Commonwealth Numbered Acts

SOCIAL SERVICES LEGISLATION AMENDMENT ACT 1982 No. 37, 1982 - SECT 48

48. Section 39 of the Principal Act is amended-

   (a)  by inserting in sub-section (2) of the new section 115A that is
proposed to be inserted in the Social Services Act 1947 ''by post or
personally'' after ''served'';

   (b)  by omitting sub-section (1) of the new section 115B that is proposed
        to be inserted in the Social Services Act 1947 and substituting the
        following sub-section:

'' '115B. (1) Where a person who is qualified to receive a sickness benefit in
respect of an incapacity has received or is qualified or entitled to receive a
payment (whether a payment forming part of a series of periodical payments or
a payment by way of a lump sum) that is, in the opinion of the
Director-General, in whole or in part a payment by way of compensation in
respect of that incapacity, the Director-General, having regard to the amount
of that payment or, in the case of a series of periodical payments, the
amounts of those payments (including future payments), or such part of that
payment or of those payments as, in the opinion of the Director-General,
relates to that incapacity, may-

   (a)  where a claim by the person for sickness benefit in respect of that
        incapacity has been lodged but not determined-refuse to grant that
        claim or grant that claim but direct that the amount per week of
        sickness benefit that would, apart from this sub-section, be payable
        in respect of that incapacity be reduced by an amount specified in the
        direction; or

   (b)  in any other case-

        (i)    cancel the sickness benefit payable to the person in respect of
               that incapacity; or

        (ii)   direct that the amount per week of sickness benefit that would,
               apart from this sub-section, be payable in respect of that
               incapacity be reduced by an amount specified in the
               direction.'';

   (c)  by omitting sub-sections (3) and (4) of the new section 115B that is
        proposed to be inserted in the Social Services Act 1947 and
        substituting the following sub-sections:

'' '(3) Where the Director-General is of the opinion that a payment by way of
a lump sum, or a series of periodical payments, received by a person who is,
or has been, in receipt of sickness benefit in respect of an incapacity
(whether the payment was, or all or any of the payments were, received before,
during or after the close of the period of receipt of sickness benefit) is a
payment that is, or are payments one or more of which is or are, in whole or
in part, a payment or payments
by way of compensation in respect of that incapacity, the Director-General
may, by notice in writing served by post or personally on the person, direct
the person to pay to the Commonwealth an amount specified in the notice, being
an amount equal to-

   (a)  the amount of sickness benefit received by the person in respect of
        that incapacity; or

   (b)  the amount of the lump sum payment or periodical payment or payments
        or such part of that amount or of those amounts as, in the opinion of
        the Director-General, relates to that incapacity,

whichever is the lesser amount.

'' '(4) Where the amount per week of sickness benefit payable in respect of an
incapacity is reduced under sub-section (1) having regard to the receipt of a
payment by way of compensation in respect of that incapacity, that payment by
way of compensation shall not, for the purposes of section 112A or 114, be
regarded as income.'';

   (d)  by omitting from sub-section (1) of the new section 115C that is
        proposed to be inserted in the Social Services Act 1947 ''or may be''
        and substituting ''or may become'';

   (e)  by omitting from sub-section (1) of the new section 115C that is
proposed to be inserted in the Social Services Act 1947 ''by post'';

   (f)  by omitting sub-section (2) of the new section 115C that is proposed
        to be inserted in the Social Services Act 1947 and substituting the
        following sub-sections:

'' '(2) Where a person is liable to make a payment by way of compensation in
respect of the incapacity of another person who is, or was, qualified to
receive a sickness benefit in respect of that incapacity, the Director-General
may serve a notice in writing on the first-mentioned person (whether or not a
notice has been served on that person under sub-section (1)) specifying the
amount that the Director-General, on behalf of the Commonwealth, proposes to
recover from him, being an amount not exceeding the amount of the sickness
benefit paid in respect of that incapacity.

'' '(2A) The Director-General shall not serve a notice on a person under
sub-section (2) in relation to a payment by way of compensation in respect of
the incapacity of another person if the Director-General has served a notice
on an insurer under sub-section 115D (2) in respect of the liability of the
insurer to indemnify that first-mentioned person against his liability to make
that payment.'';

   (g)  by omitting from sub-section (3) of the new section 115C that is
        proposed to be inserted in the Social Services Act 1947 ''(not being a
        notice that specifies the amount that the Director-General, on behalf
        of the Commonwealth, proposes to recover from him), is, or becomes,
        liable (whether by reason of a judgment of a court or by reason of an
        agreement in settlement of a claim)'' and substituting ''is, or
        becomes, liable'';

   (h)  by omitting paragraphs (5) (a) and (6) (a) of the new section 115C
        that is proposed to be inserted in the Social Services Act 1947;

   (j)  by omitting from paragraphs (5) (b) and (6) (b) of the new section
        115C that is proposed to be inserted in the Social Services Act 1947
        ''an amount is specified in that notice, or in a subsequent notice
        served on the person under sub-section (2),'' and substituting ''a
        notice under sub-section (2) is served on a person and an amount is
        specified in the notice'';

   (k)  by omitting from paragraphs (5) (c) and (6) (c) of the new section
        115C that is proposed to be inserted in the Social Services Act 1947
        ''(whether by reason of a judgment of a court or by reason of an
        agreement in settlement of a claim)'';

   (m)  by omitting from paragraphs (5) (c) and (6) (c) of the new section
        115C that is proposed to be inserted in the Social Services Act 1947
        '', or the subsequent notice,'';

   (n)  by omitting from paragraph (5) (d) of the new section 115C that is
        proposed to be inserted in the Social Services Act 1947 ''or in the
        subsequent notice'';

   (o)  by omitting sub-section (10) of the new section 115C that is proposed
        to be inserted in the Social Services Act 1947 and substituting the
        following sub-sections:

'' '(10) Where sub-section (4) applies in relation to a person in respect of
the incapacity of another person, that sub-section shall cease to apply in
relation to the first-mentioned person in respect of that incapacity if-

   (a)  in the case of a person who is liable, under sub-section (5) or (6),
        to pay an amount to the Commonwealth in respect of that incapacity-the
        person pays that amount to the Commonwealth; or

   (b)  in any other case-the Director-General informs the first-mentioned
        person, in writing, that he is satisfied that sub-section (4) should
        no longer apply in relation to the person in respect of that
        incapacity.

'' '(11) A notice that may be served on a person under this section shall be
taken to be served on the person if it is served on the person by post or is
given personally to the person or to an employee of the person.'';

   (p)  by omitting the new sections 115D and 115E that are proposed to be
        inserted in the Social Services Act 1947 and substituting the
        following new sections:

Notice to insurers

'' '115D. (1) Where it appears to the Director-General that an insurer, under
a contract of insurance, is, or may become, liable to indemnify
a person (in this section referred to as the ''client''), in whole or in part,
against the liability, or the possible liability, of the client to make a
payment or payments by way of compensation in respect of the incapacity of
another person who is, or was, qualified to receive a sickness benefit in
respect of that incapacity, the Director-General may, by notice in writing
served on the insurer, inform the insurer that the Director-General, on behalf
of the Commonwealth, proposes to, or may wish to, recover from him an amount
equal to the whole or some part of the amount of sickness benefit paid to that
other person in respect of that incapacity.

'' '(2) Where an insurer is liable, under a contract of insurance, to
indemnify a client, in whole or in part, against the liability of the client
to make a payment or payments by way of compensation in respect of the
incapacity of another person who is, or was, qualified to receive a sickness
benefit in respect of that incapacity, the Director-General may serve a notice
in writing on the insurer (whether or not a notice has been served on the
insurer under sub-section (1)) specifying the amount that the
Director-General, on behalf of the Commonwealth, proposes to recover from the
insurer, being an amount not exceeding the amount of the sickness benefit paid
to that other person in respect of that incapacity.

'' '(3) The Director-General shall not serve a notice on an insurer under
sub-section (2) in relation to the liability of the insurer to indemnify a
client against the liability of the client to make a payment or payments by
way of compensation in respect of the incapacity of another person if the
Director-General has served a notice on the client under sub-section 115C (2)
in relation to that incapacity.

'' '(4) Where an insurer who is served with a notice under sub-section (1) is,
or becomes, liable to indemnify a client in respect of the liability of the
client to make a payment or payments by way of compensation in respect of the
incapacity to which the notice relates, the insurer shall, within 7 days after
becoming so liable or after being served with a notice under sub-section (1),
whichever last occurs, notify a Registrar, in writing, accordingly.

Penalty: $100.

'' '(5) Subject to sub-section (8), an insurer who is served with a notice
under sub-section (1) shall not, after the service of that notice, make any
payment that is a payment under a contract of insurance with a client, being a
payment indemnifying the client, in whole or in part, against the liability of
the client to make a payment or payments by way of compensation in respect of
the incapacity to which the notice under sub-section (1) relates and, if a
payment is made by the insurer in contravention of this sub-section, the
payment shall, for the purposes of paragraph (6) (b), be disregarded in
ascertaining the amount that the insurer is liable to pay to the client.

'' '(6) Where an insurer is served with a notice under sub-section (2), the
insurer is liable to pay to the Commonwealth-

   (a)  the amount specified in the notice; or

   (b)  the amount that the insurer is liable to pay to the client concerned
        to indemnify the client against the liability to make a payment by way
        of compensation in respect of the incapacity to which the notice
        relates,

whichever is the lesser amount.

'' '(7) Payment of an amount that an insurer is liable to pay to the
Commonwealth under sub-section (6) in respect of the incapacity of another
person shall, to the extent of the payment-

   (a)  operate as a discharge to the insurer as against the client concerned;
        and

   (b)  operate as a discharge to the client concerned as against the
        liability of the client to make a payment or payments by way of
        compensation to that other person.

'' '(8) Where sub-section (5) applies in relation to an insurer in respect of
the incapacity of a person, that sub-section shall cease to apply in relation
to the insurer in respect of that incapacity if-

   (a)  in the case of an insurer who is liable under sub-section (6) to pay
        an amount to the Commonwealth in respect of that incapacity-the
        insurer pays that amount to the Commonwealth; or

   (b)  in any other case-the Director-General informs the insurer in writing
        that he is satisfied that sub-section (5) should no longer apply in
        relation to the insurer in respect of that incapacity.

'' '(9) Where an insurer has been served with a notice under sub-section (1)
in relation to the liability or possible liability of the insurer to indemnify
a client, in whole or in part, against the liability or possible liability of
the client to make a payment or payments by way of compensation in respect of
the incapacity of another person, the client is not, while that notice has
effect, liable to make that payment or those payments by way of compensation
in respect of that incapacity.

'' '(10) A notice that may be served on an insurer under this section shall be
taken to be served on the insurer if it is served on the insurer by post or is
given to an employee of the insurer.

Director-General may disregard certain payments

'' '115E. For the purposes of this Division, the Director-General may treat
the whole or a part of a payment by way of compensation that has been, or that
will be, made in respect of an incapacity as not having been made or as not
being, or as not likely to become, liable to be made, if the Director-General
considers that, in the special circumstances of the case, it is appropriate to
do so.'';

   (q)  by omitting from paragraph (d) of the new section 115F that is
        proposed to be inserted in the Social Services Act 1947 ''sub-section
        (5) of section 115D'' and substituting ''sub-section 115D (6)''; and

   (r)  by omitting paragraphs (d) and (e) of the new section 115G that is
        proposed to be inserted in the Social Services Act 1947 and
        substituting the following paragraphs:

''(d) that the Director-General has not, under paragraph 115C (10) (b),
informed a specified person that sub-section 115C (4) no longer applies in
relation to that person in respect of a specified incapacity;

''(da) that no notice under sub-section 115D (4) has been received by any
Registrar from a specified insurer in respect of any liability to indemnify a
client in respect of the liability of the client to make a payment or payments
by way of compensation in respect of a specified incapacity of a specified
person;

''(e) that the Director-General has not, under paragraph 115D (8) (b),
informed a specified insurer that sub-section 115D (5) no longer applies in
relation to that insurer in respect of a specified incapacity; or''.