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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Safety,
Rehabilitation and Compensation and Other Legislation Amendment Bill
2000
No. ,
2000
(Employment, Workplace Relations and Small
Business)
A Bill for an Act to amend the
Safety, Rehabilitation and Compensation Act 1988 and other legislation,
and for other purposes
ISBN: 0642
463867
Contents
Part 1—Amendments relating to disease, compensable disease and
injury 16
Part 2—Amendments relating to indexation of normal weekly
earnings 20
Part 3—Amendments relating to amount of
compensation 22
Part 4—Amendment relating to compensation for non-economic loss
in relation to certain
injuries 27
Part 5—Amendments relating to payment of compensation to persons
aged over 63 28
Part 6—Amendments concerning rehabilitation program
providers 30
Part 7—Amendment relating to common law remedies for dependants
of deceased employees 41
Part 8—Amendments concerning licences to enable Commonwealth
authorities and certain corporations to accept liability for, and determine,
claims 42
Part 9—Amendments concerning compensation payable for hearing
loss 61
Part 10—Amendments relating to premiums, special premiums and
regulatory
contributions 63
Part 11—Amendments consequential on changed administrative law
arrangements 88
Part 12—Other
amendments 89
Equal Opportunity for Women in the Workplace Act
1999 93
Income Tax Assessment Act
1936 93
National Occupational Health and Safety Commission Act
1985 93
Occupational Health and Safety (Commonwealth Employment) Act
1991 94
A Bill for an Act to amend the Safety, Rehabilitation
and Compensation Act 1988 and other legislation, and for other
purposes
The Parliament of Australia enacts:
This Act may be cited as the Safety, Rehabilitation and Compensation
and Other Legislation Amendment Act 2000.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsections (7) and (8), items 5, 6 and 7 of
Schedule 1 and the items of Parts 6 and 8 of Schedule 2 commence
on a day or days to be fixed by Proclamation.
(3) Items 12, 13, 14, 24, 27, 28, 29, 30, 34, 44, 46, 47, 48, 55 and
57 of Schedule 1, items 90, 91 and 101 of Schedule 2, and
items 2 and 6 to 11 of Schedule 3 commence 28 days after the day on
which this Act receives the Royal Assent.
(4) Part 3 of Schedule 2 commences immediately after the end of
the period of 6 months after the day on which this Act receives the Royal
Assent.
(5) Part 10 of Schedule 2 commences on 1 July
2001.
(6) Part 11 of Schedule 2 commences at whichever of the
following times applies:
(a) if Parts 4 to 10 of the Act that establishes the Administrative
Review Tribunal commence before, or at the same time as, item 26 of
Schedule 2 to this Act—immediately after the commencement of that
item;
(b) if Parts 4 to 10 of the Act that establishes the Administrative
Review Tribunal commence after item 26 of Schedule 2 to this
Act—the time when Parts 4 to 10 of the Act that establishes the
Administrative Review Tribunal commence.
Note: The short title of the Act that establishes the
Administrative Review Tribunal is either the Administrative Review Tribunal
Act 2000 or the Administrative Review Tribunal Act
2001.
(7) Subject to subsection (8), if an item of this Act referred to in
subsection (2) does not commence within the period of 6 months beginning on
the day on which this Act receives the Royal Assent, that item commences on the
first day after the end of that period.
(8) If items 47 and 48 of Schedule 2 do not commence before
1 July 2001, they are taken to have been repealed on that day.
Subject to section 2, 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 Section 5 (definition of assessment
report)
Omit “or 68”, insert “, 68 or 68A”.
2 Section 5 (definition of
Director)
Repeal the definition, substitute:
Director means the Director, National Industrial Chemicals
Notification and Assessment Scheme, appointed under section 90.
3 Section 5
Insert:
existing chemical means an industrial chemical other than a
new industrial chemical.
4 Section 5 (definition of new synthetic
polymer)
Omit “a polymer” (wherever occurring), substitute “a
synthetic polymer”.
5 Section 5
Insert:
prescribed reactant, in relation to a polyester, means a
substance listed in the regulations as a prescribed reactant.
6 Section 5 (paragraph (a) of the
definition of synthetic polymer of low concern)
Repeal the paragraph, substitute:
(a) either:
(i) has a number average molecular weight, as defined by the regulations,
that is greater than 1,000; or
(ii) is a polyester made from prescribed reactants and whose molecules
contain at least 2 carboxylic acid ester linkages, at least one of which links
internal monomer units together; and
7 Transitional provision
If, before the commencement of this item:
(a) a person has applied for an assessment certificate in respect of a
polyester that could, if the application had been made after the commencement of
this item, have been assessed as a polymer of low concern; and
(b) the assessment certificate has not yet been issued in respect of the
polyester;
then:
(c) the application is to be treated, after the commencement of this item,
as if it were an application for an assessment certificate in respect of the
polyester as a polymer of low concern; and
(d) to the extent that the fees paid in respect of the assessment of that
polyester exceed the fees that would be payable in respect of an assessment of
the polyester as a polymer of low concern, an amount equal to the amount of that
excess must be refunded to the applicant.
8 At the end of
section 11
Add:
(3) If a chemical is included in the Inventory, the chemical may be
imported into Australia, or manufactured in Australia, without obtaining an
assessment certificate or permit.
Note: Subsection (3) is not intended to be an
exhaustive description of the effects or consequences of including a chemical in
the Inventory. There may be other consequences, express or implied, because of
other provisions of the Act.
9 Subsection 18A(1)
Omit “subsection 19(5)”, substitute
“section 19”.
10 Section 19
Repeal the section, substitute:
Definitions
(1) In this section:
decision not to transfer, in respect of a chemical in the
confidential section, means:
(a) a decision by the Director not to transfer that chemical to the
non-confidential section of the Inventory; or
(b) if:
(i) the Director decides to transfer the chemical to the non-confidential
section of the Inventory; and
(ii) the holder of a confidence about the chemical applies to the Tribunal
for a review of the Director’s decision within 28 days after the making of
the decision; and
(iii) the Tribunal decides to revoke the Director’s decision and
substitute a decision not to so transfer the chemical;
the Tribunal’s decision.
inclusion date, in respect of a chemical in the confidential
section means:
(a) unless paragraph (b) applies—the date of the
chemical’s inclusion in the confidential section; or
(b) if, since the chemical’s inclusion in the confidential section,
a decision or decisions have been made not to transfer the chemical—the
date of the decision or of the last such decision.
Inclusion in confidential section to be reviewed every 5
years
(2) An industrial chemical in the confidential section must be transferred
to the non-confidential section on the fifth anniversary of its inclusion date
unless a decision not to transfer the chemical is made before that fifth
anniversary.
Notice of possible transfer
(3) The Director must, for each chemical that is in the confidential
section, notify each holder of a confidence about the chemical, in
writing:
(a) that the chemical will be transferred to the non-confidential section
unless a decision not to transfer the chemical is made; and
(b) setting out the terms of this section.
The Director must give the notice at least 3 months before the fifth
anniversary of the inclusion date in respect of that chemical.
Holder may state why chemical should not be transferred
(4) A holder of a confidence about a chemical may, within 28 days after
being given a notice under subsection (3), give the Director a written
statement setting out the reasons why the chemical should not be transferred to
the non-confidential section.
After receipt of statement Director must decide
(5) If a statement is given under subsection (4), the Director must,
not later than the fifth anniversary of the inclusion date in respect of the
chemical, make a decision whether or not to transfer the chemical to the
non-confidential section.
Director’s decision not to transfer chemical
(6) If, having regard to any statement made to the Director under this
section by the holder of a confidence about a chemical, the Director is
satisfied that:
(a) the publication of some or all of the chemical’s particulars
could reasonably be expected to prejudice substantially the commercial interest
of any holder of a confidence who gave such a statement; and
(b) the prejudice outweighs the public interest in the publication of
those particulars;
the Director:
(c) must decide not to transfer the chemical to the non-confidential
section; and
(d) must give written notice of the decision to each holder of a
confidence who gave such a statement.
Director’s decision to transfer
(7) If, having regard to the statement or statements given to the
Director, the Director is not satisfied as specified in subsection (6), the
Director:
(a) must give written notice of the decision to transfer the chemical to
each holder of a confidence who made a statement to the Director; but
(b) must delay the transfer:
(i) unless subparagraph (ii) applies, for 28 days after giving the
notice; and
(ii) if the holder of a confidence applies during those 28 days to the
Tribunal under section 102 for the review of the Director’s
decision—until the application to the Tribunal is finalised.
11 Transitional provision
If, before the commencement of items 10, 52, 54 and 56 of this
Schedule, the Director has given written notice to the holders of a confidence
about a chemical under section 19 of the Industrial Chemicals
(Notification and Assessment) Act 1989 as in force immediately before the
commencement of those items, then, for the purposes of:
(a) the Director’s consideration of any statement received, whether
before or after the commencement of those items, as a result of that notice;
and
(b) the Director’s decision having regard to any statement so
received; and
(c) the implementation of the Director’s decision and any possible
review of that decision by the Tribunal; and
(d) the liability of a person to pay any fees in respect of a statement
given under that section;
that Act continues to have affect as if those items had never been
enacted.
12 Subsection 21(1)
(penalty)
Repeal the penalty, substitute:
Penalty: 300 penalty units.
13 Subsection 21L(4)
(penalty)
Repeal the penalty, substitute:
Penalty: 300 penalty units.
14 Subsection 21W(5)
(penalty)
Repeal the penalty, substitute:
Penalty: 300 penalty units.
15 Subsection 31(2)
Omit “, except in the case of a full public report of an assessment
of a synthetic polymer of low concern,”.
16 Subsection 34(2)
Repeal the subsection.
17 Subsection 35(1)
Omit “of an assessment of a chemical other than a synthetic polymer
of low concern”, substitute “about a chemical”.
18 Section 36
Omit “(if any)”.
19 Subsections 37(2) and 38(5) and
(7)
Omit “(if any)”.
20 Subsection 40(1)
Omit “a full report about a synthetic polymer of low concern has been
published under subsection 34(2) or”.
21 Subsection 40(8)
Omit “(if any)”.
22 Paragraphs 40G(1)(b) and
(c)
Omit “(if any)”.
23 Transitional provision
If a full public report has been published in the Chemical Gazette
in respect of a synthetic polymer of low concern in accordance with subsection
34(2) of the Industrial Chemicals (Notification and Assessment) Act 1989
as in force before the date of commencement of items 16 and 17 of this
Schedule, that publication is to be treated, on and after that day, as meeting
the requirements of subsection 35(1) of that Act as amended by
item 17.
24 Subsection 58(8)
(penalty)
Repeal the penalty, substitute:
Penalty: 60 penalty units.
25 Subsection 60D(1)
Omit “the assessment certificate for,”, substitute
“assessment of”.
26 Paragraphs 60E(6)(b) and
60F(5)(a)
Omit “the assessment certificate for” (wherever occurring),
substitute “assessment of”.
27 Subsection 61(4)
(penalty)
Repeal the penalty, substitute:
Penalty: 300 penalty units.
28 Subsection 61(5)
(penalty)
Repeal the penalty, substitute:
Penalty: 240 penalty units.
29 Subsection 64(1)
(penalty)
Repeal the penalty, substitute:
Penalty: 120 penalty units.
30 Subsection 64(2)
(penalty)
Repeal the penalty, substitute:
Penalty: 120 penalty units.
31 Subsection 65(1)
Omit “must”, substitute “may”.
32 Transitional provisions
(1) If, before the commencement of item 31 of this Schedule:
(a) the Director has, under subsection 65(1) of the Industrial
Chemicals (Notification and Assessment) Act 1989, required the secondary
notification of a chemical by persons to whom the notice applied; and
(b) the period for secondary notification had not expired;
then the Director may, by notice published in the Chemical Gazette
or published in such other way as the Director considers appropriate, revoke the
notice requiring secondary notification.
(2) If, in accordance with subitem (1), the Director revokes the
notice requiring secondary notification:
(a) the Industrial Chemicals (Notification and Assessment) Act 1989
has effect as if the notice had never been published; and
(b) any application received under section 66 of that Act is treated
as if it had never been so received; and
(c) if any fees have been paid in respect of the secondary notification,
the Director must, on behalf of the Commonwealth, remit those fees.
33 At the end of
section 65
Add:
(7) If the Director requires the secondary notification of an industrial
chemical by persons to whom a notice under subsection (1) or (2) applies, 2
or more of those persons may give a secondary notification of that chemical
jointly.
(8) If 2 or more persons give a joint secondary notification of an
industrial chemical, those persons are jointly and severally liable for the fee
prescribed under paragraph 110(1)(s) to be the fee in respect of a secondary
notification.
34 Subsection 67(2)
(penalty)
Repeal the penalty, substitute:
Penalty: 120 penalty units.
35 Subsections 68(1) and
(2)
Omit “a chemical”, substitute “a new industrial
chemical”.
36 Subsection 68(3)
Omit “A chemical”, substitute “A new industrial
chemical”.
37 Subsection 68(4)
Omit “a chemical”, substitute “a new industrial
chemical”.
38 Subsection 68(5)
After “an assessment”, insert “of a new industrial
chemical”.
39 Subsections 68(6) and
(7)
After “assessment and report”, insert “in relation to a
new industrial chemical”.
40 After section 68
Insert:
(1) If a secondary notification of an existing chemical has been given,
the Director must cause the chemical to be assessed in accordance with
section 60A and a report of the assessment to be prepared.
(2) If the secondary notification of an existing chemical is required but
is not given by any person, the Director may cause the chemical to be assessed
in accordance with section 60A and a report of the assessment to be
prepared.
(3) For the purposes of subsections (1) and (2), an assessment in
accordance with section 60A is to be conducted as if the references in
section 60A to a priority existing chemical were references to an existing
chemical.
(4) Sections 60B to 60F (inclusive) apply in relation to an
assessment of, and report on, an existing chemical required by this section but
do so as if:
(a) any references in those provisions to a priority existing chemical
were references to an existing chemical; and
(b) any references in those provisions to the applicant for the assessment
of the chemical were references to each person who gave secondary notification
of the chemical; and
(c) the reference in section 60E to a notice under section 58
were a reference to a notice under section 69.
(5) Subject to subsection (6), an assessment of an existing chemical
is to be made and a draft report of the assessment to be completed under
section 60C within 6 months after the day on which the last information
required for the assessment is received.
(6) The Minister may extend the period for assessment and report in
relation to an existing chemical by up to 6 months if it is not reasonably
practicable for the assessment to be carried out thoroughly, and the report
completed, within that period.
(7) If the Minister extends the period for assessment and report in
relation to an existing chemical, the Minister is required to notify each
applicant for the assessment of the extension immediately.
Note: The heading to section 68 is altered by inserting
“new industrial” after “Assessment
of”.
41 Transitional provision
If:
(a) a secondary notification of an existing chemical has been given;
and
(b) the Director has commenced the assessment of the chemical in
accordance with the terms of section 68 of the Industrial Chemicals
(Notification and Assessment) Act 1989 before the commencement of
items 35 to 39 of this Schedule;
the assessment is to continue as if the amendment of that Act made by those
items had not yet come into effect.
42 Subsection 69(1)
Repeal the subsection, substitute:
(1) For the purpose of assessing a new industrial chemical under
section 68, or an existing chemical under section 68A, the Director
may, by notice in the Chemical Gazette, require:
(a) all persons who introduced the chemical; or
(b) specified persons who introduced the chemical; or
(c) specified persons who the Director considers have relevant
information;
but who are not required to give secondary notification of the chemical, to
provide the Director in writing the information about the chemical that is
specified in the notice, being particulars about a matter relating to the
circumstances because of which the notification is required.
43 Transitional provision
If the Director has given a notice under subsection 69(1) of the
Industrial Chemicals (Notification and Assessment) Act 1989 and that
notice is in force immediately before the commencement of item 42 of this
Schedule, that notice has effect, on and after the commencement of that item, as
if it had been given by the Director under subsection 69(1) of that Act as
amended by that item.
44 Subsection 69(4)
(penalty)
Repeal the penalty, substitute:
Penalty: 60 penalty units.
45 Paragraph 70(1)(a)
After “certificate for a”, insert “new
industrial”.
46 Section 81
(penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units.
47 Section 85
(penalty)
Repeal the penalty, substitute:
Penalty: 1 penalty unit.
48 Subsection 88(3)
(penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units.
49 Subsection 90(1)
Repeal the subsection, substitute:
(1) There is to be a Director, National Industrial Chemicals Notification
and Assessment Scheme, who is to be appointed by the Governor-General.
50 Transitional provision
Despite the repeal and substitution of subsection 90(1) of the
Industrial Chemicals (Notification and Assessment) Act 1989 by
item 49 of this Schedule:
(a) the person holding office as the Director of Chemicals Notification
and Assessment immediately before the commencement of that item continues to
hold office, on and after the commencement of that item, as if the person had
been appointed under section 90 of that Act as amended by that item, for
the remainder of the term of the person’s appointment, as Director,
National Industrial Chemicals Notification and Assessment Scheme; and
(b) any act or thing done, any decision made, or any document executed by,
or relating to, the Director of Chemicals Notification and Assessment is to be
treated, on and after the commencement of that item, as if it were an act or
thing done, a decision made, or a document that had been executed by, or
relating to, the Director, National Industrial Chemicals Notification and
Assessment Scheme.
51 Paragraph 102(1)(a)
Omit “or 68(6)”, substitute “, 68(6) or
68A(5)”.
52 Paragraph 102(1)(b)
Omit “19(9)”, substitute “19(7)”.
53 Paragraph 102(1)(b)
Omit “65(2)”, substitute “65(1) or (2)”.
54 Section 104A
Omit “19(8) or (9)”, substitute “19(6) or
(7)”.
55 Subsection 106(5)
(penalty)
Omit “$30,000”, substitute “300 penalty
units”
Omit “19(6)”, substitute “19(4)”.
57 Paragraph 111(e)
Repeal the paragraph, substitute:
(e) prescribing penalties not exceeding, in the case of a natural person,
a fine of 10 penalty units and, in the case of a body corporate, a fine of 50
penalty units for offences under the regulations.
Part 1—Amendments
relating to disease, compensable disease and injury
1 Subsection 4(1)
Insert:
compensable disease has the meaning given by
section 5A.
2 Subsection 4(1) (definition of
disease)
Repeal the definition, substitute:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment.
3 Subsection 4(1) (definition of
injury)
Repeal the definition, substitute:
injury has the meaning given by section 5B.
4 After section 5
Insert:
(1) In this Act:
compensable disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
that is an ailment or an aggravation to which the employee’s
employment by the Commonwealth or a licensed corporation contributed in a
material degree.
(2) The employee’s employment by the Commonwealth or a licensed
corporation is not to be taken to have contributed in a material degree to the
ailment or aggravation unless there is a close connection between the
employee’s employment and the ailment or aggravation concerned.
(3) For the purpose of working out if there is a close connection between
the employee’s employment and the ailment or aggravation concerned, the
matters that may be taken into account include, but are not limited to, the
following:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the
employment;
(c) any medical predisposition of the employee to the ailment or the
aggravation of the ailment;
(d) activities of the employee not related to the employment;
(e) other matters affecting the employee’s health.
(1) In this Act:
injury means:
(a) a compensable disease suffered by an employee; or
(b) an injury (other than a disease, whether compensable or not) suffered
by an employee, being a physical or mental injury arising out of, or in the
course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease,
whether compensable or not) suffered by an employee (whether or not that injury
arose out of, or in the course of, the employee’s employment), being an
aggravation arising out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an
employee as a result of:
(d) a reasonable appraisal of the employee’s performance;
or
(e) any reasonable counselling action (whether formal or informal) taken
in respect of the employee’s employment; or
(f) any reasonable suspension action; or
(g) any reasonable disciplinary action, taken in respect of the
employee’s employment; or
(h) a failure by the employee to obtain a promotion, reclassification,
transfer or benefit in connection with his or her employment.
(2) For the purposes of this section, a reference to an action includes a
reference to anything done in connection with the action.
(1) If:
(a) an employee claims to have suffered an injury referred to in paragraph
5B(1)(b) or (c); and
(b) the employee is, at the time of the claimed injury referred to in
paragraph (a), also suffering from a disease;
then, to the extent that the claimed injury referred to in
paragraph (a) is a natural progression of the disease, the employee is
taken not to have suffered an injury under paragraph 5B(1)(b) or (c).
(2) For the avoidance of doubt, nothing in subsection (1) prevents an
employee from attempting to establish that the disease referred to in that
subsection is a compensable disease.
5 Subsection 7(3)
Repeal the subsection.
6 Subsection 7(4)
Omit “disease, or an aggravation of a disease”, substitute
“compensable disease”.
7 Paragraph 7(4)(a)
Omit “, or aggravation”.
8 Paragraph 7(4)(b)
Omit “or aggravation”.
9 Subsections 7(5) and (6)
Omit “a disease or an aggravation of a disease, if, but for that
disease or aggravation, as the case may be”, substitute “a
compensable disease, if, but for that disease”.
10 Subsection 7(7)
Repeal the subsection, substitute:
(7) A disease suffered by an employee that would otherwise be a
compensable disease is not to be taken to be a compensable disease if, at any
time, for purposes connected with his or her employment or proposed employment
by the Commonwealth or a licensed corporation, the employee knowingly and
falsely represented that he or she did not suffer, or had not previously
suffered, from that disease.
11 At the end of subsection
7(7)
Add:
Note: Disease includes not only an ailment suffered by an
employee but also the aggravation of such an ailment. See definition of
disease in subsection 4(1).
12 Application
The amendments made by this Part have effect only in relation to claims
made in respect of injuries suffered after the commencement of this
Part.
Part 2—Amendments
relating to indexation of normal weekly earnings
13 Subsection 8(9)
Repeal the subsection, substitute:
(9) The normal weekly earnings of an employee before the date of the
employee’s injury, as calculated under the preceding subsections, must,
while the employee continues to be employed by the Commonwealth or a licensed
corporation, be increased or reduced by the relevant percentage.
(9A) For the purposes of subsection (9), relevant
percentage means the same percentage as the percentage of increase or
reduction in the minimum amount per week payable in respect of employees
included in a class of employees of which the employee was a member at the date
of the injury as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory;
or
(b) the making, alteration or operation of an award, order, determination
or industrial agreement or the doing of any other act or thing, under such a
law.
(9B) The normal weekly earnings of an employee before injury, as
calculated under subsections (1) to (8) and as increased or reduced under
subsection (9) must, if the employee has ceased, or ceases, to be employed
by the Commonwealth or a licensed corporation, be further increased, with effect
from each indexation date in relation to that cessation, by reference to the
percentage of increase (if any) of an index that is prescribed for the purposes
of this subsection over the year ending on the 31 December preceding each
such indexation date.
(9C) For the purpose of subsection (9B), the indexation
date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
(9D) For the purpose of subsection (9B), the regulations may specify
the manner of calculating the further increase referred to in that subsection by
reference to the movement of the index that is prescribed for the purposes of
that subsection.
Part 3—Amendments
relating to amount of compensation
14 Subsection 19(2)
Repeal the subsection, substitute:
(2) Subject to this Part, Comcare is liable to pay to the employee in
respect of the injury, for each week that is a maximum rate compensation week
during which the employee is incapacitated, an amount of compensation worked out
using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in
suitable employment;
(b) the amount per week (if any) that the employee earns from any
employment (including self-employment) that is undertaken by the employee during
that week.
NWE is the amount of the employee’s normal weekly
earnings.
(2A) For the purposes of subsection (2), a week is a maximum
rate compensation week, in relation to an employee to whom this section
applies, if:
(a) it is a week during which the employee’s incapacity prevents the
employee working the employee’s normal weekly hours because the employee
is unable to work or unable to work at the level at which the employee worked
before the injury; and
(b) the total number of hours that the employee has been prevented from
working, or working at that level, during that incapacity, in that week and in
all previous weeks, if any, to which paragraph (a) applies, does not exceed
45 times the employee’s normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that
the employee has been prevented from working, or working at that level, in that
week and in previous weeks, will exceed the total number of hours worked out in
accordance with paragraph (2A)(b), then:
(a) subsection (2) applies in respect of the part of the week before
that total number of hours is exceeded in accordance with subsection (2C);
and
(b) subsection (3) applies in respect of the remainder of the week in
accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable
in respect of the part of the week to which that paragraph refers is an amount
worked out using the formula:
where:
AE applies in relation to the whole of that particular week
and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly
earnings.
NWH means the number of normal weekly hours worked by the
employee before his or her injury.
X is the total of the hours in that particular
week:
(a) that would have counted towards the employee’s normal weekly
hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance
with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly
hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable
in respect of the part of the week to which that paragraph refers is worked out
using the formula:
where:
NWH means the number of normal weekly hours worked by the
employee before his or her incapacity.
reduced rate compensation entitlement is the rate of
compensation that would have been applicable for the whole week had
subsection (3) applied throughout the whole week.
X is the total of the hours in that particular
week:
(a) that would have counted towards the employee’s normal weekly
hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance
with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly
hours.
15 Subsection 19(3)
Repeal the subsection, substitute:
(3) Subject to this Part, Comcare is liable to pay compensation to the
employee, in respect of the injury, for each week during which the employee is
incapacitated, other than a week referred to in subsection (2), of an
amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%;
or
(b) if the employee is employed for 25% or less of his or her normal
weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of
his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of
his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of
his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours
during that week—100%.
AE applies in relation to the whole of that particular week
and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly
earnings.
16 Paragraph 19(4)(a)
After “employment” (first occurring), insert “(including
self-employment”).
17 Subsection 132A(1)
Repeal the subsection, substitute:
(1) This section applies to a former employee who:
(a) on the commencing day, was under 65; and
(b) is capable of engaging in any work.
Note: The heading to section 132A is replaced by the
heading “Former employees under 65 who are capable of engaging in any
work”.
18 Paragraph 132A(2)(a)
Repeal the paragraph, substitute:
(a) the amount of compensation per week that would have been payable under
section 131 if that section had applied to the former employee, less an
amount that is the greater of the following amounts:
(i) the amount per week (if any) that the employee is able to earn in
suitable employment;
(ii) the amount per week (if any) that the employee earns from any
employment (including self-employment) that is undertaken by the employee during
that week; or
19 Paragraph 132A(3)(a)
Repeal the paragraph, substitute:
(a) the amount of compensation per week that would have been payable under
section 132 if that section had applied to the former employee, less an
amount that is the greater of the following amounts:
(i) the amount per week (if any) that the employee is able to earn in
suitable employment;
(ii) the amount per week (if any) that the employee earns from any
employment (including self-employment) that is undertaken by the employee during
that week; or
20 Application
The amendments made by this Part have effect only in respect of
determinations in relation to compensation that are made after the end of the
period of 6 months after the day on which this Act receives the Royal
Assent.
Part 4—Amendment
relating to compensation for non-economic loss in relation to certain
injuries
21 At the end of
section 27
Add:
(3) This section does not apply in relation to a permanent impairment
commencing before 1 December 1988 unless an application for compensation
for non-economic loss in relation to that impairment has been made before the
date of introduction of the Bill for the Act that inserted this
subsection.
Part 5—Amendments
relating to payment of compensation to persons aged over 63
22 Subsection 23(1)
Omit “a person”, substitute “an
employee”.
23 Subsection 23(1A)
Omit “APS”.
24 Subsection 30(3) (definition of
n)
Repeal the definition, substitute:
n means the number worked out using the formula:
where:
number of days means the number of days in the period
beginning on the day after the day on which the determination is made and
ending:
(a) if the employee is injured before reaching 63 years of age—on
the day immediately before the day on which the employee reaches 65 years of
age; and
(b) if the employee is injured on or after reaching 63 years of
age—on the day immediately before the employee would cease to be entitled
to receive compensation under section 19, 20, 21 or 21A of this
Act.
25 Application
The amendments made by items 22, 23 and 24 have effect only in
relation to employees:
(a) who are injured after the day on which this Act receives the Royal
Assent; or
(b) who, on that day:
(i) have reached 63 years of age; and
(ii) are receiving compensation under section 19, 20, 21, 21A or 22
of the Safety, Rehabilitation and Compensation Act 1988 or are eligible
to apply for such compensation.
Part 6—Amendments
concerning rehabilitation program providers
26 Section 34
Repeal the section, substitute:
In this Part:
principal, in relation to an applicant for approval as a
rehabilitation program provider or for renewal of such an approval,
means:
(a) if the applicant is a partnership—any of the partners;
and
(b) if the applicant is a company—any of the directors of the
company and, if the person responsible for the day to day running of the company
is not a director, also that person.
renewal date means:
(a) a date occurring not later than 12 months after this Act receives the
Royal Assent that is determined, in writing, by the Minister to be the first
renewal date; and
(b) the dates occurring, at intervals prescribed for the purposes of this
paragraph, after the date determined to be the first renewal date.
(1) A partnership may apply for approval as, or for renewal of approval
as, a rehabilitation program provider as if the partnership were a
person.
(2) If the partnership so applies, this Part applies subject to the
changes set out in subsections (3), (4), (5) and (6), to and in relation
to:
(a) that application; and
(b) if the application is approved—the operations of the partnership
as a rehabilitation program provider.
(3) If this Part would otherwise require or permit something to be done by
the partnership in relation to its application for approval or renewal of
approval as, or its operation as, a rehabilitation program provider, the thing
may be done by one or more of the partners on behalf of the
partnership.
(4) If, under this Part, a document is given, in accordance with
section 28A of the Acts Interpretation Act 1901, to a partner of a
partnership in relation to its application for approval or renewal of approval
as, or its operation as, a rehabilitation program provider, the document is
taken to have been given to the partnership.
(5) An obligation that would otherwise be imposed upon a partnership in
relation to its application for approval or renewal of approval as, or its
operation as, a rehabilitation program provider by a provision of this
Part:
(a) is imposed on each partner instead; but
(b) may be discharged by any of the partners.
(6) The partners are jointly and severally liable to pay any fee that
would otherwise be payable by the partnership under a provision of this Part in
relation to its application for approval or renewal of approval as, or its
operation as, a rehabilitation program provider.
(7) For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership:
(a) as an applicant for approval or renewal of approval as a
rehabilitation program provider; or
(b) as a provider of rehabilitation programs.
A person may apply to Comcare for approval as a rehabilitation program
provider.
(1) An application for initial approval of a person as a rehabilitation
program provider must:
(a) be in writing in the approved form; and
(b) identify the applicant and, if the applicant is not an individual,
also identify the persons who are, at the time of the application:
(i) the principals of the applicant; and
(ii) employees of the applicant who will participate in the provision of
rehabilitation services under this Act; and
(c) contain such information relating to:
(i) the criteria in force under section 34D; and
(ii) operational standards in force under section 34E; and
(iii) such other matters;
as the approved form specifies.
Note: For meaning of approved form see
section 34S.
(2) Applications must be accompanied by the prescribed fee for processing
the application.
(3) If Comcare receives an application that meets the requirements of
subsection (1) and is paid the prescribed fee, it is required to process
the application within 6 months of receiving it.
(4) If Comcare gives an applicant notice under section 34N requiring
the production of further information, the period from the giving of that notice
to the production of that information is to be disregarded.
(1) Comcare must, by instrument in writing, determine the criteria to be
met by persons applying:
(a) under section 34B for approval as rehabilitation program
providers; or
(b) under subsection 34J(1) for renewal of such an approval.
(2) Without limiting the generality of subsection (1), the criteria
must include:
(a) matters relating to the qualifications of the applicant and, if the
applicant is not an individual, of the principals and employees of the
applicant; and
(b) matters relating to the probity, and the financial arrangements, of
the applicant; and
(c) if the applicant is not an individual—matters relating to the
probity of the principals and employees of the applicant.
(3) Criteria determined under subsection (1), and any variation of
those criteria that is made from time to time, must be published in the
Gazette.
(1) Comcare must, by instrument in writing, determine operational
standards to be complied with by all persons who are approved as rehabilitation
program providers under subsection 34F(1).
(2) Without limiting the generality of subsection (1), the standards
must include:
(a) standards relating to effectiveness, availability and cost that the
person is required to meet and to maintain in the provision of rehabilitation
services as an approved rehabilitation program provider; and
(b) such other standards as Comcare considers appropriate concerning the
operation of the person as an approved rehabilitation program
provider.
(3) Standards established under subsection (2), and any variation of
those standards that is made from time to time, must be published in the
Gazette.
(4) Comcare may only vary standards with effect from a renewal date but
must publish the standards as proposed to be so varied, at least 6 months before
the renewal date when they take effect.
(1) If Comcare is satisfied that an applicant for approval as a
rehabilitation program provider, having regard to information in the application
and to any further information that is supplied to Comcare under
section 34N:
(a) meets the criteria for approval as a rehabilitation program provider
in force under section 34D; and
(b) is likely to be able to comply with the operational standards
presently in force; and
(c) if the applicant is making an application within 6 months of the next
renewal date—is also likely to be able to comply with the operational
standards that will be in force with effect from that renewal date;
Comcare must:
(d) approve the applicant as a rehabilitation program provider;
and
(e) inform the applicant, by written notice, of its decision.
(2) If Comcare is not so satisfied, it must:
(a) refuse to approve the applicant as a rehabilitation program provider;
and
(b) inform the applicant, by written notice, of its decision and of the
reasons for that decision.
If Comcare approves a person as a rehabilitation program provider after
consideration of an application, the initial approval of the person as a
rehabilitation program provider:
(a) comes into force on the date (the starting date) on
which the application is determined or any such later date as is specified in
the determination; and
(b) subject to section 34Q, remains in force:
(i) if the starting date occurs not less than 6 months before the renewal
date next following the starting date—until the end of the day immediately
before that renewal date; and
(ii) if the starting date occurs less than 6 months before the renewal
date next following the starting date—until the end of the day immediately
before the second renewal date following the starting date.
(1) Comcare may, in any circumstance where it considers that the urgent
need for the provision of rehabilitation services makes it appropriate, also
approve a person as a rehabilitation program provider on its own
initiative.
(2) Such an approval may be given despite the fact that:
(a) the person approved has not applied under section 34B for
approval as a rehabilitation program provider; or
(b) if the person has so applied—Comcare has not, at the time of the
approval, satisfied itself that the person approved meets the criteria for
approval as a rehabilitation program provider in force under
section 34D.
(3) An approval under this section is for such period as Comcare specifies
in the instrument of approval only and is not able to be renewed.
(4) Nothing in subsection (3) prevents Comcare from extending the
approval period specified under that subsection or specified under that
subsection and previously extended under this subsection.
(5) Nothing in this section prevents a person approved as a rehabilitation
program provider under this section from:
(a) making an application under section 34B as a rehabilitation
program provider; or
(b) continuing an application under section 34B already made but not
fully considered at the time of the approval under this section.
(6) If such an application is granted, the approval under this section is
taken to have been revoked with effect from the grant.
(7) An approval under this section is subject to such conditions as
Comcare specifies in the instrument of approval.
(1) A person who is a rehabilitation program provider approved under
section 34F may apply to Comcare for renewal of the person’s approval
as a rehabilitation program provider.
(2) Subject to subsection (3), an application for renewal must be
made not less than 6 months before the end of an approval period.
(3) The Chief Executive Officer may, in exceptional circumstances, permit
an application for renewal to be made less than 6 months before the end of an
approval period.
(4) In this section:
approval period means the period:
(a) of the initial approval; or
(b) if that approval has been renewed under section 34L—of the
approval as last renewed.
(1) An application for renewal of a person as a rehabilitation program
provider must:
(a) be in writing in the approved form; and
(b) identify the applicant and, if the applicant is not an individual,
also identify the persons who are, at the time of the application:
(i) the principals of the applicant; and
(ii) employees of the applicant who will participate in the provision of
rehabilitation services under this Act; and
(c) contain such information relating to:
(i) the criteria in force under section 34D; and
(ii) operational standards in force under section 34E and those
standards that will have effect from the renewal date; and
(iii) such other matters as the approved form specifies.
Note: For meaning of approved form see
section 34S.
(2) All applications for renewal must be accompanied by the prescribed fee
for processing the application.
(3) If Comcare receives an application that meets the requirements of
subsection (1) and is paid the prescribed fee, it is required to process
the application within 6 months of receiving it.
(4) If Comcare has given an applicant notice under section 34N
requiring the production of further information, the period from the giving of
that notice to the production of that information is to be
disregarded.
(1) If Comcare is satisfied, having regard to the information in the
renewal application and to any further information that is supplied to Comcare
under section 34N, that the applicant:
(a) meets the criteria established in force under section 34D;
and
(b) has demonstrated compliance with the operational standards in force
under section 34E since the applicant was initially approved or last
renewed; and
(c) is likely to be able to meet the operational standards in force under
section 34E with effect from the renewal date;
Comcare must:
(d) renew the approval of the applicant as a rehabilitation program
provider; and
(e) inform the applicant, by written notice, of its decision.
(2) If Comcare is not so satisfied, it must:
(a) refuse to renew the applicant’s approval; and
(b) inform the applicant, by written notice, of its decision and of the
reasons for that decision.
If Comcare renews the approval of a person as an approved rehabilitation
program provider, the renewal:
(a) comes into force on the day following the end of the previous approval
period; and
(b) subject to section 34Q, remains in force until the end of the day
immediately before the next following renewal date.
(1) If, having regard to the material provided in an application for
initial approval or in an application for renewal, Comcare is of the opinion
that further information is required from the applicant, Comcare may give a
written notice to the applicant:
(a) setting out the nature of the further information required;
and
(b) requiring it to be supplied within a period specified in the
notice.
(2) Pending the provision of the further information required, the
processing of the application is suspended.
(3) If the information is not supplied within the period specified in the
notice requesting it, the application is taken to have been withdrawn.
The approval of a person as a rehabilitation program provider under
section 34F, and the renewal of that approval under section 34L, is
subject to:
(a) the condition that the provider comply with the standards in force
under section 34E; and
(b) such conditions as Comcare specifies in the instrument of approval or
renewal in relation to notification to Comcare:
(i) if the provider is not an individual—of any change in the
identity of the principals and employees of the provider; and
(ii) of any matter that, if the provider were not already approved, would
affect the capacity of the provider to meet the particular criteria for approval
as an approved rehabilitation program provider in force from time to time under
section 34D; and
(iii) of any matter that affects the compliance, or the capacity for
compliance, of the provider with the operational standards in force at the time;
and
(c) any other conditions specified in the instrument of approval or
renewal as Comcare considers appropriate.
If, at any time, Comcare is satisfied, in relation to an approved
rehabilitation program provider, that:
(a) the provider has failed to comply with the conditions to which the
provider’s approval is subject under section 34P; or
(b) were the provider to be applying for approval at that time, Comcare
would not approve the provider;
Comcare may, by written notice, revoke the approval with effect from a date
specified in the notice.
(1) The following decisions are reviewable by the Administrative Appeals
Tribunal:
(a) a decision to refuse an application for approval of a person as a
rehabilitation program provider;
(b) a decision to refuse an application for renewal of the approval of a
person as a rehabilitation program provider;
(c) a decision to revoke an approval of a person as a rehabilitation
program provider;
(d) a decision to impose particular conditions under paragraph 34P(c) on
the grant of an approval of a person as a rehabilitation program
provider.
(2) In subsection (1):
decision has the same meaning as it has in the
Administrative Appeals Tribunal Act 1975.
(1) In this Division a reference to an approved form is a reference to a
form that is approved, by instrument in writing, by Comcare.
(2) The instrument is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
27 Before section 35
Insert:
28 Saving provision
If, by instrument in writing, Comcare had approved a person who provides
rehabilitation programs under section 34 of the Safety, Rehabilitation
and Compensation Act 1988 as in force immediately before the commencement of
this item:
(a) that approval continues in force, on and after that date, until the
next following renewal date, subject to and in accordance with the terms on
which the approval was granted, as if section 34 of that Act had not been
repealed; but
(b) if the person wishes to seek renewal of the approval, the person must
seek that approval in accordance with the operational standards established
under section 34E and having effect from that next following renewal
date.
Part 7—Amendment
relating to common law remedies for dependants of deceased
employees
29 At the end of
section 44
Add:
(3) If:
(a) an employee has suffered an injury in the course of his or her
employment; and
(b) that injury results in that employee’s death;
subsection (1) does not prevent a dependant of that employee bringing
an action against the Commonwealth, a Commonwealth authority, a licensed
corporation or another employee in respect of the death of the first-mentioned
employee.
(4) Subsection (3) applies whether or not the deceased employee,
before his or her death, had made an election under subsection
45(1).
Part 8—Amendments
concerning licences to enable Commonwealth authorities and certain corporations
to accept liability for, and determine, claims
30 Subsection 4(1) (definition of
corporation)
Omit “Part VIIIB”, substitute
“Part VIII”.
31 Subsection 4(1) (definition of
eligible corporation)
Repeal the definition , substitute:
eligible corporation, in Part VIII, means a corporation
in respect of which a declaration is in force under section 100.
32 Subsection 4(1) (definition of
licence)
Omit “Part VIIIA or VIIIB”, substitute
“Part VIII”.
33 Subsection 4(1) (definition of
licensed corporation)
Omit “Part VIIIB”, substitute
“Part VIII”.
34 Subsection 4(1)
Insert:
licensee means a Commonwealth authority or a corporation that
is licensed, or that is taken to be licensed, under Part VIII.
35 Subsection 4(1) (paragraphs (a) and (aa)
of the definition of relevant authority)
Repeal the paragraphs, substitute:
(a) in relation to an employee who is employed by a licensee—the
licensee; and
36 Subsection 28(4)
Omit “licensed authority, a licensed corporation”, substitute
“licensee”.
37 Section 41A
Repeal the section, substitute:
A rehabilitation authority who is:
(a) the Secretary of a Department, or
(b) the principal officer of a Commonwealth authority in respect of which
a licence is not in force under Part VIII; or
(c) the principal officer of a licensee;
may, in writing, delegate to an officer of, or a person employed by, that
Department, authority or licensee all or any of the powers and functions of the
rehabilitation authority under this Part.
38 Subsections 60(2) and
(3)
Repeal the subsections, substitute:
(2) For the purposes of this Part, the parties to proceedings instituted
under this Part are:
(a) the applicant; and
(b) if the applicant is not the claimant—the claimant; and
(c) the body responsible for the reviewable decision.
(3) For the purposes of subsection (2), the body responsible for the
reviewable decision is:
(a) if Comcare made the reviewable decision—Comcare; and
(b) if the reviewable decision has been made by or on behalf of a
licensee—the licensee.
(4) Subsection (2) has effect subject to Part VIII.
39 Paragraphs 62(2)(c), (d), (e) and
(f)
Repeal the paragraphs, substitute:
(c) if the determination affects a Commonwealth authority—that
Commonwealth authority.
40 After subsection 62(2)
Insert:
(2A) If a determining authority holds a licence under Part VIII that
is subject to conditions requiring the determining authority to arrange for the
reconsideration by another person of any determination made by the determining
authority, nothing in subsection (1) or (2) is to be taken to derogate from
that requirement.
41 Paragraphs 64(1)(c) to (h)
(inclusive)
Repeal the paragraphs, substitute:
(c) if the decision affects a Commonwealth authority—the
Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under
Part VIII—the licensed corporation.
42 Subsection 64(2)
Repeal the subsection.
43 Subsection 67(1A)
Repeal the subsection, substitute:
(1A) In this section, responsible authority, in relation to
a determination, means:
(a) if the determination affected the Commonwealth or a Commonwealth
authority other than a licensed authority—Comcare; and
(b) if the determination affected a Commonwealth authority, or a
corporation, that holds a licence under Part VIII authorising acceptance of
liability for claims in respect of which the determination is made—that
authority or corporation; and
(c) if the determination affected a Commonwealth authority that holds a
licence under Part VIII but the licence does not authorise acceptance of
liability for claims in respect of which the determination is
made—Comcare.
44 Subsection 70B(2)
Omit “Part VIIIB”, substitute
“Part VIII”.
45 Subsection 73A(2A)
Repeal the subsection, substitute:
(2A) The Commission may prepare and issue to the principal officer of a
licensed corporation written general policy guidelines in relation to the
operation of this Act to the extent that the Act confers functions or powers on
the licensed corporation.
46 Paragraph 89E(1)(d)
Omit “licensed authorities”, substitute
“licensees”.
47 Subsection 96A(2) (paragraph (a) of the
definition of Estimated liability)
Omit “Part VIIIA”, substitute
“Part VIII”.
48 Subsection 96A(2) (paragraph (a) of the
definition of Estimated administrative costs)
Omit “Part VIIIA”, substitute
“Part VIII”.
49 Parts VIIIA and VIIIB
Repeal the Parts, substitute:
(1) This Part enables the Commission to grant licences to Commonwealth
authorities or eligible corporations.
(2) If a licence is granted to a Commonwealth authority, this Act
continues to apply in relation to employees of the authority but, depending on
the scope of the licence, the application of this Act is subject to either or
both of the following:
(a) the acceptance by the authority of the whole or a part of the
liability under this Act for payments in respect of injury, loss or damage
suffered by, or the death of, some or all of its employees;
(b) the acceptance by the authority of the responsibility for managing
certain claims under this Act in respect of injury, loss or damage suffered by,
or the death of, some or all of its employees.
(3) If a licence is granted to an eligible corporation, this Act applies
in relation to some or all of the employees of the corporation in a similar way
to the way in which it applies to employees of the Commonwealth but the
application is subject to:
(a) the acceptance by the corporation of the whole or a part of the
liability under this Act for payments in respect of injury, loss or damage
suffered by, or the death of, those employees; and
(b) the acceptance by the corporation of the function of managing claims
under this Act in respect of that injury, loss, damage or death.
(4) If a licence is granted to a Commonwealth authority or to a
corporation, the application of this Act is also subject to the conditions to
which the licence is subject.
In this Part:
claim includes a request.
determination includes a decision or requirement.
eligible corporation means a corporation that is declared by
the Minister to be an eligible corporation under section 100.
eligible entity means a Commonwealth authority or an eligible
corporation.
manage, in relation to a claim for payment of compensation or
other amounts under this Act, includes determination of the claim,
reconsideration of the determination, and any subsequent administrative action
in relation to the claim as so determined.
variation, in relation to the conditions to which a licence
is subject, includes the addition of a new condition, an alteration to an
existing condition or the omission of an existing condition.
If the Minister is satisfied that it would be desirable for this Act to
apply to employees of a corporation that:
(a) is, but is about to cease to be, a Commonwealth authority;
or
(b) was previously a Commonwealth authority; or
(c) is carrying on business in competition with a Commonwealth authority
or with another corporation that was previously a Commonwealth
authority;
the Minister may, by notice in writing, declare the corporation to be
eligible to be granted a licence under this Part.
(1) The Minister’s power to give directions to the Commission under
section 89D extends to directions concerning any matter relating to the
grant of licences under this Part. Without limiting the matters the Directors
may deal with, the Minister may give directions concerning:
(a) criteria and procedures for the grant of such licences; or
(b) the scope of licences and the conditions to which licences having a
particular scope may be expressed to be subject; or
(c) the exercise by the Commission of the power to vary the conditions to
which such licences are subject; or
(d) criteria and procedures for the extension, suspension or revocation of
such licences or for varying the scope of such licences; or
(e) publication of notices about any grant, extension, suspension or
revocation of such licences or for varying the scope of such licences or the
conditions to which they are subject; or
(f) requirements to be observed by the Commission in relation to the
keeping of records, and the periodic reporting of particulars, in relation to
such licences.
(2) Directions given by the Minister to the Commission under
section 89D concerning licences:
(a) must be published in the Gazette; and
(b) do not take effect until they are so published; and
(c) are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.
Note: Criteria for the grant of a licence may address issues
relating not only to the licence applied for but also to other licences that
have been granted or that are being sought.
(1) An application by an eligible entity for the grant of a licence
must:
(a) be in writing in the prescribed form; and
(b) contain such particulars of the applicant as the regulations
prescribe; and
(c) having regard to the scope of the licence sought—contain such
other information, and be accompanied by such documents, as the regulations
provide; and
(d) be lodged with the Commission.
(2) The applicant is liable to pay to Comcare in respect of the
application an application fee equal to the amount estimated by the Commission
to be the cost of considering the application.
(3) The Commission is to give written notice to the applicant of the
amount of the application fee and:
(a) if the notice is given before the application is made—the
application fee is to accompany the application; or
(b) otherwise—the application fee is to be paid as soon as
practicable after the notice is given.
(4) An applicant may withdraw an application at any time before a decision
is made on the application.
(5) If the application is withdrawn after receipt by Comcare of the
application fee, the Commission may, depending upon the extent to which it has
already considered the application:
(a) request Comcare to refund the application fee entirely; or
(b) reduce the application fee by such amount as it considers reasonable
having regard to the extent of that consideration and request Comcare to refund
the amount of the reduction.
(6) For the purpose of subsection (5), the reference to the extent of
the Commission’s consideration of an application includes a reference to
any act or thing done by Comcare to assist the Commission in that
consideration.
(1) The Commission may, on application made in accordance with
section 102, grant the eligible entity a licence for a specified
period.
(2) If the Commission grants a licence to an eligible entity, the
Commission must determine:
(a) in accordance with Division 3—the scope of the licence so
far as concerns the degree to which, and the circumstances in which, the
licensee may accept liability for compensation; and
(b) in accordance with Division 4—the scope of the licence so
far as concerns the degree to which, and the circumstances in which, the
licensee is authorised to manage claims; and
(c) in accordance with Division 5—the conditions (if any) to
which the grant of the licence is subject.
(1) If the Commission considers, having regard to:
(a) the information contained in an application received by it;
and
(b) any further information that is provided to the Commission by the
applicant for the purpose of enabling consideration of the application;
and
(c) any other matter that the Commission considers relevant;
that it is appropriate to do so, the Commission may grant the licence
sought. On granting the licence, the Commission must, by written notice given to
the applicant, inform the applicant of its decision.
(2) In order for the Commission to be satisfied, for the purposes of
subsection (1), that it is appropriate to grant an applicant the licence
sought, the Commission must be satisfied that:
(a) the applicant has sufficient resources to fulfil the responsibilities
imposed on it under the licence; and
(b) the applicant has the capacity to ensure (where the scope of the
licence so provides) that claims that are to be managed either by the licensee,
or by another person identified in the licence on the licensee’s behalf,
will be managed in accordance with standards set by the Commission for the
management of claims; and
(c) the grant of the licence will not be contrary to the interests of the
employees of the licensee whose affairs fall within the scope of the licence;
and
(d) the applicant has the capacity to meet the standards set by the
Commission for the rehabilitation and occupational health and safety of its
employees.
(3) If the Commission does not consider it appropriate to grant the
applicant the licence sought, it must, by written notice given to the applicant,
inform the applicant that it has decided to refuse the application and provide
reasons for its decision.
(4) Nothing in subsection (3) prevents the Commission, with the
written agreement of the applicant, granting the applicant a licence having a
different scope to the licence sought by the applicant.
(1) At the date of commencement of a licence, and at each 1 July
after that date, while the licence is in force, the licensee becomes liable to
pay a licence fee in respect of the holding or continued holding of the
licence.
(2) The amount of the licence fee is the amount notified in writing to the
licensee by the Commission, being the amount estimated by the Commission to
represent:
(a) that part of the cost incurred by the Commission and by Comcare in
carrying out their respective functions under this Act (other than the function
referred to in paragraph 69(ec)) during the relevant period that is reasonably
referrable to the licensee; and
(b) so far as concerns a licensee who is covered by the Occupational
Health and Safety (Commonwealth Employment) Act 1991—that part of the
cost incurred by the Commission and by Comcare in carrying out their respective
functions under that Act during the relevant period that is reasonably
referrable to the licensee.
(3) For the purposes of subsection (2), the relevant period
is:
(a) in the case of the first licence fee payable in respect of the
licence—the period starting on the date of commencement of the licence and
ending on the next 30 June; or
(b) in the case of a subsequent licence fee payable in respect of a
financial year while the licence remains in force—that financial
year.
(4) The fee is payable to Comcare within such period after it is notified
to the licensee as the Commission determines.
(1) The Commission may, at any time while a licence is in force, on the
written application of the licensee, vary the scope of the licence or extend its
term.
(2) Nothing in subsection (1) implies that an applicant whose
licence, or licence as extended, has expired, or is to expire, may not apply for
a new licence under this Part.
(1) If the Commission considers it appropriate to do so, the Commission
may, by written notice given to the licensee:
(a) suspend the licence for a specified period; or
(b) revoke the licence.
(2) Before taking action under subsection (1), the Commission must
follow such procedures, if any, as are specified in the Minister’s
directions as procedures preliminary to the suspension or revocation of a
licence at the instance of the Commission.
The Commission may, at the written request of a licensee, by written
notice to the licensee, revoke the licence held by the licensee.
The regulations may provide for the consequences of:
(a) the suspension of a licence under section 106; or
(b) the revocation of a licence under section 106 or 107.
(1) A licence may provide that the licensee is authorised to accept
liability to pay compensation and other amounts under this Act in respect of
particular injury, loss or damage suffered by, or in respect of the death of,
some or all of its employees under this Act.
(2) The scope of the licence, so far as it authorises acceptance of
liability to pay such compensation and other amounts, may be determined by the
Commission.
(3) The Commission may determine, as part of the scope of the licence,
that the licensee may accept such liability in respect of such injury, loss,
damage or death occurring at a time before the licence came into
force.
(1) If:
(a) a licensee is authorised to accept liability to pay compensation and
other amounts under this Act in respect of particular injury, loss or damage
suffered by, or in respect of the death of, some or all of its employees;
and
(b) such injury, loss, damage or death occurs;
then:
(c) the licensee is liable to pay compensation and other amounts under
this Act in respect of that injury, loss, damage or death; and
(d) Comcare is not liable to pay compensation or other amounts under this
Act in respect of that injury, loss, damage or death.
(2) Nothing in subsection (1) affects Comcare’s liability to
pay compensation or other amounts under this Act in respect of a particular
injury, loss, damage or death for which Comcare would have been liable, but for
the operation of the licence, to the extent that the liability is not a
liability that the licensee is authorised to accept.
(3) The fact that a licensee is authorised to accept liability to pay
compensation and other amounts under this Act in respect of a particular injury,
loss, damage or death does not render the licensee liable to have any
proceedings (including proceedings under Part VI) brought against it in
respect of that particular injury, loss, damage or death other than proceedings
for the recovery of that compensation and those other amounts.
Note: If licensees are authorised to manage claims,
proceedings may be brought against them in respect of the management of those
claims (see subsection 108C(7)).
(4) If proceedings have been brought against Comcare in respect of a
particular injury, loss, damage or death for which a licensee is liable to pay
compensation or other amounts under this Act, Comcare must inform the licensee,
in writing, as soon as practicable, that the proceedings have been
brought.
(5) On being informed that proceedings have been brought against Comcare
in respect of a particular injury, loss, damage or death, the court or tribunal
before which the proceedings have been brought must, on application of the
licensee, join the licensee as a party to the proceedings.
(6) A decision in any proceedings referred to in subsection (4) is
binding on Comcare and on the licensee concerned, whether or not the licensee
has made application to become a party to the proceedings.
(7) If a licensee who is a corporation is authorised to accept liability
to pay compensation and other amounts under this Act in respect of a particular
injury, loss or damage suffered by, or in respect of the death of, some or all
of its employees after the licence comes into force then:
(a) no law of a State or Territory relating to workers compensation
applies to a licensee in respect of such injury, loss, damage or death;
and
(b) any liability or obligation of the corporation under a law of a State
or Territory in respect of such injury, loss or damage suffered, or death
occurring, before the licence came into force is unaffected.
(1) A licence may authorise the licensee, or a specified person acting on
the licensee’s behalf, to manage some or all of the claims made by
employees of the licensee under this Act.
(2) The scope of the licence, so far as it authorises management by the
licensee of claims made under this Act, may be determined by the
Commission.
(3) A licensee may at any time enter into a contract with another person
for the management, on the licensee’s behalf, of the claims that the
licensee is authorised to manage.
(4) If the licensee enters into such a contract it does not come into
force unless and until the Commission has varied the licence to note the
identity of the person with whom the licensee has contracted for the management
of claims.
(5) Nothing in this section implies that the scope of the licence, so far
as it authorises management of claims by the licensee, may not extend to the
management of claims that were made at a time before the licence came into
force, whether or not the management of those claims has been commenced before
the licence came into force.
(6) The scope of the licence, so far as it authorises management of claims
made by employees of an eligible corporation, must relate to the same employees
of the corporation as those covered by the scope of the licence so far as it
relates to acceptance of liability.
(1) If a licensee is authorised to manage claims, the licensee must
determine any particular claim that the licensee is authorised to manage in
accordance with the scope of its licence.
(2) If a licensee is authorised to manage claims made before the licence
comes into force, then, in respect of any particular claim that the licensee is
authorised to manage:
(a) a determination made by Comcare that is in force immediately before
the licence comes into force is taken, after that time, to have been a
determination made by the licensee in relation to that claim; and
(b) any other thing done by Comcare that is in force immediately before
the licence comes into force is taken, after that time, to have been done by the
licensee in relation to that claim.
(3) If a licensee is authorised to manage claims, then, in respect of any
particular claim that the licensee is authorised to manage:
(a) any notice or claim given or made under Part V after the licence
comes into force is to be given or made to the licensee; and
(b) any notice or claim given or made under Part V to Comcare, in
force immediately before the licence comes into force, continues in force, after
that time, as if it had been given or made to the licensee.
(4) If:
(a) any proceedings (including proceedings under Part VI) to which
Comcare is a party are brought in relation to a determination made, or thing
done, by Comcare before a licence comes into force; and
(b) those proceedings have not been concluded before the licence comes
into force;
those proceedings may be continued after that time and, for the purpose of
the proceedings as so continued, the licensee is taken to replace Comcare as a
party to the proceedings.
(5) If, after a licence comes into force:
(a) a determination made or other thing done by Comcare is treated under
subsection (2) as having been made or done by the licensee; or
(b) a notice or claim given or made under Part V to Comcare is
treated under subsection (3) as if it had been given or made to the
licensee; or
(c) proceedings (including proceedings under Part VI) to which
Comcare is a party are treated under subsection (4) as proceedings to which
the licensee is a party;
Comcare must inform the licensee, as soon as practicable, of that
determination made or other thing done, of that notice or claim, or of those
proceedings.
(6) If, in accordance with subsection (4), the licensee replaces
Comcare as a party to the proceedings, the court or tribunal before which the
proceedings have been brought must, on application by Comcare, join Comcare as a
party to the proceedings.
(7) If a licensee is authorised to manage claims, any proceedings
(including proceedings under Part VI) that may be brought:
(a) in relation to a determination made, or taken to have been made, by
the licensee in managing such a claim; or
(b) in relation to any thing done, or taken to have been done, by the
licensee in managing such a claim;
must be brought against the licensee.
(8) If proceedings are brought against the licensee in accordance with
subsection (7):
(a) the licensee must inform Comcare as soon as practicable that the
proceedings have been brought; and
(b) the court or tribunal before which the proceedings have been brought
must, on application by Comcare, join Comcare as a party to the
proceedings.
(9) An application by Comcare under subsection (6) or (8):
(a) may be made by filing a notice in the registry of the court or
tribunal concerned; and
(b) must be notified to the other parties to the proceeding by serving on
them a copy of the notice so filed.
(10) A decision in proceedings referred to in subsection (4) or (7)
is binding on the licensee and on Comcare, whether or not Comcare is joined as a
party to the proceedings.
(1) The Commission may, in granting a licence under this Part, express the
licence to be subject to any conditions it considers are necessary to achieve
the objects of this Act in its application to the licensee. Without limiting the
matters the conditions may deal with, the conditions may include:
(a) a condition that the licensee, and any person acting on its behalf,
will comply with the requirements of the Act and any relevant directions given
by the Commission; and
(b) a condition that the licensee will pay such licence fees and other
fees as are calculated in such manner, and payable at such times, as the
Commission specifies; and
(c) a condition that the licensee will maintain such funds, and in such
form, as the Commission directs for the purpose of enabling the due discharge of
the licensee’s liability to pay:
(i) compensation and other amounts under this Act; or
(ii) so much of that liability as exceeds a specified amount;
and
(d) a condition that the licensee will obtain bank or other guarantees for
the due discharge of the licensee’s liability to pay:
(i) compensation and other amounts under this Act; or
(ii) so much of that liability as exceeds a specified amount;
and
(e) a condition that the licensee will comply with the requirements of any
applicable laws of the Commonwealth, States and Territories with respect to the
safety, health and rehabilitation of employees; and
(f) a condition that, in all circumstances or specified circumstances, the
licensee will not cause or permit to be made on its behalf to a court or
tribunal any submission that Comcare or the Commission has requested the
licensee not to make; and
(g) conditions concerning performance of functions in relation to the
licence by persons other than the licensee, including conditions concerning the
reconsideration of determinations made by the licensee; and
(h) conditions requiring provision of information and notifications in
respect of specified events.
(2) At any time while the licence is in force the Commission may vary the
conditions to which the licence is subject by notice in writing given to the
licensee. The notice must set out the terms of the variation and the date of
effect of the variation, which must not be a date earlier than the date of
notification of the variation.
The functions of a licensee include, in addition to any functions
conferred under other legislation or, in the case of a corporation, in the
constitution of the corporation, the following additional functions:
(a) if the licence confers on the licensee an authority to pay
compensation or other amounts under this Act—to make those payments
accurately and quickly; and
(b) if the licence confers on the licensee an authority to manage claims
under this Act—to determine those claims accurately and quickly and to
take all necessary action in respect of the subsequent management of those
claims; and
(c) to maintain contact with the Commission and with Comcare to ensure
that, as far as practicable, there is equity of outcomes resulting from
administrative practices and procedures used by Comcare and the licensee in the
performance of their respective functions; and
(d) to do anything, and to meet any obligation, the doing or meeting of
which:
(i) is incidental to the performance of either or both of the functions
referred to in paragraphs (a) and (b); and
(ii) would be required of Comcare if Comcare had responsibility for the
performance of the function referred to in either or both of those paragraphs;
and
(e) to comply with the conditions to which the licence is
subject.
A licensee has power to do all things necessary or convenient to be
lawfully done for, or in connection with, the performance of functions conferred
by section 108E.
Any notice given by the Commission to a person that concerns:
(a) the grant, extension, suspension or revocation of a licence;
or
(b) the variation of the conditions to which a licence is
subject;
has effect on and after a date specified in the notice that is not earlier
than the date the notice is given to the person.
50 Transitional provisions
(1) Subject to subitems (2) and (3), if, immediately before the day
this Part commences, a Commonwealth authority or corporation held a licence
under Part VIIIA or VIIIB of the Safety, Rehabilitation and Compensation
Act 1988, the provisions of that Act as in force immediately before that day
continue to apply in relation to the authority or corporation in its capacity as
licence holder under Part VIIIA or VIIIB, as the case requires, as if the
items of this Part had not been enacted.
(2) Nothing in subitem (1) implies that a Commonwealth authority or a
corporation that holds a licence under Part VIIIA or Part VIIIB of the
Safety, Rehabilitation and Compensation Act 1988 may not, while
continuing to hold that licence, apply for a licence under Part VIII of
that Act.
(3) If a Commonwealth authority or a corporation that holds a licence under
Part VIIIA or Part VIIIB of the Safety, Rehabilitation and
Compensation Act 1988 is granted a licence under Part VIII of that
Act:
(a) the Commission must determine, through the terms and conditions of the
licence granted under Part VIII, the arrangements for dealing with all
claims made to the authority or corporation in its capacity as a licence holder
under Part VIIIA or Part VIIIB that have not been finally and
completely dealt with; and
(b) subject to any arrangements so made, the licence granted under
Part VIIIA or Part VIIIB of that Act is of no further
effect.
51 Paragraph 114A(1)(a)
Repeal the paragraph, substitute:
(a) an employee of:
(i) the Commonwealth; or
(ii) a Commonwealth authority that holds a licence under Part VIII
and is required, in accordance with the conditions to which that licence is
subject, to notify Comcare of the retirement of the employee; or
(iii) a Commonwealth authority that is not the holder of a licence under
Part VIII;
is receiving, or is entitled to receive, compensation under this Act;
and
52 Section 121
Omit “97(1) or 101(1), section 108C”, substitute
“section 97P or 100”.
Part 9—Amendments
concerning compensation payable for hearing loss
53 Subsection 24(7)
Repeal the subsection, substitute:
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss;
and
(b) Comcare determines that the degree of permanent impairment is less
than 10%;
an amount of compensation is not payable to the employee under this
section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss;
and
(b) Comcare determines that the binaural hearing loss suffered by the
employee is less than 10%;
an amount of compensation is not payable to the employee under this
section.
54 Subsection 25(4)
After “permanent impairment of an employee”, insert
“(other than a hearing loss)”.
55 At the end of
section 25
Add:
(5) If Comcare has made a final assessment of the degree of permanent
impairment of an employee constituted by a hearing loss, no further amounts of
compensation are payable to the employee in respect of a subsequent increase in
the hearing loss, unless the subsequent increase in the degree of binaural
hearing loss is 5% or more.
56 Application
The amendments made by this Part have effect only in relation to claims for
compensation in respect of permanent impairment resulting from an injury
suffered by an employee after the day on which this Act receives the Royal
Assent.
Part 10—Amendments
relating to premiums, special premiums and regulatory
contributions
57 Subsection 4(1)
Insert:
action for non-economic loss means any action (whether or not
it involves the formal institution of a proceeding) to recover an amount for
damages for non-economic loss sustained by an employee as a result of an injury
suffered by that employee:
(a) that is taken by the employee against the employer, whether it is the
Commonwealth, a Commonwealth authority or a licensed corporation, or against
another employee; and
(b) that follows an election made by the first-mentioned employee under
subsection 45(1).
58 Subsection 4(1) (definition of
premium)
Repeal the definition, substitute:
premium, in respect of a Department or Commonwealth authority
and a financial year, means:
(a) the amount paid or payable under Division 4A of Part VII as
the premium, other than a special premium, in respect of that Department or
authority and that financial year; and
(b) if the financial year ended before 1 July 1991, any contribution
so paid or payable under section 98 of the Commonwealth Employees
(Rehabilitation and Compensation) Act 1988, as that Act applied in respect
of that year.
59 Subsection 4(1)
Insert:
special premium, in respect of a Department or Commonwealth
authority and the financial year starting on 1 July 1999 or 1 July
2000, means the amount paid or payable as a result of a determination under
section 97B as a special premium in respect of that Department or authority
and that financial year.
60 At the end of
section 45
Add:
(5) The election by an employee under this section to institute an action
or proceeding against the Commonwealth, a Commonwealth authority, a licensed
corporation or another employee does not prevent the employee, before, or
instead of, formally instituting such action or proceeding, doing any other
thing that constitutes an action for non-economic loss.
61 Section 46
Repeal paragraph (c) and omit the words following that paragraph,
substitute:
(c) the employee or a dependant of the deceased employee, as the case may
be, makes a claim against that person for the recovery of such
damages;
the employee or dependant must, as soon as practicable but in any event not
later than 7 days after the day on which he or she first became aware of the
claim, notify Comcare in writing of the claim.
Penalty: 5 penalty units
Note: The heading to section 46 is altered by omitting
“proceeding” and substituting “common law
claims”.
62 Section 47
Repeal the section, substitute:
If:
(a) compensation is payable under this Act in respect of the death of an
employee or an injury to an employee; and
(b) the employee, or a dependant of the deceased employee, as the case may
be, makes a claim for damages in respect of the death or injury against the
Commonwealth, a Commonwealth authority, a licensed corporation or another
employee;
the employee or dependant must, as soon as practicable but in any event not
later than 7 days after the day on which he or she first became aware of the
claim, notify Comcare in writing of the claim.
Penalty: 5 penalty units
63 Subsections 48(4A) and
(5)
Repeal the subsections, substitute:
(4A) Subsection (3) does not apply if the damages were recovered in
an action for non-economic loss or by way of a settlement of such an
action.
(5) Subsection (4) does not apply if the damages were
recovered:
(a) as a result of a claim, or fresh claim, made by Comcare under
section 50 (whether or not that claim progressed to the formal institution
of proceedings); or
(b) as a result of Comcare’s taking over the conduct of a claim
under that section; or
(c) as a result of an action for non-economic loss; or
(d) by way of a settlement of such a claim or of such an action (whether
or not that claim or that action progressed to the formal institution of
proceedings).
64 Subsection 50(1)
Repeal paragraph (c) and omit the words following that paragraph,
substitute:
(c) a claim against the person for the purpose of recovering such damages
has not been made by the employee or by or for the benefit of the dependant, or,
having been made, has not been prosecuted;
Comcare may make a claim or a fresh claim against the person in the name of
the employee or dependant for the recovery of damages in respect of the injury,
loss, damage or death or may take over the conduct of the existing claim, as the
case requires.
65 Subsections 50(2), (3), (4) and
(5)
Repeal the subsections, substitute:
(2) If Comcare takes over the conduct of a claim, it becomes liable to pay
all costs of and incidental to that claim that would otherwise be payable by the
person who originally made the claim other than costs unreasonably incurred by
that person.
(3) If Comcare makes, or takes over the conduct of, a claim under this
section, Comcare may:
(a) take whatever steps are appropriate to bring the claim to a
conclusion; and
(b) if the claim is before a court—settle the proceedings either
with or without obtaining judgment; and
(c) if the claim is before a court and judgment has been obtained in
favour of the plaintiff—take such steps as are necessary to enforce the
judgment.
(4) The employee or dependant must sign any document relevant to a claim
made or taken over by Comcare under this section (including the settlement of
the claim or of any proceedings arising out of the claim), being a document that
Comcare requires the employee or dependant to sign.
(4A) If the employee or dependant fails to sign a document in accordance
with a requirement under subsection (4):
(a) if the claim is not before a court or tribunal at the time of the
failure—the Federal Court of Australia, on the application of Comcare, may
direct that the document be signed on the employee or dependant’s behalf
by a person appointed by Comcare; and
(b) otherwise—the court or tribunal in which proceedings relating to
the claim are being heard, on the application of Comcare, may so
direct.
(4B) If Comcare proposes to make an application under
subsection (4A):
(a) Comcare must notify the employee or dependant concerned of the fact
that it is proposing to so apply; and
(b) the employee or dependant concerned has a right of representation in
the hearing of that application.
(5) If Comcare makes or takes over the conduct of a claim under this
section:
(a) the employee or dependant must comply with any reasonable requirement
of Comcare for the purposes of the claim; and
(b) if the employee or dependant fails to comply with such a requirement,
the right of the employee or dependant to compensation under this Act in respect
of the injury, loss, damage or death to which the claim relates is suspended
until such time as the employee or dependant complies with the
requirement.
66 Subsection 50(7)
Repeal the subsection, substitute:
(7) Any damages obtained as a result of a claim made or taken over by
Comcare under this section (including damages payable as a result of the
settlement of such a claim) must be paid to Comcare and Comcare must deduct from
the amount of those damages:
(a) an amount equal to the total of all amounts of compensation paid to
the employee or dependant under this Act in respect of the injury, loss, damage
or death to which the claim relates; and
(b) the amount of any costs incidental to the claim paid by
Comcare.
Comcare must pay the balance (if any) to the employee or
dependant.
Note: The heading to section 50 is altered by omitting
“Proceedings” and substituting “Common law
claims”.
67 Subsections 51(1) and
(2)
Omit “instituted” (wherever occurring), substitute
“arising out of a claim made”.
68 At the end of
Part IV
Add:
(1) If:
(a) an employer has paid Comcare an amount to cover liability for actions
for non-economic loss brought by its employees; and
(b) an employee takes action for non-economic loss against the employer or
another employee of the employer (the party claimed
against);
this section applies in relation to such action.
(2) Comcare may, at any time during the course of the action to which this
section applies:
(a) take over the conduct of that action on behalf of the party claimed
against in the proceeding; and
(b) if the action is before a court and Comcare thinks it appropriate to
do so—apply to the court to join any other person as a party to the
action.
(3) If Comcare takes over the conduct of the action, it becomes liable to
pay all costs of or incidental to the prosecution of the action that would
otherwise be payable by the party claimed against other than costs unreasonably
incurred by that party.
(4) If Comcare takes over the conduct of an action to which this section
applies, Comcare may:
(a) take whatever steps are appropriate to bring the proceedings to a
conclusion; and
(b) if the action is before a court—settle the proceeding, either
with or without obtaining judgment; and
(c) if judgment is obtained in favour of the party claimed
against—take such steps as are necessary to enforce the
judgment.
(5) If Comcare takes over the conduct of an action to which this section
applies, the party claimed against must comply with any reasonable requirement
of Comcare for the purpose of the action including signing of any document
relevant to the conduct or settlement of the action.
(6) If the party claimed against fails to sign a document in accordance
with a requirement under subsection (5):
(a) if the action to which this section applies is not before a court or
tribunal at the time of the failure—the Federal Court of Australia, on the
application of Comcare, may direct that the document be signed on the
party’s behalf by a person appointed by Comcare; and
(b) otherwise—the court or tribunal in which proceedings relating to
the action are being heard, on the application of Comcare, may so
direct.
(7) If Comcare proposes to make an application under
subsection (6):
(a) Comcare must notify the party concerned of the fact that it is
proposing to so apply; and
(b) the party concerned has a right of representation in the hearing of
that application.
(8) If, in an action to which this section applies:
(a) damages are awarded against the party claimed against; or
(b) a settlement is agreed on that involves the payment of an amount by
the party claimed against;
then, whether or not the conduct of that action was taken over by Comcare,
Comcare must, on behalf of that party, pay any damages and costs awarded against
that party in that action or any amount agreed to be paid by that party under
the terms of settlement of that proceeding.
(9) Any payment made by Comcare under subsection (8) is taken to have
been made in satisfaction of the liability of the party claimed against to whom
the payment relates.
(10) If, in an action to which this section applies the conduct of which
has been taken over by Comcare, any amount is payable by way of costs to the
party claimed against, that amount is payable to Comcare.
69 Paragraph 69(ea)
Repeal the paragraph, substitute:
(ea) in respect of actions for non-economic loss—to take over the
conduct of such actions under section 52A on behalf of the Commonwealth,
Commonwealth authorities or employees against whom such actions were
taken;
(eb) to determine the premiums payable by Departments and Commonwealth
authorities in respect of the financial year starting on 1 July 2001 and
each subsequent financial year and, where appropriate, the special premiums
payable by Departments and Commonwealth authorities in respect of either or both
of the financial years starting on 1 July 1999 and on 1 July 2000, and
to collect such premiums and special premiums;
(ec) to apply such premiums and special premiums, together with interest
earned on those premiums, in meeting:
(i) Comcare’s liability under this Act in relation to compensation
in respect of injuries suffered, whether before, on or after 1 July 2001,
by employees of such Departments and authorities; and
(ii) Comcare’s liability under this Act for payment, on behalf of
such Departments, authorities and employees, of damages or costs awarded under,
or of amounts agreed to be paid in settlement of, actions for non-economic loss
in respect of such injuries or for costs in proceedings against third parties;
and
(iii) the cost incurred by Comcare in managing such claims for
compensation and in conducting such actions for non-economic loss and claims
against third parties;
(ed) to determine, under section 97D, the amount of the regulatory
contributions payable by Departments, and by Commonwealth authorities, and to
collect such contributions;
(ee) to collect application and licence fees payable under Part VIII
by Commonwealth authorities and eligible corporations;
(ef) to apply such regulatory contributions and application and licence
fees, together with interest earned on those contributions and fees, in
meeting:
(i) the cost incurred by the Commission and Comcare in carrying out their
respective functions under this Act (other than the function referred to in
paragraph (ec)); and
(ii) the cost incurred by the Commission and Comcare in carrying out their
respective functions under the Occupational Health and Safety (Commonwealth
Employment) Act 1991.
70 Section 90A
Repeal the section.
71 Transitional provision
Despite the repeal of section 90A of the Safety, Rehabilitation and
Compensation Act 1988 as in force immediately before 1 July 2001, that
section as so in force continues to apply, on and after that date, in relation
to any premium collected, or to be collected, by Comcare in respect of a
financial year starting before that date as if that section had not been
repealed.
72 Section 90C
Repeal the section, substitute:
(1) Subject to this section, Comcare must pay, from Comcare-retained
funds, the money required by Comcare:
(a) to enable it to discharge:
(i) any liability in relation to compensation (other than a liability
referred to in paragraph 90B(a)) that was incurred by Comcare or by the previous
Commission under this Act but that has not been discharged before 1 July
2001; and
(ii) any liability in relation to compensation that Comcare incurs under
this Act on or after that date; and
(b) to enable it to pay, on behalf of a Department or Commonwealth
authority:
(i) any damages or costs awarded under, or any amount agreed to be paid in
settlement of, an action for non-economic loss, that Comcare or the previous
Commission was liable to pay but that had not been paid before 1 July 2001;
and
(ii) any damages awarded under, or amount agreed to be paid in settlement
of, an action for non-economic loss, that Comcare becomes liable to pay on and
after that date; and
(c) to meet any administrative expenses incurred by it on or after that
date that are attributable to the performance of its functions in respect of
claims for injury, loss or damage suffered by, or for the death of, an employee
on or after 1 July 1989.
(2) If there is insufficient money in Comcare-retained funds to make a
particular payment under subsection (1), there is payable by the
Commonwealth to Comcare such an amount as is necessary to enable Comcare to make
that payment.
(3) A payment (the relevant payment) is not to be made to
Comcare under subsection (2) if the amount of the relevant payment exceeds
an amount worked out at the time of the payment using the formula:
where:
notional interest means an amount of notional interest, being
the interest at such rates as are from time to time determined by the Minister
responsible for the administration of the Commonwealth Authorities and
Companies Act 1997 that would have accrued, on or after 1 July 1989 and
before the relevant payment is made, in respect of the premiums received if such
interest had been payable to the previous Commission and to Comcare.
premiums received means the total amount of the premiums
paid, or notionally paid, to the Commonwealth in respect of financial years or
parts of financial years starting on 1 July 1989 and ending before
1 July 2001, in accordance with a direction of the Minister under
section 96G of the Safety, Rehabilitation and Compensation Act 1988
as in force from time to time during that period.
previous payments means the total of the amounts paid by the
Commonwealth to the previous Commission or to Comcare for the purposes of the
performance of their functions under this Act before the relevant payment is
made.
(4) For the purpose of the application on, or at any time after,
1 July 2001 of the formula referred to in subsection (3), the Minister
responsible for the administration of the Commonwealth Authorities and
Companies Act 1997 may determine:
(a) the total of the amounts of the premiums paid, or notionally paid, to
the Commonwealth in respect of financial years or parts of financial years
starting on 1 July 1989 and ending before 1 July 2001 that would have
been received at that time; and
(b) the notional interest (within the meaning of that subsection) that
would have accrued to that time; and
(c) the previous payments (within the meaning of that subsection) made
before that time.
(5) In this section:
Comcare-retained funds means so much of the funds from time
to time standing to Comcare’s credit in the bank account maintained in
accordance with section 18 of the Commonwealth Authorities and Companies
Act 1997 as is attributable to:
(a) premiums paid to Comcare by Departments and Commonwealth authorities
in respect of the financial year starting on 1 July 2001 and subsequent
financial years; and
(b) special premiums paid to Comcare by Departments and Commonwealth
authorities in respect of either or both of the financial years starting on
1 July 1999 and 1 July 2000; and
(c) interest earned on the premiums and special premiums referred to in
paragraphs (a) and (b).
73 Saving provisions
(1) Despite the repeal of section 90C of the Safety, Rehabilitation
and Compensation Act 1988 by item 72 of this Schedule, that section as
in force immediately before 1 July 2001 continues to apply, on and after
that date, to enable Comcare to discharge liabilities, and meet administrative
expenses, incurred before 1 July 2001 as if it had not been
repealed.
(2) For the purposes of the continued operation of section 90C of the
Safety, Rehabilitation and Compensation Act 1988 as in force immediately
before 1 July 2001 in accordance with subitem (1), any determination
of notional interest under subsection (2), and any determination under
subsection (3), of that section as continued in force, continue to have
effect as if that section had not been repealed.
(3) For the purposes of the operation of section 90C of the Safety,
Rehabilitation and Compensation Act 1988 as substituted by item 72 of
this Schedule (the substituted section), any determination of
notional interest under subsection (2), and any determination under
subsection (3), of section 90C of that Act as continued in force under
subitem (1), continue to have effect as if they were determinations made
under the substituted section.
74 Paragraph 91(3)(a)
After “its powers”, insert “under this Act and under the
Occupational Health and Safety (Commonwealth Employment) Act
1991”.
75 Division 4A of
Part VII
Repeal the Division, substitute:
Comcare must make a determination, in accordance with guidelines issued
by the Commission under section 97E, of the amount (if any) of premium to
be paid by each Department and by each Commonwealth authority in respect of the
financial year starting on 1 July 2001 and in respect of each later
financial year.
(1) In determining the amount of the premium payable by a Department or
Commonwealth authority in respect of a financial year under section 97,
Comcare must:
(a) have regard to:
(i) the prescribed amount; and
(ii) any penalty amount or bonus amount;
in relation to the Department or authority and that year; and
(b) comply with any guidelines issued by the Commission under
section 97E in relation to the determination of premiums.
(2) In this section:
bonus amount, in relation to a Department or a
Commonwealth authority and a financial year, means the amount (if any)
determined by Comcare to be an appropriate amount to be deducted from the
prescribed amount in relation to the Department of authority and that year,
having regard to:
(a) the number of claims made by, or in relation to, employees of the
Department or authority in each previous financial year; and
(b) the amount of compensation paid to, or in relation to, such employees
under this Act.
penalty amount, in relation to a Department or Commonwealth
authority and a financial year, means the amount if any, determined by Comcare
to be an appropriate amount to be added to the prescribed amount in relation to
the Department or authority and that year, having regard to:
(a) the number of claims made by, or in relation to, employees of the
Department or authority in each previous financial year; and
(b) the amount of compensation paid to, or in relation to, such employees
under this Act.
prescribed amount, in relation to a Department or
Commonwealth authority and a financial year, means the amount worked out in
accordance with subsection (3) in relation to that Department or authority
and that year.
(3) Comcare must work out the prescribed amount, in relation to a
Department or Commonwealth authority and a particular financial year, using the
formula:
where:
estimated liability component, in respect of a Department or
a Commonwealth authority and a financial year, means the estimated amount of
Comcare’s liability (if any) under this Act (including liability under
actions for non-economic loss), in that financial year and in subsequent
financial years, in respect of the number of injuries that Comcare estimates
will be suffered during that financial year:
(a) in the case of a Department or of an authority that does not hold a
licence in force under Part VIII at the commencement of that financial
year—by employees of the Department or authority; and
(b) in the case of an authority that holds such a licence at the
commencement of that financial year—by employees of the authority in
respect of whom the authority is not authorised to accept liability;
being an amount estimated using such methods and having regard to such
matters (if any) as the guidelines under section 97E specify.
estimated management component, in respect of a Department or
a Commonwealth authority and a financial year, means the estimated cost (if any)
to Comcare, in that financial year and in subsequent financial years, of all
claims management (including the cost of taking over the conduct of actions for
non-economic loss) reasonably attributable to the Department or authority,
having regard to the number of injuries that Comcare estimates will be suffered
during that financial year:
(a) in the case of a Department or of an authority that does not hold a
licence under Part VIII at the commencement of that financial year—by
employees of the Department or authority; and
(b) in the case of an authority that holds such a licence at the
commencement of that financial year—by employees of the authority in
respect of whom the authority is not authorised to manage claims;
being a cost estimated using such methods and having regard to such matters
(if any) as the guidelines under section 97E specify.
(1) Comcare must, in respect of each Department and Commonwealth authority
that did not make arrangements for insurance cover in respect of possible
liability under actions for non-economic loss in respect of injuries suffered by
its employees at any time during:
(a) the financial year starting on 1 July 1999; or
(b) the financial year starting on 1 July 2000;
determine, within 12 months after the commencement of this section, a
special premium to be paid by that Department or authority in respect of either,
or both, of those financial years, as the case requires.
(2) The Commission may prepare and issue to the Chief Executive Officer
written guidelines in relation to the determination of the special
premium.
(3) The Commission must not issue guidelines that are inconsistent with
any directions under section 73 of this Act.
(4) Any guidelines that are inconsistent with a direction of the kind
referred to in subsection (3) have no effect to the extent of the
inconsistency.
(5) The provisions of this Division relating to:
(a) notification of the determination of premium; and
(b) the date of effect of a determination of premium and provision for
payment of the premium; and
(c) procedures for review of the premium by Comcare and the Commission;
and
(d) provisions for refund or variation of the premium and for repayments
of any premium excess;
apply, subject to such modifications and adaptations (if any) as the
regulations provide, in relation to the special premium in similar manner as
they apply in relation to a premium paid in respect of the financial year
starting on 1 July 2001 as if:
(e) the special premium were a premium determined under section 97;
and
(f) the financial year, or each financial year, to which a special premium
relates were the financial year starting on that date.
(6) If a special premium is paid to Comcare:
(a) it is to be dealt with in the same manner as if it were a premium paid
in respect of the financial year starting on 1 July 2001; and
(b) it may be applied by Comcare under section 90C to pay, on behalf
of a Department or Commonwealth authority, any damages or costs awarded under,
or any amount agreed to be paid in settlement of, an action for non-economic
loss.
When a Commonwealth authority is liable under section 128A to pay an
amount in respect of an injury, loss or damage suffered by one of its employees,
Comcare, in determining the amount of the premium of the authority for a
financial year, must disregard:
(a) any claim relating to that injury, loss or damage; and
(b) any amount paid by the authority under section 128A in respect of
that injury, loss or damage.
(1) Comcare must make a determination of the amount of the regulatory
contribution to be paid by each Department and by each Commonwealth authority
(other than a Commonwealth authority that holds a licence under Part VIII)
in respect of the financial year starting on 1 July 2001 and in respect of
each later financial year.
(2) For the purposes of subsection (1), the amount of the regulatory
contribution to be paid in respect of a particular financial year:
(a) by a Department; or
(b) by a Commonwealth authority that does not hold a licence in force
under Part VIII at the commencement of that financial year;
is the sum of:
(c) that part of the estimated cost incurred by the Commission and Comcare
in carrying out their respective functions under this Act (other than excluded
functions) that Comcare determines, in accordance with guidelines under
section 97E, to be referrable to that Department or authority;
and
(d) that part of the estimated cost incurred by the Commission and Comcare
in carrying out their respective functions under the Occupational Health and
Safety (Commonwealth Employment) Act 1991 that Comcare determines, in
accordance with those guidelines, to be referrable to that Department or
authority.
(3) For the purposes of subsection (2), excluded
functions, in relation to a Department or Commonwealth authority, means
functions of Comcare under this Act the cost of which would count towards the
estimated management component under subsection 97A(3) in relation to the
Department or authority.
(1) The Commission may prepare and issue to the Chief Executive Officer
written guidelines in relation to the determination by Comcare of premiums to be
paid by Departments and Commonwealth authorities in respect of a financial
year.
(2) The Commission may prepare and issue to the Chief Executive Officer
written guidelines in relation to the determination by Comcare of regulatory
contributions to be paid by Departments and by Commonwealth authorities (other
than Commonwealth authorities that hold a licence under Part VIII) in
respect of a financial year.
(3) The Commission must not issue guidelines that are inconsistent with
any directions under section 73 of this Act.
(4) Any guidelines that are inconsistent with a direction of the kind
referred to in subsection (3) have no effect to the extent of the
inconsistency.
(1) The Secretary of each Department and the principal officer of each
Commonwealth authority must give Comcare, not later than the prescribed day in
2002 and in each later year, a written estimate of the amount to be paid to
employees of the Department or authority, as the case may be, by way of salary,
wages or pay during the next financial year.
(2) The Secretary of a Department, or the principal officer of a
Commonwealth authority, must, on request by Comcare, give Comcare the
information specified in the request, being information needed by Comcare to
enable it:
(a) to determine a premium under section 97; or
(b) to determine a regulatory contribution under
section 97D;
in relation to the Department or authority.
(3) In this section:
prescribed day, in relation to a year, means 30 April in
that year, or if the regulations specify another day for the purposes of this
definition, the day so specified in that year.
(1) Comcare must give a copy of a determination made under section 97
or 97D in relation to a Department to the Secretary of the Department.
(2) Comcare must give a copy of a determination made under section 97
or 97D in relation to a Commonwealth authority to the principal officer of the
Commonwealth authority.
(1) A determination under section 97 or 97D relating to a Department
or Commonwealth authority takes effect 14 days after the day on which the
Department or authority receives a copy of the determination.
(2) The Commission may give directions, in writing, to the Secretary of a
Department or the principal officer of a Commonwealth authority relating to the
payment of the premium or regulatory contribution of the Department or
authority.
(3) The Secretary of a Department or the principal officer of an authority
must comply with any directions given to him or her by the Commission.
(4) The Commission may vary a direction given to the Secretary of a
Department or the principal officer of a Commonwealth authority on the written
request of the Secretary or the principal officer.
(1) The Secretary of the Department, or the principal officer of the
Commonwealth authority, to which a determination under section 97 or 97D
relates may, by written notice of objection, ask Comcare to review the
determination. The notice must be given to Comcare within 14 days after the day
on which the Department or authority received a copy of the
determination.
(2) The notice must set out the grounds of the objection.
(3) As soon as practicable after receiving the notice, Comcare must review
the determination and must decide either:
(a) to confirm the determination; or
(b) to vary the determination in such manner as it thinks fit and confirm
the determination as so varied.
(4) Comcare must give a written notice to the Secretary of the Department,
or the principal officer of the Commonwealth authority of the result of the
review of the determination.
(5) If the Secretary of a Department or the principal officer of a
Commonwealth authority gives notice of objection to a determination of the
premium or regulatory contribution payable by the Department or authority under
subsection (1), the Department or the authority is still obliged to pay the
premium or regulatory contribution in accordance with any directions given under
section 97H.
(1) If:
(a) a determination under section 97 or 97D in relation to a
Department or a Commonwealth authority has been reviewed by Comcare under
section 97J; and
(b) the Secretary of the Department, or the principal officer of the
authority, objects to the determination (or to the determination as varied as a
result of the review);
the Secretary or principal officer may, by written notice of objection
given to the Commission within 14 days after the date of the notice mentioned in
subsection 97J(4), ask the Commission to review the determination, or the
determination as so varied, as the case may be.
(2) The notice must set out the grounds of the objection.
(3) As soon as practicable after receiving the notice, the Commission must
review the determination, or the determination as so varied, and must decide
either:
(a) to confirm the determination; or
(b) to vary the determination in such manner as it thinks fit and confirm
the determination as so varied.
(4) The Commission must give written notice of the result of the review to
the Secretary of the Department, or the principal officer of the Commonwealth
authority.
(1) If:
(a) an amount equal to the premium, or regulatory contribution, of a
Department or Commonwealth authority for a financial year has been paid to
Comcare in accordance with a direction of the Commission; and
(b) the amount of the premium or regulatory contribution is later reduced
as a result of a review under section 97J or 97K;
the Department or authority is entitled to the difference between the
amount so paid and the reduced amount.
(2) The difference must be repaid by Comcare to the Department or
authority concerned.
(3) Interest is payable on the difference, at such rate as is from time to
time specified by the Minister by notice in the Gazette, in respect of
each day of the overpayment period. However, interest is not payable under this
section if it is less than $100.
(4) In this section:
overpayment period means the period beginning on the day on
which a Department’s or authority’s premium or regulatory
contribution in respect of a financial year was paid under section 97H and
ending on the day on which the amount of the difference under
subsection (1) was repaid under subsection (2).
(1) Comcare may, in writing, vary a determination of the amount of a
Department’s or Commonwealth authority’s premium or regulatory
contribution if, and only if:
(a) there is an error in information given to Comcare under
section 97F that affected the determination; or
(b) Comcare has made an error in determining the amount of the premium or
contribution; or
(c) there is a significant change in the number of persons employed by the
Department or authority during the financial year to which the determination
relates; or
(d) there is a significant change in the estimated amount of salary, wages
or pay payable to those persons during that year; or
(e) in the case of a Commonwealth authority:
(i) a licence is, or is to be, granted to the authority; or
(ii) a licence held by the authority is, or is to be, revoked.
(2) Comcare must send a copy of the variation, together with a statement
of the reasons for the variation, to the Secretary of the Department or the
principal officer of the Commonwealth authority.
(3) Sections 97J and 97K apply to a variation of a determination in
the same way they apply to a determination.
(4) If:
(a) an amount equal to the premium or regulatory contribution of a
Department or Commonwealth authority in respect of a financial year has been
paid to Comcare in accordance with a direction of the Commission; and
(b) the amount of the premium or regulatory contribution is later reduced
as a result of a variation under this section;
the Department or authority is entitled to the difference between the
amount so paid and the reduced amount.
(5) The difference must be repaid by Comcare to the Department or
authority concerned.
(6) If Comcare erroneously charges a Department or Commonwealth authority
a premium or regulatory contribution in excess of the premium or contribution
that it should have charged, Comcare must, in addition to repaying the amount of
the excess, also pay the Department or authority interest on the
excess.
(7) Interest on the excess is payable at such rate as is from time to time
specified by the Minister by notice in the Gazette, in respect of each
day after the overpayment and before the excess is repaid. However, interest is
not payable on the excess if it is less than $100.
(1) Comcare must make the payments required under section 97L or 97M
from Comcare-retained funds within the meaning of subsection 90C(5).
(2) If there is insufficient money in Comcare-retained funds to make a
particular payment under subsection (1) there is payable to Comcare, out of
the Consolidated Revenue Fund, which is appropriated accordingly, such an amount
as is necessary to enable Comcare to make that payment.
If an amount of premium or regulatory contribution payable by a
Department or Commonwealth authority is not paid by the Department or
authority:
(a) by 31 July in the financial year to which the premium or
regulatory contribution relates; or
(b) within 30 days after the day on which notice of the determination of
the premium or regulatory contribution is issued;
whichever is the later, interest is payable on the amount, at such rate as
is from time to time specified by the Minister by notice in the Gazette,
in respect of each day on which the amount is not so paid. However, interest is
not payable under this section if it is less than $100.
76 Saving provision—Continuance of
Division 4A in respect of certain premiums
Despite the repeal of Division 4A of Part VII of the
Safety, Rehabilitation and Compensation Act 1988 effected by
item 75 of this Schedule, the provisions of that Division as in force
before 1 July 2001 continue in force on and after that date in relation to
premiums payable by each Department and Commonwealth authority:
(a) in respect of the financial year starting on 1 July 1992;
and
(b) each subsequent financial year starting before 1 July
2001;
as if those provisions had not been repealed.
77 Saving provision—Review by Commission
unaffected by repeal of Division 4A
Without limiting the generality of item 76 of this Schedule, the
Commission may:
(a) if, before 1 July 2001, it had commenced but not completed a
review, under section 96D of the Safety, Rehabilitation and
Compensation Act 1988, of the estimate of a premium determined to be
payable by a Department or Commonwealth authority in respect of a financial year
starting before 1 July 2001—complete that review; or
(b) if, before that date, it had not commenced under that section a review
of such an estimate—undertake that review;
as if the repeal of Division 4A of Part VII of that Act had not
occurred.
78 Saving provision—Review by Minister
unaffected by repeal of Division 4A
(1) Without limiting the generality of item 76 of this Schedule, if,
before 1 July 2001, the Minister had commenced but not completed a review
under section 96F of the Safety, Rehabilitation and Compensation
Act 1988 of:
(a) an estimate of a premium determined to be payable by a Department or
Commonwealth authority in respect of a financial year starting before
1 July 2001; or
(b) that estimate as varied by the Commission as a result of a review
under section 96D of that Act;
the Minister may complete that review as if the repeal of Division 4A
of Part VII of that Act had not occurred.
(2) Without limiting the generality of item 76 of this Schedule, if,
before 1 July 2001, the Minister had not commenced a review under
section 96F of the Safety, Rehabilitation and Compensation Act
1988 of:
(a) an estimate of a premium determined to be payable by a Department or
Commonwealth authority in respect of a financial year starting before
1 July 2001; or
(b) that estimate as varied by the Commission as a result of a review
under section 96D of that Act;
the Minister may undertake that review as if the repeal of Division 4A
of Part VII of that Act had not occurred.
79 Saving provision—Notices, requests and
directions continue to have effect
Any notice, request or direction given or made under, or for the purposes
of, a provision of Division 4A of Part VII of the Safety,
Rehabilitation and Compensation Act 1988 as in force before 1 July 2001
continues to have effect, on and after that date, as a notice, request or
direction given or made under, or for the purposes of, that provision as
continued in force in accordance with item 76 of this Schedule.
80 Validation of certain acts or things done in
relation to actions for non-economic loss
(1) If a contribution or premium was collected under the Safety,
Rehabilitation and Compensation Act 1988 from a Department or a Commonwealth
authority in respect of a financial year starting before 1 July 1999 or in
respect of a part of such a year, then, despite any indication to the contrary
in the provisions of that Act as in force at the time the contribution or
premium was determined or otherwise ascertained, that contribution or premium is
taken to have been determined on the basis that it covered:
(a) liability for compensation payable under that Act; and
(b) liability for any amount payable as a result of an action for
non-economic loss in respect of an injury suffered by an employee during the
period to which the premium related.
(2) Any act or thing that was done (including any payment that was made) by
the Commonwealth, Comcare or the Commission under the Safety, Rehabilitation
and Compensation Act 1988 as in force at any time before the commencement of
this item, in relation to an action for non-economic loss in respect of an
injury suffered by an employee before 1 July 1999, is not invalid simply
because there was no capacity, at the time of the injury, to collect a
contribution or premium to cover liability for amounts payable as a result of
such an action.
(3) Any act or thing that is done (including any payment that is made) by
the Commonwealth, Comcare or the Commission under the Safety, Rehabilitation
and Compensation Act 1988 as in force at any time after the commencement of
this item, in relation to an action for non-economic loss in respect of an
injury suffered by an employee before 1 July 1999, is not invalid simply
because there was no capacity, at the time of the injury, to collect a
contribution or premium to cover liability for amounts payable as a result of
such an action.
(4) In this item:
action for non-economic loss means any action (whether or not
it involves the formal institution of a proceeding) to recover an amount for
damages for non-economic loss sustained by an employee as a result of an injury
suffered by that employee:
(a) that is taken by the employee against the employer, whether it is the
Commonwealth, a Commonwealth authority or a licensed corporation, or against
another employee; and
(b) that follows an election made by the first-mentioned employee under
subsection 45(1).
Part 11—Amendments
consequential on changed administrative law arrangements
81 Subsection 34R(1)
Omit “Appeals”, substitute “Review”.
82 Subsection 34R(2)
Omit “Administrative Appeals Tribunal Act 1975”,
substitute “Act that establishes the Administrative Review
Tribunal”.
83 At the end of
section 34R
Add:
Note: The short title of the Act that establishes the
Administrative Review Tribunal is either the Administrative Review Tribunal
Act 2000 or the Administrative Review Tribunal Act
2001.
84 Subsection 4(1) (at the end of
paragraphs (a) to (f) of the definition of medical
treatment)
Add “or”.
85 Subsection 4(1) (at the end of the definition
of medical treatment)
Add:
; or (i) any other form of treatment that is prescribed for the purposes
of this definition.
86 Subsection 4(1) (at the end of the definition
of rehabilitation authority)
Add:
; and (d) if the employee is a member of the Defence Force—the Chief
of the Defence Force.
87 Subsection 21A(1)
Omit “frrom”, substitute “from”.
88 At the end of
section 41A
Add:
(2) A rehabilitation authority who is the Chief of the Defence Force may,
by written instrument, delegate to an officer or employee of the Commonwealth
any of the powers and functions of the rehabilitation authority under this
Part.
89 Subsection 43(1)
Omit “the person is, or may become, entitled be not paid to”,
substitute “the person is entitled, or may become entitled, not be paid
to”.
90 Section 47
(penalty)
Repeal the penalty, substitute:
Penalty: 5 penalty units.
91 Subsection 48(2)
(penalty)
Repeal the penalty, substitute:
Penalty: 10 penalty units.
92 Paragraph 54(4)(a)
Omit “Secretary to”, substitute “Secretary
of”.
93 Paragraph 89E(1)(fa)
Omit “of the Defence Force” (first occurring).
94 After paragraph
89E(1)(fa)
Insert:
(fb) a member who has been nominated by the Chief Minister for the
Australian Capital Territory and who, in the Minister’s opinion,
represents the interests of the Australian Capital Territory’s public
sector employers;
95 At the end of
section 89R
Add:
(2) Despite paragraph 34AB(b) of the Acts Interpretation Act 1901,
the Chief Executive Officer may, by writing signed by him or her, delegate to
the Deputy Chief Executive Officer or a member of the staff of Comcare any
functions or powers that the Commission delegates to the Chief Executive
Officer.
(3) Despite paragraph 34AB(b) of the Acts Interpretation Act 1901,
a member may, by writing signed by him or her, delegate to the Chief Executive
Officer, the Deputy Chief Executive Officer or a member of the staff of Comcare
any functions or powers that the Commission delegates to the member.
Note: The heading to section 89R is altered by adding
at the end “and sub-delegation”.
96 Subsections 96C(2) and
(3)
Omit “Secretary to” (wherever occurring), substitute
“Secretary of”.
97 Paragraph 96F(1)(b)
Omit “Secretary to”, substitute “Secretary
of”.
98 Subsections 96J(3) and
96K(1)
Omit “Secretary to” (wherever occurring), substitute
“Secretary of”.
99 Subsection 98(2)
Omit “Secretary to”, substitute “Secretary
of”.
100 Subsection 120(3)
Omit “subsection (1)”, substitute
“subsection (2)”.
101 Subsection 120(4)
(penalty)
Repeal the penalty, substitute:
Penalty: 5 penalty units.
102 Section 121
After “119(7)”, insert “, a declaration under subsection
5(12)”.
103 Subparagraph
124(8)(b)(i)
Omit “1930 Act”, substitute “the 1930
Act”.
104 After section 124
Insert:
(1) The Northern Territory must reimburse Comcare for the amount of any
payments of compensation made by Comcare under this Act in relation to a claim
in respect of an injury, loss or damage suffered by a person if:
(a) the person suffered the injury, loss or damage on or after 1 July
1978 and before 1 January 1987; and
(b) the Northern Territory would have been liable to pay compensation in
relation to the claim under section 7A or 7B of the Compensation
(Commonwealth Government Employees) Act 1971, had that Act not been
repealed.
(2) The Northern Territory must reimburse Comcare for the administrative
expenses incurred by Comcare in managing claims referred to in
subsection (1).
105 After subsection 131(2)
Insert:
(2A) If, as a result of an increase in the amount of a former
employee’s normal weekly earnings, the amount of combined benefit payable
to the former employee under subsection (2) is less than 70% of those
increased normal weekly earnings, the amount of compensation must be increased
or further increased (as the case may be) until it is equal to 70% of those
increased normal weekly earnings.
106 After subsection 131(3)
Insert:
(3A) If, as a result of an increase in the amount of a former
employee’s normal weekly earnings, the amount of compensation payable to
the former employee under subsection (3) is less than 70% of those
increased normal weekly earnings, the amount of compensation must be increased
or further increased (as the case may be) until it is equal to 70% of those
increased normal weekly earnings.
107 Subsections 131(5) and (6) and
132(5)
Omit “or (3)”, substitute “, (3) or
(4)”.
Equal Opportunity for
Women in the Workplace Act 1999
1 Subsection 17(1)
Omit “the 3 months”, substitute “the 2
months”.
2 Subsection 32(1)
(penalty)
Repeal the penalty, substitute:
Penalty: 25 penalty units or imprisonment for 3 months, or both.
Income Tax Assessment Act
1936
3 Paragraph 16(4)(g)
Repeal the paragraph, substitute:
(fd) Comcare, established by section 68 of the Safety,
Rehabilitation and Compensation Act 1988, for purposes consistent with the
functions of that body under that Act;
(g) the Safety, Rehabilitation and Compensation Commission, established by
section 89A of the Safety, Rehabilitation and Compensation Act 1988,
for purposes consistent with the functions of that body under that
Act;
National Occupational
Health and Safety Commission Act 1985
4 Section 3 (paragraph (b) of the
definition of nominating authority)
Omit “the Confederation of Australian Industry”, substitute
“the Australian Chamber of Commerce and Industry”.
5 Paragraphs 10(1)(c) and
21(6)(b)
Omit “the Confederation of Australian Industry”, substitute
“the Australian Chamber of Commerce and Industry”.
6 Section 46 (penalty)
Repeal the penalty, substitute:
Penalty: 10 penalty units or imprisonment for 6 months, or both.
7 Subsection 47(1)
(penalty)
Repeal the penalty, substitute:
Penalty: 10 penalty units or imprisonment for 6 months, or both.
8 Section 48 (penalty)
Repeal the penalty, substitute:
Penalty: 20 penalty units or imprisonment for 1 year, or both.
9 Section 49 (penalty)
Repeal the penalty, substitute:
Penalty: 20 penalty units or imprisonment for 1 year, or both.
10 Subsection 62(2)
(penalty)
Repeal the penalty, substitute:
Penalty:
(a) if the offender is a natural person—10 penalty units or
imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—50 penalty units.
11 Subsection 62(3)
(penalty)
Repeal the penalty, substitute:
Penalty:
(a) if the offender is a natural person—20 penalty units or
imprisonment for 1 year, or both; or
(b) if the offender is a body corporate—100 penalty units.
Occupational Health and
Safety (Commonwealth Employment) Act 1991
12 Subsection 67B(5)
After “each subsequent financial year”, insert “before
the financial year starting on 1 July 2001”.