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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Health and
Other Services (Compensation) Amendment Bill
1996
No. ,
1996
A Bill for an Act to
amend the Health and Other Services (Compensation) Act
1995
Contents
THIS bill originated in the Senate; and, having this
day passed, is now ready for presentation to the House of Representatives for
its concurrence.
The Senate
22 August 1996
A Bill for an Act to amend the Health and Other
Services (Compensation) Act 1995
The Parliament of Australia enacts:
This Act may be cited as the Health
and Other Services (Compensation) Amendment Act 1996.
(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) Item 4 of Schedule 1 is taken to have commenced immediately after the
commencement of the Health and Other Services (Compensation) Act
1995.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 3(1)
Insert:
advance payment means a payment made under section
33B.
2 Subsection 12(3)
Repeal the subsection, substitute:
(3) If, before the commencement of this Act:
(a) a person has made a claim against another person, for compensation in
respect of an injury, by claiming compensation from:
(i) an insurer in relation to the claim; or
(ii) a representative organisation in relation to the claim; and
(b) a judgment, settlement or reimbursement arrangement has not been made
in respect of the claim;
the insurer or representative organisation must, within the notification
period, give to the Commission notice of the claim.
3 After paragraph 12(4)(a)
Insert:
(aa) a judgment, settlement or reimbursement arrangement has not been made
in respect of the claim before that commencement; and
4 Subsection 13(2)
Omit “or (if the arrangement was made before the commencement of this
Act) within 28 days after that commencement,”.
5 Subsection 18(3)
Omit “subsection (4)”, substitute “subsections (4) and
(4A)”.
6 At the end of subsection
18(4)
Add:
; and (c) an advance payment has not been made in respect of the
compensation payable under the judgment or settlement.
7 After subsection 18(4)
Insert:
(4A) If an advance payment has been made under section 33B, the period
cannot be extended:
(a) if only one notice under section 17 has been given to the claimant in
relation to the claim for compensation in question—beyond the period of 12
months after the claimant received that notice; or
(b) in any other case—beyond the period of 12 months after the
claimant received the last notice given to the claimant in relation to the claim
for compensation.
8 After paragraph 23(3)(f)
Insert:
(fa) whether the compensation payer or insurer intends to make an advance
payment in respect of the compensation; and
(fb) if the compensation payer or insurer intends to make an advance
payment—whether the compensable person has been notified under section
33A; and
9 After subsection 23(5)
Insert:
(5A) If:
(a) the judgment or settlement was made before the commencement of
Division 2A; and
(b) notice of the judgment or settlement had already been given under
subsection (1) before that commencement;
the notifiable person may, within 28 days after that commencement, give to
the Commission a further notice in writing that contains all of the information
and other matters that a notice under subsection (1) is required to contain
under this section (as in force after that commencement).
10 Subsection 24(1)
Omit “If”, substitute “Subject to subsection (1A),
if”.
11 After subsection 24(1)
Insert:
(1A) A notice under subsection (1) is not required if the compensation
payer or insurer makes an advance payment in respect of the
compensation.
12 After subsection 32(1)
Insert:
(1A) Subsection (1) does not apply if the compensation payer or insurer
makes an advance payment in respect of the compensation.
Insert:
(1) If a compensation payer or insurer intends to make an advance payment
in respect of the compensation payable under a judgment or settlement, the
compensation payer or insurer must notify the compensable person in
writing.
(2) The notice must state:
(a) that the compensation payer or insurer intends to make the advance
payment; and
(b) the amount of the advance payment; and
(c) the circumstances in which the Commonwealth can retain some or all of
the advance payment; and
(d) the circumstances in which the compensable person will be required to
make an additional payment to the Commonwealth in respect of eligible
benefits.
(3) The notice must be given to the compensable person:
(a) if the judgment or settlement was made after the commencement of this
Division—before the judgment or settlement was made; or
(b) if the judgment or settlement was made before that
commencement—before the advance payment in question is made and, in any
case, within 28 days after that commencement.
(1) A compensation payer or insurer may make an advance payment to the
Commonwealth in respect of the compensation payable under a judgment or
settlement if:
(a) during the 3 months preceding the judgment or settlement, a notice
under section 21 had not been given; and
(b) a notice under section 23 has been given indicating that the
compensation payer or insurer intends to make an advance payment; and
(c) a notice under section 33A has been given; and
(d) the amount of the compensation payable under the judgment or
settlement is not less than $3,000 or such other amount as the Minister
determines.
(2) The advance payment must be an amount equal to 10%, or such other
percentage as the Minister determines, of the amount of compensation payable
under the judgment or settlement.
(3) The advance payment must be made:
(a) if the judgment or settlement was made after the commencement of this
Division—within 28 days after the judgment or settlement was made;
or
(b) if the judgment or settlement was made before that
commencement—within 28 days after that commencement.
(4) Determinations made under paragraph (1)(d) and subsection (2) are
disallowable instruments for the purposes of section 46A of the Acts
Interpretation Act 1901.
(1) If a compensation payer or insurer makes an advance payment, the
Commission must give to the compensable person a written notice setting out the
total amount of eligible benefits paid by the Commonwealth in respect of
services and care rendered or provided in the course of treatment of, or as a
result of, the compensable person’s injury.
(2) The notice must not, in relation to the period covered by a statement
given under section 18, take account of any eligible benefits that were paid in
respect of services or care not specified in:
(a) that statement; or
(b) that statement as amended under section 33E.
(1) Subject to subsections (2) and (3), the notice under section 33C must
be given within 3 months after:
(a) the Commission receives notice under section 23 indicating that the
compensation payer or insurer intends to make an advance payment; or
(b) the advance payment is made;
whichever is the later.
(2) If the Managing Director gives a notice under subsection 33E(2) to the
compensable person, the notice under section 33C need not be given
until:
(a) the end of the 3 month period referred to in subsection (1); or
(b) the end of the period of 28 days after the Managing Director accepts
an amended statement under section 33E as being substantially correct;
whichever is the later.
(3) If:
(a) the Managing Director has not given a notice under subsection 33E(2)
to the compensable person; and
(b) the period for giving a statement under section 18 has been extended
under subsection 18(3); and
(c) the date of expiry of the period of the extension is after the end of
the 3 month period referred to in subsection (1);
the notice under section 33C must be given within 28 days after that
date of expiry.
(1) This section applies only if an advance payment is made.
(2) If the Managing Director is satisfied that a statement given to the
Commission under section 18 or this section is not substantially correct, the
Managing Director must give to the compensable person a written
notice:
(a) specifying that the statement is not substantially correct;
and
(b) requiring the claimant to give an amended statement that is
substantially correct; and
(c) stating the period within which the claimant is required to give the
amended statement to the Commission.
(3) The notice must be given before the last day on which the Managing
Director could give to the compensable person the notice under section
33C.
(4) The claimant must give to the Commission the statement required by the
notice within the period of 28 days after being given the notice.
(5) In deciding whether a statement is substantially correct, the Managing
Director may have regard to:
(a) the date on which the compensable person suffered the injury;
and
(b) the nature of the injury that the compensable person suffered;
and
(c) the treatment of the injury; and
(d) statistical information about claims for eligible benefits in relation
to injuries of substantially the same kind as the injury in respect of which the
claim was made; and
(e) expert medical opinion about the treatment that is usual or may
reasonably be expected in relation to injuries of that kind; and
(f) any other matter that the Managing Director considers
relevant.
(6) A reference in subsection (5) to the treatment of the injury includes
a reference to the provision of nursing home care as a result of the
injury.
(7) Sections 18 and 19 apply to an amended statement under this section as
if it were a statement under section 18.
(1) If the Managing Director accepts an amended statement under section
33E as being substantially correct, the Managing Director must, as soon as
practicable after accepting the statement, notify the compensable person, in
writing, accordingly.
(2) An amended statement given to the Commission under section 33E is
taken to have been accepted by the Managing Director as being substantially
correct if, within 28 days after the Commission is given the statement, a notice
under subsection 33E(2) in relation to the statement is not given to the
compensable person.
(1) Application may be made to the Administrative Appeals Tribunal for
review of a decision by the Managing Director that a statement under section 18,
or an amended statement under section 33E, is not substantially
correct.
Note: Section 27A of the Administrative Appeals Tribunal
Act 1975 requires the decision-maker to notify persons whose interests are
affected by the decision of the making of the decision and their right to have
the decision reviewed. In so notifying, the decision-maker must have regard to
the Code of Practice determined under section 27B of that Act.
(2) Despite subsection 43(6) of the Administrative Appeals Tribunal Act
1975, the Tribunal’s decision has effect on and from the day on which
it is made.
(1) If the amount specified in the notice under section 33C is less than
the amount of the advance payment, the difference is payable by the Commonwealth
to the compensable person.
(2) The difference is payable on the last day on which the Commission is
required under section 33D to give the notice to the compensable
person.
(3) An amount payable under this section is recoverable as a debt due to
the compensable person.
(1) If the amount specified in the notice under section 33C is greater
than the amount of the advance payment, the difference is payable by the
compensable person to the Commonwealth.
(2) The difference is payable 28 days after the day on which the notice
was given to the compensable person.
(3) The notice must specify:
(a) the amount that is payable to the Commonwealth; and
(b) the day by which it must be paid.
(4) An amount payable under this section is recoverable as a debt due to
the Commonwealth.
(1) If the Commission does not give a notice under section 33C to the
compensable person on or before the day on which the Commission is required to
do so, the whole of the advance payment is payable by the Commonwealth to the
compensable person on that day.
(2) The payment of the whole of the advance payment operates as a
discharge of the compensable person’s liability to pay to the Commonwealth
amounts payable under this Act or the Charges Act in respect of the compensation
payable under the judgment or settlement in question.
The making of an advance payment by a compensation payer or insurer to
the Commonwealth of the amount of compensation payable under a judgment or
settlement operates, to the extent of the payment, as a discharge of:
(a) the compensation payer’s or insurer’s liability to the
compensable person in respect of the amount of compensation; and
(b) the compensable person’s liability to pay to the Commonwealth
amounts payable under this Act or the Charges Act in respect of the amount of
compensation.
(1) If:
(a) a compensation payer or insurer makes an advance payment to the
Commonwealth of the amount of compensation payable under a judgment or
settlement; and
(b) an Australian law would, apart from this section, make the
Commonwealth liable to pay interest on the advance payment, because the advance
payment has been retained by the Commonwealth after the judgment or settlement
has been made;
despite that law, the Commonwealth is not liable to pay that
interest.
(2) If the Commonwealth is required to make a payment under section 33H or
33K, subsection (1) does not apply after the expiry of the period within which
the payment must be made.
(3) If:
(a) a compensation payer or insurer makes an advance payment to the
Commonwealth of the amount of compensation payable under a judgment or
settlement; and
(b) an Australian law would, apart from this section, make the
compensation payer or insurer liable to pay interest on the advance payment,
because the advance payment has not been paid to the compensable person after
the judgment or settlement has been made;
despite that law, the compensation payer or insurer is not liable to pay
that interest.