Commonwealth Numbered Acts

HEALTH AND OTHER SERVICES (COMPENSATION) AMENDMENT ACT 1996 No. 33 of 1996 - SCHEDULE

Schedule 1-Amendment of the Health and Other Services 
(Compensation) Act 1995  1 Subsection 3(1) Insert: advance payment means a
payment made under section 33B. 2 Subsection 12(3) Repeal the subsection,
substitute:

(3) If, before the commencement of this Act:

   (a)  a person has made a claim against another person, for compensation in
        respect of an injury, by claiming compensation from:

        (i)    an insurer in relation to the claim; or

        (ii)   a representative organisation in relation to the claim; and

   (b)  a judgment, settlement or reimbursement arrangement has not been made
        in respect of the claim; the insurer or representative organisation
        must, within the notification period, give to the Commission notice of
        the claim. 3 After paragraph 12(4)(a) Insert:

   (aa) a judgment, settlement or reimbursement arrangement has not been made
        in respect of the claim before that commencement; and 4 Subsection
        13(2) Omit "or (if the arrangement was made before the commencement of
        this Act) within 28 days after that commencement,". 5 Subsection 18(3)
        Omit "subsection (4)", substitute "subsections (4) and (4A)". 6 At the
        end of subsection 18(4) Add:
; and (c) an advance payment has not been made in respect of the compensation
payable under the judgment or settlement. 7 After subsection 18(4) Insert:

(4A) If an advance payment has been made under section 33B, the period cannot
be extended:

   (a)  if only one notice under section 17 has been given to the claimant in
        relation to the claim for compensation in question-beyond the period
        of 12 months after the claimant received that notice; or

   (b)  in any other case-beyond the period of 12 months after the claimant
        received the last notice given to the claimant in relation to the
        claim for compensation. 8 After paragraph 23(3)(f) Insert:

   (fa) whether the compensation payer or insurer intends to make an advance
        payment in respect of the compensation; and

   (fb) if the compensation payer or insurer intends to make an advance
        payment-whether the compensable person has been notified under section
        33A; and 9 After subsection 23(5) Insert:

(5A) If:

   (a)  the judgment or settlement was made before the commencement of
        Division 2A; and

   (b)  notice of the judgment or settlement had already been given under
        subsection (1) before that commencement; the notifiable person may,
        within 28 days after that commencement, give to the Commission a
        further notice in writing that contains all of the information and
        other matters that a notice under subsection (1) is required to
        contain under this section (as in force after that commencement). 10
        Subsection 24(1) Omit "If", substitute "Subject to subsection (1A),
        if". 11 After subsection 24(1) Insert:

(1A) A notice under subsection (1) is not required if the compensation payer
or insurer makes an advance payment in respect of the compensation. 12 After
subsection 32(1) Insert:

(1A) Subsection (1) does not apply if the compensation payer or insurer makes
an advance payment in respect of the compensation.

13 After Division 2 of Part 3 Insert:
Division 2A-Advance payments to the Commonwealth 33A Notice of advance payment

(1) If a compensation payer or insurer intends to make an advance payment in
respect of the compensation payable under a judgment or settlement, the
compensation payer or insurer must notify the compensable person in writing.

(2) The notice must state:

   (a)  that the compensation payer or insurer intends to make the advance
        payment; and

   (b)  the amount of the advance payment; and

   (c)  the circumstances in which the Commonwealth can retain some or all of
        the advance payment; and

   (d)  the circumstances in which the compensable person will be required to
        make an additional payment to the Commonwealth in respect of eligible
        benefits.

(3) The notice must be given to the compensable person:

   (a)  if the judgment or settlement was made after the commencement of this
        Division-before the judgment or settlement was made; or

   (b)  if the judgment or settlement was made before that commencement-
        before the advance payment in question is made and, in any case,
        within 28 days after that commencement. 33B Advance payments

(1) A compensation payer or insurer may make an advance payment to the
Commonwealth in respect of the compensation payable under a judgment or
settlement if:

   (a)  during the 3 months preceding the judgment or settlement, a notice
        under section 21 had not been given; and

   (b)  a notice under section 23 has been given indicating that the
        compensation payer or insurer intends to make an advance payment; and

   (c)  a notice under section 33A has been given; and

   (d)  the amount of the compensation payable under the judgment or
        settlement is not less than $3,000 or such other amount as the
        Minister determines.

(2) The advance payment must be an amount equal to 10%, or such other
percentage as the Minister determines, of the amount of compensation payable
under the judgment or settlement.

(3) The advance payment must be made:

   (a)  if the judgment or settlement was made after the commencement of this
        Division-within 28 days after the judgment or settlement was made; or

   (b)  if the judgment or settlement was made before that commencement-
        within 28 days after that commencement.

(4) Determinations made under paragraph (1)(d) and subsection (2) are
disallowable instruments for the purposes of section 46A of the Acts 
Interpretation Act 1901 . 33C Notice of past benefits

(1) If a compensation payer or insurer makes an advance payment, the
Commission must give to the compensable person a written notice setting out
the total amount of eligible benefits paid by the Commonwealth in respect of
services and care rendered or provided in the course of treatment of, or as a
result of, the compensable person's injury.

(2) The notice must not, in relation to the period covered by a statement
given under section 18, take account of any eligible benefits that were paid
in respect of services or care not specified in:

   (a)  that statement; or

   (b)  that statement as amended under section 33E. 33D Time within which
        notice of past benefits must be given

(1) Subject to subsections (2) and (3), the notice under section 33C must be
given within 3 months after:

   (a)  the Commission receives notice under section 23 indicating that the
        compensation payer or insurer intends to make an advance payment; or

   (b)  the advance payment is made; whichever is the later.

(2) If the Managing Director gives a notice under subsection 33E(2) to the
compensable person, the notice under section 33C need not be given until:

   (a)  the end of the 3 month period referred to in subsection (1); or

   (b)  the end of the period of 28 days after the Managing Director accepts
        an amended statement under section 33E as being substantially correct;
        whichever is the later.

(3) If:

   (a)  the Managing Director has not given a notice under subsection 33E(2)
        to the compensable person; and

   (b)  the period for giving a statement under section 18 has been extended
        under subsection 18(3); and

   (c)  the date of expiry of the period of the extension is after the end of
        the 3 month period referred to in subsection (1); the notice under
        section 33C must be given within 28 days after that date of expiry.
        33E Notice of statement that is not substantially correct

(1) This section applies only if an advance payment is made.

(2) If the Managing Director is satisfied that a statement given to the
Commission under section 18 or this section is not substantially correct, the
Managing Director must give to the compensable person a written notice:

   (a)  specifying that the statement is not substantially correct; and

   (b)  requiring the claimant to give an amended statement that is
        substantially correct; and

   (c)  stating the period within which the claimant is required to give the
        amended statement to the Commission.

(3) The notice must be given before the last day on which the Managing
Director could give to the compensable person the notice under section 33C.

(4) The claimant must give to the Commission the statement required by the
notice within the period of 28 days after being given the notice.

(5) In deciding whether a statement is substantially correct, the Managing
Director may have regard to:

   (a)  the date on which the compensable person suffered the injury; and

   (b)  the nature of the injury that the compensable person suffered; and

   (c)  the treatment of the injury; and

   (d)  statistical information about claims for eligible benefits in relation
        to injuries of substantially the same kind as the injury in respect of
        which the claim was made; and

   (e)  expert medical opinion about the treatment that is usual or may
        reasonably be expected in relation to injuries of that kind; and

   (f)  any other matter that the Managing Director considers relevant.

(6) A reference in subsection (5) to the treatment of the injury includes a
reference to the provision of nursing home care as a result of the injury.

(7) Sections 18 and 19 apply to an amended statement under this section as if
it were a statement under section 18.

33F Notice of acceptance of amended statement

(1) If the Managing Director accepts an amended statement under section 33E as
being substantially correct, the Managing Director must, as soon as
practicable after accepting the statement, notify the compensable person, in
writing, accordingly.

(2) An amended statement given to the Commission under section 33E is taken to
have been accepted by the Managing Director as being substantially correct if,
within 28 days after the Commission is given the statement, a notice under
subsection 33E(2) in relation to the statement is not given to the compensable
person. 33G Review of decision under section 33E by the Administrative Appeals
Tribunal

(1) Application may be made to the Administrative Appeals Tribunal for review
of a decision by the Managing Director that a statement under section 18, or
an amended statement under section 33E, is not substantially correct. Note:
Section 27A of the Administrative Appeals Tribunal Act 1975 requires the
decision-maker to notify persons whose interests are affected by the decision
of the making of the decision and their right to have the decision reviewed.
In so notifying, the decision-maker must have regard to the Code of Practice
determined under section 27B of that Act.

(2) Despite subsection 43(6) of the Administrative Appeals Tribunal  Act 1975
, the Tribunal's decision has effect on and from the day on which it is made.
33H Refunds from advance payments

(1) If the amount specified in the notice under section 33C is less than the
amount of the advance payment, the difference is payable by the Commonwealth
to the compensable person.

(2) The difference is payable on the last day on which the Commission is
required under section 33D to give the notice to the compensable person.

(3) An amount payable under this section is recoverable as a debt due to the
compensable person. 33J Additional payments to the Commonwealth

(1) If the amount specified in the notice under section 33C is greater than
the amount of the advance payment, the difference is payable by the
compensable person to the Commonwealth.

(2) The difference is payable 28 days after the day on which the notice was
given to the compensable person.

(3) The notice must specify:

   (a)  the amount that is payable to the Commonwealth; and

   (b)  the day by which it must be paid.

(4) An amount payable under this section is recoverable as a debt due to the
Commonwealth. 33K Payment of the whole of the advance payment

(1) If the Commission does not give a notice under section 33C to the
compensable person on or before the day on which the Commission is required to
do so, the whole of the advance payment is payable by the Commonwealth to the
compensable person on that day.

(2) The payment of the whole of the advance payment operates as a discharge of
the compensable person's liability to pay to the Commonwealth amounts payable
under this Act or the Charges Act in respect of the compensation payable under
the judgment or settlement in question.

33L Advance payments to the Commonwealth discharge liability
The making of an advance payment by a compensation payer or insurer to the
Commonwealth of the amount of compensation payable under a judgment or
settlement operates, to the extent of the payment, as a discharge of:

   (a)  the compensation payer's or insurer's liability to the compensable
        person in respect of the amount of compensation; and

   (b)  the compensable person's liability to pay to the Commonwealth amounts
        payable under this Act or the Charges Act in respect of the amount of
        compensation. 33M Interest not payable on advance payments

(1) If:

   (a)  a compensation payer or insurer makes an advance payment to the
        Commonwealth of the amount of compensation payable under a judgment or
        settlement; and

   (b)  an Australian law would, apart from this section, make the
        Commonwealth liable to pay interest on the advance payment, because
        the advance payment has been retained by the Commonwealth after the
        judgment or settlement has been made; despite that law, the
        Commonwealth is not liable to pay that interest.

(2) If the Commonwealth is required to make a payment under section 33H or
33K, subsection (1) does not apply after the expiry of the period within which
the payment must be made.

(3) If:

   (a)  a compensation payer or insurer makes an advance payment to the
        Commonwealth of the amount of compensation payable under a judgment or
        settlement; and

   (b)  an Australian law would, apart from this section, make the
        compensation payer or insurer liable to pay interest on the advance
        payment, because the advance payment has not been paid to the
        compensable person after the judgment or settlement has been made;
        despite that law, the compensation payer or insurer is not liable to
        pay that interest.