Commonwealth Numbered Acts

SOCIAL SERVICES AMENDMENT ACT 1979 No. 121, 1979 - SECT 39

39. (1) Section 115 of the Principal Act is repealed and the following
Division substituted:

''Division 3A-Payment by way of Compensation in relation to Sickness Benefit
Interpretation
''115. (1) In this Division, 'sickness benefit' includes a supplementary
allowance.

''(2) In this Division-

   (a)  a reference to a payment by way of compensation shall be read as a
        reference to-

        (i)    a payment by way of damages;

        (ii)   a payment under a scheme of insurance or compensation provided
               for by a law of a State or Territory, including a payment under
               a contract entered into in pursuance of such a scheme;

        (iii)  a payment, whether with or without admission of liability, in
               settlement of a claim for damages or of a claim under a scheme
               referred to in sub-paragraph (ii);or

        (iv)   any other payment that, in the opinion of the Director-General,
               is a payment in the nature of compensation or damages, other
               than a payment for which the person who has received, is
               receiving or is qualified or entitled to receive the payment
               has made contributions; and

   (b)  a reference to a receipt by a person of a payment by way of
        compensation shall be read as including a reference to the receipt by
        another person, on behalf of, or at the direction of, that
        first-mentioned person, of a payment by way of compensation. Receipt
        by beneficiary of compensation
''115A. (1) Where a person who is, or has been, in receipt of a sickness
benefit in respect of an incapacity receives a payment that is, in whole or in
part, a payment by way of compensation in respect of that incapacity, being-

   (a)  a payment by way of a lump sum;

   (b)  a payment that is the first payment, or the first payment after
        receipt of sickness benefit, forming part of a series of periodical
        payments; or

   (c)  where the person has given a notification under this sub-section of
        his receipt of a payment forming part of a series of periodical
        payments-a payment that is the first payment after the giving of that
        notification that is at a higher rate than the rate of the payment so
        notified, the person shall, within 7 days after receipt of that
        payment, notify a Registrar, in writing, accordingly.

Penalty: $100.

''(2) Where-

   (a)  a person has notified a Registrar under sub-section (1) of the receipt
        of a payment by way of compensation; or

   (b)  the Director-General has otherwise become aware of the receipt by a
        person of such a payment, the Director-General may, by notice in
        writing served on the person, require the person to furnish to
        the Director-General, in writing, such further information with
        respect to the payment as is specified in the notice.

''(3) A notice under sub-section (2) shall specify the period within which the
requirement in the notice is to be complied with and, if that requirement is
not complied with to the satisfaction of the Director-General within that
period, the Director-General may suspend payment of the sickness benefit
concerned. Refusal of claim, &c.
''115B. (1) Where the Director-General is of the opinion that a payment
(whether a payment forming part of a series of periodical payments or a
payment by way of a lump sum) received by a person who is qualified to receive
a sickness benefit in respect of an incapacity is a payment that is, in whole
or in part, a payment by way of compensation in respect of that incapacity,
the Director-General, having regard to the amount of that payment or, in the
case of a series of periodical payments, the amounts of those payments
(including future payments), or such part of that payment or of those payments
as, in the opinion of the Director-General, relates to that incapacity, may-

   (a)  where a claim by the person for sickness benefit in respect of that
        incapacity has been received but not determined-refuse to grant that
        claim or grant that claim but direct that the rate of sickness benefit
        payable be such rate as is fixed in the direction, not being a rate
        greater than the rate that would otherwise be payable in accordance
        with this Part; or

   (b)  in any other case-

        (i)    cancel the sickness benefit payable to the person in respect of
               that incapacity; or

        (ii)   direct that the rate of the sickness benefit payable to the
               person in respect of that incapacity be such rate as is fixed
               in the direction, not being a rate greater than the rate that
               would otherwise be payable in accordance with this Part.

''(2) A direction under sub-section (1) may specify a date on which the
direction is to cease to operate.

''(3) Where the Director-General is of the opinion that a payment by way of a
lump sum received by a person who is, or has been, in receipt of sickness
benefit in respect of an incapacity (whether the payment was received before,
during or after the close of the period of receipt of sickness benefit) is a
payment that is, in whole or in part, a payment by way of compensation in
respect of that incapacity, the Director-General may, by notice in writing
served by post on the person, direct the person to pay to the Commonwealth an
amount specified in the notice, being an amount equal to-

   (a)  the whole or a specified part of the amount of the sickness benefit
        received by the person in respect of that incapacity; or

   (b)  the amount of the lump-sum payment or such part of that amount as, in
        the opinion of the Director-General, relates to that incapacity,
        whichever is the lesser amount.

''(4) Where the rate of a sickness benefit is a rate fixed in a direction
under sub-section (1) having regard to the receipt of a payment by way of
compensation, that payment shall not, for the purposes of section 114, be
regarded as income. Recovery of sickness benefit from person liable to make a
payment by way of compensation
''115C. (1) Where it appears to the Director-General that a person is, or may
be, liable to make a payment by way of compensation in respect of the
incapacity of another person who is, or was, qualified to receive a sickness
benefit in respect of that incapacity, the Director-General may, by notice in
writing served by post on the first-mentioned person, inform him that the
Director-General, on behalf of the Commonwealth, proposes to, or may wish to,
recover from him an amount equal to the whole or some part of the amount of
sickness benefit paid to the other person in respect of that incapacity.

''(2) Where a person on whom a notice under sub-section (1) has been served
is, or becomes, liable (whether by reason of a judgment of a court or by
reason of an agreement in settlement of a claim) to make a payment by way of
compensation in respect of the incapacity to which the notice relates, the
Director-General, on behalf of the Commonwealth, may, either in that notice or
in a subsequent notice served by post on the person, specify the amount that
the Director-General, on behalf of the Commonwealth, proposes to recover from
him, being an amount not exceeding the sickness benefit paid in respect of
that incapacity.

''(3) Where a person who is served with a notice under sub-section (1) (not
being a notice that specifies the amount that the Director-General, on behalf
of the Commonwealth, proposes to recover from him), is, or becomes, liable
(whether by reason of a judgment of a court or by reason of an agreement in
settlement of a claim) to make a payment by way of compensation in respect of
the incapacity to which the notice relates, the person shall, within 7 days
after becoming so liable or after being served with the notice under
sub-section (1), whichever last occurs, notify a Registrar, in writing,
accordingly.

Penalty: $100.

''(4) Subject to sub-section (10), a person who is served with a notice under
sub-section (1) shall not, after the service of that notice, make any payment
that is, in whole or in part, a payment by way of compensation in respect of
the incapacity to which the notice relates and, if a payment being a lump-sum
payment, is paid by the person in contravention of this sub-section, the
payment, shall, for the purposes of paragraph (c) of sub-section (5) be
disregarded in ascertaining the amount of the payment that the person is
liable to make.

''(5) Where-

   (a)  a person is served with a notice under sub-section (1);

   (b)  an amount is specified in that notice, or in a subsequent notice
        served on the person under sub-section (2), as the amount that
        the Director-General, on behalf of the Commonwealth, proposes to
        recover from the person; and

   (c)  the person is liable to make (whether by reason of a judgment of a
        court or by reason of an agreement in settlement of a claim) a payment
        by way of a lump sum that, in the opinion of the Director-General, is
        a payment that is, in whole or in part, a payment by way of
        compensation in respect of the incapacity to which the notice, or the
        subsequent notice, relates, the person is liable to pay to the
        Commonwealth-

   (d)  the amount specified in the notice or in the subsequent notice; or

   (e)  an amount equal to the amount of the payment referred to in paragraph
        (c) or such part of that payment as, in the opinion of
        the Director-General, relates to that incapacity, whichever is the
        lesser amount.

''(6) Where-

   (a)  a person is served with a notice under sub-section (1);

   (b)  an amount is specified in that notice, or in a subsequent notice
        served on the person under sub-section (2), as the amount that
        the Director-General, on behalf of the Commonwealth, proposes to
        recover from the person; and

   (c)  the person is liable to make (whether by reason of a judgment of a
        court or by reason of an agreement in settlement of a claim)
        periodical payments that, in the opinion of the Director-General, are
        payments that are, in whole or in part, payments by way of
        compensation in respect of the incapacity to which the notice, or the
        subsequent notice, relates, the person is liable to pay to the
        Commonwealth amounts ascertained in accordance with sub-section (7).

''(7) Subject to sub-section (8), the amounts that a person is liable to pay
to the Commonwealth under sub-section (6) are amounts equal to-

   (a)  the amounts of the periodical payments that the person is required to
        pay in satisfaction of his liability referred to in paragraph (c) of
        sub-section (6), as those amounts fall due;

   (b)  such part of each of the amounts referred to in paragraph (a) as, in
        the opinion of the Director-General, relates to the incapacity
        referred to in paragraph (c) of sub-section (6); or

   (c)  such part of each of the amounts referred to in paragraph (a), or of
        that part of each of those amounts referred to in paragraph (b), as
        the Director-General specifies, and, in addition, where the person has
        paid an amount, or amounts, in contravention of sub-section (4) in
        settlement of his liability referred to in paragraph (c) of
        sub-section (6), an amount equal to-

   (d)  the amount, or the aggregate of the amounts, so paid; or

   (e)  such part of the amount, or amounts, referred to in paragraph (d) as,
        in the opinion of the Director-General, relates to the incapacity
        referred to in paragraph (c) of sub-section (6).

''(8) The liability of a person to make payments to the Commonwealth under
sub-section (6) ceases when the aggregate of the payments so made equals the
amount referred to in paragraph (b) of sub-section (6).

''(9) Payment to the Commonwealth of an amount that a person is liable to pay
under sub-section (5) or (6) shall, to the extent of the payment, operate as a
discharge to the person as against the person entitled to receive compensation
in respect of the incapacity concerned.

''(10) Where, by reason of the payment to the Commonwealth by a person of an
amount that the person is liable to pay under sub-section (5) or (6) or for
any other reason, the Director-General is satisfied that sub-section (4)
should no longer apply in relation to the person in respect of a particular
incapacity, the Director-General shall inform the person, in writing,
accordingly. Notice to insurer
''115D. (1) Where-

   (a)  the Director-General has served a notice on a person (in this section
        referred to as 'the client') under sub-section (1) of section 115C;
        and

   (b)  an insurer, under a contract of insurance, is, or may be, liable to
        indemnify the client, in whole or in part, against the liability, or
        the possible liability, to make a payment by way of compensation in
        respect of the incapacity to which the notice relates,
        the Director-General may, by notice in writing served by post on the
        insurer, inform him of the service of the notice on the client.

''(2) A notice served on an insurer under sub-section (1) shall be accompanied
by a copy of the relevant notice served on the client.

''(3) Where a notice has been served on an insurer under sub-section (1),
the Director-General shall furnish to the insurer a copy of any subsequent
notice served on the client concerned under sub-section (2) of section 115C.

''(4) Subject to sub-section (7), an insurer who is served with a notice under
sub-section (1) shall not, after the service of that notice, make any payment
that is, in whole or in part, a payment under the contract of insurance with
the client concerned in respect of the incapacity to which the notice served
on the client under section 115C relates and, if a payment is made by the
insurer in contravention of this sub-section, the payment shall, for the
purposes of paragraph (d) of sub-section (5), be disregarded in ascertaining
the amount that the insurer is liable to pay to the client.

''(5) Where-

   (a)  an insurer is served with a notice under sub-section (1); and

   (b)  an amount is, or becomes, payable to the Commonwealth by the client
        concerned under sub-section (5) or (6) of section 115C by reason of
        the service on the client of a notice under sub-section (1) or (2) of
        section 115C, the insurer is liable to pay to the Commonwealth an
        amount equal to-

   (c)  the amount so payable by the client to the Commonwealth; or

   (d)  the amount that the insurer is liable to pay to the client to
        indemnify the client against the liability to make a payment by way of
        compensation in respect of the incapacity to which the notice served
        on the client under section 115C relates, whichever is the lesser
        amount.

''(6) Payment of an amount that an insurer is liable to pay to the
Commonwealth under sub-section (5)-

   (a)  shall, to the extent of the payment, operate as a discharge to the
        insurer as against the client concerned; and

   (b)  shall, for the purposes of section 115C, be deemed to be a payment, on
        behalf of the client, in discharge, either wholly or partly, of the
        liability of the client under sub-section (5) or (6) of section 115C
        by reason of the service on the client under section 115C of the
        notice a copy of which was furnished to the insurer.

''(7) Where, by reason of the payment to the Commonwealth by an insurer of an
amount that it is liable to pay under sub-section (5) or for any other reason,
the Director-General is satisfied that sub-section (4) should no longer apply
in relation to the insurer in respect of a particular incapacity,
the Director-General shall inform the insurer, in writing, accordingly.
Director-General may disregard payment by way of compensation in whole or in
part
''115E. For the purposes of this Division, the Director-General may disregard
the whole or a part of a payment by way of compensation in respect of an
incapacity if the Director-General considers that, in the special
circumstances of the case, it is appropriate to do so, and he shall disregard
the whole or a part of a payment by way of compensation in respect of an
incapacity if he is of the opinion that the whole or the part of that payment
represents expenses incurred for medical or hospital treatment in connection
with the incapacity. Recovery in court of competent jurisdiction
''115F The Commonwealth may recover in a court of competent jurisdiction an
amount-

   (a)  that a person is required to pay to it in accordance with a direction
        under sub-section (3) of section 115B;

   (b)  that a person is liable to pay to it under sub-section (5) of section
        115C;

   (c)  that a person is liable to pay to it under sub-section (6) of section
        115C; or

   (d)  that an insurer is liable to pay to it under sub-section (5) of
        section 115D, but the Commonwealth is not entitled to recover amounts
        payable to it under this Division in respect of the same incapacity
        that, in the aggregate, exceed the amount of the sickness benefit paid
        by the Commonwealth in respect of the incapacity. Evidence
''115G. For the purposes of this Division, a statement in writing purporting
to be signed by a person who holds an office specified in sub-section (1) of
section 143-

   (a)  that a specified person has, on, or as at, a specified date, received
        a specified amount of sickness benefit in respect of a specified
        incapacity;

   (b)  that no notice under sub-section (1) of section 115A has been received
        by any Registrar from a specified person in respect of a specified
        payment by way of compensation;

   (c)  that no notice under sub-section (3) of section 115C has been received
        by any Registrar from a specified person in respect of any liability
        to make a payment by way of compensation in respect of a specified
        incapacity of a specified person;

   (d)  that the Director-General has not, under sub-section (10) of section
        115C, informed a specified person that sub-section (4) of that section
        no longer applies in relation to that person in respect of a specified
        incapacity;

   (e)  that the Director-General has not, under sub-section (7) of section
        115D, informed a specified insurer that sub-section (4) of that
        section no longer applies in relation to that insurer in respect of a
        specified incapacity; or

   (f)  that no amount, or no amount (other than a specified amount or
        specified amounts), payable to the Commonwealth under this Division in
        respect of a specified incapacity has been recovered by the
        Commonwealth, shall be received in all courts as prima facie evidence
        of the facts so stated. Division to bind Crown
''115H. This Division binds the Crown in right of the Commonwealth, of each of
the States and of the Northern Territory.''.

(2) The Division set out in sub-section (1) applies to, and in relation to,
any payments by way of compensation made after the commencement of this
section.

(3) Notwithstanding the amendment made by sub-section (1), section 115 of the
Principal Act continues to apply to, and in relation to-

   (a)  any sickness benefit that was, immediately before the commencement of
        this section, payable at a reduced rate by virtue of sub-section (1)
        of that section; and

   (b)  any liability of a person to pay an amount to the Director-General
        under sub-section (4), or in accordance with a notice under
        sub-section (5) or (6), of that section that accrued before the
        commencement of this section.