South Australian Numbered Acts South Australian Numbered Acts70—Insertion of Parts 6C and 6D
After section 97C insert:
Part 6C—Medical Panels
Division 1—Establishment and constitution
98—Establishment
(1) There will be such
Medical Panels as are necessary for the purposes of this Act.
(2) For the purpose of
constituting Medical Panels, there is to be a list of legally qualified
medical practitioners appointed by the Governor on the recommendation of the
Minister.
(3) For the purpose of
making recommendations under subsection (2), the Minister must establish
a selection committee in accordance with the regulations and seek and take
into account nominations from that committee.
(4) For the purpose of
making nominations under subsection (3), the selection committee must
invite expressions of interest in accordance with the regulations.
(5)
Subsection (4) does not apply if the Minister is simply seeking the
advice of the selection committee about whether a particular medical
practitioner should be re-appointed at the expiration of a term of office.
(6) A person appointed
under subsection (2) will be appointed on conditions, and for a term (not
exceeding 3 years), determined by the Governor and, on the expiration of a
term of office, is eligible for re-appointment.
(7) The office of a
person appointed under subsection (2) becomes vacant if the person—
(a)
resigns by written notice addressed to the Minister; or
(b) is
removed from office by the Governor for—
(i)
breach of, or non-compliance with, a condition of
appointment; or
(ii)
mental or physical incapacity to carry out duties of
office satisfactorily; or
(iii)
neglect of duty; or
(iv)
dishonourable conduct; or
(v)
incompetence; or
(c)
completes a term of office and is not re-appointed; or
(d)
ceases to be entitled to practise as a medical practitioner; or
(e) is
convicted of an indictable offence or of an offence which, if committed in
South Australia, would be an indictable offence; or
(f) is
sentenced to imprisonment for an offence.
(8) From the list of
medical practitioners under subsection (2), the Minister must appoint (on
terms and conditions determined by the Minister)—
(a) a
Convenor; and
(b) a
Deputy Convenor.
(9) The Deputy
Convenor may, subject to the direction of the Convenor, exercise the functions
and powers conferred on the Convenor by or under this Act.
(10) In the temporary
absence of the Convenor, the Deputy Convenor has, and may exercise, the
functions and powers conferred on the Convenor by or under this Act.
98A—Constitution
(1) A Medical Panel is
to consist of the number of members, not exceeding 5, as is determined by the
Convenor of Medical Panels in each particular case.
(2) If a medical
practitioner has been engaged to treat or examine, or to furnish a report in
relation to, a worker (other than as a member of a Medical Panel), the medical
practitioner is not to sit as a member of a Medical Panel examining the
worker.
(3) A member of a
Medical Panel is entitled to fees, allowances and expenses approved by the
Governor.
(4) The fees,
allowances and expenses are payable out of the Compensation Fund.
(5) The Convenor must
appoint a presiding member for each Medical Panel, who will have general
responsibility for managing the operations of the Medical Panel in its
particular case.
98B—Procedures
(1) A Medical Panel is
not bound by the rules of evidence but may inform itself in any way it
considers appropriate.
(2) A Medical Panel
may act informally and without regard to technicalities or legal forms.
(3) A Medical Panel
may engage consultants and seek expert advice as it considers necessary in any
particular case.
(4) The Convenor may
give directions as to the arrangement of the business of the Panels.
(5) The Minister may
for the purposes of—
(a)
ensuring procedural fairness in the procedures of the Medical Panels; and
(b)
facilitating the proper administration of the Medical Panels,
issue guidelines as to the procedures of Medical Panels.
(6) The Minister must
consult with the Attorney-General and the Convenor before issuing any
guidelines under this section.
(7) The Convenor may
give directions as to the procedures of the Panels but may not give directions
inconsistent with any guidelines issued by the Minister.
(8) An act or decision
of a majority of the members of a Medical Panel constitutes an act or decision
of the Medical Panel.
(9) Subject to this
section and the other provisions of this Part, a Medical Panel may determine
its own procedures.
98C—Validity of acts
An act or proceeding of a Medical Panel is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
98D—Immunity of members
No personal liability attaches to a member of a Medical Panel for an act or
omission by the member or the Medical Panel in good faith and in the exercise
or purported exercise of powers or functions under this Act.
Division 2—Functions and powers
98E—Interpretation
In this Division—
"medical question" means—
(a) a
question whether a worker has a disability and, if so, the nature or extent of
that disability; or
(b) a
question whether a worker's disability—
(i)
in the case of a disability that is not a secondary
disability or a disease—arose out of or in the course of employment; or
(ii)
in the case of a disability that is a secondary
disability or a disease—arose out of employment or arose in the course
of employment and the employment contributed to the disability; or
(c) a
question whether a worker's employment was a substantial cause of a worker's
disability consisting of an illness or disorder of the mind; or
(d) a
question whether a worker has suffered a disability of a kind referred to in
the first column of Schedule 2; or
(e) a
question whether a medical expense has been reasonably incurred by a worker in
consequence of having suffered a compensable disability; or
(f) a
question whether a charge for a medical service should be disallowed under
section 32(5); or
(g) a
question whether a disability results in incapacity for work; or
(h) a
question as to the extent or permanency of a worker's incapacity for work and
the question whether a worker has no current work capacity or a current work
capacity; or
(i)
a question as to what employment would or would not
constitute suitable employment for a worker; or
(j) a
question as to whether a worker who has no current work capacity is likely to
continue indefinitely to have no current work capacity; or
(k) a
question whether a worker who has a current work capacity is, and is likely to
continue indefinitely to be, incapable of undertaking further or additional
employment or work and, if not so incapable, what further or additional
employment or work the worker is capable of undertaking; or
(l) a
question as to when a disability, other than noise induced hearing loss, that
developed gradually first caused an incapacity for work; or
(m) a
question as to when and in what employment a worker with noise induced hearing
loss was last exposed to noise capable of causing noise induced hearing loss;
or
(n) a
question as to when a worker has ceased to be incapacitated for work by a
compensable disability; or
(o) a
question as to what constitutes proper medical treatment for the purposes of
section 36(1a)(c); or
(p) a
question as to whether a disability is permanent and, if so, the level of
impairment of a worker for the purposes of sections 43 and 43A; or
(q) a
question as to whether a provision of a rehabilitation and return to work plan
imposes an unreasonable obligation on a worker; or
(r) a
question as to any other prescribed matter.
98F—Functions
(1) The function of a
Medical Panel is to give an opinion on any medical question referred to it
under this Act.
(2) The Corporation or
the Tribunal may, at any time or from time to time, require a worker—
(a) who
claims compensation under this Act; or
(b) who
is in receipt of weekly payments of compensation under this Act,
to submit himself or herself for examination by a Medical Panel or to answer
questions (or both) on a date and at a place arranged by the Convenor of
Medical Panels so that the Medical Panel can determine any specified medical
question.
(3) In addition, a
medical question that constitutes or forms part of, or arises in connection
with, a matter that is the subject of a dispute under Part 6A must be referred
to a Medical Panel.
(4) A Medical Panel
may decide not to given an opinion on a particular medical question if it
appears to the Medical Panel that the question relates to a matter that falls
outside the range of matters that should be subject to determination under
this Part.
98G—Powers and procedures on a referral
(1) A Medical Panel
may ask a worker—
(a) to
meet with the Medical Panel and answer questions;
(b) to
supply copies of all documents in the possession of the worker which relate to
the medical question to the Medical Panel;
(c) to
submit to a medical examination by the Medical Panel or by a member of the
Medical Panel.
(2) A person or body
referring a medical question to a Medical Panel must submit a document to the
Medical Panel specifying—
(a) the
disability or alleged disability to, or in respect of, which the
medical question relates;
(b) the
facts or questions of fact relevant to the medical question which the person
or body is satisfied have been agreed and those facts or questions that are in
dispute.
(3) A person or body
referring a medical question to a Medical Panel must submit copies of all
documents relating to the medical question in the possession of that person or
body to the Medical Panel.
(4) If a Medical Panel
requests and the worker consents, a medical expert who has provided a medical
service to a worker in relation to the relevant compensable disability
must—
(a) meet
with the Medical Panel and answer questions; and
(b)
supply relevant documents to the Medical Panel.
(5) If a worker
unreasonably refuses to comply with subsection (1) or in any way hinders
an examination—
(a) the
worker's rights to recover compensation under this Act with respect to the
disability; or
(b) the
worker's rights to weekly payments,
may be suspended by the Corporation until the examination has taken place in
accordance with the requirements of the Medical Panel (and any weekly payments
that would otherwise be payable during the period of suspension are
forfeited).
(6) Any attendance of
a worker before a Medical Panel must be in private, unless the Medical Panel
considers that it is necessary for another person to be present.
(7) Information given
to a Medical Panel cannot be used in subsequent proceedings unless—
(a) the
proceedings are before the Tribunal or a court under this Act; or
(b) the
worker consents to the use of the information; or
(c) the
proceedings are for an offence against this Act.
98H—Opinions
(1) A Medical Panel
must form its opinion on a medical question referred under this Division
within 60 days after the reference is made or such longer period as may be
agreed by the Corporation or Tribunal (as the case requires).
(2) The Medical Panel
to which a medical question is so referred must give a certificate as to its
opinion.
(3) An opinion under
subsection (2) must include a statement setting out the reason or reasons
for the opinion provided by the Medical Panel.
(4) For the purposes
of determining any question or matter, the opinion of a Medical Panel on a
medical question referred to the Medical Panel is to be adopted and applied by
any body or person acting under this Act and must be accepted as final and
conclusive irrespective of who referred the medical question to the Medical
Panel or when the medical question was referred.
Division 3—Related matters
98I—Admissibility
(1) A certificate
given by a Medical Panel is admissible in evidence in any proceedings under
this Act.
(2) A member of a
Medical Panel is competent to give evidence as to matters in a certificate
given by the Medical Panel of which he or she was a member, but the member may
not be compelled to give any such evidence.
(3) A consultant
engaged to provide expert advice to a Medical Panel is competent to give
evidence as to matters relating to that expert advice, but the consultant may
not be compelled to give any such evidence.
98J—Support staff
(1) The Minister must
ensure that there are such administrative and ancillary staff as are necessary
for the proper functioning of Medical Panels.
(2) The staff may
be—
(a)
Public Service employees assigned to work in support of the Medical Panels; or
(b)
persons employed or engaged for the purposes of this Part.
(3) The terms and
conditions of appointment of a person under subsection (2)(b) will be
determined by the Minister and such a person will not be a Public Service
employee.
(4) The costs
associated with the staff under subsection (1) will be recoverable from
the Compensation Fund under a scheme established or approved by the Treasurer
after consultation with the Corporation.
Part 6D—WorkCover Ombudsman
Division 1—Appointment and conditions of office
99—Appointment
(1) There is to be a
WorkCover Ombudsman .
(2) The WorkCover
Ombudsman is appointed by the Governor.
(3) The person
appointed as the WorkCover Ombudsman may hold another office or position if
the Governor is satisfied that there is no conflict between the functions and
duties of the WorkCover Ombudsman and the functions and duties of the other
office or position.
99A—Term of office and conditions of appointment
(1) The WorkCover
Ombudsman is appointed on conditions determined by the Governor and for a
term, not exceeding 7 years, specified in the instrument of appointment.
(2) An appointment may
be renewed but a person must not hold office as WorkCover Ombudsman for more
than 2 consecutive terms.
(3) The Governor may
remove the WorkCover Ombudsman from office on the presentation of an address
from both Houses of Parliament seeking the WorkCover Ombudsman's removal.
(4) The Governor may
suspend the WorkCover Ombudsman from office on the ground of incompetence or
misbehaviour and, in that event—
(a) a
full statement of the reason for the suspension must be laid before both
Houses of Parliament within 3 sitting days of the suspension; and
(b) if,
at the expiration of 1 month from the date on which the statement was laid
before Parliament, an address from both Houses of Parliament seeking the
WorkCover Ombudsman's removal has not been presented to the Governor, the
WorkCover Ombudsman must be restored to office.
(5) The office of
WorkCover Ombudsman becomes vacant if the WorkCover Ombudsman—
(a)
dies; or
(b)
resigns by written notice given to the Minister; or
(c)
completes a term of office and is not reappointed; or
(d) is
removed from office by the Governor under subsection (3); or
(e)
becomes bankrupt or applies as a debtor to take the benefit of the laws
relating to bankruptcy; or
(f) is
convicted of an indictable offence or of an offence which if committed in
South Australia, would be an indictable offence; or
(g) is
sentenced to imprisonment for an offence; or
(h)
becomes a member of the Parliament of this State or any other State of the
Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(i)
becomes, in the opinion of the Governor, mentally or
physically incapable of carrying out satisfactorily the duties of office.
(6) Except as is
provided by this section, the WorkCover Ombudsman may not be removed or
suspended from office, nor will the office of the WorkCover Ombudsman become
vacant.
99B—Remuneration
The WorkCover Ombudsman is entitled to remuneration, allowances and expenses
determined by the Governor.
99C—Temporary appointments
The Minister may appoint a person (who may but need not be an employee in the
Public Service) to act as the WorkCover Ombudsman—
(a)
during a vacancy in the office of WorkCover Ombudsman; or
(b) when
the WorkCover Ombudsman is absent from, or unable to discharge, official
duties; or
(c) if
the WorkCover Ombudsman is suspended from office under this Act.
Division 2—Functions and powers
99D—Functions
(1) The WorkCover
Ombudsman has the following functions:
(a) to
identify and review issues arising out of the operation or administration of
this Act, and to make recommendations for improving the operation or
administration of this Act, especially so as to improve processes that affect
workers who have suffered a compensable disability or employers;
(b) to
receive and investigate complaints about administrative acts under this Act,
and to seek to resolve those complaints expeditiously, including by making
recommendations to relevant parties;
(c)
without limiting paragraphs (a) and (b)—
(i)
to receive and investigate complaints about failures to
comply with section 58B or 58C and to give directions to the
Corporation or any relevant employer in connection with the operation or
requirements of either section;
(ii)
to investigate other matters relating to providing for
the effective rehabilitation of disabled workers and their return to work on a
successful basis;
(d) to
encourage and assist the Corporation and employers to establish their own
complaint-handling processes and procedures with a view to improving the
effectiveness of this Act;
(e) to
initiate or support other activities or projects relating to the workers
rehabilitation and compensation scheme established by this Act;
(f) to
provide other assistance or advice to support the fair and effective operation
or administration of this Act.
(2) The WorkCover
Ombudsman may act under subsection (1) on his or her own initiative, at
the request of the Minister, or on the receipt of a complaint by an interested
person.
(3) However, the
WorkCover Ombudsman—
(a) may
not investigate an act where the relevant matter—
(i)
is, or is capable of being, the subject of proceedings
under Part 5, 6, 6A, 6B or 6C; or
(ii)
is the subject of any legal proceedings; and
(b) may
not investigate an act in the nature of an industrial dispute under the
Fair Work Act 1994 .
(4) The WorkCover
Ombudsman must establish a scheme for receiving and dealing with complaints
for the purposes of subsection (1).
(5) The WorkCover
Ombudsman may refuse to entertain a complaint, or, having commenced to
consider a matter raised in a complaint, may refuse to continue if of the
opinion—
(a) that
the matter raised in the complaint is trivial; or
(b) that
the complaint is frivolous or vexatious or is not made in good faith; or
(c) that
the complainant or the person on whose behalf the complaint was made has not a
sufficient personal interest in the matter raised in the complaint; or
(d) that
the complainant has failed, without good reason, to take reasonable steps to
resolve the matter through another established complaint-handling process; or
(e) that
having regard to all the circumstances of the case, the investigation or the
continuance of the investigation of the matter raised in the complaint is
unnecessary or unjustifiable; or
(f) that
the matter raised in the complaint should be dealt with under another Act or
by another person or body; or
(g) that
there is some other reasonable cause that justifies the discontinuance of
proceedings under this Part.
(6) The WorkCover
Ombudsman may, at any time, decide to attempt to deal with a complaint by
conciliation (and, in doing so, may act personally or through some other
person).
(7) In this
section—
"act" includes—
(a) an
omission;
(b) a
decision, proposal or recommendation,
and the circumstances surrounding an act.
99E—Powers—general
The WorkCover Ombudsman has the powers necessary or expedient for, or
incidental to, the performance of the WorkCover Ombudsman's functions.
99F—Obtaining information
(1) If the WorkCover
Ombudsman has reason to believe that a person is capable of providing
information or producing a document relevant to a matter under consideration
by the WorkCover Ombudsman, the WorkCover Ombudsman may, by notice in writing
provided to the person, require the person to do 1 or more of the following:
(a) to
provide that information to the WorkCover Ombudsman in writing signed by that
person or, in the case of a body corporate, by an officer of the body
corporate;
(b) to
produce that document to the WorkCover Ombudsman;
(c) to
attend before a person specified in the notice and answer questions or produce
documents relevant to the matter.
(2) A notice under
subsection (1) is to specify the period within which, or the time, day
and place at which, the person is required to provide the information or
document, or to attend.
(3) A notice under
subsection (1) must provide a period of time for compliance with a
requirement under that subsection that has been determined by the WorkCover
Ombudsman to be reasonable in the circumstances.
(4) A person must
comply with a requirement under subsection (1).
Maximum penalty: $5 000.
(5) If a document is
produced in accordance with a requirement under this section, the WorkCover
Ombudsman or other appropriate person may take possession of, make copies of,
or take extracts from, the document.
99G—Power to examine witnesses etc
(1) The WorkCover
Ombudsman, or a person who is to receive information under section 99F,
may administer an oath or affirmation to a person required to attend before
him or her under this Part and may examine the person on oath or affirmation.
(2) The WorkCover
Ombudsman may require a person to verify by statutory declaration—
(a) any
information or document produced under this Part; or
(b) a
statement that the person has no relevant information or documents or no
further relevant information or documents.
(3) A person must
comply with a requirement under subsection (2).
Maximum penalty: $5 000.
Division 3—Other matters
99H—Independence
(1) In performing and
exercising his or her functions and powers under this Act, the WorkCover
Ombudsman must act independently, impartially and in the public interest.
(2) The Minister
cannot control how the WorkCover Ombudsman is to exercise the WorkCover
Ombudsman's statutory functions and powers.
99I—Staff
(1) The WorkCover
Ombudsman's staff consists of—
(a)
Public Service employees assigned to work in the office of the WorkCover
Ombudsman under this Act; and
(b) any
person appointed under subsection (3).
(2) The Minister may,
by notice in the Gazette—
(a)
exclude Public Service employees who are members of the WorkCover Ombudsman's
staff from specified provisions of the Public Sector Management Act 1995
; and
(b) if
the Minister thinks that certain provisions should apply to such employees
instead of those excluded under paragraph (a)—determine that those
provisions will apply,
and such a notice will have effect according to its terms.
(3) The WorkCover
Ombudsman may, with the consent of the Minister, appoint staff for the
purposes of this Act.
(4) The terms and
conditions of employment of a person appointed under subsection (3) will
be determined by the Minister and such a person will not be a Public Service
employee.
(5) The WorkCover
Ombudsman may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
99J—Funding
The cost associated with the office of the WorkCover Ombudsman (including in
the performance by the WorkCover Ombudsman of functions under this Act) and
the WorkCover Ombudsman's staff will be recoverable from the Compensation Fund
under a scheme established or approved by the Treasurer after consultation
with the Corporation.
99K—Delegation
(1) The WorkCover
Ombudsman may delegate a function or power conferred on or vested in the
WorkCover Ombudsman under this Act—
(a) to a
particular person or body; or
(b) to
the person for the time being occupying a particular office or position.
(2) A function or
power delegated under this section may, if the instrument of delegation so
provides, be further delegated.
(3) A
delegation—
(a) may
be absolute or conditional; and
(b) does
not derogate from the power of the WorkCover Ombudsman to act in a matter; and
(c) is
revocable at will by the WorkCover Ombudsman.
99L—Annual report
(1) The WorkCover
Ombudsman must, on or before 30 September in each year, forward a report to
the Minister on the work of the WorkCover Ombudsman under this Act during the
financial year ending on the preceding 30 June.
(2) The Minister must,
within 6 sitting days after receiving a report under this section, have copies
of the report laid before both Houses of Parliament.
99M—Other reports
(1) The WorkCover
Ombudsman may, at any time, prepare a report to the Minister on any matter
arising out of the exercise of the WorkCover Ombudsman's functions under this
Act.
(2) Subject to
subsection (3), the Minister must, within 2 weeks after receiving a
report under this section, have copies of the report laid before both Houses
of Parliament.
(3) If the Minister
cannot comply with subsection (2) because Parliament is not sitting, the
Minister must deliver copies of the report to the President and the Speaker
and the President and the Speaker must then—
(a)
immediately cause the report to be published; and
(b) lay
the report before their respective Houses at the earliest opportunity.
(4) A report will,
when published under subsection (3)(a), be taken for the purposes of any
other Act or law to be a report of the Parliament published under the
authority of the Legislative Council and the House of Assembly.
99N—Immunity
(1) The WorkCover
Ombudsman incurs no civil liability for an honest act or omission in the
performance or exercise, or purported performance or exercise, of a function
or power under this Act.
(2) The immunity under
subsection (1) does not extend to culpable negligence.
(3) A civil liability
that would, but for this section, attach to a person attaches instead to the
Crown.