After section 138AD of the Principal Act , the following Division is inserted in Part X:

Division 3 - Choice of law

138AE.     Applicable substantive law for work injury claims

(1)  If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid) the substantive law of that State is the substantive law that governs –

(a) whether or not a claim for damages in respect of the injury can be made; and

(b) if it can be made, the determination of the claim.

(2)  This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.

(3)  For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it –

(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or

(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.

(4)  A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.

138AF.     Claim to which Division applies

(1)  This Division applies only to a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury that was caused by –

(a) the negligence or other tort (including breach of statutory duty) of the worker's employer; or

(b) a breach of contract by the worker's employer.

(2)  This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if –

(a) the worker's employment is connected with this State; and

(b) the negligence or other tort or the breach of contract on which the claim is founded occurred in this State.

(3)  Subsections (1)(a) and (2) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.

(4)  A reference in this Division to a worker's employer includes a reference to –

(a) a person who is vicariously liable for the acts of the employer; and

(b) a person for whose acts the employer is vicariously liable.

138AG.     What constitutes injury and employment and who is employer

For the purposes of this Division –

(a) " injury " and " employer " include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State; and

(b) the determination of what constitutes employment or whether or not a person is the worker's employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.

138AH.     Claim in respect of death included

For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.

138AI.     Meaning of substantive law

In this Division –

a State's legislation about damages for a work-related injury means –

(a) for this State, this Part and any other provision of this Act providing for the interpretation of anything in this Part; and

(b) for any other State, any provisions of a law of that State that is declared by the regulations to be the State's legislation about damages for a work-related injury;

substantive law includes –

(a) a law that establishes, modifies or extinguishes a cause of action or a defence to a cause of action; and

(b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time); and

(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit; and

(d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered; and

(e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered; and

(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights; and

(g) a provision of a State's legislation about damages for a work-related injury, whether or not it would be otherwise regarded as procedural in nature –

but does not include a law prescribing rules for choice of law.

138AJ.     Availability of action in another State not relevant

(1)  It makes no difference for the purpose of this Division that, under the substantive law of another State –

(a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State; or

(b) the circumstances on which the claim is based do not give rise to a cause of action.

(2)  In this section –

another State means a State other than the State with which the worker's employment is connected.