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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Workers Compensation Amendment
(Insurance Reform) Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Workers Compensation Act 1987 No 70 2
4 Amendment of other Acts 2
Schedule 1 Principal amendments to Workers Compensation Act 1987
relating to insurance 3
Schedule 2 Miscellaneous and consequential amendments to Workers
Compensation Act 1987 12
Schedule 3 Amendment of other Acts 28
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, , 2003
New South Wales
Workers Compensation Amendment
(Insurance Reform) Bill 2003
Act No , 2003
An Act to amend the Workers Compensation Act 1987 to reform the legislative
framework for workers compensation insurance; to make miscellaneous and
consequential amendments to that Act, the Workplace Injury Management and
Workers Compensation Act 1998 and certain other Acts; 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 Workers Compensation Amendment (Insurance Reform) Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Workers Compensation Amendment (Insurance
Reform) Act 2003.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation.
(2) A proclamation under this section may appoint a particular time on
a day as the time for commencement on that day.
3 Amendment of Workers Compensation Act 1987 No 70
The Workers Compensation Act 1987 is amended as set out in
Schedules 1 and 2.
4 Amendment of other Acts
Each Act specified in Schedule 3 is amended as set out in that
Schedule.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Principal amendments to Workers Compensation Act 1987 relating to Schedule 1
insurance
Schedule 1 Principal amendments to Workers
Compensation Act 1987 relating to
insurance
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
agency arrangement means the contract or other arrangement
by which a scheme agent is appointed.
Insurance Fund means the Workers Compensation
Insurance Fund established under section 154D.
Nominal Insurer means the Workers Compensation Nominal
Insurer referred to in section 154A.
scheme agent means a person appointed under section 154G
to act as agent for the Nominal Insurer in connection with the
exercise of any of the functions of the Nominal Insurer.
[2] Part 7, Division 1A
Insert before Division 1:
Division 1A Provisions relating to Nominal Insurer,
Insurance Fund and scheme agents
Subdivision 1 Nominal Insurer
154A Establishment of Nominal Insurer
(1) There is established by this Act a Workers Compensation
Nominal Insurer.
(2) The Nominal Insurer:
(a) is a legal entity, and
(b) may take proceedings and be proceeded against in the
name of the Workers Compensation Nominal Insurer,
and
(c) may, for the purpose of enabling it to exercise its
functions, purchase, exchange, take on lease, hold,
dispose of and otherwise deal with property, and
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Schedule 1 Principal amendments to Workers Compensation Act 1987 relating to
insurance
(d) may do and suffer all other things that persons may, by
law, do and suffer and that are necessary for, or
incidental to, the exercise of its functions.
(3) The Nominal Insurer is not and does not represent the State or
any authority of the State.
154B Functions of Nominal Insurer
(1) The Nominal Insurer is taken to be a licensed insurer as if it
were the holder of a licence in force under Division 3 of Part
7 and as if that licence were not subject to any conditions.
(2) The Nominal Insurer has such functions as may be necessary
or convenient for enabling the Nominal Insurer to function
and operate to the fullest extent as a licensed insurer.
(3) Without limiting subsection (2), the Nominal Insurer may
issue directions to any employer with respect to the insurance
arrangements of the employer.
(4) The Nominal Insurer has such other functions as may be
conferred or imposed on the Nominal Insurer by or under this
or any other Act or law or by the regulations.
(5) The liabilities of the Nominal Insurer as insurer under a policy
of insurance can only be satisfied from the Insurance Fund
and are not liabilities of the State, the Authority or any
authority of the State.
154C Authority to act for Nominal Insurer
(1) The Authority acts for the Nominal Insurer and anything done
or omitted to be done by the Authority on behalf of or in the
name of the Nominal Insurer is taken to have been done or
omitted by the Nominal Insurer.
(2) In acting for the Nominal Insurer, the Authority has and may
exercise all the functions of the Authority under this Act, the
1998 Act or any other Act or law.
(3) A liability incurred by the Authority when acting for the
Nominal Insurer is a liability of the Nominal Insurer and not
a liability of the Authority or the State.
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(4) To remove doubt, it is declared that the provisions of Division
2A of Part 3 of the Public Finance and Audit Act 1983 extend
to authorise a performance audit by the Auditor-General
under that Division in respect of any activities of the
Authority when acting for the Nominal Insurer.
Subdivision 2 Insurance Fund
154D Establishment and operation of Insurance Fund
(1) There is established a fund to be known as the "Workers
Compensation Insurance Fund".
(2) The assets of the Insurance Fund are subject to a statutory
trust to be held on trust for the purposes to which assets of the
Insurance Fund are authorised or required to be applied by or
under this Act and for the benefit of workers and employers
as provided by this Act.
(3) The Nominal Insurer is responsible for managing the
operation of the Insurance Fund, including the investment of
the assets of the Insurance Fund. The assets of the Insurance
Fund may be invested in such manner as the Nominal Insurer
thinks fit.
(4) Employers are entitled to participate in the distribution of any
surplus in the Insurance Fund, and are responsible for meeting
any deficit in the Insurance Fund, by means of the fixing of
premiums, levies and contributions as provided by this Act.
(5) The assets of the Insurance Fund cannot be applied for the
purpose of enabling any payment as a dividend to the credit of
the Consolidated Fund, whether by virtue of a direction of the
Minister under this Act or the 1998 Act or pursuant to a
requirement under section 59B of the Public Finance and
Audit Act 1983, or otherwise.
(6) For the purposes of this Act and any other Act or law, each of
the State, the Nominal Insurer, the Authority and any
authority of the State:
(a) has no beneficial interest in or entitlement to the assets
of the Insurance Fund, and
(b) has no liability to meet any deficit in the Insurance Fund
and no entitlement to any surplus in the Insurance Fund,
and
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Schedule 1 Principal amendments to Workers Compensation Act 1987 relating to
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(c) is not trustee of the Insurance Fund.
(7) The regulations may make provision for or with respect to the
manner in which the financial statements of, or relating to, the
Insurance Fund are to be prepared.
154E Assets of Insurance Fund
(1) The following amounts are to be paid to, and become the
assets of, the Insurance Fund:
(a) premiums received by the Nominal Insurer for policies
of insurance issued under this Act,
(b) other amounts paid to the Nominal Insurer in
connection with any such policy of insurance,
including:
(i) any amount paid by the Authority under section
175, and
(ii) any late payment fee paid by an employer for the
late payment of a premium, and
(iii) any amount repaid by an employer pursuant to
section 160, and
(iv) any money recovered under section 151Z (or
under section 64 of the former Act), and
(v) any money recovered under a re-insurance
contract or arrangement,
(c) income (including realised and unrealised capital gains)
arising from the investment of the assets of the
Insurance Fund,
(d) any other money authorised to be paid into the
Insurance Fund by or under this Act or the regulations.
(2) The assets of the Insurance Fund may be applied for the
following purposes only:
(a) meeting claims under policies of insurance issued (or
taken to have been issued) by the Nominal Insurer,
(b) the payment of direct expenses associated with any
such claims (not being expenses of a class excluded by
the regulations from this paragraph),
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Principal amendments to Workers Compensation Act 1987 relating to Schedule 1
insurance
(c) the payment to the Authority or to persons employed by
or acting for the Authority of management expenses
relating to the Insurance Fund (not exceeding such
amount as the Minister may from time to time
determine),
(d) the provision of rebates or refunds (including interest)
to employers by the Nominal Insurer for overpayment
of premiums for policies of insurance issued (or taken
to have been issued) by the Nominal Insurer or for any
other reason that the Nominal Insurer considers
appropriate,
(e) the payments required for any contract or arrangement
for re-insurance in respect of liabilities under policies of
insurance issued (or taken to have been issued) by the
Nominal Insurer,
(f) meeting the costs of any actuarial investigation of the
Insurance Fund,
(g) meeting the costs of any management, consultancy or
auditing fees incurred in connection with the exercise of
the functions of the Nominal Insurer,
(h) the payment by the Nominal Insurer of contributions
under this Act to the Guarantee Fund, the WorkCover
Authority Fund or the Terrorism Re-insurance Fund as
referred to in section 239AE,
(i) the payments authorised or required to be made by the
Nominal Insurer to scheme agents under their agency
arrangements,
(j) exercising any other functions of the Nominal Insurer,
(k) making any other payment authorised by or under this
Act or the regulations.
154F Auditing of Insurance Fund
(1) The Auditor-General is to inspect and audit the accounts and
records of financial transactions of or relating to the Insurance
Fund at least once during each financial year.
(2) The Auditor-General is to report to the Minister as to the
result of any such inspection and audit and as to such
irregularities or other matters as in the judgment of the
Auditor-General call for special notice.
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(3) The Auditor-General is to include a reference to any audit
conducted under this section in the report referred to in
section 52 (1) of the Public Finance and Audit Act 1983 or in
any special report that the Auditor-General may at any time
think fit to make under section 52 (3) of that Act.
(4) The Nominal Insurer must pay to the Auditor-General out of
the Insurance Fund such amounts, at such times, as the
Minister decides towards defraying the costs and expenses of
any inspection and audit under this section.
Note. The Auditor-General has powers under section 36 of the Public
Finance and Audit Act 1983 in respect of an inspection and audit under
this section.
Subdivision 3 Scheme agents
154G Agents of Nominal Insurer
(1) The Nominal Insurer may enter into arrangements (agency
arrangements) by contract or otherwise for the appointment
of persons to act as agent (a scheme agent) for the Nominal
Insurer in connection with the exercise of any functions of the
Nominal Insurer.
(2) A scheme agent is, in the exercise of functions under an
agency arrangement, subject to the direction and control of
the Nominal Insurer as provided by the terms of the agency
arrangement.
(3) A person incurs no personal liability for or in connection with
a liability incurred by the person as agent for the Nominal
Insurer in the exercise of functions in good faith with due care
and skill and within the scope of the agent's actual authority
to act.
(4) This section does not limit the power of the Authority to act
for the Nominal Insurer.
154H Authority's functions not limited by agency arrangement
Nothing in an agency arrangement limits or otherwise affects
the exercise by the Authority of any function of the Authority
with respect to licensed insurers or scheme agents.
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154I Authority's functions extended to scheme agents
Subject to this Act, any function conferred on the Authority
with respect to licensed insurers (or insurers generally) by or
under a provision of this Act, the 1998 Act or the regulations
under either Act may be exercised in relation to scheme
agents, and for that purpose:
(a) a reference to a licensed insurer or insurer in a provision
conferring such a function is to be read as including a
reference to a scheme agent, and
(b) a reference to the conditions of a licence of a licensed
insurer is to be read as including a reference to the
conditions of a scheme agent's agency arrangement
with the Nominal Insurer.
154J Refusal of insurance by scheme agents
(1) A scheme agent who is authorised to issue policies of
insurance on behalf of the Nominal Insurer must not refuse to
issue a policy of insurance to any employer or to renew a
policy of insurance issued to an employer, except with the
consent of the Nominal Insurer or as required or permitted by
an express provision of the agency arrangement.
Maximum penalty: 1,000 penalty units.
(2) The WorkCover Guidelines under the 1998 Act may provide
for the circumstances in which the consent of the Nominal
Insurer as referred to in subsection (1) may be given.
154K Ownership of records
(1) Subject to the regulations, all records and other documents
made and kept, or received and kept, by a scheme agent in the
exercise of functions on behalf of the Nominal Insurer are the
property of the Nominal Insurer.
(2) The Nominal Insurer may give directions to a scheme agent
with respect to possession, custody and control of, and the
granting of access to, those records and other documents.
(3) A scheme agent must comply with any such directions given
by the Nominal Insurer to the scheme agent.
Maximum penalty: 1,000 penalty units.
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(4) A reference in this section to a scheme agent includes a
reference to a person who was formerly (but is no longer) a
scheme agent.
154L Remuneration of scheme agents
(1) A scheme agent is entitled to payment by the Nominal Insurer
of remuneration (whether as fees, commission or otherwise)
as provided by or under the relevant agency arrangement.
(2) The remuneration of scheme agents is payable by the
Nominal Insurer out of the Insurance Fund.
154M Certain provisions extended to scheme agents
(1) A reference in section 163, 164 or 169 to a licensed insurer or
insurer includes, in the application of the section to any matter
concerning the Nominal Insurer, a reference to a scheme
agent acting on behalf of the Nominal Insurer in connection
with that matter.
(2) Except as may otherwise be provided by the regulations, a
reference in any of the following provisions of the 1998 Act
to a licensed insurer or insurer includes, in the application of
the provision to any matter concerning the Nominal Insurer, a
reference to a scheme agent acting on behalf of the Nominal
Insurer in connection with that matter:
Sections 43, 45, 47, 50, 52, 5659, 65, 66, 69, 7175, 76, 107,
108, 113, 117, 118, 126, 136, 141, 232, 235A, 235B, 238,
260, 261, 264, 266272, 274276, 279, 280, 281, 282, 284,
287, 291, 295, 301, 308, 330, 337, 345 and 356.
154N Regulations
(1) The regulations may make provision for or with respect to the
following:
(a) requiring the making and keeping of records by scheme
agents and the giving of access to those records by
scheme agents,
(b) the obligations of scheme agents with respect to
confidentiality and disclosure of information (including
personal information),
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(c) the ownership, custody and control of records and other
documents made and kept, or received and kept, by
scheme agents.
(2) The regulations may create offences, punishable by a penalty
not exceeding 200 penalty units, for a contravention by a
person of an obligation imposed on the person by or under an
agency arrangement.
(3) A reference in this section to a scheme agent includes a
reference to a person who was formerly (but is no longer) a
scheme agent.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 2 Miscellaneous and consequential amendments to Workers Compensation
Act 1987
Schedule 2 Miscellaneous and consequential
amendments to Workers Compensation
Act 1987
(Section 3)
[1] Section 3 Definitions
Omit the definitions of actuarial investigation, Contribution Fund,
Premiums Adjustment Fund, private insurance start time and statutory
fund from section 3 (1).
[2] Section 7A Application of Act in respect of coal industry
Omit section 7A (2) (c). Insert instead:
(c) Divisions 1A, 25, 6A and 7 of Part 7.
[3] Section 17 Loss of hearing--special provisions
Omit section 17 (1) (f). Insert instead:
(f) where the Commission is satisfied that a contribution
required to be made under paragraph (d) cannot be
recovered by an employer referred to in paragraph (c),
the Commission may direct the Nominal Insurer to pay
to that employer out of the Insurance Fund such
amount, not exceeding the amount of the contribution,
as the Commission considers appropriate and the
Nominal Insurer is to pay out that amount accordingly
as if it were a payment made in respect of a claim under
Division 6 of Part 4,
[4] Section 22 Compensation to be apportioned where more than one
injury
Omit section 22 (2) (c). Insert instead:
(c) a liability in respect of a claim under Division 6 of Part
4, and
[5] Section 22A Further provisions concerning apportionment of
liability under section 22
Omit "under the Uninsured Liability and Indemnity Scheme" from section
22A (7).
Insert instead "in respect of a claim under Division 6 of Part 4".
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Miscellaneous and consequential amendments to Workers Compensation Schedule 2
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[6] Part 4, heading
Omit "Compensation--claims and proceedings".
Insert instead "Uninsured liabilities".
[7] Part 4, Division 6, heading
Omit "Uninsured Liability and Indemnity Scheme".
Insert instead "Uninsured liabilities".
[8] Section 138 Definitions
Omit the definition of Scheme.
[9] Sections 139, 141A, 143, 144 and 144A
Omit the sections.
[10] Section 140 Persons eligible to make claims
Omit "under the Scheme may be made as provided by this section" from
section 140 (1).
Insert instead "under this Division may be made against the Nominal
Insurer".
[11] Section 140 (2A)
Omit "and payment cannot be made under the Scheme".
Insert instead "under this Division".
[12] Sections 140 (3), 141 (1) and (4), 142, 145, 145A (2) and (3), 146 (2)
and (6), 147 (3), 148 (1) (Application of other provisions of Act) and
148A (Nominal Insurer's right of subrogation)
Omit "Authority" wherever occurring. Insert instead "Nominal Insurer".
[13] Section 140 (3)
Omit "under subsection (2)". Insert instead "under this Division".
[14] Sections 140 (4) and (5) (a), 141 (1) and (2) (b) and 142 (1) and (3)
Omit "the Scheme" wherever occurring. Insert instead "this Division".
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[15] Section 141 Making of claims
Omit "Authority" from section 141 (2) where firstly and thirdly occurring.
Insert instead "Nominal Insurer".
[16] Sections 142 (2) (a) and 145 (1) and (2)
Omit "WorkCover Authority Fund" wherever occurring.
Insert instead "Insurance Fund".
[17] Section 142 (4)
Insert after section 142 (3):
(4) For the purposes of subsection (3), licensed insurer means a
specialised insurer or self-insurer.
[18] Sections 142A and 142B
Insert after section 142:
142A Nominal Insurer becomes insurer for claims
(1) Subject to this section and the regulations, the provisions of
this Act and the 1998 Act apply to and in respect of a claim
under this Division as if the Nominal Insurer were the insurer
under this Act of the relevant employer at the relevant time.
(2) The regulations may prescribe modifications to the provisions
of this Act and the 1998 Act for the purposes of their
application under this section to and in respect of a claim
under this Division.
(3) A claim under this Division for work injury damages cannot
be made until a claim under this Division for lump sum
compensation in respect of the injury has been made and
determined.
142B Proceedings before Commission on claim for compensation
(1) On an application to the Commission for a determination of a
claim for compensation under this Division, or on the
commencement of proceedings in a court in respect of a claim
for work injury damages under this Division:
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(a) the applicant must name the employer by whom the
applicant alleges compensation is payable and the
Nominal Insurer as respondents to, or defendants in, the
proceedings, and
(b) the Nominal Insurer may, by service of a notice on any
person who, in the opinion of the Nominal Insurer, may
be liable to pay to the applicant compensation under
this Act (or may have insured that liability), join that
person as a party to the proceedings.
(2) The Commission may make orders providing for the
reimbursement of the Insurance Fund under section 145.
[19] Section 145 Employer or insurer to reimburse Insurance Fund
Omit "under the Scheme" from section 145 (1) (a).
Insert instead "by the Nominal Insurer in respect of a claim under this
Division".
[20] Section 145A Recovery from directors of corporations liable to
reimburse Insurance Fund
Omit section 145A (1). Insert instead:
(1) If a corporation is liable to reimburse the Insurance Fund an
amount for a payment made in respect of a claim under this
Division and the amount is not recoverable from the
corporation, the Nominal Insurer is entitled to recover the
amount from a person who was a culpable director of the
corporation at the relevant time.
[21] Section 145A (2)
Omit "for a payment made under the Scheme".
Insert instead "for such a payment".
[22] Section 145A (4) (a)
Omit "under the Scheme".
Insert instead "in respect of the claim under this Division".
[23] Section 146 Commutation of weekly payments
Omit section 146 (1).
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[24] Sections 146 (2), 147 (3) and 148 (1) and (2)
Omit "under the Scheme" wherever occurring.
Insert instead "in respect of a claim under this Division".
[25] Section 146 (4)
Omit "under the Scheme".
Insert instead "that is the subject of a claim under this Division".
[26] Section 147 Miscellaneous provisions
Omit section 147 (1). Insert instead:
(1) If an award of compensation or work injury damages is made
that is the subject of a claim under this Division, the Nominal
Insurer may cause to be made such inquiries as it thinks fit to
determine the genuineness of the grounds on which the award
is sought or was based if:
(a) the employer did not appear and defend the proceedings
for the award of compensation or work injury damages,
or
(b) the award of compensation or work injury damages was
made before the making of the claim under this
Division and was obtained in default of appearance by
the employer, or by consent of the worker and the
employer, or
(c) the Nominal Insurer thinks that any such inquiries
should be made for any reason it thinks fit.
[27] Section 147 (4)
Omit "the Authority" where firstly occurring.
Insert instead "the Nominal Insurer".
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[28] Section 151Y Funding of self-insurers, government employers etc
for retrospective claims
Omit section 151Y (3). Insert instead:
(3) The Authority may require licensed insurers and former
licensed insurers to pay into the special account such amounts
as the Authority may direct by notice served on the insurers
concerned.
(3A) Amounts paid into the special account may be refunded for
the purposes of making necessary adjustments.
[29] Section 156A Misleading conduct by insurers and insurance
intermediaries
Insert after paragraph (a) (ii) of the definition of insurance intermediary
in section 156A (1):
(iii) as an agent for the Nominal Insurer, or
[30] Section 163 Register to be kept by insurers
Omit "the Authority" from section 163 (2).
Insert instead "the Nominal Insurer".
[31] Section 163
Omit "20 penalty units" from the penalty at the end of the section.
Insert instead "1,000 penalty units".
[32] Section 169 Premiums to be calculated in accordance with
insurance premiums order
Omit "100 penalty units" from section 169 (3).
Insert instead "1,000 penalty units".
[33] Section 176
Omit the section.
[34] Section 183A Imposition of civil penalty on or censure of licensed
insurer or self-insurer
Omit section 183A (4).
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Act 1987
[35] Section 184 Cancellation of policies following cancellation or
suspension of insurer's licence
Omit the definition of prescribed day from section 184 (1). Insert instead:
prescribed day means the day on which the licence of the
insurer ceases to be in force.
[36] Section 184 (2)
Omit "(including where a licence is cancelled under section 176)".
[37] Section 185 Assignment of policies of former insurers etc
Omit section 185 (4)(6).
[38] Section 185 (9) (b)
Omit the paragraph.
[39] Section 189 Information and records as to business etc to be
supplied to Authority by insurers
Insert ", and includes a scheme agent" after "former self-insurer" in the
definition of insurer in section 189 (1).
[40] Section 190 Notification to Authority of certain defaults in relation
to insurers
Omit "or a self-insurer" from section 190 (1).
Insert instead ", a self-insurer or a scheme agent".
[41] Section 192 Exclusion of insurance brokers, agents or
intermediaries
Insert before section 192 (1):
(1A) A reference:
(a) in this section to a licensed insurer includes a reference
to a scheme agent, and
(b) in subsections (1)(3) to an agent does not include a
reference to a scheme agent.
[42] Section 192 (5)
Omit "licensed".
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[43] Section 192
Omit "50 penalty units" from the penalty at the end of the section.
Insert instead "200 penalty units".
[44] Part 7, Division 4, heading
Omit "Statutory funds of licensed insurers".
Insert instead "Regulation of insurers and miscellaneous provisions".
[45] Section 193
Omit the section. Insert instead:
193 Definitions
In this Division:
accounting records includes invoices, receipts, orders for the
payment of money, bills of exchange, cheques, promissory
notes, vouchers and other documents of prime entry and also
includes such working papers and other documents as are
necessary to explain the methods and calculations by which
accounts are made up.
insurer means a licensed insurer or self-insurer.
[46] Section 194
Insert after section 193:
194 Directions to insurers with respect to claims procedures
(1) The Authority may give insurers (or any particular insurer or
class of insurers) directions for or with respect to requiring the
adoption and use by them of specified processes, procedures,
strategies, policies and methods in the handling and
administration of claims for compensation or work injury
damages, either generally or in respect of a specified class or
classes of cases.
(2) It is a condition of an insurer's licence under this Act that the
insurer must comply with a direction under this section.
[47] Sections 195200, 203, 206, 207, 208A and 208B
Omit the sections.
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Schedule 2 Miscellaneous and consequential amendments to Workers Compensation
Act 1987
[48] Section 201 Accounts and returns
Omit "(including records in relation to the statutory fund of the insurer)"
from section 201 (1).
[49] Section 201 (3)
Omit "(including returns in relation to the statutory fund of the insurer)".
[50] Section 201 (6)
Omit the subsection.
[51] Section 202 Audit of accounting records of insurers
Insert before section 202 (1):
(1AA) A reference in this section to an insurer does not include a
reference to a specialised insurer or a self-insurer.
[52] Section 202 (1)
Omit "(including the records in relation to the statutory fund of an
insurer)".
[53] Section 202 (1A) and (6)
Omit the subsections.
[54] Section 202 (4)
Insert at the end of the subsection:
Maximum penalty: 1,000 penalty units.
[55] Section 202A
Insert after section 202:
202A Performance audits by Authority
(1) The Authority may conduct an audit of all or any particular
workers compensation activities of an insurer to determine
whether the insurer is carrying out those activities effectively,
economically and efficiently and in compliance with the
workers compensation legislation and any relevant agency
arrangement.
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Act 1987
(2) A single audit under this section may relate to the activities of
more than one insurer.
(3) An officer of the Authority appointed by the Authority for the
purposes of this section is, for the purposes of the exercise of
the Authority's functions under this section, entitled to
inspect the accounting and other records of an insurer.
(4) A person must not wilfully obstruct or delay a person
exercising a function under this section.
Maximum penalty: 1,000 penalty units.
(5) An insurer must provide all reasonable assistance to the
Authority for the purpose of facilitating the exercise of
functions by the Authority under this section.
(6) The Authority may publish such reports and other information
concerning an audit under this section as the Authority thinks
fit.
[56] Section 208 Contributions by specialised insurers to Insurance
Fund
Omit "licensed" wherever occurring. Insert instead "specialised".
[57] Section 208 (1)
Omit "Premiums Adjustment Fund". Insert instead "Insurance Fund".
[58] Section 208AA Contributions by exiting employers
Omit the definition of managed fund insurer from section 208AA (1).
[59] Section 208AA (1), definition of "managed fund liabilities"
Omit the definition. Insert instead:
insured liabilities of an exiting employer means the following
outstanding liabilities of the exiting employer:
(a) any liabilities of the exiting employer under this Act in
respect of workers employed by the exiting employer
while insured under a policy of insurance issued by an
insurer licensed or previously licensed under Division 3
of Part 7 (other than a specialised insurer),
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 2 Miscellaneous and consequential amendments to Workers Compensation
Act 1987
(b) any liabilities of the exiting employer independently of
this Act (but not including a liability for compensation
in the nature of workers compensation arising under
any Act or other law of another State or Territory or the
Commonwealth or a liability arising under the law of
another country) for injuries received by workers
employed by the person while insured under a policy of
insurance referred to in paragraph (a).
[60] Section 208AA (1), definition of "responsible insurer"
Omit "of this Act or section 192 of the 1988 Act" from paragraph (b).
[61] Section 208AA (2)
Omit the subsection. Insert instead:
(2) The object of this section is to provide for the protection of the
Insurance Fund against deficiencies that may result from the
insured liabilities of exiting employers.
[62] Section 208AA (4) (a)
Omit "Premiums Adjustment Fund". Insert instead "Insurance Fund".
[63] Section 208AA (5)
Omit "managed fund liabilities". Insert instead "insured liabilities".
[64] Section 208AA (6) (a)
Omit "or under section 174 of the 1998 Act".
[65] Section 208AA (6) (e)
Omit "this clause". Insert instead "this section".
[66] Part 7, Division 6
Omit the Division.
[67] Section 224C Insurance Fund may be applied to meet claims etc
of defaulting insurers
Omit "Premiums Adjustment Fund" and "Authority" wherever occurring.
Insert instead "Insurance Fund" and "Nominal Insurer" respectively.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Miscellaneous and consequential amendments to Workers Compensation Schedule 2
Act 1987
[68] Sections 224D, 224E, 224F and 233
Omit the sections.
[69] Sections 227 (2) (a1) and 228 (2C)
Omit "Premiums Adjustment Fund" wherever occurring.
Insert instead "Insurance Fund".
[70] Section 227 (2) (c)
Omit "(other than an amount required by section 222 (Repayments to the
Contribution Fund) to be paid into the Contribution Fund)".
[71] Section 227 (2) (d)
Omit the paragraph.
[72] Schedule 6 Savings, transitional and other provisions
Insert after Part 19:
Part 19A Provisions consequent on enactment of
Workers Compensation Amendment
(Insurance Reform) Act 2003
1 Definitions
In this Part:
amending Act means the Workers Compensation Amendment
(Insurance Reform) Act 2003.
managed fund insurer means an insurer who is a licensed
insurer (other than a specialised insurer) immediately before
the commencement of this Part.
relevant date, in relation to a managed fund insurer, means
the date appointed by the Authority by order published in the
Gazette as the relevant date for the insurer for the purposes of
this Part.
statutory fund means a statutory fund maintained by a
managed fund insurer immediately before the relevant date
for the insurer.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 2 Miscellaneous and consequential amendments to Workers Compensation
Act 1987
2 Licensing of insurers
On and from the commencement of this Part, a licence may
only be granted under Division 3 of Part 7 of this Act if it is
endorsed with a specialised insurer endorsement.
3 General transitional arrangements in relation to managed fund
insurers
(1) On and from the relevant date for a managed fund insurer, the
following provisions have effect:
(a) the managed fund insurer cannot issue a policy of
insurance for the purposes of this Act,
(b) the Nominal Insurer becomes the insurer under every
policy of insurance issued by the managed fund insurer
before that date as if the Nominal Insurer had issued the
policy instead of the licensed insurer,
(c) anything done or omitted to be done by the managed
fund insurer before that date in respect of such a policy
of insurance or any claim or liability under the policy is
taken to have been done by the managed fund insurer as
agent for the Nominal Insurer,
(d) a reference to a managed fund insurer in any contract
that is of a class prescribed by regulations is, to the
extent necessary to give effect to the other provisions of
this subclause and subject to the regulations, taken to be
a reference to the Nominal Insurer,
(e) any liability of a managed fund insurer as insurer under
such a policy of insurance existing immediately before
that date is taken to be a liability of the Nominal Insurer
as insurer under that policy,
(f) any claim or proceeding against the managed fund
insurer in respect of such a policy of insurance or any
claim or liability under the policy is taken to be a claim
or proceeding against the Nominal Insurer,
(g) the managed fund insurer may (except as otherwise
provided by the regulations or as directed by the
Nominal Insurer) continue to act as agent for the
Nominal Insurer.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Miscellaneous and consequential amendments to Workers Compensation Schedule 2
Act 1987
(2) The regulations may make provision for the arrangements that
are to apply in relation to a managed fund insurer who acts as
agent for the Nominal Insurer under subclause (1) (g).
(3) Nothing in subclause (1) or (2) gives rise to any entitlement
on the part of a managed fund insurer to be appointed as a
scheme agent.
(4) Nothing in subclause (1) affects the liability of a managed
fund insurer (or of a director of a company that is a managed
fund insurer) for any breach of duty as a trustee arising under
this Act or any other Act or law whether before or after the
commencement of this Part.
4 Closure of statutory funds
(1) On the relevant date for a managed fund insurer, the statutory
fund of the managed fund insurer is closed and the assets and
liabilities of that fund are transferred to, and become the
assets and liabilities of, the Insurance Fund.
(2) Any amount payable to the statutory fund of a managed fund
insurer before the relevant date for the insurer that is unpaid
on that date becomes payable on that date to the Insurance
Fund.
5 Certain repealed provisions continue to have effect until
relevant date
The provisions repealed by Schedule 2 [47] to the amending
Act continue to have effect, despite their repeal, in relation to
a managed fund insurer until the relevant date for the insurer.
6 Cancellation of licence of managed fund insurer
(1) On the relevant date for a managed fund insurer, the licence
of the managed fund insurer under Division 3 of Part 7 of this
Act is cancelled.
(2) No compensation (including compensation for loss of
business or any goodwill associated with a business) is
payable in respect of the cancellation of such a licence.
(3) The cancellation of the licence of a managed fund insurer
does not in itself give rise to any right of action against the
managed fund insurer, the Authority, the Nominal Insurer or
a scheme agent.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 2 Miscellaneous and consequential amendments to Workers Compensation
Act 1987
(4) A managed fund insurer has no entitlement to appointment as
a scheme agent and is not entitled to any compensation as a
result of not being appointed as a scheme agent.
7 Insurance records of managed fund insurers
(1) On the relevant date for a managed fund insurer, all insurance
records of the managed fund insurer become the property of
the Nominal Insurer.
(2) If an insurance record is in such a form that information can
only be produced or made available from it by means of the
use of particular equipment or information technology (such
as computer software), the managed fund insurer must, after
the relevant date, take such action as may be necessary to
ensure that the information remains able to be produced or
made available to the Nominal Insurer.
(3) The regulations may:
(a) make provision for or with respect to the requirements
of managed fund insurers in relation to the insurance
records of the insurer, and
(b) create offences punishable by a penalty not exceeding
200 penalty units for contravention of any such
requirement.
(4) In this clause:
insurance records of a managed fund insurer means all
records that are the property of the insurer and that relate to
policies of insurance issued by the insurer or to any claim,
judgment or award made in respect of any such policies.
8 Existing agreements under section 208AA
An agreement entered into under section 208AA and in force
immediately before the commencement of Schedule 2 [58] to
the amending Act is taken to be an agreement entered into
under that section as amended by the amending Act.
9 Premiums Adjustment Fund
On the repeal of section 203 by Schedule 2 [47] to the
amending Act, the assets and liabilities of the Premiums
Adjustment Fund become assets and liabilities of the
Insurance Fund.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Miscellaneous and consequential amendments to Workers Compensation Schedule 2
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10 Insurers' Contribution Fund
(1) On the repeal of section 218 by Schedule 2 [66] to the
amending Act, the assets and liabilities of the Insurers'
Contribution Fund become assets and liabilities of the
Insurance Fund.
(2) Any entitlement to payment from the Insurers' Contribution
Fund immediately before the repeal of section 218 becomes
an entitlement to payment from the Insurance Fund.
11 Pending claims etc under ULIS
Without limiting clause 1 of Part 20 of this Schedule, the
regulations may make provision for or with respect to the
following:
(a) the manner in which claims made under Division 6 of
Part 4 and pending on the commencement of Schedule
2 [8] to the amending Act are to be dealt with,
(b) the transfer to the Nominal Insurer and the Insurance
Fund of the assets, rights and liabilities of the Authority
and the WorkCover Authority Fund in relation to
claims made under Division 6 of Part 4 before that
commencement,
(c) any other matter that is consequential on the
amendments made to Division 6 of Part 4 by the
amending Act.
[73] Schedule 6, Part 20 Savings and transitional regulations
Insert at the end of clause 1 (1):
Workers Compensation Amendment (Insurance Reform) Act
2003
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts
(Section 4)
3.1 Freedom of Information Act 1989 No 5
Schedule 2 Exempt bodies and offices
Insert at the end of the Schedule:
The Workers Compensation Nominal Insurer established
under the Workers Compensation Act 1987--functions
relating to the issuing of policies of insurance to employers
and the calculation of premiums (but only in relation to
individual employers), the management of specific claims
and to asset and funds management and investment.
3.2 Public Finance and Audit Act 1983 No 152
Section 63F
Insert after section 63E:
63F Status of Workers Compensation Insurance Fund
The Workers Compensation Insurance Fund established
under the Workers Compensation Act 1987 is not part of (and
the assets and liabilities of that Fund are not part of):
(a) the Total State Sector for the purposes of the
preparation of the Total State Sector Accounts under
this Act, or
(b) the general government sector for the purposes of this
Act or the General Government Debt Elimination Act
1995.
3.3 State Records Act 1998 No 17
Section 3 Definitions
Insert at the end of the definition of public office in section 3 (1) before
the note to that definition:
but does not include the Workers Compensation Nominal
Insurer established under the Workers Compensation
Act 1987.
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Amendment of other Acts Schedule 3
3.4 Workplace Injury Management and Workers Compensation
Act 1998 No 86
[1] Section 4 Definitions
Omit the definition of Uninsured Liability and Indemnity Scheme from
section 4 (1).
[2] Section 23A
Insert after section 23:
23A Nominal Insurer functions of Authority
(1) The Authority has such additional functions as may be
necessary or convenient for enabling the Authority to act for
the Nominal Insurer and to ensure that the Nominal Insurer's
functions are able to be exercised without restriction by any
of the Authority's other functions.
(2) When acting for the Nominal Insurer, the Authority has and
may exercise all the functions of the Nominal Insurer and is
not limited by any of the Authority's other functions.
(3) When acting for the Nominal Insurer, the Authority must
exercise its functions so as to ensure the efficient exercise of
the functions of the Nominal Insurer and the proper collection
of premiums for policies of insurance and the payment of
claims in accordance with this Act and the 1987 Act.
[3] Section 55A
Insert after section 55:
55A Compliance by scheme agents
A scheme agent must comply with the requirements of this
Chapter.
Maximum penalty: 1,000 penalty units.
Note. Section 154M (2) of the 1987 Act provides that certain provisions
of this Act (including certain provisions of this Chapter) extend to scheme
agents acting on behalf of the Nominal Insurer.
[4] Sections 97 (5) (c) and 108 (2) (c)
Omit "Uninsured Liability and Indemnity Scheme" wherever occurring.
Insert instead "Insurance Fund".
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Schedule 3 Amendment of other Acts
[5] Section 108 Interim awards
Omit "the Uninsured Liability and Indemnity Scheme" from section 108
(2) (a) wherever occurring.
Insert instead "Division 6 of Part 4 of the 1987 Act".
[6] Section 238 Powers of entry and inspection by officers of
Authority
Insert "or the Nominal Insurer" after "by the Authority" in the definition
of authorised officer in section 238 (1).
[7] Section 238 (1)
Insert "and (without limiting section 154M (2) of the 1987 Act) includes
any scheme agent" after "insurance business" in the definition of insurer.
[8] Section 238AA Power to obtain information, documents and
evidence
Insert "or the Nominal Insurer" after "by the Authority" in section 238AA
(7).
[9] Section 239 Authority may obtain documents from court registry
or Registrar
Insert after section 239 (4):
(5) In this section, a reference to the Authority is taken to include
a reference to the Nominal Insurer.
[10] Section 243 Disclosure of information
Insert after section 243 (3):
(4) In this section, a reference to the Authority is taken to include
a reference to the Nominal Insurer.
[11] Section 243A
Insert after section 243:
243A Information gathering and use by Authority and Nominal
Insurer
(1) The Authority and the Nominal Insurer may collect, analyse,
use and disclose data, statistics and other information relating
to any of the following:
(a) claims for compensation and work injury damages,
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Workers Compensation Amendment (Insurance Reform) Bill 2003
Amendment of other Acts Schedule 3
(b) the functions, activities and performance of scheme
agents, specialised insurers and self-insurers,
(c) policies of insurance,
(d) the investment of assets of the Insurance Fund.
(2) For that purpose, the Authority and the Nominal Insurer may
obtain information from scheme agents, specialised insurers,
self-insurers and from any other source.
(3) This section extends to authorise the Authority and the
Nominal Insurer to collect and analyse, and to disclose to such
persons or classes of persons as may be prescribed by the
regulations, personal information about the health of an
individual, but only in relation to (or in connection with) the
matters referred to in subsection (1).
(4) Section 243 does not prevent the disclosure of information in
accordance with this section.
[12] Section 284 Insurer liable to pay fee if claim goes to assessment
Omit section 284 (3).
[13] Section 345 Costs penalties where appeal unsuccessful
Omit section 345 (2).
[14] Schedule 5A Injury management pilot projects
Omit clause 6 (2) and (4).
[15] Schedule 5A, clause 6 (3) (c)
Omit "statutory funds of insurers". Insert instead "Insurance Fund".
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