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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil Liability Amendment (Offender
Damages) Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Civil Liability Act 2002 No 22 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Civil Liability Amendment (Offender
Damages) Bill 2005
Act No , 2005
An Act to amend the Civil Liability Act 2002 to make further provision with respect
to claims for damages for negligence for death or injury suffered by offenders in
custody; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Civil Liability Amendment (Offender Damages) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Civil Liability Amendment (Offender Damages)
Act 2005.
2 Commencement
This Act commences on the date of assent to this Act.
3 Amendment of Civil Liability Act 2002 No 22
The Civil Liability Act 2002 is amended as set out in Schedule 1.
Page 2
Civil Liability Amendment (Offender Damages) Bill 2005
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 26A Definitions
Omit "under" from paragraph (e) of the definition of offender in custody or
offender in section 26A (1) where firstly occurring.
Insert instead "under, or attending a place in compliance with the requirements
of,".
[2] Section 26D Assessment of permanent injury
Insert at the end of section 26D (2) (c):
, and
(d) section 330 (Costs of medical assessment) of the 1998 WC
Act were omitted from that Part, and
(e) a reference in that Part to the WorkCover Guidelines were
a reference to guidelines issued under subsection (2A), and
(f) the provisions of that Part applied with such other
modifications as may be prescribed by the regulations.
[3] Section 26D (2A)(2C)
Insert after section 26D (2):
(2A) The Minister administering the CAS Act may, by order published
in the Gazette, issue guidelines for the purposes of the application
of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect
of the same kinds of matters for which the WorkCover
Guidelines may make provision for the purposes of that Part.
Note. The Minister may amend or repeal an order made under this
subsection. See section 43 of the Interpretation Act 1987.
(2B) Without limiting subsection (2A), an order made under that
subsection may apply, adopt or incorporate (whether wholly or in
part or with or without modifications) the provisions of the
WorkCover Guidelines, either as published or as in force from
time to time.
(2C) Sections 40 (Notice of statutory rules to be tabled) and 41
(Disallowance of statutory rules) of the Interpretation Act 1987
apply to an order made under subsection (2A) in the same way as
they apply to a statutory rule.
Page 3
Civil Liability Amendment (Offender Damages) Bill 2005
Schedule 1 Amendments
[4] Section 26D (6)
Insert after section 26D (5):
(6) In this section:
modification includes an addition, omission or substitution.
WorkCover Guidelines has the same meaning as it has in the
1998 WC Act.
[5] Section 26I Non-economic loss damages limited to workers
compensation amount
Omit section 26I (2). Insert instead:
(2) When determining the total amount to which a worker would be
entitled as compensation under a provision of the Workers
Compensation Act 1987:
(a) the amount is to be determined under the provision as it
was in force when the injury to the offender was received,
and
(b) if the provision is section 67 of that Act--the section
applies as if the reference to the Commission in
subsection (4) of that section were a reference to the court.
[6] Section 26J Authority for deduction from damages
Insert after section 26J (3):
(3A) A protected defendant who withholds an amount under
subsection (3) may require the Public Trustee to hold the amount
on its behalf. However, the protected defendant must require the
Public Trustee to hold the amount if the offender requests it.
(3B) Interest is payable on an amount that is withheld under subsection
(3). The amount of interest payable on the withheld amount is:
(a) if the protected defendant has retained the withheld
amount--the amount of interest determined in accordance
with the provisions relating to interest payable under a
judgment of the same amount of a Local Court in
proceedings on a statement of claim under the Local
Courts (Civil Claims) Act 1970, or
(b) if the Public Trustee holds the withheld amount for the
protected defendant--the amount of interest received by
the Public Trustee in respect of the investment of the
amount as provided by the Public Trustee Act 1913.
Page 4
Civil Liability Amendment (Offender Damages) Bill 2005
Amendments Schedule 1
(3C) If the provisional order for restitution on the basis of which an
amount was withheld under subsection (3) is confirmed under the
Victims Support and Rehabilitation Act 1996, any interest
payable on the withheld amount under this section must be paid
as follows:
(a) if the Public Trustee holds the withheld amount for the
protected defendant--the reasonable costs of the Public
Trustee in connection with that holding are to be paid out
of the interest,
(b) if the amount ordered for restitution is not reduced on the
confirmation--all of the interest (or remaining interest
after payment of the Public Trustee's costs) must be paid
to the person (payee) to whom the order for restitution
requires payment to be made or, if there is more than one
payee, to each payee in the same proportion as corresponds
to the payee's proportion of the total amount of restitution,
(c) if the amount ordered for restitution is reduced on the
confirmation:
(i) the offender must be paid the proportion of the
interest (or remaining interest after payment of the
Public Trustee's costs) that corresponds to the
proportion by which the withheld amount was
reduced, and
(ii) the rest of the interest must be paid to the payee or,
if there is more than one payee, to each payee in the
same proportion as corresponds to the payee's
proportion of the reduced amount.
[7] Section 26J (4) and (5)
Insert "or the Public Trustee (as the case may be)" after "protected defendant"
wherever occurring.
[8] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Civil Liability Amendment (Offender Damages) Act 2005
[9] Schedule 1, Part 5
Omit "the date of assent to the Civil Liability Amendment (Offender Damages)
Act 2004" from clause 16 (2) (c).
Insert instead "19 November 2004 (being the day on which Part 2A
commenced)".
Page 5
Civil Liability Amendment (Offender Damages) Bill 2005
Schedule 1 Amendments
[10] Schedule 1, Part 6
Insert after Part 5:
Part 6 Provisions consequent on enactment of
Civil Liability Amendment (Offender
Damages) Act 2005
17 Definitions
In this Part:
amending Act means the Civil Liability Amendment (Offender
Damages) Act 2005.
commencement day means the day on which the amending Act
commences.
18 Application of amendments made by amending Act
(1) Part 2A (as amended by the amending Act) applies to any civil
liability whether arising before, on or after the commencement
day.
(2) Part 2A (as so amended) also extends to proceedings commenced
before the commencement day.
(3) However, subclause (1) or (2) does not operate:
(a) to apply Part 2A in respect of any decision of a court made
before the commencement day, or
(b) to apply Part 2A in relation to any civil liability or
proceedings to which the Part did not apply immediately
before the commencement day.
19 WorkCover Guidelines
(1) A reference to the WorkCover Guidelines in a provision of Part
7 of Chapter 7 of the 1998 WC Act that is extended to an
assessment of degree of permanent impairment for the purposes
of Part 2A of this Act by section 26D is to continue to be read as
a reference to the WorkCover Guidelines until guidelines are
issued under section 26D (2A) (as inserted by the amending Act).
(2) Subclause (1) applies despite section 26D (2) (e) (as inserted by
Schedule 1 [2] to the amending Act).
Page 6
Civil Liability Amendment (Offender Damages) Bill 2005
Amendments Schedule 1
(3) In this clause, 1998 WC Act and WorkCover Guidelines have the
same meanings as they have in section 26D (as amended by the
amending Act).
Page 7
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