Civil Liability Amendment (Offender
Damages) Bill 2005

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to make amendments to clarify the operation of Part 2A
(Special provisions for offenders in custody) of the Civil Liability Act 2002 (the
Principal Act).

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides that the proposed Act commences on the date of assent to the
proposed Act.

Clause 3 is a formal provision that gives effect to the amendments to the Principal
Act set out in Schedule 1.

Schedule 1 Amendments
Schedule 1 [1] amends the definition of offender in custody or offender in
section 26A of the Principal Act to make it clear that the definition includes persons
who are attending a place in compliance with the requirements of a community
service order, as well as persons while they are performing community service work.

Schedule 1 [2]–[4] amend section 26D of the Principal Act to make it clear that
Part 7 of Chapter 7 of the Workplace Injury Management and Workers
Compensation Act 1998, as applied by that section to the assessment of the degree of
permanent impairment resulting from injuries to offenders, applies with the
following additional modifications:

(a) Section 330 (Costs of medical assessment) of that Act does not apply to any
such assessment.

(b) References to the WorkCover Guidelines are to be read as references to
guidelines issued by the Minister administering the Crimes (Administration of
Sentences) Act 1999 by order published in the Gazette. Any such order must
be tabled before Parliament and will be disallowable.

(c) The provisions of Part 7 of Chapter 7 of that Act are to be applied with such
other modifications as may be prescribed by the regulations.

Schedule 1 [5] amends section 26I of the Principal Act to make it clear that
section 67 of the Workers Compensation Act 1987, in its application to determining
an offender’s entitlement to compensation, is to be read as if the reference in that
section to the Workers Compensation Commission were a reference to the court
determining the amount of compensation.

Schedule 1 [6] and [7] amend section 26J of the Principal Act to make it clear that
any amount of damages withheld by a protected defendant from an offender under
that section because of the making of a provisional order for restitution against the
offender under the Victims Support and Rehabilitation Act 1996 is subject to the
following additional provisions:

(a) The protected defendant 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.

(b) Interest is payable on an amount withheld.

(c) A proportion of the interest must be paid to the offender if the amount of the
provisional order is reduced on its confirmation, otherwise the whole amount
of the interest is payable to the person or persons for whom the order was
made.

(d) However, the reasonable costs of the Public Trustee in connection with
holding such amount for a protected defendant may be deducted before
interest is paid to the offender or the persons entitled to restitution.

Schedule 1 [8] amends Schedule 1 to the Principal Act to enable the Governor to
make regulations of a savings or transitional nature consequent on the enactment of
the proposed Act.

Schedule 1 [9] amends a transitional provision relating to Part 2A of the Principal
Act. The amendment makes it clear that the new Part does not affect any award of
damages, settlement or consent order made before the commencement of the Part
on 19 November 2004.

Schedule 1 [10] amends Schedule 1 to the Principal Act to insert a new Part
containing savings and transitional provisions consequent on the enactment of the
proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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