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This is a Bill, not an Act. For current law, see the Acts databases.
WORKERS COMPENSATION AMENDMENT BILL 2005 (NO 2)
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers
Compensation Amendment Bill 2005 (No 2)
Contents
Page
Part
2.1 Occupational Health and Safety Act
1989 92
Part 2.2 Supreme
Court Rules 1937 92
Part 2.3 Taxation
Administration Act 1999 93
Part 2.4 Workers
Compensation Regulation 2002 93
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers Compensation
Amendment Bill 2005 (No 2)
A Bill for
An Act to amend the
Workers Compensation Act
1951, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Workers Compensation Amendment Act 2005 (No
2).
(1) This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
(2) If this Act does not commence before 1 July 2006, this Act
automatically commences on that day.
(3) The Legislation Act, section 79 (Automatic commencement of postponed
law) does not apply to this Act.
This Act amends the Workers Compensation Act 1951.
Note 1 This Act also amends the following legislation (see sch
2):
• Occupational Health and Safety Act 1989
• Supreme Court Rules 1937
• Taxation Administration Act 1999
• Workers Compensation Regulation 2002.
Note 2 This Act also repeals the Workers Compensation
Supplementation Fund Act 1980 (see s 74).
in part 4.1, insert
30 DI fund manager required to pay weekly
compensation
(1) To remove any doubt, the DI fund manager is liable to indemnify an
employer in relation to weekly compensation payable in relation to an injured
worker’s injury if—
(a) there is no compulsory insurance policy in force that applies to the
worker in relation to the injury; or
(b) the compulsory insurance policy in force that applies to the worker in
relation to the injury was issued by an insurer that—
(i) cannot provide the indemnity required to be provided under the policy;
or
(ii) has been wound up; or
(c) the employer is a self insurer and the employer is unable to pay the
injured worker’s weekly compensation; or
(d) the manager receives a copy of the injury notice for the worker in
relation to the injury under section 94A (Uninsured employer to give DI fund
manager injury notice etc) or section 94C (Injured workers of uninsured
employers may give DI fund manager injury notice); or
(e) the manager is otherwise satisfied that it is reasonably likely that
there is no compulsory insurance policy in force that applies to the worker in
relation to the injury.
(2) However, the DI fund manager need not indemnify an employer in
relation to weekly compensation payable in relation to an injured worker’s
injury if—
(a) the injury happened before the commencement of the Workers
Compensation Amendment Act 2005 (No 2); and
(b) either—
(i) the nominal insurer had been given an injury notice for the injury or
was otherwise aware that there was no compulsory insurance policy that applied
to the worker in relation to the injury; or
(ii) the compulsory insurance policy that applies to the worker in
relation to the injury was issued by an insurer that immediately before
the commencement of the Workers Compensation Amendment Act 2005 (No
2)—
(A) could not provide the indemnity required to be provided under the
policy; or
(B) had been wound up.
(3) Subsection (2) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(4) Subsections (2) and (3) and this subsection expire 3 years after the
day this section commences.
Note A provision of an Act expires at the end of the day fixed for
its expiry (see Legislation Act, s 85 (3); repeal in s 85 includes
expiry—see s 82).
in part 4.3, insert
36G Definitions—pt 4.3
In this part:
initial incapacity date, for a worker in relation to an
injury that causes incapacity or death, means—
(a) the date the worker first becomes incapacitated (whether totally or
partially) for work because of the injury;
(b) if the worker is dead and the death was not preceded by a period of
incapacity for work—the date of the worker’s death.
weekly compensation, for a worker, means compensation to
which the worker is entitled under section 39 (Entitlement to weekly
compensation for first 26 weeks of incapacity) or section 40 (Entitlement to
weekly compensation after first 26 weeks of incapacity).
substitute
38 When do weekly compensation payments begin
etc?
(1) If the worker is or may be entitled to compensation for a compensable
injury—
(a) the payment of weekly compensation must begin when the worker gives
notice of the injury to the employer; and
(b) the worker is or may be entitled to weekly compensation from the date
of the injury.
Note An employer is liable to pay compensation if the
employer’s worker suffers personal injury arising out of, or in the course
of, the worker’s employment (see s 31 (1)).
(2) However, if, at the end of 7 days after the date of the injury, the
worker has not made a claim for compensation—
(a) payment of weekly compensation ends; and
(b) the worker is not entitled to weekly compensation for the injury for
the period—
(i) beginning on the day 8 days after the date of the injury;
and
(ii) ending on the day before the day the worker makes a claim for the
injury.
(3) Subsection (2) does not apply in relation to the worker
if—
(a) the worker cannot make a claim before the end of the 7-day period
because of the injury; and
(b) the worker makes the claim not later than 7 days after the day the
worker is first able to make the claim.
39 Entitlement to weekly compensation for first 26
weeks of incapacity
(1) This section applies if a worker is incapacitated (whether totally or
partially) because of a compensable injury.
(2) The worker is entitled to receive weekly compensation under this
section for any period on or after the initial incapacity date that the worker
is incapacitated because of the injury.
(3) However, the worker is not entitled to weekly compensation under this
section for the injury—
(a) for a period of longer than, or for periods (whether or not
continuous) totalling more than, 26 weeks; or
(b) if the worker was, on the initial incapacity date for the injury,
younger than 63 years old—for any period after the worker reaches pension
age; or
(c) if the worker was, on the initial incapacity date for the injury, at
least 63 years old—for any period more than 2 years after the initial
incapacity date.
(4) The worker’s entitlement under this section is worked out as
follows:
(a) for any period during which the person is totally incapacitated during
the period of entitlement—the worker’s average pre-incapacity weekly
earnings;
(b) for any period during which the person is partially incapacitated
during the period of entitlement—the difference between—
(i) the worker’s average pre-incapacity weekly earnings;
and
(ii) the average weekly amount that the worker is being paid for working
or could earn in reasonably available suitable employment.
(5) For this section, in working out the average weekly amount the worker
could earn, consideration may be given to the following:
(a) suitable employment that the worker unreasonably rejects;
(b) suitable employment that the worker obtains but unreasonably
discontinues.
40 Entitlement to weekly compensation after first 26
weeks of incapacity
(1) This section applies if—
(a) a worker is incapacitated (whether totally or partially) because of a
compensable injury; and
(b) the worker has received weekly compensation under section 39 for
the injury for a period of, or periods (whether or not continuous) totalling, 26
weeks.
(2) The worker is entitled to receive weekly compensation under
section 41 (Entitlement to weekly compensation after 26 weeks of total
incapacity) for any period after the 26-week period when the worker is totally
incapacitated.
(3) The worker is entitled to receive weekly compensation under
section 42 (Entitlement to weekly compensation after 26 weeks of
partial incapacity) for any period after the 26-week period when the worker is
partially incapacitated.
(4) However, the worker is not entitled to weekly compensation for the
injury—
(a) if the worker was, on the initial incapacity date for the injury,
younger than 63 years old—for any period after the worker reaches pension
age; or
(b) if the worker was, on the initial incapacity date for the injury, at
least 63 years old, or older—for any period more than 2 years after the
initial incapacity date.
41 Entitlement to weekly compensation after 26 weeks
of total incapacity
(1) If a worker is entitled to receive weekly compensation under this
section for a period, the worker is entitled to receive weekly compensation
equal to—
(a) if 100% of the worker’s average pre-incapacity weekly earnings
is less than the pre-incapacity floor for the worker—100% of the
worker’s average pre-incapacity weekly earnings; or
(b) if 100% of the worker’s average pre-incapacity weekly earnings
is more, but 65% of those earnings is less, than the pre-incapacity floor for
the worker—the statutory floor; or
Note Statutory floor is defined
in the dictionary.
(c) if 65% of the worker’s average pre-incapacity weekly earnings is
more than the pre-incapacity floor for the worker—whichever of the
following is (at the time of payment) more:
(i) 65% of the worker’s average pre-incapacity weekly
earnings;
(ii) the statutory floor.
Example for par (c)
Jim is injured at work and totally incapacitated for 14 weeks. After
unsuccessfully attempting a return to work for 3 days, Jim is totally
incapacitated for another 18 weeks. Jim is entitled under section 39 to
compensation equal to his average pre-incapacity weekly earnings for the
14 weeks and the next 12 weeks of his total incapacity (making a total of
26 weeks not including the 3 days return to work). He is then entitled to
be paid 65% of his pre-incapacity weekly earnings (or the statutory floor, if
more at the time of payment) for the remaining period (6 weeks) he is totally
incapacitated.
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(2) In this section:
pre-incapacity floor, for a worker, means the statutory floor
that applied immediately before the initial incapacity date for the worker in
relation to the injury.
42 Entitlement to weekly compensation after 26 weeks
of partial incapacity
(1) If a worker is entitled to receive weekly compensation under this
section for a period, the worker is entitled to receive weekly compensation
equal to the difference between the weekly amount the worker is being paid for
working and—
(a) if 100% of the worker’s average pre-incapacity weekly earnings
is less than the statutory floor—100% of the worker’s average
pre-incapacity weekly earnings; or
(b) if the relevant percentage of the worker’s average
pre-incapacity weekly earnings is less than the statutory floor—the
statutory floor; or
(c) if the relevant percentage of the worker’s average
pre-incapacity weekly earnings is more than the statutory ceiling—the
statutory ceiling; or
(d) in any other case—the relevant percentage of the worker’s
average pre-incapacity weekly earnings.
(2) For this section, the relevant percentage
is—
(a) if the worker is not working or works 25% of the worker’s
average pre-incapacity weekly hours or less—65%; or
(b) if the worker is working more than 25% of the worker’s average
pre-incapacity weekly hours but not more than 50%—75%; or
(c) if the worker is working more than 50% of the worker’s average
pre-incapacity weekly hours but not more than 75%—85%; or
(d) if the worker is working more than 75% of the worker’s average
pre-incapacity weekly hours but not more than 85%—95%; or
(e) if the worker is working more than 85% of the worker’s average
pre-incapacity weekly hours—100%.
Examples
1 Bronwyn injures herself at work in her full-time job. Bronwyn’s
injury causes her to become partially incapacitated and prevents her from
fulfilling her normal duties over normal work hours for 28 weeks. In those 28
weeks, Bronwyn works, on average, 50% of her pre-incapacity weekly hours.
Bronwyn returns to normal duties for 4 weeks but suffers from a relapse,
becoming partially incapacitated again and staying that way for a further
7 weeks. Bronwyn’s employer is required to pay Bronwyn her wage for
the time she has worked during the 35 weeks of partial incapacity. Bronwyn is
also entitled to the following weekly compensation:
(a) weekly compensation equal to the amount she has lost in wages for the
first 26 weeks of reduced hours work;
(b) weekly compensation for the remaining 9 weeks of working on reduced
hours equal to the difference between the weekly amount Bronwyn is being paid
for working and the statutory ceiling (because Bronwyn is earning more than 150%
of AWE at the time the compensation is being paid).
2 Nicholas works full time in a job that pays him an amount equivalent to
the statutory floor. Nicholas injures himself at work and is totally
incapacitated for 6 weeks and partially incapacitated for 26 weeks. Nicholas is
advised he could work on light duties for 3 weeks of the partial incapacity
period. However, suitable employment is not provided for this period.
Nicholas’ condition improves to the point where he returns to work on a
part-time basis and works 20% of his average pre-incapacity hours for 10 weeks.
Nicholas’ condition further improves to the point where he works on
average 60% of his pre-incapacity weekly hours for the last 13 weeks of partial
incapacity. Nicholas’ entitlements are as follows:
(a) the following amounts for wages (paid to Nicholas by his employer) for
the time he has worked during the 35 weeks of partial incapacity:
(i) for the first 3 weeks when Nicolas suffers from partial incapacity but
is capable of undertaking suitable work and is not provided with
it—nothing;
(ii) 20% of his normal pre-incapacity earnings for the next 10 weeks
of partial incapacity;
(iii) 60% of his normal pre-incapacity earnings for the last 13 weeks of
partial incapacity;
(b) the following amounts for weekly compensation:
(i) for the initial 6 weeks he is totally incapacitated—compensation
equal to his average pre-incapacity weekly earnings;
(ii) for the first 3 weeks of partial incapacity when he is capable of
undertaking suitable work but is not provided with it—100% of his normal
pre-incapacity earnings;
(iii) for the next 17 weeks of partial incapacity—the difference
between the average weekly amount that Nicholas is paid for working and his
pre-incapacity earnings;
(iv) for the remaining 6 weeks—the difference between the statutory
floor (because Nicholas is paid at the same rate as the statutory floor) and the
amount that Nicholas is paid for working.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) In this section:
statutory ceiling, in relation to an amount, means 150% of
AWE at the time the amount is to be paid.
43 Stopping payments for total
incapacity
(1) A worker stops being entitled to weekly compensation for total
incapacity for a compensable injury at the earliest of the following
times:
(a) when the worker stops being totally incapacitated because of the
injury;
(b) when the worker returns to work;
(c) when the worker dies.
(2) However, if the worker stops being entitled to weekly compensation
under subsection (1) (a) or (b), the worker may again become entitled to weekly
compensation for the compensable injury if the worker again becomes totally or
partially incapacitated because of the injury.
43A Stopping payments for partial
incapacity
(1) A worker stops being entitled to weekly compensation for partial
incapacity for a compensable injury at the earliest of the following
times:
(a) when the worker stops being partially incapacitated because of the
injury;
(b) when the worker dies.
(2) However, if the worker stops being entitled to weekly compensation
under subsection (1) (a), the worker may again become entitled to weekly
compensation if the worker again becomes totally or partially incapacitated
because of the compensable injury.
43B Effect on payment period of loss of entitlement
to weekly compensation
(1) This section applies if a worker would be entitled to weekly
compensation under section 39 (Entitlement to weekly compensation for first 26
weeks of incapacity) or section 40 (Entitlement to weekly compensation
after first 26 weeks incapacity) if payment of the compensation had not been
stopped under section 83 (No compensation while imprisoned) or section 113
(Compliance by workers).
(2) The period when the worker’s entitlement is stopped is counted
as part of the 26-week period mentioned in section 39 and section 40 as if
payment of compensation had not been stopped.
7 Effect
of living outside Australia if compensation still
payableSection 45 (4)
omit
8 Definitions
for ch 5Section 86, definition of
insurer
omit
insert
86A Meaning of insurer for ch
5
(1) In this chapter:
insurer means—
(a) an approved insurer; or
(b) a self-insurer; or
(c) for an injured worker’s injury if the insurer that issued a
compulsory insurance policy that covers the worker in relation to the injury
cannot provide the indemnity required to be provided under the policy—the
DI fund; or
(d) for an injured worker’s injury if there is no compulsory
insurance policy that covers the worker in relation to the injury and the
worker’s employer is not a self-insurer—the DI fund.
Note The DI fund manager must act as if the DI fund were the
insurer in other situations (see s 112 (3)).
(2) However, in applying this chapter to the DI fund as
insurer—
(a) a requirement that the insurer do or not do something is taken to be a
requirement that the DI fund manager do or not do the thing; and
(b) the manager is not required to comply with section 88 (Insurer to
establish etc injury management program) or section 89 (Insurer to give effect
to injury management program); and
Note Also, s 128 (1) (b) does not apply
to the DI fund (see s 128 (2)).
(c) although otherwise required to comply with this chapter, the manager
is not liable to be prosecuted for an offence against this chapter.
10 Insurer
to establish etc injury management
programSection 88 (1), new
note
insert
Note The DI fund manager is not required to comply with this section
(see s 86A (2) (b)).
11 Insurer
to give effect to injury management
programSection 89 (1), new
note
insert
Note The DI fund manager is not required to comply with this section
(see s 86A (2) (b)).
12 Insurer’s
obligation of prompt paymentSection 90
(1)
substitute
(1) An insurer commits an offence if—
(a) the insurer receives written notice requiring payment for the
provision of a service; and
(b) the insurer is required under this Act to pay for the service;
and
(c) the insurer fails to pay the person who provided the service (the
service provider) for the service not later than 30 days
after the day the insurer receives the notice.
Maximum penalty: 10 penalty units.
13 New
sections 94A to 94C
insert
94A Uninsured employer to give DI fund manager injury
notice etc
(1) An employer (other than a self-insurer) commits an offence
if—
(a) the employer is given an injury notice for an injured worker;
and
(b) the employer does not have a compulsory insurance policy that applies
to the worker in relation to the injury; and
(c) the employer does not, within 48 hours after receiving the injury
notice—
(i) give the DI fund manager a copy of the injury notice; and
(ii) tell the manager, in writing, that the employer does not have a
compulsory insurance policy that applies to the worker in relation to the
injury.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
94B Liquidator to give DI fund manager injury notice
etc
(1) The liquidator of an insurer (other than an insurer that has been
wound up under the Corporations Act) commits an offence if—
(a) the liquidator is given an injury notice; and
(b) the injury notice is for an injury of an injured worker of an
employer; and
(c) the employer holds or held a compulsory insurance policy with the
insurer that requires or required indemnity to be provided for the injured
worker’s injury; and
(d) the insurer cannot provide the indemnity required to be provided under
the policy; and
(e) the liquidator does not, within 48 hours after receiving the injury
notice—
(i) give the DI fund manager a copy of the injury notice; and
(ii) tell the manager, in writing, that the employer holds or held a
compulsory insurance policy with the insurer that requires or required indemnity
for the injury to be provided.
Maximum penalty: 50 penalty units.
(2) The liquidator of an approved insurer that has been wound up under the
Corporations Act commits an offence if—
(a) the liquidator is given an injury notice; and
(b) the injury notice is for an injury of an injured worker of an
employer; and
(c) the employer held a compulsory insurance policy with the insurer that
required indemnity for the injured worker’s injury to be provided;
and
(d) the liquidator does not, within 48 hours after the liquidator receives
the notice—
(i) return the injury notice to the injured worker; and
(ii) tell the worker, in writing, to give the injury notice to the DI fund
manager.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
94C Injured workers of uninsured employers may give
DI fund manager injury notice
An injured worker may give the DI fund manager a copy of the injured
worker’s injury notice if—
(a) the injured worker’s employer—
(i) is required to give the notice to the fund manager under section 94A
(Uninsured employer to give DI fund manager injury notice etc); but
(ii) has not given the notice as required; or
(b) the injured worker’s employer is required to give the notice to
the fund manager under section 94A but the injured worker suspects that the
employer may not have given the notice to the fund manager; or
(c) a liquidator—
(i) tells the injured worker to give the worker’s injury notice to
the fund manager under section 94B (Liquidator to give DI fund manager injury
notice etc); or
(ii) is required under section 94B to tell the injured worker to give the
worker’s injury notice to the fund manager, but does not tell the injured
worker as required; or
(d) the injured worker was employed by an employer who held a compulsory
insurance policy under which the insurer was required to provide indemnity for
the worker’s injury, but the insurer cannot provide the indemnity required
to be provided under the policy; or
(e) the injured worker was employed by an employer who was a self-insurer
and the injured worker believes, on reasonable grounds, that the employer is
unable to pay compensation in relation to the injury; or
(f) the injured worker’s employer no longer exists.
14 What
if employer does not give notice of injury within
time?Section 95 (1)
omit
(the notification time)
substitute
(2) The employer is liable to pay the worker weekly compensation from the
date of injury until the employer gives the insurer the injury notice.
16 Workplace
rehabilitationNew section 109
(4)
insert
(4) To remove any doubt, subsection (3) (d) does not limit the people the
employer may consult when developing the return-to-work program.
17 Section
109 (4) to (6)
renumber as section 109 (5) to (7)
substitute
112 Compliance by insurers, including DI
fund
(1) It is a condition of an insurer’s approval that the insurer must
comply with the requirements of this chapter.
(2) If, for this chapter, the insurer in relation to an injured
worker’s injury is the DI fund, the DI fund manager must comply with the
requirements of this chapter applying to the fund.
(3) Without limiting subsection (2), the DI fund manager must comply with
the requirements of this chapter applying to the DI fund as insurer in relation
to an injured worker’s injury if the manager—
(a) receives a copy of the injury notice for the worker in relation to the
injury under section 94A (Uninsured employer to give DI fund manager injury
notice etc), section 94B (Liquidator to give DI fund manager injury notice etc)
or section 94C (Injured workers of uninsured employers may give DI fund manager
injury notice); or
(b) is otherwise satisfied that it is reasonably likely that there is no
compulsory insurance policy in force that applies to the worker in relation to
the injury.
Example
Melissa suffers a workplace injury while working for Joe. Joe does not
have a compulsory insurance policy and gives the DI fund manager a copy of the
injury notice. The DI fund manager must comply with the requirements of an
insurer under this chapter in relation to Melissa’s injury.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
19 Compliance
by workersNew section 113 (1)
(d)
insert
(d) fails to attend a medical assessment of the worker’s injury;
or
20 Section
113 (1) (d) and (e)
renumber as section 113 (1) (e) and (f)
21 When
is a claim made?Section 122 (1), new
note
insert
Note Payment of weekly compensation begins when the worker gives
notice of the injury to the employer (see s 38).
22 Admissibility
of statements by injured workersSection 125
(2), definition of insurer, paragraph (b)
substitute
(b) the DI fund.
23 Meaning
of insurer and given to insurer for pt
6.2Section 127 (1), definition of
insurer, paragraph (c)
substitute
(c) if, when the injury happened, the employer was not a self-insurer and
the employer has or had no compulsory insurance policy that applies to the
claim—the DI fund.
substitute
128 Claim accepted if not rejected within 28
days
(1) If, at the end of 28 days after the day the insurer receives a
worker’s claim for compensation under this Act, the insurer has not
rejected the claim—
(a) the insurer is taken to have accepted the claim; and
(b) any payment made by the insurer in relation to the claim is not
recoverable.
(2) However, subsection (1) (b) does not apply to a payment made by the DI
fund manager as insurer.
25 Liability
on claim not accepted or rejectedSection
134 (1)
omit
an injury
substitute
an injury for which compensation is payable under this Act
26 Order
for refund of overpayments of
compensationSection 135
(2)
omit
an offence against section 213 (False claims etc)
substitute
a Criminal Code offence
insert
(7) In this section:
Criminal Code offence means an offence against the Criminal
Code that relates to—
(a) completing, keeping or giving a document under or in relation to this
Act; or
(b) a requirement that a document be completed, kept or given, under or in
relation to this Act.
insert
Part 8.1 General
29 Effect
of revocation or suspension of
approvalSection 146 (2)
(c)
substitute
(c) affect the liability of the insurer under section 168A
(Contributions to DI fund by approved insurers and self-insurers).
30 Effect
of failure to maintain compulsory insurance on other insurance etc for this
ActSection 149 (2) (c)
substitute
(c) affect the liability of the insurer under section 168A
(Contributions to DI fund by approved insurers and self-insurers).
31 Section
149 (as amended)
renumber as section 148
substitute
149 DI fund entitled to triple recovery
amount
(1) If an employer fails to maintain a compulsory insurance policy, the DI
fund manager may recover the triple recovery amount as a debt owing by the
employer to the DI fund.
(2) However, the employer is not liable under subsection (1) for a failure
to maintain a compulsory insurance policy in relation to a worker
if—
(a) the employer believed, on reasonable grounds, that a State was the
Territory or State of connection for the employment under the law of a State
corresponding to part 4.2A (Employment connection with ACT or State);
and
(b) the employer had insurance, or was registered, as required under a law
of the State in relation to liability for workers compensation under the law of
the State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(3) In this section:
employer does not include a self-insurer or non-business
employer.
triple recovery amount means an amount equal to triple the
amount of the premiums that would have been payable to an approved insurer if
the employer had maintained a compulsory insurance policy.
33 Information
for insurers on application for issue or renewal of
policiesSection 156 (6),
note
substitute
Note An employer who makes a statement in a statutory declaration
that is false, misleading or incomplete may commit an offence (see s 162 and
Criminal Code, pt 3.4).
34 Section
156 (as amended)
renumber as section 155
35 Information
for insurers after renewal of
policiesSection 157
(1)
omit
an insurance policy
substitute
a compulsory insurance policy
substitute
Note A recognised auditor who makes a statement in an
auditor’s certificate that is false, misleading or incomplete may commit
an offence (see Criminal Code, pt 3.4).
37 Section
157 (as amended)
renumber as section 156
38 Information
for insurers after end or cancellation of
policiesSection 158 (2),
note
substitute
Note A recognised auditor who makes a statement in an
auditor’s certificate that is false, misleading or incomplete may commit
an offence (see Criminal Code, pt 3.4).
39 Section
158 (as amended)
renumber as section 157
40 Six-monthly
information for insurersSection 160 (1),
note
substitute
Note An employer who makes a statement in a statutory declaration
that is false, misleading or incomplete may commit an offence (see s 162 and
Criminal Code, pt 3.4).
41 Section
160 (as amended)
renumber as section 159
42 New
sections 160 and 161
insert
160 Certificate of currency
(1) This section applies if an employer asks an approved insurer, in
writing, for a certificate (a certificate of currency) for a
compulsory insurance policy held by the employer with the insurer.
(2) Not later than 5 business days after the day the approved insurer
receives the request, the insurer must give the employer a certificate of
currency if—
(a) the employer has not been given a certificate of currency for the
policy within the last 6 months; or
(b) the employer has been given a certificate of currency for the policy
within the last 6 months, but either—
(i) the details of the risk covered by the policy have changed since the
certificate was issued; or
(ii) the employer reasonably requires another certificate.
Example of reasonably requiring another
certificate
the previous certificate has been destroyed in a fire
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The certificate of currency must—
(a) state the details given by the employer to the approved insurer
under—
(i) section 159 (Six-monthly information for insurers); or
(ii) if no information has been given by the employer to the insurer under
section 159—section 155 (Information for insurers on application for issue
or renewal of policies); and
(b) state the period for which the employer is insured under the policy;
and
(c) state the period of not longer than 6 months for which the certificate
is current.
(4) However, the approved insurer need not give the employer a certificate
of currency if—
(a) the employer is in default under the insurance policy held by the
employer with the insurer; and
(b) the insurer has told the employer, or tells the employer not later
than 5 business days after the day the employer asks for the certificate,
that the employer is in default under the policy.
161 Requirement to produce certificate of
currency
(1) An employer commits an offence if—
(a) the employer holds a compulsory insurance policy with an approved
insurer; and
(b) an authorised person asks to see a certificate of currency for the
policy; and
(c) the employer does not produce a certificate of currency for the policy
for inspection.
Maximum penalty: 50 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1)
if—
(a) the defendant has a reasonable excuse for failing to produce the
certificate of currency when required to; and
(b) either—
(i) not later than 7 business days after the day (the request
day) the defendant is required to produce the certificate, the defendant
produces the certificate for inspection at a place prescribed by regulation for
this subsection or at a place directed in writing by the authorised person;
or
(ii) the defendant establishes that the defendant took reasonable steps to
produce the certificate to the authorised person not later than 7 business days
after the request day.
(3) An offence against this section is a strict liability
offence.
(4) In this section:
authorised person, in relation to a certificate of currency
for a compulsory insurance policy, means—
(a) an inspector; or
(b) the principal of a worker who is, is to be, or could reasonably be
expected to be, covered by the policy; or
(c) an industrial union of workers representing a worker employed by the
employer.
certificate of currency—see section
160.
principal, of a worker—if the worker is employed to
fulfil a contract the employer has with someone else to do work in the other
person’s trade or business, the other person is the
principal of the worker.
43 Provision
of information to MinisterSection 163 (8),
definition of applicable offence, paragraph (b)
substitute
(b) an offence against the Criminal Code, section 338 (which is about
giving false or misleading information) or section 339 (which is about
producing false or misleading documents) in relation to a notice that relates
to—
(i) completing, keeping or giving a document under or in relation to this
Act; or
(ii) a requirement that a document be completed, kept or given under or in
relation to this Act.
44 Section
163 (as amended)
renumber as section 164
substitute
Part 8.2 Default insurance
fund
Division 8.2.1 Definitions for pt
8.2
165 Definitions for pt 8.2
In this part:
claim for payment—see section 170.
claims manager means an entity appointed as claims manager
under section 166F.
Division 8.2.2 Establishment, staff and
consultants of DI fund
166 Establishment of DI fund
(1) The Default Insurance Fund (the DI fund) is
established.
(2) The DI fund consists of—
(a) amounts received or recovered by or on behalf of the DI fund manager
under this Act; and
(b) income from the investment of amounts of the fund; and
(c) amounts borrowed by the Territory for the fund; and
(d) other amounts lawfully paid into the fund.
(3) The DI fund is to be managed by the DI fund manager and money paid
into it is taken to be trust money under the Financial Management Act
1996.
166A Purpose of DI fund
The DI fund provides a safety net to meet the costs of workers compensation
claims made by workers if—
(a) an employer does not have a compulsory insurance policy; or
(b) an approved insurer is wound up under the Corporations Act or cannot
provide the indemnity required to be provided under a compulsory insurance
policy.
166B Payments out of DI fund
(1) The DI fund manager may pay out of the fund—
(a) amounts required by this Act to be paid in settlement of a claim made
under this Act; and
(b) the amount of any costs or fees payable under this Act to the
liquidator of an approved insurer; and
(c) costs and expenses incurred by a DI fund claims manager in the
settlement of claims made under this Act; and
(d) any amount payable under section 168B (Refunds of excess DI fund
amounts); and
(e) repayments of, and interest on, any amount borrowed for, or
contributed by the Territory to, the fund; and
(f) the amount of any fees, costs and expenses incurred in, or in relation
to, the administration of the fund; and
(g) any other amount that may be paid out of the fund under a territory
law.
(2) The DI fund manager must pay out of the fund any amount the Minister
directs be transferred to the terrorism cover temporary reinsurance fund under
chapter 15 (Temporary provisions for acts of terrorism).
(3) Subsection (2) and this subsection expire on 1 October 2009.
166C Appointment of DI fund
manager
The chief executive may appoint a public servant as the DI fund manager
(the DI fund manager) for this Act.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
166D DI fund manager’s functions
etc
(1) The DI fund manager manages the DI fund.
(2) The DI fund manager also exercises any other function given to the
manager under this Act or any other territory law.
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 2 A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
(3) Anything done in the name of, or for, the DI fund by the DI fund
manager in exercising a function of the fund is taken to have been done for, and
binds, the fund.
166E DI fund staff
The staff of the DI fund must be employed under the Public Sector
Management Act 1994.
166F DI fund manager may engage consultants including
claims manager
(1) The DI fund manager may engage consultants.
(2) Without limiting subsection (1), the DI fund manager may engage an
entity (a claims manager) to manage injuries in relation to which
claims may be, or have been, made against the DI fund.
Note The DI fund manager must engage an actuary (see s
166H).
(3) However, the DI fund manager must not engage an entity under
subsection (2) unless satisfied that the entity has the experience and expertise
necessary to exercise the functions of a claims manager.
(4) The conditions of a consultant’s appointment are the conditions
agreed between the DI fund manager and the consultant.
(5) To remove any doubt, this section does not give the DI fund manager
the power to enter into a contract of employment.
166G Claims manager’s
functions
(1) This section applies if the DI fund manager engages a claims
manager.
(2) A claims manager may do the following in relation to a claim that the
claims manager was engaged to manage:
(a) investigate the claim;
(b) negotiate the terms of settlement of the claim, either by payment of a
lump sum or by weekly payments in accordance with this Act;
(c) if the injured worker was covered at the time of injury by a
compulsory insurance policy issued by an approved insurer—exercise any
right of the insurer arising from or in relation to the policy;
(d) anything prescribed by regulation.
(3) Subsection (2) does not authorise a claims manager to—
(a) pay an amount to satisfy a claim; or
(b) recover an amount owed to an approved insurer against whom a claim is
made under this Act.
(4) A claims manager may also exercise any other function given to the
claims manager under this Act or any other territory law.
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 2 A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
166H Engagement of DI fund
actuary
(1) The DI fund manager must engage an actuary as the DI fund
actuary.
(2) However, the DI fund manager must not engage a person under subsection
(1) unless satisfied that the person has the experience and expertise necessary
to exercise the functions of the DI fund actuary.
(3) The conditions of the DI fund actuary’s appointment are the
conditions agreed between the DI fund manager and the actuary.
166I Delegation by DI fund
manager
The DI fund manager may delegate the manager’s functions under this
Act or any other territory law to a public servant or a consultant
engaged under this Act (including a claims manager and the DI fund
actuary).
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
Division 8.2.3 Administration of DI
fund
167 Accounts for DI fund
(1) The DI fund manager must keep a separate account in the DI fund
for—
(a) claims made against employers without compulsory insurance policies;
and
(b) an approved insurer if—
(i) a claim is, or has been, made against a compulsory insurance policy
issued by the insurer; and
(ii) the insurer cannot provide the indemnity required to be provided
under the policy.
(2) The DI fund manager must keep accounts for—
(a) amounts paid into the DI fund under division 8.2.4 (Contributions to
DI fund); and
(b) amounts withdrawn from the fund.
(3) Accounts kept of amounts withdrawn from the fund must show the reason
why each amount is withdrawn.
167A Investments of amounts of DI
fund
The DI fund manager must invest amounts of the DI fund that are, in the
manager’s opinion, not immediately needed to make payments out of the fund
under this Act.
167B Borrowing for DI fund
(1) The Treasurer may, on the conditions the Treasurer considers
appropriate—
(a) borrow money for the DI fund; or
(b) lend public money to the DI fund.
(2) The Treasurer may borrow money for the DI fund or lend money to the DI
fund to meet the costs of claims against the DI fund only if—
(a) the costs, or the amount of the costs, are unexpected; and
(b) either—
(i) the costs cannot be met through the apportionment of liability under
section 168A; or
(ii) the Treasurer is satisfied that it is not appropriate to meet the
costs through the apportionment of liability under section 168A.
(3) Borrowing for the DI fund may be secured by the DI fund’s assets
that are approved in writing by the Treasurer.
(4) The DI fund manager may only arrange an overdraft or credit facility
for the DI fund with the Treasurer’s written approval.
(5) A loan under subsection (1) (b) may be made only from—
(a) money appropriated for the loan; or
(b) money appropriated for purposes that include making the
loan.
167C Audit of DI fund
(1) The DI fund manager must have the accounts for the DI fund for a
financial year audited by a recognised auditor as soon as practicable after the
end of the financial year.
(2) The DI fund manager must give the recognised auditor’s report
and the audited accounts to the chief executive as soon as practicable after the
end of the financial year to which the report relates.
167D Information and assistance by employer to DI
fund manager
(1) The DI fund manager may, by written notice given to an employer,
require the employer to do 1 or more of the following:
(a) give the manager stated information and assistance that the manager
reasonably considers necessary for the exercise of the manager’s
functions;
(b) give the manager stated documents in the employer’s possession
or control that the manager reasonably considers necessary for the exercise of
the manager’s functions;
(c) execute stated documents that the manager reasonably considers
necessary for the employer to execute for the exercise of the manager’s
functions;
(d) allow the manager or a person authorised by the manager, at a stated
reasonable time, to inspect any plant, works, machinery and appliances used in
the employer’s business that the manager reasonably considers necessary
for the exercise of the manager’s functions.
(2) An employer must take all reasonable steps to comply with a
requirement of the DI fund manager under subsection (1).
Maximum penalty: 50 penalty units.
Note The Legislation Act, s 170
deals with the application of the privilege
against selfincrimination.
(3) An offence against this section is a strict liability
offence.
Division 8.2.4 Contributions to DI
fund
168 Approved insurers must give
information
(1) The DI fund manager may, by written notice given to an approved
insurer, require the insurer to give the manager, within a stated reasonable
time, the following for a quarter:
(a) a written statement of the insurer’s earned premium;
(b) any other stated information in relation to the amounts paid or earned
by the insurer in relation to compulsory insurance policies.
(2) The approved insurer must comply with the notice.
168A Contributions to DI fund by approved insurers
and self-insurers
(1) The DI fund manager must get the DI fund advisory committee’s
written advice on the DI fund’s existing and expected liabilities for each
quarter.
(2) The DI fund manager—
(a) must decide the DI fund’s liability for a quarter, taking into
account the DI fund advisory committee’s advice in relation to the
quarter; and
(b) may apportion the DI fund’s liability for the quarter among the
entities that were approved insurers and self-insurers during the
quarter.
(3) In making an apportionment under subsection (2) for a quarter, the DI
fund manager must take into account—
(a) the earned premium of each approved insurer in relation to the
quarter; and
(b) the premium that would have been payable by each self-insurer for the
quarter if the self-insurer had obtained a compulsory insurance policy for the
quarter (or the part of the quarter for which the self-insurer was a
self-insurer).
(4) If the DI fund manager makes an apportionment for a quarter, the
manager must give each approved insurer and self-insurer a written notice
that—
(a) sets out details of the apportionment; and
(b) requires the insurer or self-insurer to pay to the DI fund the amount
apportioned to the insurer or self-insurer within the time for payment stated in
the notice.
Note An insurer issuing a compulsory insurance policy to an employer
must include information about the proportion of the premium that is to offset
an amount paid by the insurer to the DI fund for the policy (see Workers
Compensation Regulation 2002, s 62A).
(5) The time stated for payment in the notice must not be shorter than
30 days after the day the approved insurer or self-insurer receives the
notice.
(6) The DI fund manager may amend or revoke a notice given under this
section.
(7) If an amount apportioned to the insurer or self-insurer is not paid
within the time stated for payment in the notice, the amount is a debt owing to
the DI fund by the insurer or self-insurer.
(8) The DI fund manager must pay into the DI fund each amount received or
recovered under this section from an approved insurer or self-insurer.
168B Refunds of excess DI fund
amounts
(1) This section applies if—
(a) an approved insurer or self-insurer contributed an amount to the DI
fund during a period (the refund period); and
(b) after taking into account the advice of the DI fund advisory
committee, the DI fund manager is satisfied that—
(i) the DI fund can more than cover its current and expected liabilities;
and
(ii) it is reasonable to refund the excess in the DI fund.
(2) The DI fund manager may refund the amount in the DI fund decided by
the DI fund manager to be in excess of the fund’s needs.
(3) The refund must be made—
(a) to each approved insurer and self-insurer who contributed to the DI
fund during the refund period; and
(b) on the basis of the approved insurer’s or self-insurer’s
contribution as a proportion of the total contributions made to the DI fund in
that period.
(4) If an amount is refunded to an approved insurer under this section,
the amount must be given to employers who take out compulsory insurance policies
with the insurer in the form of credits offset against their premiums.
Division 8.2.5 DI fund’s relationship
with liquidators of approved insurers
169 Displacement of liquidator’s Corporations
Act obligation
(1) The recovery of amounts by the DI fund from liquidators of approved
insurers is declared to be an excluded matter for the purposes of the
Corporations Act, section 5F in relation to the Corporations Act, section 477,
other than to the extent stated in subsection (2), section 169A and section
169B.
Note The Corporations Act, s 5F provides that, if a law of a State
or Territory declares a matter to be an excluded matter for the purposes of that
section in relation to all or part of the Corporations legislation of the
Commonwealth, the provisions that are the subject of the declaration will not
apply in relation to that matter in the State or Territory that made the
declaration.
(2) The liquidator of an approved insurer may exercise his or her powers
under the Corporations Act, section 477 in relation to a claim, judgment, order
or award arising out of or in relation to a compulsory insurance policy issued
by the insurer, subject to the following changes:
(a) the reference in section 477 to the approval of the court or the
committee of inspection or of a resolution of the creditors is taken to be a
reference to the approval of the DI fund manager;
(b) the words ‘subject to the provisions of section 556,’ is
omitted from subsection (1) (b);
(c) any other necessary changes are taken to have been made;
(d) any other changes prescribed by regulation are taken to have been
made.
169A Payment to DI fund of amounts recovered by
liquidator from reinsurer
(1) This section applies if—
(a) an approved insurer is, under a contract of reinsurance, insured
against liability in relation to compulsory insurance policies issued by the
insurer and liability in relation to them is incurred by the insurer;
and
(b) any part of the liability is met by an amount paid out of the DI fund
under this Act; and
(c) an amount in relation to that part of the liability of the insurer is
received by a liquidator of the insurer from the reinsurer.
(2) The liquidator must pay the amount to the DI fund, in priority to all
payments in relation to debts mentioned in the Corporations Act, section
556.
(3) However, the liquidator may deduct from the amount the reasonable
expenses of or incidental to recovering the amount.
(4) This section has effect despite any agreement to the
contrary.
169B Payment to DI fund of amounts recovered by
liquidator using fund amounts
(1) This section applies if—
(a) the liquidator of an approved insurer recovers an amount owed to the
insurer; and
(b) the amount is recovered because of the payment of an amount out of the
DI fund of part of a claim, judgment, order or award arising out of or in
relation to a compulsory insurance policy issued by the insurer.
(2) The liquidator must pay the amount to the DI fund, in priority to all
payments in relation to debts mentioned in the Corporations Act,
section 556.
(3) However, the liquidator may deduct from the amount the reasonable
expenses of or incidental to recovering the amount.
(4) This section has effect despite any agreement to the
contrary.
169C Rights of DI fund manager against approved
insurer
(1) This section applies if—
(a) an approved insurer cannot provide to an employer the indemnity
required to be provided by a compulsory insurance policy issued by the insurer
to the employer; and
(b) any part of the employer’s liability is met by an amount paid
out of the DI fund under this Act; and
(c) all or part of the amount (the unrecovered amount) is
not recovered by the DI fund manager under section 169A or section
169B.
(2) The DI fund manager has the same rights against the insurer as the
employer in relation to the unrecovered amount.
169D Liquidator to notify DI fund manager of
dissolution
If the liquidator of an approved insurer applies to a court for an order
that the insurer be dissolved under the Corporations Act, the liquidator must as
soon as practicable—
(a) tell the DI fund manager in writing about the application;
and
(b) give the fund manager a copy of any order made by the court on the
application.
Division 8.2.6 Making claims for
payment
170 Who may make claim for
payment
A person may make a claim for payment under this division
(a claim for payment) if the person is eligible to make the
claim under 1 of the following provisions:
(a) section 170E (Claim for payment if employer to pay and liability not
covered by compulsory insurance policy etc);
(b) section 170F (Claim for payment if final judgment etc and liability
not covered by compulsory insurance policy);
(c) section 170G (Claim for payment if agreement to discharge liability at
common law and liability not covered by compulsory insurance policy);
(d) section 170H (Claim for payment if final judgment etc and liability
covered by compulsory insurance policy);
(e) section 170I (Claim for payment if entitlement to claim compensation
and liability covered by compulsory insurance policy).
170A When must claim for payment be
made
A claim for payment by a person must be made not later
than—
(a) 1 month after the day the person becomes eligible to make the claim;
or
(b) any further time that the DI fund manager, on application,
allows.
170B How claim for payment made if no
insurer
(1) This section applies to a claim for payment in relation to a workers
compensation liability if—
(a) the claim is made against the employer; and
(b) the liability of the employer to pay the compensation is not covered
by a compulsory insurance policy; and
(c) either—
(i) the employer has been wound up; or
(ii) a liquidator has been appointed for the employer but the employer has
not been wound up; or
(iii) the liability of the employer to pay the compensation remains unpaid
for at least 1 month.
(2) The claim for payment must be—
(a) in writing; and
(b) given to the DI fund manager with a copy of any judgment, order or
award relating to the claim.
Note If a form is approved under s
222 for this provision, the form must be
used.
170C How claim for payment made if insurer not wound
up
(1) This section applies to a claim for payment in relation to a workers
compensation liability if—
(a) the claim is made against the employer; and
(b) the liability of the employer to pay the compensation is covered by a
compulsory insurance policy; and
(c) a liquidator has been appointed for the insurer but the insurer has
not been wound up.
(2) The claim for payment must be—
(a) in writing; and
(b) given to the liquidator of the insurer, with a copy of any judgment,
order or award relating to the claim.
Note If a form is approved under s 222 for
this provision, the form must be used.
170D How claim for payment made if insurer wound
up
(1) This section applies to a claim for payment in relation to a workers
compensation liability if—
(a) the claim is made against the employer; and
(b) the liability of the employer to pay the compensation is covered by a
compulsory insurance policy; and
(c) the insurer has been wound up.
(2) The claim for payment must be—
(a) in writing; and
(b) given to the DI fund manager with a copy of any judgment, order or
award relating to the claim.
Note If a form is approved under s
222 for this provision, the form must be
used.
170E Claim for payment if employer to pay and
liability not covered by compulsory insurance policy etc
(1) This section applies if—
(a) a person has made a claim against an employer for compensation under
this Act; and
(b) the employer is not a self-insurer; and
(c) either—
(i) the employer has agreed to pay compensation; or
(ii) the liability of the employer to pay compensation has been
established; and
(d) the liability of the employer to pay the compensation is not covered
by a compulsory insurance policy; and
(e) at the end of 1 month after the day the compensation becomes payable,
the compensation (or any part of it) has not been paid to the person.
(2) The person is eligible to make a claim for payment against the DI fund
for payment of the amount of the compensation that remains unpaid.
(3) In this section:
compensation includes—
(a) an amount in settlement of a claim for compensation; and
(b) costs payable to a worker by an employer in relation to a claim for
compensation.
170F Claim for payment if final judgment etc and
liability not covered by compulsory insurance policy
(1) This section applies if—
(a) a person has obtained a final judgment against an employer;
and
(b) the employer is not a self-insurer; and
(c) the judgment relates to the employer’s liability independently
of this Act in relation to an injury to, or the death of, a territory worker of
the employer; and
(d) execution of the judgment has not been stayed; and
(e) the liability of the employer under the judgment, order or award is
not covered by a compulsory insurance policy; and
(f) the judgment has remained completely or partly unsatisfied for at
least 1 month.
(2) The person is eligible to make a claim for payment against the
DI fund of the amount of the judgment that remains unsatisfied.
Note See s 170 for def claim for payment.
170G Claim for payment if agreement to discharge
liability at common law and liability not covered by compulsory insurance
policy
(1) This section applies if—
(a) an employer has agreed with a person to pay an amount to discharge the
employer’s liability independently of this Act in relation to an injury
to, or the death of, a territory worker of the employer; and
(b) the employer is not a self-insurer; and
(c) the liability of the employer under the agreement is not covered, or
is not completely covered, by a compulsory insurance policy; and
(d) at the end of 1 month after the day the amount is payable, the amount
(or any part of it) has not been paid to the person.
(2) The person is eligible to make a claim for payment against the
DI fund of the amount that remains unpaid.
170H Claim for payment if final judgment etc and
liability covered by compulsory insurance policy
(1) This section applies if—
(a) a person has obtained a final judgment, or an order or award has been
made against an employer; and
(b) the judgment, order or award relates to the employer’s liability
independently of this Act in relation to, or the death of, a territory worker of
the employer; and
(c) the liability of the employer under the judgment, order or award is
covered by a compulsory insurance policy; and
(d) the approved insurer is wound up or cannot provide the indemnity
required by the policy to be provided.
(2) The person is eligible to make a claim for payment against the
DI fund of the amount of the judgment, order or award that remains
unsatisfied.
170I Claim for payment if entitlement to claim
compensation and liability covered by compulsory insurance policy
(1) This section applies if—
(a) a person is entitled to claim against an employer for compensation
under this Act for an injury to, or the death of, a territory worker employed by
the employer; and
(b) the liability of the employer to pay the compensation is covered by a
compulsory insurance policy; and
(c) the approved insurer is wound up or cannot provide the indemnity
required by the policy to be provided.
(2) The person is eligible to make a claim for payment against the
DI fund of the amount.
170J Liquidator to forward claims to DI fund
manager
The liquidator of an approved insurer who receives a claim for payment
must—
(a) give a copy of the claim to the DI fund manager; and
(b) give the manager all the information, and a copy of all the documents
(including a copy of any judgment, order or award) that the liquidator has
relating to the claim.
170K Power of Supreme Court to set aside
agreements
(1) If a claim for payment is made against the DI fund by someone eligible
to make the claim under section 170G (Claim for payment if agreement to
discharge liability at common law and liability not covered by compulsory
insurance policy), the DI fund manager may apply to the Supreme Court for an
order setting aside the agreement to which the claim relates.
(2) The Supreme Court may set aside the agreement if satisfied that there
are reasonable grounds for believing that the employer has not honestly tried to
protect the employer’s own interests and taken all reasonable steps to
protect the employer’s own interests.
(3) If the Supreme Court sets the agreement aside, the costs of the
respondent in relation to the application are to be paid by the DI fund,
unless the Supreme Court orders otherwise.
(4) The Supreme Court may make an order about costs under subsection (3)
only if satisfied that it is appropriate to make the order because of the
special circumstances surrounding the making of the agreement.
170L Treatment of set aside
agreement
(1) If an agreement is set aside under section 170K—
(a) the agreement is taken never to have had effect for the purpose of any
proceeding in a court; and
(b) evidence of a statement or communication, or a part of a statement or
communication, tending to establish the existence of the agreement is not
admissible in any proceeding in a court, unless the Supreme Court orders
otherwise.
(2) The Supreme Court may make an order under subsection (1) (b) only if
satisfied that the admission of the evidence is necessary to avoid injustice to
a party to the proceeding.
170M Time-barred rights after agreement set
aside
(1) This section applies if—
(a) an agreement is set aside under section 170K; and
(b) apart from this section, a proceeding by a party to the agreement to
recover damages in relation to a liability to which the agreement related would
be barred when the agreement is set aside, or would become barred not later than
3 months after the day the agreement is set aside, by the Limitation Act
1985 or another territory law (the limitations law).
(2) The proceeding may be started at any time not later than 3 months
after the day the agreement was set aside, despite the limitations
law.
170N Proceeding after agreement set
aside
(1) A person commits an offence if—
(a) an agreement is set aside under section 170K; and
(b) the person was a party to the agreement; and
(c) the person brings a proceeding to recover damages in relation to a
liability under the agreement; and
(d) at the end of 7 days after the day the proceeding is started, the
person has not given the DI fund manager written notice of the
proceeding.
Maximum penalty: 5 penalty units.
(2) An offence against this section is a strict liability
offence.
(3) If notice is given to the DI fund manager under subsection (1) (d),
the fund manager—
(a) may, on behalf of the employer sued in the proceeding, conduct the
defence of the proceeding in the name of the employer and in the way the fund
manager considers appropriate; and
(b) must indemnify the employer against all costs and expenses in relation
to the proceeding.
170O DI fund manager not to consent to judgment etc
unless defendant agrees
This division does not authorise the DI fund manager—
(a) to consent to judgment in a proceeding against a defendant in the
proceeding, unless the defendant agrees; or
(b) to compromise a proceeding against a defendant in the proceeding,
unless the defendant agrees.
Division 8.2.7 Payment of
claims
171 Payments out of DI fund
(1) A claim for payment may only be paid if the terms of settlement of the
claim are approved.
(2) The terms of settlement of a claim for payment may be approved
by—
(a) if they provide for payment of a lump sum to the claimant—the
Magistrates Court; or
(b) in any other case—the DI fund manager.
171A Reopening of agreements and
awards
(1) This section applies if a claim for payment is made against the
DI fund under section 170E (Claim for payment if employer to pay and
liability not covered by compulsory insurance policy etc).
(2) The DI fund manager may apply to the Magistrates Court for an order
directing that the agreement or award under which the compensation under the
claim is payable be reopened on the ground that—
(a) there is reason to believe that the employer has not honestly
endeavoured to protect the employer’s own interests; and
(b) the employer has not taken all reasonable steps to protect the
employer’s own interests.
(3) The Magistrates Court may order that the agreement or award be
reopened.
171B Deciding or re-deciding
claim
(1) If the Magistrates Court makes an order under section 171A, the court
must decide or re-decide the claim for compensation by arbitration.
(2) The DI fund manager is a party to the arbitration.
(3) In an award made by the Magistrates Court under this section, the
court may set aside the previous agreement or award.
(4) An agreement by a person to accept, in settlement of a claim for
payment against the DI fund, an amount less than the amount payable according to
an agreement or award has no effect unless approved by the Magistrates
Court.
171C Approval of terms of settlement by
court
(1) This section applies if proposed terms of settlement of a claim for
payment provide for payment of a lump sum to the claimant.
(2) The DI fund manager may apply to the Magistrates Court for approval of
the terms of settlement.
(3) The Magistrates Court may approve the terms of settlement if satisfied
that they are just.
171D DI fund paying claims for payment if liability
not completely covered by a compulsory insurance policy and settlement
approved
(1) This section applies to a claim for payment if—
(a) the claim was made by a person eligible to make the claim under
section 170E, section 170F or section 170G; and
Note Under s 170E, s 170F and s 170G,
the employer’s liability is not covered by a compulsory insurance
policy.
(b) the terms of settlement of the claim are approved by the Magistrates
Court or DI fund manager under this division.
(2) The DI fund manager must pay the claimant out of the DI fund the
amount necessary to satisfy the claim in accordance with the terms of
settlement.
171E DI fund paying claims for payment against
approved insurers settlement approved
(1) This section applies to a claim for payment if—
(a) the claim was made by a person eligible to make the claim under
section 170H or section 170I; and
Note Under s 170H and s 170I, the
employer’s liability is covered by a compulsory insurance policy but the
insurer has been wound up or cannot provide the indemnity required to be
provided under the policy.
(b) the terms of settlement of the claim are approved by the Magistrates
Court or DI fund manager under this division.
(2) The DI fund manager must—
(a) pay the liquidator out of the DI fund—
(i) the amount necessary for the liquidator to satisfy the claim in
accordance with the terms of settlement; and
(ii) any further amount agreed to between the manager and liquidator for
the liquidator’s costs in satisfying the claim; and
(b) give the liquidator copies of all documents the fund manager has that
relate to the claim.
(3) The liquidator must pay the amount mentioned in
subsection (2) (a) (i) to the claimant in satisfaction of the
claim in accordance with the terms of settlement.
(4) However, if the approved insurer has been wound up under the
Corporations Act before the DI fund manager makes a payment to the liquidator
under subsection (2), the fund manager may directly pay the claimant the amount
necessary to satisfy the claim in accordance with the terms of
settlement.
171F Liquidators to account to DI fund
manager
(1) This section applies if a liquidator receives an amount (the
settlement amount) under section 171E (2) (a) (i).
(2) For each prescribed period, the liquidator must give the DI fund
manager a written statement setting out the payments made by the liquidator out
of the settlement amount during the period.
(3) A statement under subsection (2) must—
(a) be given to the DI fund manager not later than 2 weeks after the end
of the prescribed period to which it relates; and
(b) be certified as correct by an auditor.
(4) In this section:
prescribed period, in relation to a settlement amount,
means—
(a) the period of 3 months starting the day after the settlement amount is
received; and
(b) each following period of 3 months, ending at the end of the 3-month
period when the liquidator pays the last amount to the claimant out of the
settlement amount.
171G Intervention by DI fund
manager
(1) A person commits an offence if—
(a) a claim for compensation has been made against the person;
and
(b) the person is not a self-insurer; and
(c) the person’s liability to pay compensation is not covered by a
compulsory insurance policy; and
(d) the person does not give the DI fund manager a copy of the claim
within 48 hours after the claim is made.
Maximum penalty: 10 penalty units.
(2) A person commits an offence if—
(a) a claim for compensation has been made against the person;
and
(b) the person is not a self-insurer; and
(c) the person’s liability to pay compensation is not covered by a
compulsory insurance policy; and
(d) the person makes an agreement or admission in relation to the
claim.
Maximum penalty: 20 penalty units.
(3) Subsection (2) does not apply to an admission or agreement if the DI
fund manager consents to the admission or agreement.
(4) The DI fund manager is entitled to intervene in any arbitration
proceeding on the claim as a party.
(5) The DI fund manager has the same right of objection to arbitration by
a committee as the employer has under the regulations.
(6) An offence against this section is a strict liability
offence.
171H DI fund manager may act
(1) This section applies to a claim for payment if the claim was made by a
person eligible to make the claim under section 170E, section 170F or
section 170G.
Note Under s 170E, s 170F and s 170G, the employer’s liability
is not covered by a compulsory insurance policy.
(2) The DI fund manager may treat the claim for payment as having been
made against the DI fund if—
(a) the manager receives a copy of the claim under section 171G;
or
(b) the manager is otherwise satisfied that it is reasonably likely that
there is no compulsory insurance policy in force that applies to the
claim.
171I Effect of payment of claims
(1) If an amount is paid to a claimant under this division in settlement
of a claim made under this Act in relation to a liability of an
employer—
(a) the payment operates to discharge the liability of the DI fund in
relation to the claim; and
(b) the payment operates to discharge the liability of the employer;
and
(c) an amount equal to 3 times the amount of the payment is a debt owing
by the employer to the DI fund; and
(d) the DI fund has the right of subrogation for any right that the
employer has against anyone in relation to the matter that is the subject of the
claim that caused the liability of the employer.
(2) Subsection (1) (c) does not apply in relation to a non-business
employer.
Division
8.2.8 Miscellaneous
172 Proceedings to be in the name of ‘Workers
Compensation Default Insurance Fund Manager’
Any proceeding by or against the DI fund may be taken in the name of
‘Workers Compensation Default Insurance Fund Manager’.
173 DI fund manager not personally
liable
(1) The DI fund manager is not personally liable to pay an amount payable
in satisfaction of any claim made or judgment obtained against the DI fund
manager or the amount of any costs or expenses of the DI fund manager in
relation to such a claim or judgment.
(2) An amount mentioned in subsection (1) is to be paid by the DI fund
manager out of the DI fund.
substitute
182 Payments by DI fund manager
(1) If the DI fund manager pays compensation in relation to an injury to a
worker, this chapter applies as if a reference to the worker’s employer
were a reference to the DI fund.
(2) If the DI fund manager and an employer both pay compensation in
relation to an injury suffered by a worker, the rights of the DI fund under this
chapter in relation to the payment have priority over the rights of the
employer.
47 No
compensation if damages receivedSection 184
(1) and (2)
substitute
(1) Compensation under this Act (ACT compensation) is not
payable in relation to a worker’s injury or the death of a worker to the
extent that, independently of this Act, a judgment or agreement for damages
(independent damages) has been obtained in relation to the injury
or death.
(2) If a person receives ACT compensation from an employer in relation to
a worker’s injury or the death of a worker and later receives independent
damages in relation to the injury or death, the employer is entitled to recover
from the person the recoverable amount.
substitute
189 Identity cards
(1) The chief executive must give an inspector an identity card stating
the person’s name and that the person is an inspector.
(2) The identity card must show—
(a) a recent photograph of the person; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
(3) A person commits an offence if—
(a) the person stops being an inspector; and
(b) the person does not return the person’s identity card to the
chief executive as soon as practicable, but no later than 7 days after the day
the person stops being an inspector.
Maximum penalty: 1 penalty unit.
(4) An offence against this section is a strict liability
offence.
(5) Subsection (2) applies only in relation to a card given by the chief
executive after the commencement of this section.
(6) Subsection (5) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(7) Subsections (5) and (6) and this subsection expire on the day this
section commences.
49 Provision
of information to inspectorsSection 190
(3), note
substitute
Note A recognised auditor who makes a statement in an
auditor’s certificate that is false, misleading or incomplete may commit
an offence (see Criminal Code, pt 3.4).
50 Obstruction
or hindrance of inspectorSection
194
omit
51 Admissibility
of statements by injured workersSection 196
(2), definition of insurer, paragraph (b)
substitute
(b) the DI fund.
52 On-the-spot
finesChapter 12
omit
53 New
sections 204 and 205
insert
204 Court-directed publicity for
offences
If an employer is convicted or found guilty of an offence against this Act,
the court may direct the employer to publish a statement in relation to the
offence.
205 Publication by chief executive of convictions
etc
(1) This section applies if a person, or a representative of a person, is
convicted or found guilty of an offence against this Act and—
(a) the time for making an appeal against the conviction or finding of
guilt ends without an appeal being made; or
(b) if an appeal is made against the conviction or finding of
guilt—
(i) the conviction or finding is confirmed on appeal, and the time for
making any further appeal in relation to the conviction or finding ends without
an appeal being made; or
(ii) the appeal is withdrawn, struck out or discontinued or lapses;
or
(c) if a retrial has been ordered—the time for making an appeal on
the retrial ends in accordance with paragraph (a) or (b).
Note For the meaning of found guilty, see the
Legislation Act, dict, pt 1.
(2) The chief executive may publish the following information in relation
to the conviction or finding of guilt in a way that the chief executive
considers appropriate:
(a) particulars that allow the public to identify the person;
(b) details of the offence;
(c) the decision of the court and the penalty imposed on the person or a
representative of the person (including the forfeiture of anything under this
Act).
Examples of publication
1 a press release
2 an article in a document published by the Territory or a territory
authority
3 an advertisement in a newspaper circulating generally in the
ACT
Examples for par (a)
1 the employer’s name and ACN (if any)
2 any name (and, if relevant, ACN) used in the past by the employer
3 the employer’s current and previous business addresses
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the conviction or finding of guilt is quashed or set aside on
appeal, the information must not be published.
(4) If the penalty is changed on appeal, this section applies in relation
to the penalty as changed.
(5) In this section:
representative, of a person,
means—
(a) if the person is an individual—an employee or agent of the
person; or
(b) if the person is a corporation—an employee, agent or executive
officer of the person.
substitute
200 Secrecy
(1) In this section:
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions.
divulge includes communicate.
person to whom this section applies means a person who
exercises, or has exercised, a function under this Act.
produce includes allow access to.
protected information means information about a person that
is disclosed to, or obtained by, a person to whom this section applies because
of the exercise of a function under this Act by the person or someone
else.
(2) A person to whom this section applies commits an offence
if—
(a) the person—
(i) makes a record of protected information about someone else;
and
(ii) is reckless about whether the information is protected information
about someone else; or
(b) the person—
(i) does something that divulges protected information about someone else;
and
(ii) is reckless about whether—
(A) the information is protected information about someone else;
and
(B) doing the thing would result in the information being divulged to
another person.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) Subsection (2) does not apply if the record is made, or the
information is divulged—
(a) under this Act or another territory law; or
(b) in relation to the exercise of a function, as a person to whom this
section applies, under this Act or another territory law.
(4) Subsection (2) does not apply to the divulging protected information
about someone with the person’s consent.
(5) A person to whom this section applies need not divulge protected
information to a court, or produce a document containing protected information
to a court, unless it is necessary to do so for this Act or another territory
law.
55 False
information etcSection
213
omit
56 Criminal
liability of executive officersSection 214
(1)
substitute
(1) An executive officer of a corporation commits an offence
if—
(a) the corporation commits an offence (a relevant offence)
by contravening a defined provision of this Act; and
Note See s (6) for the defined
provisions to which this par applies.
(b) the officer was reckless about whether the contravention would happen;
and
(c) the officer was in a position to influence the conduct of the
corporation in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the
contravention.
Maximum penalty: the maximum penalty that may be imposed for the
commission of the relevant offence by an individual.
substitute
(6) In this section:
defined provision, of this Act, means—
(a) any of the following provisions:
(i) section 92 (3) (Register of injuries);
(ii) section 126 (Action by employer in relation to claims);
(iii) section 142 (Vocational rehabilitation);
(iv) section 147 (Compulsory insurance—employers);
(v) section 152 (Compulsory insurance—insurers);
(vi) section 155 (Information for insurers on application for issue or
renewal of policies);
(vii) section 156 (Information for insurers after renewal of
policies);
(viii) section 157 (Information for insurers after end or cancellation of
policies);
(ix) section 158 (Information for new insurers after change of
insurers);
(x) section 159 (Six-monthly information for insurers);
(xi) section 162 (Statutory declarations—false information
etc);
(xii) section 163 (Employment after 2nd offence);
(xiii) section 164 (Provision of information to Minister);
(xiv) section 176 (Premiums—maximum rates);
(xv) section 190 (Provision of information to inspectors);
(xvi) section 191 (Entry and inspection of premises);
(xvii) section 200 (Secrecy); and
(b) includes an offence against the Criminal Code that relates
to—
(i) completing, keeping or giving a document under or in relation to this
Act; or
(ii) a requirement that a document be completed, kept or given, under or
in relation to this Act.
58 Section
214 (as amended)
renumber as section 203
substitute
209 References to Workers’ Compensation Act
etc
In any Act, statutory instrument or document—
(a) a reference to the Workers’ Compensation Act 1951 or the
Workers Compensation Supplementation Fund Act 1980 is a reference to this
Act; and
(b) a reference to the nominal insurer is a reference to the
DI fund manager; and
(c) a reference to the workers compensation supplementation fund
is a reference to the DI fund.
210 Apportionment of costs of administration of
Act
(1) Liability for the costs of administration of this Act for a financial
year may be apportioned by the Minister among the entities that were approved
insurers or self-insurers during the year.
(2) In making an apportionment under subsection (1) for a financial year,
the Minister must, as far as practicable, take into account the costs of
administering this Act that are attributable to each insurer and self-insurer
during the year.
(3) If the Minister makes an apportionment under this section, the
Minister must give each approved insurer and self-insurer a written notice
that—
(a) sets out details of the apportionment; and
(b) requires the insurer or self-insurer to pay to the Territory the
amount apportioned to the insurer or self-insurer within the time for payment
stated in the notice.
(4) The time stated for payment in the notice must not be shorter than
30 days after the day the approved insurer or self-insurer receives the
notice.
(5) The Minister may amend or revoke a notice given under this
section.
(6) If an amount apportioned to the insurer or self-insurer is not paid
within the time stated for payment in the notice, the amount is a debt owing to
the Territory by the insurer or self-insurer.
(7) An amount received because of an apportionment under this section must
be paid into a departmental bank account maintained by the chief executive in
accordance with the Financial Management Act 1996, section 34
(2).
(8) To remove any doubt, the costs of administration of this
Act include costs incurred by the Magistrates Court in relation to this
Act.
211 Amounts for administration of
Act
(1) The costs of administration of this Act may be paid out of amounts
received by the Territory under section 210 and any other amounts received by
the Territory under this Act.
(2) To remove any doubt, costs incurred by the Magistrates Court in
relation to this Act may be paid out of amounts mentioned in subsection
(1).
60 Terrorism
cover temporary reinsurance fundSection 227
(2) (d)
substitute
(d) any amount paid to the fund by the DI fund manager under
section 166B (2); and
insert
Chapter 19 Transitional—Workers
Compensation Amendment Act 2005 (No 2)
255 Definitions—ch 19
In this chapter:
commencement day means the day this section
commences.
nominal insurer means the nominal insurer under this Act, as
in force before commencement day.
WCSF Act means the Workers Compensation Supplementation
Fund Act 1980.
workers compensation supplementation fund means the workers
compensation supplementation fund under the WCSF Act.
256 Transfer of nominal insurer’s assets and
liabilities
(1) This section applies to the assets and liabilities of the nominal
insurer immediately before commencement day.
(2) The assets and liabilities are taken to be the assets and liabilities
of the DI fund.
(3) The DI fund manager must—
(a) pay any asset that is an amount into the DI fund account that relates
to claims made against employers without compulsory insurance policies;
and
(b) attribute any liability that is an amount owed or deficit in the
account kept by the nominal insurer to that account.
257 Amounts in workers compensation supplementation
fund
(1) This section applies to the amount (if any) in the workers
compensation supplementation fund under the WCSF Act immediately before
commencement day.
(2) The DI fund manager must transfer the amount to the accounts in the DI
fund that relate to claims made against compulsory insurance policies issued by
insurers that have been wound up or cannot provide the indemnity required by the
policies to be provided.
(3) The Minister may give directions to the DI fund manager about the
amount that must be transferred to each of the accounts.
258 Amounts to be paid
(1) If, immediately before commencement day, an amount was required to be,
or was to be, paid to the nominal insurer or workers compensation
supplementation fund, the amount must be paid to the DI fund.
(2) If, immediately before commencement day, an amount was required to be,
or was to be, paid by the nominal insurer or from the workers compensation
supplementation fund, the amount must be paid from the DI fund.
259 Proceedings and evidence in relation to previous
entities
(1) In this section:
proceeding means—
(a) a civil or administrative proceeding to which the previous entity was
a party immediately before commencement day; and
(b) includes a right of appeal or review (including a right of review
under the Ombudsman Act 1989).
previous entity means—
(a) the nominal insurer; or
(b) the workers compensation supplementation fund.
(2) For a proceeding started before commencement day, the DI fund manager
is substituted for the previous entity as a party to the proceeding.
(3) A proceeding that was not started before commencement day and that
apart from this Act could, after that day, be brought by or against the previous
entity may be started by or against the DI fund manager.
(4) A court, tribunal, commission or other entity in which a proceeding
may be or has been started or continued under this section may give directions
in relation to the starting or continuation of the proceeding.
(5) Any evidence that, apart from this section, would have been admissible
for or against the previous entity is admissible for or against the DI fund
manager.
(6) An order made in a proceeding by or against the previous entity before
commencement day may, after that day, be enforced by or against the DI fund
manager.
260 Claims made against nominal
insurer
(1) This section applies if—
(a) a claim was made against the nominal insurer under section 165
(Claims for payment by nominal insurer), as in force at any time before
commencement day; and
(b) liability for the claim had not been discharged before commencement
day.
(2) The claim is taken—
(a) if the claim was made under section 165 (1)—to be a claim the
person made under section 170E; or
(b) if the claim was made under section 165 (2)—to be a claim the
person made under section 170F; or
(c) if the claim was made under section 165 (3)—to be a claim the
person made under section 170G.
(3) Also, the claim is taken to have been made when it was made under
section 165.
(4) Anything done in relation to the claim under this Act before
commencement day is taken to have been done—
(a) under this Act as in force after commencement day; and
(b) when it was done under this Act before commencement day.
261 Claims made under WCSF Act before commencement
day
(1) This section applies if—
(a) a claim was made under the WCSF Act, part 5 (Payment of claims) at any
time before commencement day; and
(b) liability for the claim had not been discharged before commencement
day.
(2) The claim is taken—
(a) if the claim was made under the WCSF Act, section 26 (1)—to be a
claim the person made under section 170H; or
(b) if the claim was made under the WCSF Act, section 26 (2)—to be a
claim the person made under section 170I.
(3) Also, the claim is taken to have been made when it was made under the
WCSF Act.
(4) Anything done in relation to the claim under the WCSF Act is taken to
have been done—
(a) under this Act as in force after commencement day; and
(b) when it was done under the WCSF Act.
262 Claims for weekly payments
Neither section 260 nor section 261 requires the DI fund to pay weekly
compensation to an injured worker entitled to weekly compensation for an injury
if—
(a) the injury happened before commencement day; and
(b) the nominal insurer had been given an injury notice for the injury or
was otherwise aware, immediately before commencement day, that—
(i) there was no compulsory insurance policy that covered the worker in
relation to the injury and the worker’s employer was not a self-insurer;
or
(ii) the compulsory insurance policy that covered the worker in relation
to the injury was issued by an insurer that could not provide the indemnity
required to be provided under the policy.
263 Transitional regulations
(1) A regulation may prescribe transitional matters necessary or
convenient to be prescribed because of the enactment of this Act.
(2) A regulation may modify this chapter (including its operation in
relation to another territory law) to make provision in relation to anything
that, in the Executive’s opinion, is not, or not adequately or
appropriately, dealt with in this chapter.
(3) A regulation under subsection (2) has effect despite anything
elsewhere in this Act.
264 Expiry of ch 19
(1) This chapter expires 2 years after the day it commences.
(2) This chapter is a law to which the Legislation Act, section 88 (Repeal
does not end effect of transitional laws etc) applies.
insert
Schedule 3 DI fund advisory
committee
3.1 Definitions—sch 3
In this schedule:
chair means the chair of the committee.
committee means the DI fund advisory committee.
member means a member of the committee.
3.2 Establishment of DI fund advisory
committee
The DI fund advisory committee is established.
3.3 Functions of committee
(1) The committee has the following functions:
(a) monitoring the operations of the DI fund;
(b) advising the Minister or DI fund manager on matters in relation to
part 8.2 if asked.
(2) The committee may exercise any other function given to it under this
Act or any other territory law.
Note A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
3.4 Membership of committee
(1) The committee consists of—
(a) the DI fund manager; and
(b) the DI fund actuary; and
(c) 6 members appointed by the Minister.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see Legislation Act,
s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
(2) The Minister must appoint the following members:
(a) 2 members nominated by a group the Minister is satisfied represents
employer interests;
(b) 2 members nominated by a group the Minister is satisfied represents
employee interests;
(c) 2 members nominated by a majority of approved insurers.
(3) An appointment under subsection (2) must not be for longer than
3 years.
3.5 When DI fund manager not member of
committee
The DI fund manager is not a member of the committee if it is considering
the manager’s conduct under this Act.
3.6 Ending of members’
appointments
The Minister may end the appointment of a member (other than the
DI fund manager or DI fund actuary)—
(a) if the member contravenes a territory law; or
(b) for misbehaviour; or
(c) if the member becomes bankrupt or executes a personal insolvency
agreement; or
(d) if the member is convicted, or found guilty, in Australia of an
offence punishable by imprisonment for at least 1 year; or
(e) if the member is convicted, or found guilty, outside Australia of an
offence that, if it had been committed in the ACT, would be punishable by
imprisonment for at least 1 year; or
(f) if the member exercises the member’s functions other than in
accordance with section 3.8 (Honesty, care and diligence of members);
or
(g) if the member fails to take all reasonable steps to avoid being placed
in a position where a conflict of interest arises during the exercise of the
member’s functions; or
(h) if the member contravenes section 3.11 (Disclosure of interests by
members); or
(i) if the member is absent, other than on leave approved by the Minister,
from 3 consecutive meetings of the committee; or
(j) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the member’s functions.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
3.7 Committee chair
The members must elect a member (other than the DI fund actuary) as
chair.
3.8 Honesty, care and diligence of
members
In exercising the functions of a member, a member must exercise the degree
of honesty, care and diligence required to be exercised by a director of a
corporation in relation to the affairs of the corporation.
3.9 Conflicts of interest by
members
A member must take all reasonable steps to avoid being placed in a position
where a conflict of interest arises during the exercise of the member’s
functions.
3.10 Agenda to require disclosure of interest
item
(1) The agenda for each meeting of the committee must include an item
requiring any material interest in an issue to be considered at the meeting to
be disclosed to the meeting.
(2) In this section:
material interest—see section 3.11 (4).
3.11 Disclosure of interests by
members
(1) If a member has a material interest in an issue being considered, or
about to be considered, by the committee, the member must disclose the nature of
the interest at a committee meeting as soon as practicable after the relevant
facts come to the member’s knowledge.
Note Material interest is defined in s (4). The definition
of indirect interest in s (4) applies to the definition of
material interest.
(2) The disclosure must be recorded in the committee’s minutes and,
unless the committee otherwise decides, the member must not—
(a) be present when the committee considers the issue; or
(b) take part in a decision of the committee on the issue.
Example
Jane, Jerome and Kimberley are members of the committee. They have an
interest in an issue being considered at a committee meeting and they disclose
the interest as soon as they become aware of it. Jerome’s and
Kimberley’s interests are minor but Jane has a direct financial interest
in the issue.
The committee considers the disclosures and decides that because of the
nature of the interests:
• Jerome may be present when the committee considers the issue but
not take part in the decision
• Kimberley may be present for the consideration and take part in the
decision.
The committee does not make a decision allowing Jane to be present or take
part in the committee’s decision. Accordingly, because Jane has a
material interest, she cannot be present for the consideration of the issue or
take part in the decision.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) Any other member who also has a material interest in the issue must
not be present when the committee is considering its decision under subsection
(2).
(4) In this section:
associate, of a person, means—
(a) the person’s business partner; or
(b) a close friend of the person; or
(c) a family member of the person.
executive officer, of a corporation, means a person (however
described) who is concerned with, or takes part in, the corporation’s
management, whether or not the person is a director of the
corporation.
indirect interest—without limiting the kinds of
indirect interests a person may have, a person has an indirect interest
in an issue if any of the following has an interest in the
issue:
(a) an associate of the person;
(b) a corporation if the corporation has not more than 100 members
and the person, or an associate of the person, is a member of the
corporation;
(c) a subsidiary of a corporation mentioned in paragraph (b);
(d) a corporation if the person, or an associate of the person, is an
executive officer of the corporation;
(e) the trustee of a trust if the person, or an associate of the person,
is a beneficiary of the trust;
(f) a member of a firm or partnership if the person, or an associate of
the person, is a member of the firm or partnership;
(g) someone else carrying on a business if the person, or an associate of
the person, has a direct or indirect right to participate in the profits of the
business.
material interest—a member has a material
interest in an issue if the member has—
(a) a direct or indirect financial interest in the issue; or
(b) a direct or indirect interest of any other kind if the interest could
conflict with the proper exercise of the member’s functions in relation to
the committee’s consideration of the issue.
3.12 Reporting of disclosed committee interests to
Minister
(1) Not later than 3 months after the day a material interest is disclosed
under section 3.11 (1), the committee chair must report to the Minister in
writing about—
(a) the disclosure; and
(b) the nature of the interest disclosed; and
(c) any decision by the committee under section 3.11 (2).
(2) The chair must also give the Minister, not later than 31 days
after the end of each financial year, a statement that sets out the information
given to the Minister in reports under subsection (1) that relate to disclosures
made during the previous financial year.
(3) The Minister must give a copy of the statement to the relevant
committee of the Legislative Assembly not later than 31 days after the day
the Minister receives the statement.
(4) In this section:
material interest means—see section 3.11 (4).
relevant committee means—
(a) a standing committee of the Legislative Assembly nominated by the
Speaker for subsection (3); or
(b) if no nomination under paragraph (a) is in effect—the standing
committee of the Legislative Assembly responsible for public accounts.
3.13 Protection of members from
liability
(1) A member is not civilly liable for anything done or omitted to be done
honestly and without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this Act.
(2) Any liability that would, apart from subsection (2), attach to a
member attaches instead to the Territory.
3.14 Time and place of committee
meetings
(1) The committee is to meet when and where it decides.
(2) However, the committee must meet at least once every 3
months.
(3) The chair—
(a) may at any time call a meeting of the committee; and
(b) must call a meeting if asked by the Minister, DI fund manager,
DI fund actuary or at least 2 members.
(4) If, for any reason, there is no committee chair, the chief
executive—
(a) may at any time call a meeting of the committee; and
(b) must call a meeting if asked by the Minister, DI fund manager,
DI fund actuary or at least 2 members.
(5) The chair or chief executive must give the members reasonable notice
of the time and place of a meeting called by the chair or chief
executive.
3.15 Presiding member at committee
meetings
(1) The chair presides at all meetings of the committee at which the chair
is present.
(2) If the chair is absent, the member chosen by the members present
presides.
(3) However, the members must not choose the DI fund actuary to
preside.
3.16 Quorum at committee
meetings
Business may be carried on at a meeting of the committee only if at least 3
members appointed by the Minister are present.
3.17 Voting at committee
meetings
(1) At a meeting of the committee each member (other than the DI fund
manager and DI fund actuary) has a vote on each question to be
decided.
(2) A question is decided by a majority of the votes of the members
present and voting but, if the votes are equal, the member presiding has a
deciding vote.
3.18 Conduct of committee meetings
etc
(1) The committee may conduct proceedings (including its meetings) as it
considers appropriate.
(2) A meeting may be held using a method of communication, or a
combination of methods of communication, that allows a committee member taking
part to hear what each other member taking part says without the members being
in each other’s presence.
Examples
a phone link, a satellite link
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) A member who takes part in a meeting conducted under
subsection (2) is taken, for all purposes, to be present at the
meeting.
(4) A resolution is a valid resolution of the committee, even if it is not
passed at a meeting of the committee, if all members agree to the proposed
resolution in writing or by electronic communication.
Example of electronic
communication
email
(5) The committee must keep minutes of its meetings.
insert
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• ACT
• chief executive (see s 163)
• contravene
• doctor
• fail
• financial year
• in relation to
• law, of the Territory
• Magistrates Court
• penalty unit (see s 133)
• proceeding
• public servant
• quarter
• territory law
• under
• year.
64 Dictionary,
new definitions
insert
auditor means any of the following:
(a) an auditor registered under the Corporations Act;
(b) a member of the Institute of Chartered Accountants in
Australia;
(c) a member of CPA Australia;
(d) a member of the National Institute of Accountants.
chair, for schedule 3 (DI fund advisory committee)—see
schedule 3, section 3.1.
claim for payment, by a person, for part 8.2 (Default
insurance fund)—see section 170.
claims manager, for part 8.2 (Default insurance
fund)—see section 165.
committee, for schedule 3 (DI fund advisory
committee)—see schedule 3, section 3.1.
DI fund means the Default Insurance Fund established under
section 166.
DI fund actuary means the actuary engaged as DI fund actuary
under section 166H.
DI fund advisory committee means the DI fund advisory
committee established under schedule 3, section 3.2.
DI fund manager means the DI fund manager appointed under
section 166C.
earned premium, for a period, means the total billed
underwritten premium for compulsory insurance policies for the period.
65 Dictionary,
definition of incapacity date
omit
66 Dictionary,
new definition of initial incapacity date
insert
initial incapacity date, for a worker in relation to an
injury that causes incapacity or death, for part 4.3 (Weekly
compensation)—see section 36G.
67 Dictionary,
definition of insurer
substitute
insurer—
(a) for chapter 5 (Injury management process)—
(i) see section 86A; and
(ii) if there is more than 1 employer of the worker—see
section 87; and
(b) for part 6.2 (Time for accepting or rejecting claims)—see
section 127 (1).
68 Dictionary,
new definitions
insert
liquidator, of an insurer, includes—
(a) the official manager of the insurer; or
(b) the receiver of the insurer’s property; or
(c) the receiver and manager of the insurer’s property; or
(d) the managing controller of the insurer’s property.
managing controller—see the Corporations Act,
section 9 (Dictionary).
member, for schedule 3 (DI fund advisory committee)—see
schedule 3, section 3.1
69 Dictionary,
definition of nominal insurer
omit
70 Dictionary,
new definitions
insert
official manager—see the Corporations Act, section 9
(Dictionary).
receiver and manager—see the Corporations Act, section
9 (Dictionary).
71 Dictionary,
definition of recognised auditor
substitute
recognised auditor means—
(a) for a certificate provided, or to be provided, for an employer for
this Act—an auditor who is not the employer or an employee or executive
officer of the employer; and
(b) for the DI fund—an auditor who is not employed or engaged by the
DI fund.
72 Dictionary,
definition of rules
omit
73 Dictionary,
definition of weekly compensation
substitute
weekly compensation, for a worker, for part 4.3 (Weekly
Compensation)—see section 36G.
74 Repeal
of Workers Compensation Supplementation Fund Act 1980
(1) The Workers Compensation Supplementation Fund Act 1980 A1980-28
is repealed.
(2) The following instruments are repealed:
• Workers Compensation Supplementation Fund Appointment 2004 (No
1) NI2004-35
• Workers Compensation Supplementation Fund Appointment 2004 (No
2) DI2004-200
• Workers Compensation Supplementation Fund Appointment 2004 (No
3) DI2004-219.
Schedule
1 Further
amendments
(see s 3)
[1.1] Section
8 (3) (a) and (b)
substitute
(a) section 155 (6), definition of employer’s
estimate, paragraphs (a) and (b) (Information for insurers on
application for issue or renewal of policies);
(b) section 159 (1) (a) and (b) (Six-monthly information for
insurers);
renumber as sections 31 to 33
[1.3] Section
36 (1), note
substitute
Note Compensation may be payable for an injury arising out of, or in
the course of, employment under s 31 (General entitlements to compensation for
personal injury).
substitute
(2) Subject to section 147 (7) (Compulsory insurance—employers) and
section 154 (Cover notes), a cover note may be a compulsory insurance
policy.
[1.5] Sections
151 to 155
renumber as sections 150 to 154
[1.6] Section
159 (2) and (3)
omit
section 158 (2)
substitute
section 157 (2)
[1.7] Section
159 (as amended)
renumber as section 158
[1.8] Section
161 (5), definition of relevant statutory
declaration
substitute
relevant statutory declaration means a statutory declaration
provided by an employer for either of the following provisions:
• section 155 (2) (Information for insurers on application for issue
or renewal of policies)
• section 159 (1) (Six-monthly information for insurers).
renumber as section 162
[1.10] Section
162 (1) and (2)
substitute
(1) For this section, an employer has been convicted of an offence
if the employer has been convicted of a 2nd or subsequent offence
against any of the following sections:
• section 147 (Compulsory insurance—employers)
• section 155 (Information for insurers on application for issue or
renewal of policies)
• section 156 (Information for insurers after renewal of
policies)
• section 157 (Information for insurers after end or cancellation of
policies)
• section 158 (Information for new insurers after change of
insurers)
• section 159 (Six-monthly information for insurers)
• section 203 (Criminal liability of executive officers).
(2) Subsection (1) only applies to an offence against section 203 if the
offence relates to the contravention by a corporation of another section
mentioned in subsection (1).
[1.11] Section
162 (as amended)
renumber as section 163
renumber as chapter 12
[1.13] Sections
208 and 209
renumber as sections 198 and 199
renumber as chapter 13
renumber as section 201
[1.16] Section
212 (1) and (2)
substitute
(1) A prosecution for an offence against any of the following sections
must be started not later than 5 years after the day, or the last day, the
offence is committed:
• section 147 (Compulsory insurance—employers)
• section 155 (Information for insurers on application for issue or
renewal of policies)
• section 156 (Information for insurers after renewal of
policies)
• section 157 (Information for insurers after end or cancellation of
policies)
• section 158 (Information for new insurers after change of
insurers)
• section 159 (Six-monthly information for insurers)
• section 203 (Criminal liability of executive officers).
(2) Subsection (1) only applies to an offence against section 203 if the
offence relates to the contravention by a corporation of another section
mentioned in subsection (1).
[1.17] Sections
212 (as amended)
renumber as sections 202
[1.18] Sections
216 to 218
renumber as sections 206 to 208
[1.19] Section
224 (3), definition of insurer’s market share
substitute
insurer’s market share means the proportion (expressed
as a percentage) of the administrative costs of the Act apportioned by the
Minister to the insurer under section 210 (1) (Apportionment of costs of
administration of Act) in relation to the financial year before the act of
terror happens.
[1.20] Dictionary,
definition of medical referee
substitute
medical referee means a medical referee appointed under
section 201.
[1.21] Dictionary,
definition of reviewable decision
substitute
reviewable decision, for chapter 12 (Review of decisions by
administrative appeals tribunal)—see section 198 (Notice of reviewable
decisions to be given to affected people).
[1.22] Dictionary,
definition of self-insurer
substitute
self-insurer means an employer who is exempted under section
151 (Self-insurers).
Schedule
2 Consequential
amendments
(see s 3)
Part
2.1 Occupational Health and Safety Act
1989
substitute
(f) the approval of a protocol or an amendment to a protocol under the
Workers Compensation Act 1951;
[2.2] Dictionary,
definition of associated law, paragraphs (f) and (g)
substitute
(f) any other Act or subordinate law, or provision of an Act or
subordinate law, prescribed by regulation.
Part
2.2 Supreme Court Rules
1937
[2.3] Order
26 rule 2 (1) (b)
omit
nominal insurer
substitute
DI fund manager
Part
2.3 Taxation Administration Act
1999
[2.4] Section
97 (d) (iv)
substitute
(iv) for the Workers Compensation Act 1951—the DI fund
manager;
Part
2.4 Workers Compensation Regulation
2002
omit
section 216
substitute
section 206
omit
section 216
substitute
section 206
[2.7] Section
35 (1), note
substitute
Note The Minister’s notice must comply with the requirements
of the Act, s 198 (Notice of reviewable decisions to be given to affected
people).
omit
section 216
substitute
section 206
substitute
(3) The sections of the Act are as follows:
• section 155 (Information for insurers on application for issue or
renewal of policies)
• section 156 (Information for insurers after renewal of
policies)
• section 157 (Information for insurers after end or cancellation of
policies)
• section 158 (Information for new insurers after change of
insurers)
• section 159 (Six-monthly information for insurers).
insert
62A Required information from employer in
policy
(1) The compulsory insurance policy issued by an insurer to an employer
must include the following information:
(a) the required information given by the employer to the
insurer;
(b) the proportion of the premium payment for the policy that has been
recovered from the employer to offset amounts paid by the insurer to the DI
fund.
(2) In this section:
required information, given by an employer, means the
information given by the employer under a provision of the Act mentioned in
section 62 (3).
(3) Subsection (1) applies in relation to an insurance policy given to an
employer after the commencement of this section.
(4) Subsection (3) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(5) Subsections (3) and (4) and this subsection expire 1 year after the
day this section commences.
Note A provision of an Act expires at the end of the day fixed for
its expiry (see Legislation Act, s 85 (3); repeal in s 85 includes
expiry—see s 82).
[2.11] Section
81 (1) (a) (i)
after
Compliance by insurers
insert
, including DI fund
[2.12] Section
82 (3) (e)
omit
section 163
substitute
section 164
[2.13] Section
83 (1), note
substitute
Note The Minister’s notice must comply with the requirements
of the Act, s 198 (Notice of reviewable decisions to be given to affected
people).
[2.14] Section
86 (1) (f)
omit
nominal insurer
substitute
DI fund
[2.15] Section
95 (1), note
substitute
Note The Minister’s notice must comply with the requirements
of the Act, s 198 (Notice of reviewable decisions to be given to affected
people).
omit
omit
section 208 (1)
substitute
section 198 (1)
omit
nominal insurer
substitute
DI fund manager
omit
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2005.
2 Notification
Notified under the Legislation Act on 2005.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2005
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