer price index
for Melbourne as at 15 June in the
preceding financial year last published
by the Australian Statistician in respect
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of the December quarter of that
financial year.
C is the all groups consumer price index
for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
in respect of the December quarter
preceding that 15 June.
THE TABLE
Column 1
Item
Column 2
Amount
Column 3
Financial Year
1
Section 62(3)—
$51
1 July 2011
2
Section 62(4)—
$356
1 July 2011
3
Section 92A(4)—
$511 920
1 July 2011
4
Section 92A(5)—
$511 920
1 July 2011
5
Section
92A(6)(a)—
$460 730
1 July 2011
6
Section
92A(6)(b)—
$51 190
1 July 2011
7
Section 92A(7)—
$511,920
1 July 2011
8
Section
92A(7)(a)—
$25 600
1 July 2011
9
Section 92A(8)—
$511 920
1 July 2011
10
Section
92A(8)(a)—
$383 940
1 July 2011
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Column 1
Column 2
Column 3
Item
Amount
Financial Year
11
Section
92A(8)(b)—
$127 980
1 July 2011
12
Section
92A(8A)—
$511 920
1 July 2011
13
Section
92A(8B)—
$511 920
1 July 2011
14
Section 92A(9)—
$511 920
1 July 2011
15
Section 92AA—
$30 530
1 July 2011
16
Section
92D(1)(b)—
$7630
1 July 2011
17
Section
98C(2)(b)(i)—
$10 760 and
$9170
1 July 2011
18
Section
98C(2)(b)(ii)—
$10 760 and
$9170
1 July 2011
19
Section
98C(2)(c)(i)—
$17 340 and
$2610
1 July 2011
20
Section
98C(2)(c)(ii)(A)
—$17 340 and
$2610
1 July 2011
21
Section
98C(2)(c)(ii)(B)—
$17 340 and
$2610
1 July 2011
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Column 1
Column 2
Column 3
Item
Amount
Financial Year
22
Section
98C(2)(d)—
$69 370 and
$4330
1 July 2011
23
Section
98C(2)(e)(i)—
$241 580 and
$27 040
1 July 2011
24
Section
98C(2)(e)(ii)—
$511 920
1 July 2011
25
Section
98C(2)(f)—
$511 920
1 July 2011
26
Section
98C(3)(b)—
$17 340 and
$2610
1 July 2011
27
Section
98C(3)(c)—
$69 370 and
$4330
1 July 2011
28
Section
98C(3)(d)(i)—
$241 580 and
$27 040
1 July 2011
29
Section
98C(3)(d)(ii)—
$511 920
1 July 2011
30
Section
98C(3)(e)—
$511 920
1 July 2011
31
Section 98C
(3A)(a)—$2610
and $1720
1 July 2011
32
Section
98C(3A)(b)—
$2610
1 July 2011
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Column 1
Column 2
Column 3
Item
Amount
Financial Year
33
Section
98C(3A)(c)—
$4330, $2610 and
$1720
1 July 2011
34
98C(3A)(d)—
$4330 and $2610
1 July 2011
35
Section
98C(3A)(e)—
$4330
1 July 2011
36
Section 98C(4)—
$62 370
1 July 2011
37
Section 98C(7)—
$511 920
1 July 2011
38
Section 98C(8)—
$511 920
1 July 2011
39
Section 98E(5)—
$252 250
1 July 2011
40
Section
99(1)(b)—$5410
1 July 2011
41
Section 99(5)—
$592
1 July 2011
42
Section
125(1)(a)(iii)—
$592
1 July 2011
43
Section
125A(3)(c)—$592
1 July 2011
44
Section
134AB(22)(a)(i)
—$52 220
1 July 2011
45
Section
134AB(22)(a)(ii)
—$1 175 820
1 July 2011
46
Section
134AB(22)(b)(i)
—$50 440
1 July 2011
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Column 1
Column 2
Column 3
Item
Amount
Financial Year
47
Section
134AB(22)(b)(ii)
—$511 920
1 July 2011
48
Section
135A(7)(b)(i)—
$46 720
1 July 2011
49
Section
135A(7)(b)(ii)—
$474 140
1 July 2011
50
Schedule 3B No
disadvantage—
Compensation
Table: each
amount specified
in the Table
1 July 2011
100D Indexation—no reduction
If the variation of an amount specified in
section 100, 100A, 100B or 100C or in a
Table to section 100B or 100C by operation
of that section has the effect of reducing the
amount—
(a) the variation is deemed not to have
taken effect, except for the purposes of
the application of this section; and
(b) when the amount is varied and
increased by operation of this section in
respect of the next or a subsequent
financial year, that variation has effect
as an increase only to the extent (if any)
to which the amount of the increase
exceeds the amount of the reduction in
respect of a preceding financial year, or
that part of such a reduction that has not
been set off against a previous increase.
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100E Indexation—rounding
Where it is necessary for the purposes of this
Division to calculate an amount that consists
of or includes a fraction of a whole number,
the amount is 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.".
81 Amendments consequential on new Division 2D of
Part IV
In the Accident Compensation Act 1985—
(a) in section 96(3), for "section 100" substitute
"Division 2D of Part IV";
(b) in section 134AB(22)(a)(i) and (ii), for
"section 100" substitute "Division 2D of
Part IV";
(c) in section 134AB(22)(b)(i) and (ii), for
"section 100" substitute "Division 2D of
Part IV";
(d) in section 135A(7)(a)(i) and (ii), for
"section 100" substitute "Division 2D of
Part IV";
(e) in section 135A(7)(b)(i) and (ii), for
"section 100" substitute "Division 2D of
Part IV".
82 Dollar amounts as at 1 July 2010—benefits
In the Accident Compensation Act 1985—
(a) in section 62(3), for "$50" substitute "$51";
(b) in section 62(4), for "$350" substitute
"$356";
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(c) in section 92A(4) and (5), for "$503 000"
substitute "$511 920";
(d) in section 92A(6)(a), for "$452 700"
substitute "$460 730";
(e) in section 92A(6)(b), for "$50 300"
substitute "$51 190";
(f) in section 92A(7), for "$503 000" substitute
"$511 920";
(g) in section 92A(7)(a), for "$25 150"
substitute "$25 600";
(h) in section 92A(8), for "$503 000" substitute
"$511 920";
(i) in section 92A(8)(a), for "$377 250"
substitute "$383 940";
(j) in section 92A(8)(b), for "$125 750"
substitute "$127 980";
(k) in section 92A(8A), (8B) and (9), for
"$503 000" substitute "$511 920";
(l) in section 92AA, in the definition of
maximum amount, for "$30 000" substitute
"$30 530";
(m) in section 92D(1)(b), for "$7500" substitute
"$7630";
(n) in section 93A(1)(a)(ii) and (b)(ii), for
"$1040" substitute "$1070";
(o) in section 93A(2)(a)(ii) and (b)(ii), for
"$1300" substitute "$1330";
(p) in section 93B(1)(a)(ii), (b)(ii) and (c)(ii), for
"$1040" substitute "$1070";
(q) in section 93B(2)(a)(ii) and (b)(ii), for
"$1300" substitute "$1330";
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(r) in section 93C(2)(a)(ii) and (b)(ii), for
"$1040" substitute "$1070";
(s) in section 93C(2)(c)(ii), for "$1300"
substitute "$1330";
(t) in section 93CA(1)(c), for "$151" substitute
"$155";
(u) in section 93CD(4)(a), for "$151" substitute
"$155";
(v) in section 93CD(5)(a)(ii), for "$1040"
substitute "$1070";
(w) in section 93CD(5)(b)(ii), for "$1300"
substitute "$1330";
(x) in section 98C(2)(b)(i) and (ii)—
(i) for "$10 570" substitute "$10 760";
(ii) for "$9010" substitute "$9170";
(y) in section 98C(2)(c)(i)—
(i) for "$17 040" substitute "$17 340";
(ii) for "$2560" substitute "$2610";
(z) in section 98C(2)(c)(ii)(A)—
(i) for "$17 040" substitute "$17 340";
(ii) for "$2560" substitute "$2610";
(za) in section 98C(2)(d)—
(i) for "$68 160" substitute "$69 370";
(ii) for "$4250" substitute "$4330";
(zb) in section 98C(2)(e)(i)—
(i) for "$237 370" substitute "$241 580";
(ii) for "$26 570" substitute "$27 040";
(zc) in section 98C(2)(e)(ii) and (f), for
"$503 000" substitute "$511 920";
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(zd) in section 98C(3)(b)—
(i) for "$17 040" substitute "$17 340";
(ii) for "$2560" substitute "$2610";
(ze) in section 98C(3)(c)—
(i) for "$68 160" substitute "$69 370";
(ii) for "$4250" substitute "$4330";
(zf) in section 98C(3)(d)(i)—
(i) for "$237 370" substitute "$241 580";
(ii) for "$26 570" substitute "$27 040";
(zg) in section 98C(3)(d)(ii) and (e), for
"$503 000" substitute "$511 920";
(zh) in section 98C(3A)(a)—
(i) for "$2220" substitute "$2610";
(ii) for "$1481" substitute "$1720";
(zi) in section 98C(3A)(b), for "$2220"
substitute "$2610";
(zj) in section 98C(3A)(c)—
(i) for "$3700" substitute "$4330";
(ii) for "$2220" substitute "$2610";
(iii) for "$1481" substitute "$1720";
(zk) in section 98C(3A)(d)—
(i) for "$3700" substitute "$4330";
(ii) for "$2220" substitute "$2610";
(zl) in section 98C(3A)(e), for "$3700"
substitute "$4330";
(zm) in section 98C(4), for "$53 270" substitute
"$62 370";
(zn) in section 98C(7) and (8), for "$503 000"
substitute "$511 920".
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83 Dollar amounts as at 1 July 2010—payment,
contributions etc.
In the Accident Compensation Act 1985—
(a) in section 125(1)(a)(iii), for "$506"
substitute "$592";
(b) in section 125A(3)(c), for "$506" substitute
"$592";
(c) in section 129B(7), for "$11 240" substitute
"$13 220";
(d) in section 134AB(22)(a)(i), for "$44 730"
substitute "$52 220";
(e) in section 134AB(22)(a)(ii), for
"$1 006 760" substitute "$1 175 820";
(f) in section 134AB(22)(b)(i), for "$43 190"
substitute "$50 440";
(g) in section 134AB(22)(b)(ii), for "$503 000"
substitute "$511 920";
(h) in section 135A(7)(a)(i), for "$44 730"
substitute "$52 610";
(i) in section 135A(7)(a)(ii), for "$1 006 760"
substitute "$1 184 600";
(j) in section 135A(7)(b)(i), for "$39 900"
substitute "$46 720";
(k) in section 135A(7)(b)(ii), for "$404 900"
substitute "$474 140";
(l) in section 135C(2), for "$664 160"
substitute "$781 480".
84 Dollar amounts as at 1 July 2010—self-insurers
In clause 3(1) and (2) of Schedule 5 to the
Accident Compensation Act 1985, for "$47 570"
substitute "$48 780".
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Division 4—Compensation for impairment, hearing loss
and non-economic loss
85 Amendment of section 5
In section 5(1) of the Accident Compensation
Act 1985, insert the following definition—
"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 and any regulations made under this
Act;".
86 Amendment of section 88
(1) In section 88(2) of the Accident Compensation
Act 1985, for "this section, section 89 and
Division 2" substitute "this section and section 89
and Divisions 2 and 2A".
(2) In section 88 of the Accident Compensation Act
1985, for subsection (4) substitute—
"(4) Notwithstanding subsection (3) and subject
to subsection (5), if a worker sustains
industrial deafness, the injury is deemed to
have been sustained by the worker on the last
day on which the worker was—
(a) performing duties; or
(b) exposed to conditions—
by reason of which the injury was due to the
nature of the worker's employment or arose
out of or in the course of the worker's
employment.
(5) Notwithstanding subsection (3), if a worker
sustains industrial deafness and on the day
on which the worker gives, serves or lodges
a claim for compensation in respect of the
injury, the worker is still—
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(a) performing duties; or
(b) exposed to conditions—
by reason of which the injury is due to the
nature of the worker's employment or arises
out of or in the course of employment, the
injury is deemed to have been sustained on
that day.".
87 Amendment of section 89
(1) Insert the following heading to section 89 of the
Accident Compensation Act 1985—
"Further diminution of hearing".
(2) In section 89 of the Accident Compensation Act
1985—
(a) in subsection (3)(a) and (b), for "loss of
hearing" substitute "diminution of hearing";
(b) in subsection (3A), for "suffered in total"
substitute "a diminution of hearing assessed
as".
88 Amendment of section 91
(1) In section 91(3) of the Accident Compensation
Act 1985—
(a) for "binaural hearing impairment" substitute
"diminution of hearing";
(b) in paragraphs (a), (b) and (c), for "the
binaural loss of hearing is" substitute
"the diminution of hearing assessed as a
binaural loss of hearing is".
(2) After section 91(3) of the Accident
Compensation Act 1985 insert—
"(3AAA) Impairment from industrial deafness or a
proportion of such impairment that occurs in
circumstances that do not create a liability to
pay compensation under this Act must be
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excluded from the assessment of deafness for
the purposes of assessing the degree of
impairment under this section.
(3AAB) Unless the Authority, self-insurer, Medical
Panel or County Court (as the case requires)
determines otherwise, impairment from
industrial deafness is deemed to have
occurred at a constant rate within the total
number of years of exposure to industrial
noise in employment.".
(3) In section 91 of the Accident Compensation Act
1985—
(a) in subsection (3AA) for "binaural"
substitute "a diminution of hearing assessed
as a binaural";
(b) in subsection (3A)—
(i) for "binaural hearing impairment"
substitute "a diminution of hearing";
(ii) in paragraphs (a), (b) and (c), for "the
binaural loss of hearing is" substitute
"the diminution of hearing assessed as a
binaural loss of hearing is";
(c) in subsection (4)(a) and (b), for "shall be
determined" substitute "must be assessed as
a binaural loss of hearing and determined";
(d) subsection (8) is repealed.
89 Further amendments relating to diminution of
hearing
(1) In section 98(2) of the Accident Compensation
Act 1985—
(a) in paragraph (a), for "section 88" substitute
"section 88(4)";
(b) in paragraph (b), for "section 88" substitute
"section 88(5)".
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(2) In section 98(2AB)(a) and (b) of the Accident
Compensation Act 1985, for "shall be
determined" substitute "must be assessed as a
binaural loss of hearing and determined".
(3) In the Accident Compensation Act 1985—
(a) in section 179(1), in the definition of
protected claim, for paragraph (a)
substitute—
"(a) a claim under section 98, 98C or 98E
for a diminution of hearing;";
(b) in section 182(3)—
(i) for "under section 98 for loss of
hearing" substitute "under section 98,
98C or 98E for a diminution of
hearing"; and
(ii) for "further loss of hearing" substitute
"a further diminution of hearing";
(c) in section 183(4)—
(i) for "section 98 for loss of hearing"
substitute "section 98, 98C or 98E for
a diminution of hearing";
(ii) for "further loss of hearing" substitute
"further diminution of hearing".
90 Amendment of section 98C—non economic loss
(1) In section 98C(1A) of the Accident
Compensation Act 1985 insert the following
definition—
"relevant date, in relation to the calculation of the
amount of non-economic loss under
subsection (2), (3) or (3A) means—
(a) if the worker's impairment benefit
rating is not more than 70%, the date of
the relevant injury;
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(b) if the worker's impairment benefit
rating is more than 70%, the date on
which the calculation is made;".
(2) In section 98C of the Accident Compensation
Act 1985—
(a) in subsection (2), for "as at the date of the
relevant injury" substitute "as at the relevant
date";
(b) in subsection (2A), for "subsection (2)"
substitute "this section";
(c) in subsection (3), for "as at the date of the
relevant injury" substitute "as at the relevant
date";
(d) in subsection (3A), for "as at the date of the
relevant injury" substitute "as at the relevant
date".
(3) In section 98C of the Accident Compensation
Act 1985, for subsections (3AA), (3AB), (3AC)
and (3AD) substitute—
"(3AA) In relation to a relevant injury sustained
before 3 December 2003, a reference to an
amount of dollars—
(a) in subsection (2)(c) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(b) as then in force;
(b) in subsection (2)(d) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(c) as then in force;
(c) in subsection (3)(b) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(b) as then in force in
respect of permanent impairment;
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(d) in subsection (3)(c) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(c) as then in force in
respect of permanent impairment.
(3AB) In relation to a relevant injury sustained on
or after 3 December 2003 and before 1 July
2010, a reference to an amount of dollars—
(a) in subsection (2)(b) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(b) as then in force;
(b) in subsection (2)(c) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(c) as then in force;
(c) in subsection (3)(b) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(c) as then in force in
respect of permanent impairment;
(d) in subsection (3)(c) is a reference to the
corresponding amount in dollars
applying at the time of the injury under
section 98C(2)(d) as then in force in
respect of permanent impairment.".
91 New section 98DA inserted
After section 98D of the Accident Compensation
Act 1985 insert—
"98DA Effect of payment of compensation under
section 98C or 98E
If compensation for non-economic loss,
calculated in accordance with section 98C, is
paid to a worker in respect of an impairment,
loss of bodily function, disfigurement, brain
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damage or total loss resulting from an injury
(other than industrial deafness) that
occurred—
(a) by gradual process over time due to the
nature of the employment in which the
worker was employed; or
(b) by gradual process over time and arose
out of, or in the course of, employment
in which the worker was employed—
the worker ceases to be entitled to
compensation under section 98, 98C or 98E
or under section 11 of the Worker's
Compensation Act 1958 in respect of any
injury—
(c) suffered by the worker before the
compensation was paid; and
(d) that materially contributed to the
impairment, loss of body function,
disfigurement, brain damage or total
loss in respect of which the
compensation was paid.".
Division 5—Further amendment of Parts 4 to 8 of Accident
Compensation Act 1985
92 Repeal of section 123
Section 123 of the Accident Compensation Act
1985 is repealed.
93 Amendment of section 134ABA
In section 134ABA of the Accident
Compensation Act 1985, for "impairment
benefits is lodged under section 98C or 98E"
substitute "compensation under section 98C
or 98E is lodged".
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94 New section 134AFA inserted
After section 134AF of the Accident
Compensation Act 1985 insert—
"134AFA Legal practitioner may recover costs
A legal practitioner acting on behalf of a
worker in respect of any claim, application
or proceedings under section 134AB, 135,
135A or 135B is entitled to be paid legal
costs, of a kind specified in a legal costs
order made under section 134AG or
134AGA from the Authority or selfinsurer.".
95 Amendment of section 134AG
(1) In section 134AG(1)(a) of the Accident
Compensation Act 1985, for "recovered"
substitute "paid by the Authority or self-insurer".
(2) After section 134AG(5) of the Accident
Compensation Act 1985 insert—
"(6) Legal costs in respect of any claim,
application or proceeding referred to in
subsection (1)(a) cannot be recovered from
the Authority or self-insurer except in
accordance with an order under this
section.".
96 New sections 134AGA and 134AGB inserted
After section 134AG of the Accident
Compensation Act 1985 insert—
"134AGA Litigated claims legal costs order—
workers
(1) Subject to subsection (2), the Governor in
Council may by Order in Council make a
litigated claims legal costs order—
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(a) specifying the legal costs that may be
recovered from the Authority or selfinsurer by a legal practitioner acting on
behalf of a worker in respect of any
claim, application or proceedings under
or in accordance with section 134AB,
135, 135A or 135B; and
(b) prescribing or specifying any matter or
thing required to give effect to the legal
costs order including procedures for
resolving any dispute that arises in
relation to the costs payable under the
order.
(2) Before a litigated claims legal costs order is
made under subsection (1), the Minister must
consult with the Attorney-General and
Treasurer.
(3) A litigated claims legal costs order—
(a) must be published in the Government
Gazette;
(b) takes effect on and from the date on
which it is published or any later date
of commencement as may be specified
in the order;
(c) applies to legal costs incurred on or
after the date of commencement of the
order;
(d) in the case of—
(i) the first litigated legal costs order
to be made under subsection (1)
after the commencement of
section 99 of the Transport
Accident and Accident
Compensation Legislation
Amendment Act 2010, must be
reviewed by the Minister within
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2 years of the commencement of
the litigated legal costs order;
(ii) each subsequent litigated legal
costs order made under subsection
(1) after the litigated legal costs
order specified in subparagraph (i)
is made, must be reviewed by the
Minister 3 years after
commencement of each
subsequent litigated legal costs
order.
(4) Section 134AB(29), 135A(13B) or 135B(7)
does not apply in proceedings to which a
litigated claims legal costs order under
subsection (1) applies.
(5) A litigated legal costs order under subsection
(1) may provide for the amounts of costs
specified in the order to be indexed in
accordance with the all groups consumer
price index for Melbourne as published by
the Australian statistician.
(6) If a litigated claims legal costs order under
subsection (1) is in force, legal costs in
respect of any claim, application or
proceeding referred to in subsection (1) to
which the order applies cannot be recovered
except in accordance with the order.
134AGB Litigated claims legal costs order—
Authority and self-insurers
(1) Subject to subsection (2), the Governor in
Council may by Order in Council make a
litigated claims legal costs order—
(a) specifying the legal costs that may be
recovered from a worker by a legal
practitioner acting on behalf of the
Authority or self-insurer in respect of
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any claim, application or proceedings
under or in accordance with section
134AB, 135, 135A or 135B; and
(b) prescribing or specifying any matter or
thing required to give effect to the legal
costs order including procedures for
resolving any dispute that arises in
relation to the costs payable under the
Order.
(2) Before a litigated claims legal costs order is
made under subsection (1), the Minister must
consult with the Attorney-General and
Treasurer.
(3) A litigated claims legal costs order—
(a) must be published in the Government
Gazette;
(b) takes effect on and from the date on
which it is published or any later date
of commencement as may be specified
in the order;
(c) applies to legal costs incurred on or
after the date of commencement of the
order;
(d) in the case of—
(i) the first litigated legal costs order
to be made under subsection (1)
after the commencement of
section 99 of the Transport
Accident and Accident
Compensation Legislation
Amendment Act 2010, must be
reviewed by the Minister within
2 years of the commencement of
the litigated legal costs order;
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(ii) each subsequent litigated legal
costs order made under subsection
(1) after the litigated legal costs
order specified in subparagraph (i)
is made, must be reviewed by the
Minister 3 years after
commencement of each
subsequent litigated legal costs
order.
(4) Section 134AB(29), 135A(13B) or 135B(7)
does not apply in proceedings to which a
litigated claims legal costs order under
subsection (1)(a) applies.
(5) If a litigated claims legal costs order under
subsection (1)(a) is in force, legal costs in
respect of any claim, application or
proceeding referred to in subsection (1)(a) to
which the order applies cannot be recovered
except in accordance with the order.".
97 Amendment of section 135BBA
In section 135BBA(2)(b) of the Accident
Compensation Act 1985, for "134AB(4)"
substitute "section 134AB(16)".
98 Determination of eligibility to apply for approval as
self-insurer
In the note at the foot of section 140(1) of the
Accident Compensation Act 1985, after
"application" insert "unless the body corporate
has become the subsidiary of another body
corporate".
99 Application for approval as self-insurer
(1) In section 141(1)(b) of the Accident
Compensation Act 1985 omit "not".
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(2) For section 141(2)(b) of the Accident
Compensation Act 1985 substitute—
"(b) the application is for the renewal of approval
as a self-insurer and the body corporate is—
(i) a self-insurer; and
(ii) not a subsidiary of another body
corporate (other than a foreign
company within the meaning of the
Corporations Act that, when the
application is made, is not a registered
foreign company within the meaning of
that Act); or".
100 New section 144A inserted—Approval of new
holding company as self-insurer
After section 144 of the Accident Compensation
Act 1985 insert—
"144A Approval of new holding company as selfinsurer
(1) If an employer (the acquired employer) that
is a self-insurer becomes the subsidiary of
another body corporate (the holding
company), the Authority in its discretion,
and on the application and request of the
acquired employer and the holding company
may, subject to subsection (2)—
(a) approve that holding company as a selfinsurer; and
(b) revoke the approval of the acquired
employer as a self-insurer.
(2) Subsection (1) does not apply unless the
Authority is satisfied that no substantive
change has occurred, and is not likely to
occur, in relation to the operation or
management of the acquired employer as a
result of—
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(a) the acquired employer becoming a
subsidiary of the holding company; or
(b) the approval of the holding company as
the self-insurer.
(3) If the Authority approves the holding
company as a self-insurer under subsection
(1), that holding company is only approved
as a self-insurer for the balance of the period
remaining on the approval period of the
acquired employer as a self-insurer
beginning from when the acquired employer
was acquired.".
101 Liabilities of self-insurer to be guaranteed
(1) In section 148(3)(b)(ii) of the Accident
Compensation Act 1985, after "subsidiaries"
insert "in relation to compensation payable under
section 147 and compensation in respect of tail
claims assumed by a self-insurer under
section 150 or 150A".
(2) After section 148(5) of the Accident
Compensation Act 1985 insert—
"(6) In this section tail claim means—
(a) any claim for which an employer has
assumed the liability for, and the
responsibility for management of,
under section 150; and
(b) any claim of a body corporate acquired
by an employer for which the employer
has assumed liability for, and
responsibility for management of,
under section 150A.".
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102 Acquisition of scheme-insured body corporate by
self-insurer—amendment of section 150A
After section 150A(6) of the Accident
Compensation Act 1985 insert—
"(6A) If the self-insurer has made an election under
subsection (3), the Authority retains the
liability for, and the responsibility for
management of, the tail claims of the body
corporate until the transfer date.".
103 Provision of guarantees
Section 151D(8) of the Accident Compensation
Act 1985 is repealed.
104 Amendments consequential on amendment of
section 7 of Accident Compensation (WorkCover
Insurance) Act 1993
In the Accident Compensation Act 1985—
(a) in section 140(6), for "or at common law,"
substitute "or in respect of damages at
common law as permitted by and in
accordance with section 134AB or 135C of
this Act or any contribution in respect of
such damages under section 23B of the
Wrongs Act 1958,";
(b) in section 147(a), for "whether under this Act
or at common law," substitute "under this
Act (other than section 242AB or 242AD) or
to damages at common law as permitted by
and in accordance with section 134AB
or 135C,";
(c) in section 149(1), for "whether under this
Act or at common law" substitute "under
this Act (other than section 242AB
or 242AD) or damages at common law as
permitted by and in accordance with
section 134AB or 135C any contribution in
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respect of such damages under section 23B
of the Wrongs Act 1958";
(d) in section 150(5)(b), for ", whether under
this Act or at common law" substitute
"under this Act (other than section 242AB
or 242AD) or damages at common law as
permitted by and in accordance with
section 134AB or 135C";
(e) in section 150A(7)(b), for ", whether under
this Act or at common law" substitute
"under this Act (other than section 242AB
or 242AD) or damages at common law as
permitted by and in accordance with
section 134AB or 135C";
(f) in section 151(4), in the definition of tail
claim, paragraph (a)(ii), for ", whether under
this Act or at common law" substitute
"under this Act (other than section 242AB
or 242AD) or damages at common law as
permitted by and in accordance with
section 134AB or 135C";
(g) in section 152(6)(b), in the definition of tail
claim, for ", whether under this Act or at
common law" substitute "under this Act
(other than section 242AB or 242AD) or
damages at common law as permitted by and
in accordance with section 134AB or 135C".
105 Amendment of definition of tail claims
In section 164 of the Accident Compensation
Act 1985, in the definition of tail claims, in
paragraph (b), for "whether under this Act, at
common law or otherwise" substitute "under
this Act (other than section 242AB or 242AD)
or damages at common law as permitted by and
in accordance with section 134AB or 135C".
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106 Penalty inserted in section 248(1)
At the foot of section 248(1) of the Accident
Compensation Act 1985 insert—
"Penalty: In the case of a natural person,
1000 penalty units or 2 years
imprisonment;
In the case of a body corporate,
5000 penalty units.".
107 Sections 192 and 195
(1) In section 192 of the Accident Compensation
Act 1985, subsection (3) is repealed.
(2) After section 195(3) of the Accident
Compensation Act 1985 insert—
"(4) For the purposes of this section, an employer
knows or ought reasonably to have known of
the worker's incapacity for work from the
date of the commencement of the
employment obligation period within the
meaning of the section 194.".
108 New section 198A inserted
After section 198 of the Accident Compensation
Act 1985 insert—
"198A Employer to notify Authority of return to
work of worker
(1) When—
(a) a worker who has been receiving
weekly payments for no current work
capacity returns to work with the
employer in whose employment the
injury occurred or an employer who
knows that the worker has been
receiving payments; or
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(b) there is a change in the weekly earnings
of a worker who has been receiving
weekly payments for current work
capacity—
the employer must notify the Authority.
Penalty: In the case of a natural person:
40 penalty units;
In the case of a body corporate:
240 penalty units.
(2) Subsection (1) does not apply to a selfinsurer or a subsidiary of a self-insurer
except in relation to the employment of a
student worker.".
109 Amendment of section 208
(1) In the heading to section 208 of the Accident
Compensation Act 1985, for "employer"
substitute "employment".
(2) In section 208(2) of the Accident Compensation
Act 1985, for "no later than what the Authority or
self-insurer estimates to be 36 weeks after the
expiration of the employment obligation period"
substitute "no later than what the Authority or
self-insurer estimates to be the expiration of
36 weeks of the employment obligation period".
(3) In section 208(4) of the Accident Compensation
Act 1985, after "obligations of" insert
"the Authority or".
(4) In section 123A of the Accident Compensation
Act 1985, after "or Part VIIB" insert "(except
under section 208)".
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110 Amendment of section 239
(1) In section 239(1) of the Accident Compensation
Act 1985, after "any person" (where first
occurring) insert "(including any person that is an
employee appointed or authorised to perform any
function or exercise any power of, or on behalf of,
the Authority under any Act)".
(2) For section 239(1A)(b) of the Accident
Compensation Act 1985 substitute—
"(b) in the case of subsection (1)(a) or (1)(b), for
inquiring into or ascertaining the person's or
any other person's—
(i) liability or entitlement under any of the
provisions of this Act, the Accident
Compensation (WorkCover
Insurance) Act 1993 or the Workers
Compensation Act 1958; or
(ii) liability to pay, or entitlement to
receive, damages at common law and
under the Wrongs Act 1958, and
contribution or indemnity under that
Act, in respect of an injury to, or death
of, a worker arising out of or in the
course of a worker's employment with
the employer; or".
111 Amendment of section 239AAB(1)
In section 239AAB(1)(a)(i) of the Accident
Compensation Act 1985, for "an offence"
substitute "misconduct".
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112 Amendment of section 240A—Warrants to enter
and search
(1) For section 240A(1) of the Accident
Compensation Act 1985 substitute—
"(1) If a magistrate is satisfied, by the evidence
on oath or by affidavit of the Authority, that
there is reasonable ground for suspecting that
there are on particular premises any books
which are relevant—
(a) in determining whether any of the
provisions of this Act or the Accident
Compensation (WorkCover
Insurance) Act 1993 are being or have
been contravened; or
(b) to the assessment of a premium under
the Accident Compensation
(WorkCover Insurance) Act 1993—
the magistrate may issue a warrant
authorising any member of the police force
together with any other person named in the
warrant to do the things specified in
subsection (1A).
(1A) A member of the police force or a person
named in a warrant issued by a magistrate
under subsection (1) is authorised—
(a) to enter those premises (using such
force as is necessary for the purpose);
(b) to search the premises and to break
open and search any cupboard, drawer,
chest, trunk, box, package or other
receptacle, whether a fixture or not, in
the premises;
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(c) to take possession of, or secure against
interference, any books that appear to
be relevant to a purpose specified in
subsection (1);
(d) to deliver any books, possession of
which is taken, into the possession of
the Authority or a person authorised by
the Authority to receive them.".
(2) In section 240A(3) of the Accident
Compensation Act 1985, for "subsection (1)(d)"
substitute "subsection (1A)(d)".
113 Amendment of section 243
(1) For section 243(1), (2) and (2A) of the Accident
Compensation Act 1985 substitute—
"(1) This section applies to, a person who is, or
has at any time been—
(a) a member of the Board; or
(b) appointed for the purposes of this Act;
or
(c) engaged as a member of staff of the
Authority; or
(d) authorised to perform or exercise any
function or power of the Authority or
any function or power on behalf of the
Authority.
(2) A person to whom this section applies
may—
(a) produce a document to a court in the
course of a criminal proceeding or in
the course of any proceeding under this
Act;
(b) produce a document or divulge
information to a Conciliation Officer, a
Medical Panel, the Magistrates' Court,
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the Tribunal or the County Court with
respect to a matter arising under this
Act;
(c) divulge or communicate to a court in
the course of any proceedings referred
to in paragraph (a) any matter or thing
coming under the notice of the person
in the performance of official duties or
in the performance of a function or the
exercise of a power referred to in that
subsection;
(d) produce a document or divulge or
communicate information to an entity
specified in Schedule 6;
(e) produce a document or divulge or
communicate information as provided
in section 92(1)(c) and (e)(vf) of the
Taxation Administration Act 1997;
(f) produce a document or disclose
information which is required or
permitted to be produced or disclosed
by or under this Act or any other Act.
(2A) A person specified in subsection (1) must
not, either directly or indirectly, make a
record of, or divulge or communicate to any
person, any information that is or was
acquired by the person by reason of being or
having been appointed, engaged or
authorised as specified in subsection (1), or
make use of any such information, for any
purpose except—
(a) to the extent necessary to perform
official duties or to perform or exercise
a function or power specified under
subsection (1);
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(b) for a purpose specified in
subsection (2).
(2B) The Minister must cause a report of requests
for the approval of persons or bodies by the
Governor in Council under item 13 of
Schedule 6 to be laid before each House of
the Parliament within 14 sitting days of that
House after 30 June in each year.".
(2) Section 243(4) of the Accident Compensation
Act 1985 is repealed.
114 Amendment of section 242AD
In section 242AD(9)(b) of the Accident
Compensation Act 1985, for subparagraph (i),
substitute—
"(i) in the case of a worker, but for the
discriminatory conduct, the worker would
have received from that employer during the
12 months immediately after the
discriminatory conduct was engaged in;".
115 Indemnity—amendment of section 248C
In section 248C of the Accident Compensation
Act 1985, for "Attorney-General" substitute
"Director of Public Prosecutions".
116 Amendment of section 249BA
In section 249BA of the Accident Compensation
Act 1985—
(a) in subsection (2), for "notice to that person"
substitute "notice in writing given to that
person"; and
(b) in subsection (3)(b), for "made or, in the case
of a self-insurer, after the notice was given"
substitute "given or, in the case of a selfinsurer, after a copy of the determination was
given to the self-insurer".
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117 Sections 249B(5) and 249BA(2) aligned
(1) In section 249B of the Accident Compensation
Act 1985, for subsection (5) substitute—
"(5) If, following a review of which notice is
given under subsection (3)(b), the Authority
considers—
(a) that the person, in providing the
relevant service, has acted in an
unreasonable or unprofessional manner;
or
(b) that the ability of the person to practise
is affected because of the person's
physical or mental health or the
person's incapacity; or
(c) that the person is not of good character
or is otherwise not a fit and proper
person—
the Authority, by notice in writing to the
person, may do any one or more of the
following—
(d) suspend the person's approval as a
provider of the relevant services for a
period specified in the notice;
(e) determine that the costs of any relevant
services provided during the suspension
are not payable by the Authority or a
self-insurer;
(f) revoke the person's approval as a
provider of the relevant services.".
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(2) In section 249BA of the Accident Compensation
Act 1985, for subsection (2) substitute—
"(2) If a relevant body finds or considers on
reasonable grounds, in relation to a person
who provides a professional service—
(a) that the person has, whether by act or
omission, engaged in unprofessional
conduct or professional misconduct; or
(b) that the ability of the person to practise
is affected because of the person's
physical or mental health or the
person's incapacity; or
(c) that the person is not of good character
or is otherwise not a fit and proper
person—
the Authority may, subject to section 249BB,
by notice in writing to that person, make
either or both of the following
determinations—
(d) if the Authority determined under
section 249B(2) to suspend payment of
costs of relevant services provided by a
person, a determination that those costs
are not payable by the Authority or a
self-insurer;
(e) a determination that the person is a
person for the provision of whose
professional services the Authority or a
self-insurer is not liable to pay costs as
compensation under this Act, being
professional services provided to a
worker after the determination is made
and during a period specified in the
determination.".
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118 New sections 250A and 250AA inserted
For section 250A of the Accident Compensation
Act 1985 substitute—
"250A Imputing conduct of bodies corporate
(1) For the purposes of this Act and the
Accident Compensation (WorkCover
Insurance) Act 1993, any conduct engaged
in on behalf of a body corporate by an
employee, agent or officer of the body
corporate acting within the actual or apparent
scope of his or her employment, or within his
or her actual or apparent authority, is
conduct also engaged in by the body
corporate.
(2) In this section—
officer of a body corporate, unincorporated
body or association or partnership has
the same meaning as officer of a
corporation has in section 9 of the
Corporations Act.
250AA Liability of officers of bodies corporate
(1) If a body corporate (including a body
corporate representing the Crown)
contravenes a provision of this Act or the
Accident Compensation (WorkCover
Insurance) Act 1993 and the contravention
is attributable to an officer of the body
corporate failing to take reasonable care, the
officer is guilty of an offence and liable to a
fine not exceeding the maximum fine for an
offence constituted by a contravention by a
natural person of the provision contravened
by the body corporate.
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(2) An offence against subsection (1) is
summary or indictable in nature according to
whether the offence constituted by the
contravention by the body corporate is
summary or indictable.
(3) In determining for the purposes of subsection
(1) whether an officer of a body corporate
has failed to take reasonable care, regard
must be had to—
(a) what the officer knew about the matter
concerned; and
(b) the extent of the officer's ability to
make, or participate in the making of,
decisions that affect the body corporate
in relation to the matter concerned; and
(c) whether the contravention by the body
corporate is also attributable to an act
or omission of any other person; and
(d) any other relevant matter.
(4) An officer of a body corporate may be
convicted or found guilty of an offence in
accordance with subsection (1) whether or
not the body corporate has been found guilty
of the offence committed by it.
(5) An officer of a body corporate (including a
body corporate representing the Crown) who
is a volunteer is not liable to be prosecuted
under this section for anything done or not
done by him or her as a volunteer.
Note
Officer of a body corporate includes a person who
makes or participates in the making of decisions that
affect the whole or a substantial part of the body
corporate's business and a person who has the
capacity to affect significantly the body corporate's
financial standing.
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(6) In this section—
officer has the same meaning as in
section 250A;
volunteer means a person who is acting on a
voluntary basis (irrespective of whether
the person receives out-of-pocket
expenses.".
119 Institution of prosecutions—amendment of
section 252
(1) In section 252(1) of the Accident Compensation
Act 1985 omit "(other than a provision of
Division 2 of Part III)".
(2) Section 252(1A) of the Accident Compensation
Act 1985 is repealed.
(3) In section 252(4)(a) of the Accident
Compensation Act 1985—
(a) for "242(4)(d), 242(9), 242(10)," substitute
"198A, 206,";
(b) after "248A" insert ", 248AB".
(4) In section 252(4)(b) of the Accident
Compensation Act 1985, for "194(1), 242(3),
242(4)(b) or 242(4)(c)" substitute "108(1),
108(3), 114D(2), 194(2) or 242AA(1)".
(5) In section 252(5) of the Accident Compensation
Act 1985, after "this Act" insert "and the
Accident Compensation (WorkCover
Insurance) Act 1993".
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120 New sections 252O to 252R inserted
After section 252N of the Accident
Compensation Act 1985 insert—
"252O Supreme Court—limitation of jurisdiction
It is the intention of section 39 as amended
by section 41 of the Transport Accident
and Accident Compensation Legislation
Amendment Act 2010 to alter or vary
section 85 of the Constitution Act 1975.
252P Supreme Court—limitation of jurisdiction
It is the intention of section 99(10) as
inserted by section 77 of the Transport
Accident and Accident Compensation
Legislation Amendment Act 2010 to alter
or vary section 85 of the Constitution Act
1975.
252Q Supreme Court—Limitation of
jurisdiction
It is the intention of section 134AG(6) as
inserted by section 95 of the Transport
Accident and Accident Compensation
Legislation Amendment Act 2010 to alter
or vary section 85 of the Constitution Act
1975.
252R Supreme Court—limitation of jurisdiction
It is the intention of sections 134AGA(6) and
134AGB(5) as inserted by section 96 of the
Transport Accident and Accident
Compensation Legislation Amendment
Act 2010 to alter or vary section 85 of the
Constitution Act 1975.".
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121 New sections 253AA and 253AB inserted
Before section 253 of the Accident
Compensation Act 1985 insert—
"253AA Directions
(1) Directions issued by the Minister under this
Act may—
(a) specify fees;
(b) specify any other matter or thing
required or permitted by this Act to be
specified or necessary to be specified to
give effect to this Act.
(2) Directions issued by the Minister under this
Act—
(a) may be of general or limited
application;
(b) may differ according to differences in
time, place or circumstance;
(c) must be in writing;
(d) must be published in the Government
Gazette and on a Government Internet
website.
(3) A direction issued by the Minister must not
relate to a specific person.
(4) The Minister may amend or revoke a
direction by publishing the amendment or
revocation in the Government Gazette.
(5) A direction, amendment or revocation takes
effect on the day after it is published in the
Government Gazette, or on any later day
specified in the direction, amendment or
revocation.
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(6) A direction issued by the Minister is deemed
to be a statutory rule for the purposes of the
Subordinate Legislation Act 1994 and the
Monetary Units Act 2004.
(7) Directions made by the Minister under this
Act may be disallowed in whole or in part by
resolution of either House of the Parliament
in accordance with the requirements of
section 23(2) of the Subordinate
Legislation Act 1994 which disallowance is
deemed disallowance by Parliament for the
purposes of this Act.
253AB Guidelines
Guidelines made by the Minister under this
Act must be published in the Government
Gazette and on a Government Internet
website.".
122 Consequential amendments
(1) In section 20C of the Accident Compensation
Act 1985—
(a) in subsection (1)(b), for "specific written
directions given" substitute "specific
directions issued";
(b) subsections (2) and (3) are repealed.
(2) Section 104A(2) of the Accident Compensation
Act 1985 is repealed.
(3) In section 104B(13) of the Accident
Compensation Act 1985 omit "to be published in
the Government Gazette".
(4) Section 119L(2), (3), (4) and (5) of the Accident
Compensation Act 1985 are repealed.
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(5) Section 134AF(2) of the Accident Compensation
Act 1985 is repealed.
(6) Section 135AB(2) of the Accident Compensation
Act 1985 is repealed.
123 Regulations—New section 253 substituted
For section 253 of the Accident Compensation
Act 1985 substitute—
"253 Regulations
(1) The Governor in Council may make
regulations for or with respect to—
(a) prescribing forms;
(b) prescribing fees;
(c) generally prescribing any other matter
or thing required or permitted by this
Act to be prescribed or necessary to be
prescribed to give effect to this Act.
(2) The regulations—
(a) may be of general or limited
application;
(b) may differ according to differences in
time, place or circumstance;
(c) may confer a discretionary authority or
impose a duty on a specified person or
body or class of person or bodies;
(d) may impose a penalty not exceeding
10 penalty units for a contravention of
the regulations.
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(3) Regulations made under this Act may be
disallowed in whole or in part by resolution
of either House of the Parliament in
accordance with the requirements of section
23(2) of the Subordinate Legislation Act
1994 which disallowance is deemed
disallowance by Parliament for the purposes
of this Act.".
124 Amendment of section 313—transitional provision
in relation to section 93CD
After section 313(2) of the Accident
Compensation Act 1985 insert—
"(3) Section 93CD of the Accident
Compensation Act 1985, as in force
immediately before the commencement of
section 34 of the amending Act, applies in
respect of an injury occurring before the
commencement date.".
125 Amendment of section 325—transitional provision
in relation to section 134AB
For section 325(2) of the Accident
Compensation Act 1985 substitute—
"(2) Section 134AB, as amended by section 57(7)
of the amending Act, applies in respect of
any judgment, settlement or compromise
made on or after the commencement date in
respect of proceedings to recover damages
under section 134AB.".
126 Amendment of section 326—transitional provision
in relation to section 134AB
In section 326 of the Accident Compensation
Act 1985, for "applies to applications made under
section 134AB(4) that have not been resolved or
determined immediately before the
commencement date" substitute "applies in
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respect of a worker whose death occurs on or after
the commencement date".
127 Amendment of section 327—transitional provision
in relation to section 135A
For section 327 of the Accident Compensation
Act 1985 substitute—
"327 Section 135A (Actions for damages)
Section 135A, as amended by section 61(2)
of the amending Act, applies in respect of
any judgment, settlement or compromise
made on or after the commencement date in
respect of proceedings to recover damages
under section 135A.".
128 Amendment of section 328—transitional provision
in relation to section 135BBA
For section 328 of the Accident Compensation
Act 1985 substitute—
"328 Section 135BBA (Actions by terminally ill
workers continued after death of worker)
Section 135BBA, as inserted by section 62
of the amending Act, applies in respect of a
worker whose death occurs on or after the
commencement date.".
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Division 6—Transitional Provisions
129 Savings and Transitional Provisions
After section 364 of the Accident Compensation
Act 1985 insert—
"Division 13—Transport Accident and
Accident Compensation Legislation
Amendment Act 2010
365 Definitions
(1) In this Division—
amending Act means the Transport
Accident and Accident
Compensation Legislation
Amendment Act 2010;
amending provision means a provision of
the amending Act specified in a section
of this Division;
commencement date means the date on
which the amending provision comes
into operation.
(2) Nothing in this Division limits or otherwise
affects the operation of the Interpretation of
Legislation Act 1984.
366 Sections 5A to 5AE, 5B and Schedule 1A
(1) Sections 5A, 5AA, 5AB, 5AC, 5AD and
5AE and Schedule 1A, as inserted by
sections 21 and 23 of the amending Act,
apply in relation to a claim first received by
the Authority or self-insurer on or after the
commencement date.
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(2) Section 5B, as inserted by section 22 of the
amending Act, applies in relation to a claim
for weekly payments, whether made before,
on or after the commencement date, in
respect of an injury whether sustained
before, on or after the commencement date.
367 Part 1, Division 3 and sections 6 to 12, 14
and 15
Division 3 of Part I, as inserted by section 24
of the amending Act, sections 6, 7, 7A, 8, 9,
10, 11, 12, and 14(4) and (5) as substituted
by sections 25, 26, 27 28, 29 and 31 of the
amending Act and section 15 as amended by
section 33 of the amending Act, apply in
relation to—
(a) a claim first received by the Authority
or self-insurer on or after the
commencement date; and
(b) premiums under the Accident
Compensation (WorkCover
Insurance) Act 1994 payable on or
after the commencement date.
368 Section 82D (Road traffic offences)
Section 82D, as amended by section 48 of
the amending Act, applies in respect of a
conviction or finding overturned on appeal
on or after 5 April 2010.
369 Section 91E (Benefits—definitions)
Section 91E, as amended by section 50 of the
amending Act, applies in respect of a claim
first received by the Authority or self-insurer
on or after the commencement date.
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370 Section 92A (Death of a worker)
Section 92A, as amended by section 52 of
the amending Act, applies in respect of—
(a) a claim for compensation made on or
after the commencement date;
(b) a claim for compensation that,
immediately before the commencement
date, has not been determined by the
Authority or a self-insurer or by a court.
371 Section 93CE (Superannuation
contributions)
Section 93CE, as amended by section 56 of
the amending Act, applies in respect of
superannuation contributions payable on or
after the commencement date.
372 Section 98C (Non-economic loss)
(1) Section 98C, as amended by section 60(1) of
the amending Act, applies in respect of a
claim, whether made before, on or after the
commencement date, if a determination has
not been made under section 104B(2) before
that date.
(2) Section 98C, as amended by section 90 of
the amending Act, applies in respect of a
claim whether made before, on or after the
commencement date if the worker attends
the first impairment assessment for the
purposes of section 104B(2)(b) on or after
that date.
373 Section 98E (Total loss)
Section 98E, as amended by section 61 of the
amending Act, applies in respect of a claim
whether made before, on or after the
commencement date if the worker attends
the first impairment assessment for the
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purposes of section 104B(2)(b) on or after
that date.
374 Part IV, Division 2B (Compensation for
medical and like services)
Division 2B of Part IV, as inserted by
section 77 of the amending Act, applies in
respect of a liability of the Authority or a
self-insurer arising on or after the
commencement date.
375 Sections 117C to 117G
No act, matter or thing is affected only
because of the repeal of sections 117C,
117D, 117E, 117F and 117G of this Act by
section 73 of the Transport Accident and
Accident Compensation Legislation
Amendment Act 2010.
376 Section 52 (Appeals to Court of Appeal)
Section 52, as amended by section 43 of the
amending Act, applies to a notice of appeal
relating to a judgment or decision of the
County Court given or made on or after the
commencement date.
377 Section 103(4C) (Claim for compensation)
Section 103(4C), as substituted by section 63
of the amending Act, applies to guidelines
made by the Minister on or after the
commencement date.
378 Section 134AB (Actions for damages)
Section 134AB, as amended by section 64
of the amending Act, applies to new
serious injury applications made under
section 134AB(4) on or after the
commencement date.
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379 Section 107A (General right of access to
information under this Act)
Section 107A, as amended by section 66 of
the amending Act, applies to any requests for
information made on or after the
commencement date.
380 Section 114N
(1) Section 114N, as amended by section 70 of
the amending Act, applies to objections
made by a claimed employer under section
114I on or after the commencement date in
respect of which the Authority has not,
before that date, made a decision under
section 114N.
(2) For the purposes of subsection (1), a decision
includes a deemed decision under
section 114N(3).
381 Section 114S
(1) Section 114S, as amended by section 71 of
the amending Act, applies to objections
made by a claimed employer under section
114I on or after the commencement date in
respect of which the Authority has not,
before that date, made a decision under
section 114N.
(2) For the purposes of subsection (1), a decision
includes a deemed decision under
section 114N(3).
382 Section 125A(3)
(1) Section 125A(3), as amended by section 72
of the amending Act, applies to objections
made by a claimed employer under section
114I on or after the commencement date in
respect of which the Authority has not,
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before that date, made a decision under
section 114N.
(2) For the purposes of subsection (1), a decision
includes a deemed decision under
section 114N(3).
383 Section 144A
Section 144A, as inserted by section 100 of
the amending Act, applies to any employer
that is a self-insurer that, on or after the
commencement date, becomes a subsidiary
of another body corporate.
384 Section 148
Section 148, as amended by section 101 of
the amending Act, applies on and after the
commencement date to assessments of
employers carried out under section 148(4)
for the purposes of providing a guarantee
under section 148.
385 Section 150A
Section 150A, as amended by section 102 of
the amending Act, applies to elections made
by a self-insurer to assume the liability for,
and responsibility for management of, the
tail claims of an acquired body on or after
the commencement date.
386 Section 208
Section 208, as amended by section 109 of
the amending Act, applies to the obligation
to provide information on and after the
commencement date.
387 Section 240A
Section 240A, as amended by section 112 of
the amending Act, applies to warrants issued
on or after the commencement date.
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388 Section 92B
(1) Section 92B as amended by section 53(2) of
the amending Act applies to weekly
payments of pension paid or payable on or
after the commencement date.
(2) Payments of weekly pensions under
section 92B made on or after 5 April 2010
and before the commencement of
section 129 of the amending Act in
accordance with section 92B as amended by
section 53(2) of the amending Act are
deemed to have been validly made.
389 Guidelines under section 14AA
Guidelines made under section 14AA(4) on
21 June 2010 are deemed to have been made
in accordance with section 14AA(4) as
amended by section 32(2) of the amending
Act.".
Division 7—New Schedule 6 inserted
130 New Schedule 6 inserted
After Schedule 5 to the Accident Compensation
Act 1985 insert—
"SCHEDULE 6
Section 243(2)(d)
PERSONS TO WHOM DOCUMENT MAY BE
PRODUCED OR INFORMATION
COMMUNICATED OR DIVULGED
1. The Secretary to the Department of
Innovation, Industry and Regional
Development.
2. The Secretary to the Department of Treasury
and Finance.
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3. The Coroners Court.
4. The Public Advocate.
5. The Commissioner of State Revenue.
6. The Transport Accident Commission.
7. A person who has responsibility for the
administration of a welfare, benefit or
compensation scheme of a State or Territory
or the Commonwealth.
8. A corresponding Authority.
9. A Department or public entity within the
meaning of the Public Administration Act
2004.
10. The National Occupational Health and
Safety Commission.
11. The Australian Statistician.
12. The Board or committee of management
(by whatever name called) of a statutory
superannuation scheme within the meaning
of the Superannuation (Portability) Act
1989.
13. Any special commission (within the meaning
of the Evidence (Commissions) Act 1982)
where—
(a) the Authority has received a request in
writing for information from the special
commission; and
(b) the Minister has given written approval
to the Authority of the communication
of that information;
(c) the Authority has given to that person
written approval of the communication
of that information.
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14. A person, committee or body approved by
the Governor in Council.
15. A committee of the Parliament.
16. CPA Australia.
17. A responsible board within the meaning of
the Health Professions Registration Act
2005.
18. Legal Services Board.
19. The Legal Services Commissioner within the
meaning of the Legal Profession Act 2004.
20. The Victorian Bar Inc. within the meaning of
the Legal Profession Act 2004.
21. CoINVEST Limited A.C.N. 078 0040985 or
its successors.".
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Part 4—Accident Compensation (WorkCover Insurance) Act 1993
s. 131
PART 4—ACCIDENT COMPENSATION (WORKCOVER
INSURANCE) ACT 1993
131 Amendment of definition of WorkCover insurance
policy
In section 3(1) of the Accident Compensation
(WorkCover Insurance) Act 1993, for the
definition of WorkCover insurance policy
substitute—
"WorkCover insurance policy means an insurance
policy issued or deemed to be in force in
accordance with this Act;".
132 Amendment of section 3
(1) In section 3(1) of the Accident Compensation
(WorkCover Insurance) Act 1993 insert the
following definition—
"applicable prescribed percentage has the same
meaning as in the section 5(1) of the
Accident Compensation Act 1985;".
(2) In section 3(1) of the Accident Compensation
(WorkCover Insurance) Act 1993—
(a) for the definition of Authority substitute—
"Authority has the same meaning as in
section 5(1) of the Accident
Compensation Act 1985;";
(b) for the definition of employer substitute—
"employer has the same meaning as in the
Accident Compensation Act 1985;";
163
See:
Act No.
50/1993.
Reprint No. 6
as at
1 July 2005
and
amending
Act Nos
41/2006,
58/2007,
60/2007 and
9/2010.
LawToday:
www.
legislation.
vic.gov.au
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s. 133
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(c) for the definition of remuneration
substitute—
"remuneration means remuneration within
the meaning of section 3AA;";
(d) for the definition of worker substitute—
"worker has the same meaning as in the
Accident Compensation Act 1985;".
(3) In section 3 of the Accident Compensation
(WorkCover Insurance) Act 1993, subsection
(4) is repealed.
133 Remuneration—new section 3AA
After section 3 of the Accident Compensation
(WorkCover Insurance) Act 1993 insert—
"3AA Remuneration
(1) Subject to this section, remuneration means
any wages, remuneration, salary,
commission, incentive-based payment,
bonus, penalty rate, loading, overtime
payment, monetary allowance or shift
allowance (whether at piece work rates or
otherwise and whether paid or payable in
cash or kind) paid to or in relation to a
worker and without limiting the generality of
the foregoing includes but is not limited to—
(a) wages, remuneration, salary,
commission, an incentive based
payment, bonus, penalty rate, loading,
overtime rate, monetary allowance,
piece rate, shift allowance (however
described and whether paid or payable
in cash or in kind) and whether paid by
or on behalf of the employer or by a
person working in concert with, or
under an arrangement or understanding
(whether formal or informal and
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whether expressed or implied) with the
employer;
(b) an amount or payment that, under the
Accident Compensation Act 1985 or
this Act, is deemed to be remuneration;
(c) a fringe benefit within the meaning of
the Accident Compensation Act 1985;
(d) a superannuation benefit, other than a
superannuation benefit paid or payable
in respect of services performed or
rendered by a worker before 1 January
1998;
(e) an amount paid or payable by a
company to or in relation to a director
or member of the governing body of
that company for services rendered by
that person to the company.
(2) In subsection (1), remuneration does not
include—
(a) an amount paid or payable to a person
within the meaning of section 16 of the
Accident Compensation Act 1985
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 that
sporting or athletic activity;
(ii) engaging in training or preparation
with a view to so participating;
(iii) travelling between a place of
residence and the place at which
the person is so participating or so
engaged;
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(b) an amount paid or payable to an
apprentice under a training contract
made in accordance with a training
scheme that is approved by the
Victorian Skills Commission under
Part 5.5 of the Education and
Training Reform Act 2006 if the
apprentice or training scheme is, or is in
a class of apprentices or training
schemes declared by the Minister to be
an apprentice or training scheme to
which this paragraph applies;
(c) an allowance for travel or
accommodation paid or payable at a
rate in a particular class or class of
cases that does not exceed the rate
prescribed for that class or classes;
(d) an amount that does not exceed the
exemption limit;
(e) any payment of compensation in
respect of an injury under the Accident
Compensation Act 1985 or this Act;
(f) in relation to a worker of a class to
which an applicable prescribed
percentage applies, that applicable
prescribed percentage.".
134 Consequential amendments to section 3
In section 3 of the Accident Compensation
(WorkCover Insurance) Act 1993, for
subsections (3), (4) and (5) substitute—
"(3) A reference in the definition of
superannuation benefit to a worker
includes a reference to any person to whom,
by virtue of the definition of remuneration,
an amount paid or payable in the
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circumstances referred to in that definition
constitutes remuneration.
(4) For the purposes of paragraph (c) of the
definition of superannuation benefit and
section 3B(b), 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 employment
with the employer.".
135 New section 4 substituted
For section 4 of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute—
"4 Act does not apply to certain self-insurers
This Act does not apply to a self-insurer
under Part V of the Accident Compensation
Act 1985.".
136 Definition—deemed policy amendment
In the definition of WorkCover insurance policy
in section 3(1) of the Accident Compensation
(WorkCover Insurance) Act 1993, after "issued"
insert "or deemed to be in force".
137 Compulsory WorkCover Insurance
(1) In section 7(3B) of the Accident Compensation
(WorkCover Insurance) Act 1993, after "policy
period" (where first occurring) insert "calculated
in accordance with the premiums order for that
period".
(2) In section 7(3C) of the Accident Compensation
(WorkCover Insurance) Act 1993—
(a) after "for the deemed part of a policy period"
insert "calculated in accordance with the
premiums order for that period";
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(b) after "full policy period" insert "calculated
in accordance with the premiums order for
that period".
138 Repeal of section 7(4A) and (4B)
In section 7 of the Accident Compensation
(WorkCover Insurance) Act 1993, subsections
(4A) and (4B) are repealed.
139 Premiums to be calculated in accordance with
premiums order
(2) At the end of section 17 of the Accident
Compensation (WorkCover Insurance) Act
1993 insert—
"(2) If an employer is deemed to have in force a
policy of insurance under section 7(3A), the
premium payable by the employer for that
insurance policy must be calculated in
accordance with the relevant premiums order
for that period.".
140 Compulsory WorkCover insurance—amendment of
section 7
In section 7(1AAA) of the Accident
Compensation (WorkCover Insurance) Act
1993, for "the employer's liability to pay damages
under" substitute "any of the employer's
liabilities arising out of or related to".
141 WorkCover Insurance Policy—amendment of
section 9
In section 9(2A) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "damages
under" substitute "any of the employer's
liabilities arising out of or related to".
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142 Estimate of rateable remuneration—amendment of
section 18
Before section 18(1) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert—
"(1AA) The Authority may, for the purposes of this
Act, estimate the rateable remuneration an
employer is liable to pay to, or in respect of,
workers.".
143 Amendments to section 36H
(1) In the heading to section 36H of the Accident
Compensation (WorkCover Insurance) Act
1993 for "under section 36L" substitute "by the
Authority".
(2) In section 36H(1) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "this
Part" substitute "section 33".
(3) In section 36H(3)(a) of the Accident
Compensation (WorkCover Insurance) Act
1993, for "this Part" substitute "section 33".
144 Authority may recover amount in relation to
claim—amendment of section 61
After section 61(1)(a) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert—
"(b) in respect of an injured worker to or in
respect of whom compensation has been paid
or is payable under the Uninsured Employers
and Indemnity Scheme, an employer at the
relevant time and deemed to have in force a
policy of insurance in accordance with
section 7(3A)—".
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145 Amendment of section 66
For the definition of business in section 66(12) of
the Accident Compensation (WorkCover
Insurance) Act 1993 substitute—
"business includes—
(a) a profession or trade; and
(b) any other activity carried on for fee,
gain or reward; and
(c) the activity of employing one or more
persons who perform duties for or in
connection with another business; and
(d) the carrying on of a trust (including a
dormant trust); and
(e) the activity of holding any money or
property used for or in connection with
another business—
whether carried on by 1 person or 2 or more
persons together;".
146 Amendment of section 68
(1) In section 68(2) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "under
this Act" substitute "by or under this Act".
(2) For section 68(5) of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute—
"(5) Notwithstanding any Act or any rule of the
court to the contrary, in any proceedings for
the recovery of a premium or penalty against
any person it is sufficient to disclose a cause
of action in those proceedings if the
statement of claim specifies, in respect of
what remuneration the premium or penalty is
payable—
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(a) the amount sought to be recovered; and
(b) the date on which the amount was
payable; and
(c) any further or other particulars as the
Authority thinks necessary to fully
inform the defendant of the nature of
the statement of claim.".
147 Repeal of section 70
Section 70 of the Accident Compensation
(WorkCover Insurance) Act 1993 is repealed.
148 Amendment of section 82
In section 82 of the Accident Compensation
(WorkCover Insurance) Act 1993, for "applies
to any" substitute "applies to the premiums order
commencing on 1 July 2010 and to any other".
149 Amendment of section 87
In section 87 of the Accident Compensation
(WorkCover Insurance) Act 1993, for "notices
of premium" substitute "notices specified in
section 33".
__________________
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s. 150
Part 5—Miscellaneous
PART 5—MISCELLANEOUS
Division 1—Amendment of transitional provisions
150 Amendment of transitional provision in relation to
section 7
In section 193 of the Accident Compensation
Amendment Act 2010, in proposed new section
80(4)(a) of the Accident Compensation
(WorkCover Insurance) Act 1993, after
"in respect of any" insert "of the".
151 Amendment of transitional provision in relation to
section 103
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 306 of the Accident Compensation Act
1985, for "and (4)" substitute ", (4), (4E), (4F),
(4G) and (4H)".
152 Amendment of transitional provision in relation to
sections 105 and 108
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 307 of the Accident Compensation Act
1985, for "received" substitute "given, served or
lodged".
153 Amendment of transitional provision in relation to
section 55AA
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 311 of the Accident Compensation Act
1985 for "a medical question arising in a dispute"
substitute "an application made under
section 93CD".
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154 Amendment of transitional provision in relation to
section 43
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 322 of the Accident Compensation Act
1985 omit "under this Act".
155 Amendment of transitional provision in relation to
section 45
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 323 of the Accident Compensation Act
1985 omit "only".
156 Amendment of transitional provision in relation to
section 134AB
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new section
325(1) of the Accident Compensation Act 1985,
after "damages in" insert "accordance with".
157 Amendment of transitional provision in relation to
section 138
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new
section 349 of the Accident Compensation Act
1985, after "Sections" insert "138(6),".
158 Amendment of transitional provision in relation to
Part VIIB
In section 191 of the Accident Compensation
Amendment Act 2010, in proposed new section
350(10), for "115A(2)" substitute "155A(2)".
173
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s. 159
Part 5—Miscellaneous
Division 2—Statute law revision
159 Statute law revision
In the Accident Compensation Amendment Act
2010—
(a) in section 23—
(i) in proposed new section 242AC(6)(b),
for "will not brought" substitute
"will not be brought";
(ii) in proposed new section 242AF, for
"under 242AD" substitute "under
section 242AD";
(b) in section 26, in proposed new section 252J,
for "242AC (7)" substitute "242AC(7)";
(c) in section 30, in proposed new section 91E,
in paragraph (b) of the definition of second
entitlement period, for "Authority of"
substitute "Authority or";
(d) in section 31, in proposed new
section 93B—
(i) in subsection (1)(c)(ii), for "earnings-"
substitute "earnings—";
(ii) in subsection (2)(b)(i), for "earnings,
or" substitute "earnings; or";
(iii) in subsection (3)(b)(i), for "earnings,
or" substitute "earnings; or";
(e) in section 32(b), for "93B(2)(a) or (b)"
substitute "section 93B(2)(a) or (b)";
(f) in section 32(c), after "135A(18)" insert
"; and";
(g) in section 42 for "After section 97(1)"
substitute "In section 97(1)";
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(h) in section 44, for "After section 252K"
substitute "Before section 253";
(i) in section 46, in proposed new section
114AA(3)(a), for "respect of worker"
substitute "respect of a worker";
(j) in section 54, in proposed new section
98C(2)(b)(ii) and (c)(ii), for "1.1" substitute
"1·1";
(k) in section 64, for "(2) After section 5(3)"
substitute "(3) After section 5(3)";
(l) in section 68—
(i) in subsection (7), for "503 000"
substitute "$503 000";
(ii) in subsection (9), for ' "$503 000;'
substitute ' "$503 000";
(m) in section 126, in proposed new section
150B(1), for "self insurer" substitute
"self-insurer";
(n) in section 138(a), for 'paragraph (a),
"prepare' substitute 'paragraph (a), for
"prepare';
(o) in section 141(a), for 'paragraph (a),
"prepare' substitute 'paragraph (a), for
"prepare';
(p) in section 143, in proposed new
section 249B—
(i) in subsection (4)(b), for "case of a
subsection" substitute "case of a
suspension under subsection";
(ii) in subsection (11), in the definition of
relevant body, omit "means";
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s. 160
Part 5—Miscellaneous
(q) in section 191—
(i) in proposed new section 308, in the
heading, for "Sections" substitute
"Section";
(ii) in proposed new section 317, for
"applies" substitute "apply";
(iii) in proposed new section 319, for
"before ," substitute "before,";
(iv) in proposed new section 350(6), for
"commencement date" substitute
"commencement date.".
Division 3—Amendment of other Acts
See:
Act No.
6420.
Reprint No. 10
as at
1 December
2009
and
amending
Act Nos
7/2009,
68/2009,
69/2009,
3/2010 and
16/2010.
LawToday:
www.
legislation.
vic.gov.au
160 Wrongs Act 1958
See:
Act No.
10/2010.
LawToday:
www.
legislation.
vic.gov.au
161 Offshore Petroleum and Greenhouse Gas Storage
Act 2010
After section 24 of the Wrongs Act 1958
insert—
"24AAA When employer not liable to indemnify
third party in relation to an injury
A term of a contract that requires, or has the
effect of requiring, an employer within the
meaning of the Accident Compensation Act
1985 to indemnify a third party, or make
contribution, in respect of the third party's
liability to pay damages for an injury to, or
death of, a worker within the meaning of that
Act arising in the course of the worker's
employment with the employer is void.".
In Schedule 6 to the Offshore Petroleum and
Greenhouse Gas Storage Act 2010, item 2 is
repealed.
__________________
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Part 6—Repeal of Act
PART 6—REPEAL OF ACT
162 Repeal of Act
This Act is repealed on 1 July 2012.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
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Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 29 July 2010
Legislative Council: 16 September 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the
Transport Accident Act 1986 and to make further amendments to the
Accident Compensation Act 1985 and the Accident Compensation
(WorkCover Insurance) Act 1993, to make consequential amendments
to certain other Acts and for other purposes"
Constitution Act 1975:
Absolute majorities:
Legislative Assembly: 15 September 2010
Legislative Council: 5 October 2010
178