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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Accident Compensation and Transport Accident
Acts (Amendment) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY MATTERS 1
1. Purpose 1
2. Commencement 3
PART 2--GENERAL AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985 4
3. Changes concerning the meaning of "injury" 4
4. Compensation not to include cost of accommodation etc.
unless medically necessary 8
5. Change to calculation of overtime etc. in relation to pre-injury
average weekly earnings 11
6. Additional function of the Authority 13
7. Rounding of assessments of impairment 14
8. Compensation for non-economic loss 15
9. Compensation for non-economic loss--delayed changes 19
10. Insertion of sections 155A and 155B 20
155A. Employer to re-employ worker 20
155B. Exemption from section 155A 22
11. Consequential amendments relating to section 10 24
12. Occupational rehabilitation and risk management programs 24
13. Insertion of section 238A 25
238A. Incentive agreements to improve employer
performance 25
14. Insertion of Schedule 2 27
PART 3--AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985--INTERSTATE ARRANGEMENTS 29
15. New section 80 inserted 29
80. Entitlement to compensation only if employment
connected with Victoria 29
16. Application to sailors 31
17. Compensation for workers injured outside Australia 32
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18. New section 84B inserted 32
84B. Person not to be compensated twice 32
19. Amendment of section 85 33
Victorian Legislation and Parliamentary Documents
20. New Division 1A inserted in Part IV 35
Division 1A--Determination by Courts and Recognition
of Determinations 35
91A. Determination of State with which worker's
employment is connected in proceedings under this
Act 35
91B. Determination by County Court of State with which
worker's employment is connected 35
91C. Recognition of previous determinations 36
91D. Determination may be made by consent 37
21. New Division 6AB inserted in Part IV 37
Division 6AB--Choice of Law 37
129MA. The applicable substantive law for work injury claims 37
129MB. Claims to which Division applies 38
129MC. What constitutes injury and employment and who is
employer 39
129MD. Claim in respect of death included 40
129ME. Meaning of "substantive law" 40
129MF. Availability of action in another State not relevant 41
22. New Schedule 3 inserted 42
PART 4--AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985--SAVINGS AND TRANSITIONAL
PROVISIONS 45
23. Insertion of Part IX 45
PART IX--SAVINGS AND TRANSITIONAL
PROVISIONS--AMENDING ACTS 45
Division 1--Accident Compensation (Miscellaneous
Amendment) Act 1997 45
254. Definition of amending Act 45
255. Section 91 (Assessment of impairment) 45
Division 2--Accident Compensation (Common Law and
Benefits) Act 2000 46
256. Definition of amending Act 46
257. Section 5A (Pre-injury average weekly earnings) 46
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Division 3--Accident Compensation and Transport
Accident Acts (Amendment) Act 2003 47
Victorian Legislation and Parliamentary Documents
258. Definitions 47
259. Section 5(1) (Definition of "injury") 47
260. Section 5(1) (Definition of "medical service") 47
261. Section 5A (Pre-injury average weekly earnings) 48
262. Section 82 (Entitlement to compensation) 48
263. Section 86 (Compensation for disease due to
employment) 48
264. Section 91 (Assessment of impairment) 48
265. Section 98C (Compensation for non-economic loss) 49
266. Section 99 (Compensation for medical and like
services) 49
267. Part IV (Payment of Compensation) 50
268. Sections 155A and 155B (Employer to re-employ
worker) 51
269. Section 156 (Occupational rehabilitation and risk
management programs) 51
PART 5--AMENDMENT TO THE ACCIDENT COMPENSATION
(WORKCOVER INSURANCE) ACT 1993 52
24. Amendment of Accident Compensation (WorkCover
52
Insurance) Act 1993
PART 6--AMENDMENTS TO THE TRANSPORT ACCIDENT
ACT 1986 54
25. Compensation not to include cost of accommodation etc.
unless medically necessary 54
26. Entitlement to compensation outside Victoria 57
27. Re-positioning of transitional provisions 58
28. Insertion of section 46C 58
46C. Rounding of assessments of impairment 58
29. Preservation of rights of international visitors 59
30. Payment of medical and like benefits 59
31. Extension of time limit for reviews of decisions on eligibility
for compensation 59
32. Insertion of Part 11 60
PART 11--SAVINGS AND TRANSITIONAL
PROVISIONS--AMENDING ACTS 60
Division 1--Transport Accident (Amendment) Act 1998 60
176. Definition of "amending Act" 60
177. Section 46A (Degree of impairment) 60
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Division 2--Accident Compensation and Transport
Accident Acts (Amendment) Act 2003 61
Victorian Legislation and Parliamentary Documents
178. Definitions 61
179. Section 3 (Definition of "medical service") 61
180. Section 46C (Rounding of assessments of impairment) 61
181. Section 60 (Medical and like benefits) 62
182. Section 70 (Decision on eligibility for compensation) 63
ENDNOTES 64
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PARLIAMENT OF VICTORIA
Initiated in Assembly 14 October 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Accident Compensation Act 1985, the Accident
Compensation (WorkCover Insurance) Act 1993 and the
Transport Accident Act 1986 and for other purposes.
Accident Compensation and Transport
Accident Acts (Amendment) Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is--
(a) to amend the Accident Compensation Act
5 1985--
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Accident Compensation and Transport Accident Acts
(Amendment) Act 2003
Act No.
Part 1--Preliminary Matters
s. 1
(i) to make changes concerning what
constitutes a compensable injury; and
Victorian Legislation and Parliamentary Documents
(ii) to change the way overtime is
calculated in determining pre-injury
5 average weekly earnings; and
(iii) to provide increased compensation for
non-economic loss in certain
circumstances; and
(iv) to make changes concerning the return
10 to work provisions; and
(v) to confer an additional function on the
Victorian WorkCover Authority
concerning the development and
implementation of employer incentive
15 programs; and
(vi) to provide that compensation is only
payable under that Act in respect of
employment connected with Victoria;
and
20 (vii) to make provision as to the substantive
law governing claims for damages in
respect of injuries to workers; and
(b) to amend the Accident Compensation
Act 1985 and the Transport Accident
25 Act 1986--
(i) to clarify that compensation is not
payable for ordinary living expenses
unless they are medically necessary;
and
30 (ii) to prevent rounding in assessments of a
person's degree of impairment; and
(iii) to generally improve the operation of
those Acts.
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Act No.
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s. 2
2. Commencement
(1) This Act (other than Part 3 and sections 5, 6, 9,
Victorian Legislation and Parliamentary Documents
10, 11, 12 and 13) comes into operation on the
day after the day on which it receives the Royal
5 Assent.
(2) Subject to sub-section (3), sections 5, 6, 10, 11, 12
and 13 come into operation on a day or days to be
proclaimed.
(3) If a provision of this Act referred to in sub-
10 section (2) does not come into operation before
1 January 2005, it comes into operation on that
day.
(4) Part 3 comes into operation on a day to be
proclaimed.
15 (5) Section 9 comes into operation 5 years after the
date of commencement of section 8.
__________________
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Act No.
Part 2--General Amendments to the Accident Compensation Act 1985
s. 3
PART 2--GENERAL AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985
Victorian Legislation and Parliamentary Documents
3. Changes concerning the meaning of "injury"
See: (1) In section 5(1) of the Accident Compensation
Act No.
5 Act 1985, for the definition of "injury"
10019.
Reprint No. 12 substitute--
as at
6 March 2003.
' "injury" means any physical or mental injury
LawToday:
and, without limiting the generality of that
www.dms.
dpc.vic.
definition, includes--
gov.au
10 (a) industrial deafness;
(b) a disease contracted by a worker in the
course of the worker's employment
(whether at, or away from, the place of
employment);
15 (c) a recurrence, aggravation, acceleration,
exacerbation or deterioration of any
pre-existing injury or disease;
Note: This definition only applies to injuries that
occur on or after the date of commencement of
20 section 3 of the Accident Compensation and
Transport Accident Acts (Amendment) Act
2003--see section 259.'.
(2) In section 5(1) of the Accident Compensation
Act 1985, insert the following definitions--
25 ' "heart attack injury" means an injury to the
heart, or any blood vessel supplying or
associated with the heart, that consists of, is
caused by, results in or is associated with--
(a) any heart attack; or
30 (b) any myocardial infarction; or
(c) any myocardial ischaemia; or
(d) any angina, whether unstable or
otherwise; or
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(e) any fibrillation, whether atrial or
ventricular or otherwise; or
Victorian Legislation and Parliamentary Documents
(f) any arrhythmia of the heart; or
(g) any tachycardia, whether ventricular,
5 supra ventricular or otherwise; or
(h) any harm or damage to such a blood
vessel or to any associated plaque; or
(i) any impairment, disturbance or
alteration of blood, or blood circulation,
10 within such a blood vessel; or
(j) any occlusion of such a blood vessel,
whether the occlusion is total or partial;
or
(k) any rupture of an aneurism of such a
15 blood vessel; or
(l) any haemorrhage from such a blood
vessel; or
(m) any aortic dissection; or
(n) any consequential physical harm or
20 damage, including harm or damage to
the brain;
(o) any consequential mental harm or
damage;
"stroke injury" means an injury to the brain, or
25 any of the blood vessels supplying or
associated with the brain, that consists of, is
caused by, results in or is associated with--
(a) any stroke; or
(b) any cerebral infarction; or
30 (c) any cerebral ischaemia; or
(d) any rupture of an aneurism of such a
blood vessel; or
5
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(e) any subarachnoid haemorrhage; or
(f) any haemorrhage from such a blood
Victorian Legislation and Parliamentary Documents
vessel; or
(g) any harm or damage to such a blood
5 vessel or to any associated plaque; or
(h) any impairment, disturbance or
alteration of blood, or blood circulation,
within such a blood vessel; or
(i) any occlusion of such a blood vessel,
10 whether the occlusion is total or partial;
or
(j) any consequential physical harm or
damage, including neurological harm or
damage; or
15 (k) any consequential mental harm or
damage;'.
(3) In section 82(1) of the Accident Compensation
Act 1985, for "employment and if the worker's
employment was a significant contributing factor"
20 substitute "employment,".
(4) In section 82(2) of the Accident Compensation
Act 1985--
(a) omit "and if the worker's employment was a
significant contributing factor";
25 (b) for "death of the worker" substitute "death
of the worker,";
(c) at the foot of the sub-section insert--
"Note: Sub-sections (1) and (2), as amended by
sections 3(3) and 3(4) of the Accident
30 Compensation and Transport Accident Acts
(Amendment) Act 2003, only apply to injuries
that occur on or after the date of
commencement of section 3 of that Act--
see section 262.".
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s. 3
(5) After section 82(2A) of the Accident
Compensation Act 1985 insert--
Victorian Legislation and Parliamentary Documents
"(2B) Compensation is not payable in respect of a
heart attack injury or stroke injury that arises
5 in the course of, or that was caused by, a
disease, unless the worker's employment was
a significant contributing factor to the injury
or to the disease.
(2C) Compensation is not payable in respect of
10 the following injuries unless the worker's
employment was a significant contributing
factor to the injury--
(a) a heart attack injury or stroke injury to
which sub-section (2B) does not apply;
15 (b) a disease contracted by a worker in the
course of the worker's employment
(whether at, or away from, the place of
employment);
(c) a recurrence, aggravation, acceleration,
20 exacerbation or deterioration of any
pre-existing injury or disease.
Note: Sections 82(2B) and 82(2C) only apply to injuries
that occur on or after the date of commencement of
section 3 of the Accident Compensation and
25 Transport Accident Acts (Amendment) Act
2003--see section 262.".
(6) In section 82(6) of the Accident Compensation
Act 1985--
(a) for "Where" substitute "Subject to sub-
30 section (2B), if";
(b) omit "and if employment of that nature was
a significant contributing factor".
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s. 4
(7) In section 86 of the Accident Compensation Act
1985--
Victorian Legislation and Parliamentary Documents
(a) for "If" substitute "Subject to sections
82(2B) and 82(2C), if";
5 (b) omit "and if employment of that nature was
a significant contributing factor";
(c) at the end of the section insert--
"(2) Despite sub-section (1), compensation
is not payable in respect of a disease to
10 the extent that the disease consists of, is
caused by, results in or is associated
with a heart attack injury or a stroke
injury unless the worker's employment
was a significant contributing factor to
15 the disease or to the injury.
Note: This section in its current form only applies to
injuries that occur on or after the date of
commencement of section 3 of the Accident
Compensation and Transport Accident Acts
20 (Amendment) Act 2003--see section 263.".
(8) In section 134AB(2) of the Accident
Compensation Act 1985 omit "employment of
that nature was a significant contributing factor,
and".
25 4. Compensation not to include cost of accommodation
etc. unless medically necessary
(1) In section 5(1) of the Accident Compensation
Act 1985, in the definition of "medical service",
after paragraph (e) insert--
30 "and
(f) the provision, at the request of a medical
practitioner, hospital or provider of a hospital
service, of special food or a special food
formula; and
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(g) the provision, at the request of a medical
practitioner, of room temperature control
equipment for a person who is unable to
Victorian Legislation and Parliamentary Documents
adequately regulate his or her own body
5 temperature; and
(h) the provision, at the request of a medical
practitioner, of equipment intended to treat
or stabilize any injury;
Examples
10 Examples of equipment referred to in paragraph (h)
include life support equipment, ventilators and special
lighting.
(i) the provision of anything needed to operate,
run, maintain or repair any equipment
15 referred to in paragraph (g) or (h);
Examples
Examples of things referred to in paragraph (i) include
electricity, water, lubricating oil and replacement
filters and batteries.
20 Note: Paragraphs (f) to (i) only apply to services provided
on or after the date of commencement of section 4 of
the Accident Compensation and Transport
Accident Acts (Amendment) Act 2003--see
section 260.".
25 (2) After section 99(14) of the Accident
Compensation Act 1985 insert--
'(15) Nothing in this section renders the Authority,
a self-insurer or the employer liable to pay as
compensation the cost of the provision to, or
30 for, a worker of any of the following things
unless the provision of a particular thing to
the worker is a medical service, or a hospital
service, provided as a result of the injury--
(a) accommodation (including
35 accommodation-related costs such as
rent, bonds, rates, accommodation costs
levied in accordance with
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s. 4
Commonwealth legislation, capital
contributions and costs associated with
the buying or selling of property, but
Victorian Legislation and Parliamentary Documents
not including modifications to a home
5 approved by the Authority under this
Act);
(b) food or household or personal items;
(c) power, water or any other service
provided by a utility;
10 (d) room temperature controls;
(e) any other thing specified by the
regulations for the purposes of this sub-
section.
(16) Sub-section (15) does not apply in the case
15 of a person who is under 18 years of age and
who, as a result of his or her injury, is unable
to reside at the place that he or she resided at
before he or she was injured.
(17) Sub-section (15) also does not apply to a
20 person--
(a) who receives a hospital service as a
result of an injury; and
(b) who is then discharged from hospital;
and
25 (c) who then resides in a nursing home,
aged person's hostel, group home or
facility approved by the Authority,
supported residential service,
residential care service or state-funded
30 residential care service--
during the first 18 months after the person is
first discharged from hospital.
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s. 5
(18) For the purposes of sub-section (17)--
(a) a person can only be "first" discharged
Victorian Legislation and Parliamentary Documents
once from hospital in relation to a
particular injury; and
5 (b) it does not matter if, during the relevant
period, the person changes
accommodation, or does not live
continuously in accommodation of the
sort listed in sub-section (17)(c)
10 (although in this latter case sub-
section (17) only applies to the person
while he or she is living in
accommodation of that sort); and
(c) the 18 month period referred to in sub-
15 section (17) is to be extended by the
addition of any period during which a
person is in a hospital receiving a
hospital service after he or she is first
discharged from hospital.
20 Note: Sub-sections (15) to (18) only apply to claims for
compensation under this section made after the date
of commencement of section 4 of the Accident
Compensation and Transport Accident Acts
(Amendment) Act 2003--see section 266(1).
25 Also, those sub-sections do not apply to workers who
had been injured before that date until the expiry of
18 months after that date--see section 266(2).'.
5. Change to calculation of overtime etc. in relation to
pre-injury average weekly earnings
30 (1) For sections 5A(1A) to 5A(1C) of the Accident
Compensation Act 1985 substitute--
"(1A) For the purposes of sub-section (1), in
calculating a worker's weekly payments for
the first 26 weeks under sections 93CA and
35 93CB, if--
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s. 5
(a) the worker, during the relevant period
under sub-section (1), worked paid
overtime; and
Victorian Legislation and Parliamentary Documents
(b) it is likely that the worker would have
5 worked paid overtime at any time
during that first 26 week period if not
for the incapacity resulting from, or
materially contributed to, by the
relevant injury--
10 an additional amount calculated under sub-
section (1C) is to be included in the worker's
pre-injury average weekly earnings.
(1B) For the purposes of sub-section (1), in
calculating a worker's weekly payments for
15 the first 26 weeks under sections 93CA and
93CB, if--
(a) the worker, during the relevant period
under sub-section (1), carried out shift
work that attracted a shift allowance;
20 and
(b) it is likely that the worker would have
carried out shift work attracting a shift
allowance at any time during that first
26 week period if not for the incapacity
25 resulting from, or materially
contributed to, by the relevant injury--
an additional amount calculated under sub-
section (1C) is to be included in the worker's
pre-injury average weekly earnings.
30 Note: Sub-sections (1A) and (1B) only apply with respect
to a claim for weekly payments given, served or
lodged on or after the date of commencement of
section 5 of the Accident Compensation and
Transport Accident Acts (Amendment) Act
35 2003--see section 261.
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s. 6
(1C) For the purposes of sub-sections (1A) and
(1B), the additional amount to be included is
the amount derived from the following
Victorian Legislation and Parliamentary Documents
formula--
A
5
B
where--
A is the total of the amounts paid or
payable to the worker for overtime or
as a shift allowance (as the case may
10 be) during the relevant period under
sub-section (1);
B is the number of weeks in the relevant
period under sub-section (1) during
which the worker worked or was on
15 annual, sick or other paid leave.
(1D) For the purposes of sub-sections (1B) and
(1C), a reference to a shift allowance
includes a reference to an allowance that was
paid, or that is payable, for weekend work.".
20 (2) In section 5A(4) of the Accident Compensation
Act 1985, for "sub-section (1A)" substitute
"sub-sections (1A) and (1B)".
6. Additional function of the Authority
After section 20(1)(t) of the Accident
25 Compensation Act 1985 insert--
"(ta) develop and implement programs to provide
incentives for employers--
(i) to implement measures designed to
prevent injuries and diseases at
30 workplaces; and
(ii) to improve occupational health and
safety and return to work results;".
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7. Rounding of assessments of impairment
For sections 91(9) and 91(10) of the Accident
Victorian Legislation and Parliamentary Documents
Compensation Act 1985 substitute--
"(9) Despite anything to the contrary in the
5 A.M.A. Guides, in determining a person's
degree of impairment, no number determined
under the A.M.A. Guides is to be rounded up
or down, regardless of whether the number
represents an initial, an intermediate, a
10 combined or a final value, unless the
rounding is expressly required or permitted
by this Act.
(10) A number determined under the A.M.A.
Guides must be rounded to the nearest whole
15 percent.
Example
A final degree of impairment of 95% must be
rounded to 10%. A final degree of impairment of
84% must be rounded to 8%.
20 Note: Section 264(1) sets out the transitional
provisions that apply to sub-sections (9)
and (10). Section 255 re-enacts former
sections 91(9) and 91(10) (which were
transitional provisions in relation to
25 amendments made by the Accident
Compensation (Miscellaneous Amendment)
Act 1997).
(11) This sub-section applies if--
(a) an assessment is made for the purposes
30 of section 98C of a worker's degree of
impairment; and
(b) the injury in respect of which the
assessment is made occurred before the
commencement of section 8 of the
35 Accident Compensation and
Transport Accident Acts
(Amendment) Act 2003; and
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(c) the degree of impairment is determined
to be 8% or 9%.
Victorian Legislation and Parliamentary Documents
(12) If sub-section (11) applies, the degree of
impairment may be rounded in accordance
5 with the A.M.A. Guides.".
8. Compensation for non-economic loss
(1) For sections 98C(2) and 98C(3) of the Accident
Compensation Act 1985 substitute--
"(2) The amount of the non-economic loss in
10 respect of permanent impairment (other than
psychiatric impairment) is to be calculated as
at the date of the relevant injury as follows--
(a) if the worker's impairment benefit
rating is less than 10%--the amount of
15 the non-economic loss is zero;
(b) if the worker's impairment benefit
rating is a modified whole person
impairment (within the meaning of
sub-section (2A)) and is 10% or more
20 and less than 11%--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$8990 + [(D - 10) × $7650];
Note: Paragraph (b) does not apply with
25 respect to injuries that occur before the
date of commencement of section 8 of
the Accident Compensation and
Transport Accident Acts
(Amendment) Act 2003--see
30 section 265.
(c) if the worker's impairment benefit
rating is not less than 10% and not
more than 30% and paragraph (b) does
not apply to the worker--the amount of
35 the non-economic loss is to be
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determined in accordance with the
formula--
Victorian Legislation and Parliamentary Documents
$14 490 + [(D - 10) × $2170];
Note: Paragraph (c) does not apply with
5 respect to injuries that occur before the
date of commencement of section 8 of
the Accident Compensation and
Transport Accident Acts
(Amendment) Act 2003--see
10 section 265.
(d) if the worker's impairment benefit
rating is more than 30% and not more
than 70%--the amount of the non-
economic loss is to be determined in
15 accordance with the formula--
$57 960 + [(D - 30) × $3620];
(e) if the worker's impairment benefit
rating is more than 70% and not more
than 80%--the amount of the non-
20 economic loss is to be determined in
accordance with the formula--
$202 930 + [(D - 70) × $14 500];
(f) if the worker's impairment benefit
rating is more than 80%--the amount
25 of the non-economic loss is $347 890--
where D is the worker's impairment benefit
rating expressed as a number.
(2A) For the purposes of sub-section (2), a
worker's impairment benefit rating is--
30 (a) if the worker's degree of impairment
consists of, or includes, a whole person
impairment assessed in accordance with
Chapter 3 of the A.M.A. Guides and
that whole person impairment is not
35 less than 5% and not more than 29%,
whichever of the following provides the
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worker with the higher amount for non-
economic loss under sub-section (2)--
Victorian Legislation and Parliamentary Documents
(i) the modified whole person
impairment set out in column 2 of
5 Schedule 2 opposite the relevant
whole person impairment as
assessed in accordance with
Chapter 3; or
(ii) the worker's degree of
10 impairment; or
(b) in any other case, the worker's degree
of impairment.
(3) The amount of the non-economic loss in
respect of permanent psychiatric impairment
15 is to be calculated as at the date of the
relevant injury as follows--
(a) if the worker's degree of impairment is
less than 30%--the amount of the non-
economic loss is zero;
20 (b) if the worker's degree of impairment is
not less than 30% and not more than
50%--the amount of the non-economic
loss is to be determined in accordance
with the formula--
25 $11 590 + [(D - 30) × $3770];
(c) if the worker's degree of impairment is
more than 50% and not more than
70%--the amount of the non-economic
loss is to be determined in accordance
30 with the formula--
$87 000 + [(D - 50) × $5800];
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(d) if the worker's degree of impairment is
more than 70% and not more than
80%--the amount of the non-economic
Victorian Legislation and Parliamentary Documents
loss is to be determined in accordance
5 with the formula--
$202 930 + [(D - 70) × $14 500];
(e) if the worker's degree of impairment is
more than 80%--the amount of the
non-economic loss is $347 890--
10 where D is the worker's degree of
impairment expressed as a number.".
(2) In section 98C of the Accident Compensation
Act 1985--
(a) in sub-section (4), for "$46 300" substitute
15 "$52 110";
(b) in sub-sections (7) and (8), for "$309 100"
substitute "$347 890".
(3) In section 91(7) of the Accident Compensation
Act 1985--
20 (a) in paragraph (c), for "assessment."
substitute "assessment;";
(b) after paragraph (c) insert--
"(d) assessments are to specify the whole
person values for each chapter of the
25 A.M.A. Guides used in the assessment.
Note: Paragraph (d) only applies in respect of
assessments for injuries that occur on or after
the date of commencement of section 8 of the
Accident Compensation and Transport
30 Accident Acts (Amendment) Act 2003--
see section 264(2).".
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9. Compensation for non-economic loss--delayed
changes
Victorian Legislation and Parliamentary Documents
(1) Sections 91(11) and 91(12) of the Accident
Compensation Act 1985 are repealed.
5 (2) In section 98C(2) of the Accident Compensation
Act 1985--
(a) for "impairment benefit rating" (wherever
occurring) substitute "degree of
impairment";
10 (b) paragraph (b) and the note at the foot of
paragraph (b) are repealed;
(c) for the formula at the foot of paragraph (c)
substitute--
'IA1 + [(D 10) × IA2]
15 where--
IA1 is the amount of $11 590 as at the date
of commencement of section 8 of the
Accident Compensation and
Transport Accident Acts
20 (Amendment) Act 2003 as varied in
accordance with section 100(2A) as if it
were "D" in the formula in
section 100(2A);
IA2 is the amount of $2320 as at the date of
25 commencement of section 8 of the
Accident Compensation and
Transport Accident Acts
(Amendment) Act 2003 as varied in
accordance with section 100(2A) as if it
30 were "D" in the formula in
section 100(2A);'.
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(3) Section 98C(2A) of the Accident Compensation
Act 1985 is repealed.
Victorian Legislation and Parliamentary Documents
Note: This section is effectively a sunset provision that
reverses the substantive changes made by section 8
5 (and one incidental change made by section 7).
Section 2(4) provides for it to come into operation 5
years after the date of commencement of section 8.
10. Insertion of sections 155A and 155B
After the heading to Part VI of the Accident
10 Compensation Act 1985 insert--
"155A. Employer to re-employ worker
(1) This section applies if--
(a) a worker receives an injury arising out
of, or in the course of, employment
15 with an employer; and
(b) the worker makes a claim for weekly
payments in respect of the injury and
either--
(i) the claim is accepted; or
20 (ii) a Conciliation Officer gives a
direction that weekly payments
are to be paid in relation to the
claim; or
(iii) a Conciliation Officer makes a
25 recommendation that weekly
payments be paid in relation to the
claim and the recommendation is
accepted by the employer or the
Authority or the self-insurer (as
30 the case may be); or
(iv) the claim is determined by a court
in favour of the worker.
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(2) If, within the period specified in sub-
section (3), the worker no longer has an
incapacity for work or has a current work
Victorian Legislation and Parliamentary Documents
capacity, the employer must provide the
5 worker--
(a) if the worker no longer has an
incapacity for work, with employment
in a position which is the same as, or
equivalent to, the position which the
10 worker held before the injury; or
(b) if the worker has a current work
capacity, with suitable employment.
(3) The period--
(a) starts on the day this section first
15 applies in respect of the worker; and
(b) includes any period or periods after that
time during which the worker has an
incapacity for work; and
(c) does not include--
20 (i) any period or periods after that
time during which the worker
does not have an incapacity for
work; nor
(ii) any of the following periods (if
25 applicable)--
(A) the period between when the
Authority rejects a claim
after it has been accepted by
the employer and when
30 weekly payments are
resumed;
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(B) the period between when a
direction of a Conciliation
Officer that weekly
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payments are to be made is
5 revoked and when weekly
payments are resumed; and
(d) ends as soon as the total of the period
or periods described in paragraph (b)
less any period described in
10 paragraph (c)(ii) is equal to--
(i) 12 months; or
(ii) if the employer provided the
worker with employment of the
nature described in sub-section
15 (2)(a) or (2)(b) (as the case may
be) before the employer was
required to do so by this section,
12 months less the period of that
employment (or less the total of
20 the periods of that employment, if
there are more than one).
(4) This section does not apply to an employer
of a worker in respect of a worker who is a
pupil at a school within the meaning of
25 Part IVA of the Education Act 1958 and
who is employed under a work experience
arrangement under that Part.
Note: This section only applies with respect to injuries that
occur after the date of commencement of section 10
30 of the Accident Compensation and Transport
Accident Acts (Amendment) Act 2003--see
section 268(1).
155B. Exemption from section 155A
(1) An employer need not comply with
35 section 155A if doing so would cause
unjustifiable hardship to the employer.
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(2) Relevant factors in determining whether
compliance with section 155A would cause
unjustifiable hardship to an employer
Victorian Legislation and Parliamentary Documents
include--
5 (a) the nature of the benefit likely to
accrue, or the detriment likely to be
suffered, by any relevant person;
(b) the effect on the worker of his or her
incapacity for work;
10 (c) the financial circumstances of the
employer and the estimated cost to the
employer of compliance;
(d) the extent of previous efforts by the
employer to rehabilitate the worker;
15 (e) the sustainability of the relevant work
in the medium to longer term with
regard to the worker's injury;
(f) the length of service of the worker;
(g) the employer's documented return to
20 work policy;
(h) the potential for retraining the worker;
(i) the number of workers to which the
employer has already extended suitable
employment;
25 (j) the extent to which the injury that
caused or materially contributed to the
worker's incapacity is related to the
worker's employment with the
employer;
30 (k) the potential of the worker to obtain
suitable employment elsewhere in the
labour market if he or she is not
provided with suitable employment by
the employer.".
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11. Consequential amendments relating to section 10
In the Accident Compensation Act 1985--
Victorian Legislation and Parliamentary Documents
(a) section 122 is repealed;
(b) in sections 160(1)(a)(iii) and 242(1), for
5 "section 122" substitute "section 155A".
12. Occupational rehabilitation and risk management
programs
(1) In section 156(1) of the Accident Compensation
Act 1985, for "Subject to section 157, an"
10 substitute "An".
(2) In section 156(2) of the Accident Compensation
Act 1985, for the phrase starting "Subject to" and
ending "calendar days must--" substitute "The
employer of a worker who has an incapacity for
15 work that was caused by, or that was materially
contributed to by, an injury must--".
(3) In sections 156(2)(a) and 156(2)(b) of the
Accident Compensation Act 1985, for "twentieth
day of no current work capacity" substitute
20 "relevant day".
(4) After section 156(2) of the Accident
Compensation Act 1985 insert--
'(3) The relevant day is whichever of the
following 2 days occurs later--
25 (a) the day on which the earliest of these
events occurs--
(i) a claim by the worker for weekly
payments in respect of the injury
is accepted; or
30 (ii) a Conciliation Officer gives a
direction that weekly payments
are to be paid in relation to such a
claim; or
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(iii) a Conciliation Officer makes a
recommendation that weekly
payments be paid in relation to
Victorian Legislation and Parliamentary Documents
such a claim and the
5 recommendation is accepted by
the employer or the Authority or
the self-insurer (as the case may
be); or
(iv) such a claim is determined by a
10 court in favour of the worker; or
(b) the day on which the employer
becomes aware, or ought reasonably to
have become aware, that the worker's
period or periods of incapacity caused,
15 or materially contributed to, by the
injury is likely to exceed 20 days.
Note: The concept of "relevant day" only applies
with respect to injuries that occur on or after
the date of commencement of section 12 of the
20 Accident Compensation and Transport
Accident Acts (Amendment) Act 2003--
see section 269. For injuries occurring before
that date, sub-section (2) applies as if a
reference to the relevant day was a reference to
25 the twentieth day of no current work capacity.'.
13. Insertion of section 238A
After section 238 of the Accident Compensation
Act 1985 insert--
"238A. Incentive agreements to improve
30 employer performance
(1) Without limiting the powers conferred on the
Authority, for the purpose of carrying out its
functions under section 20(1)(ta), the
Authority may--
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(a) enter into agreements with any person
or body and may agree to pay money
under the agreement to any person or
Victorian Legislation and Parliamentary Documents
body;
5 (b) require anyone seeking to enter into
such an agreement to meet specified
criteria or to successfully complete an
approval or application process;
(c) impose fees in relation to an approval
10 or application process;
(d) in agreeing to the payment of money
under an agreement, base the amount to
be paid on factors relevant to the
calculation of premium under the
15 Accident Compensation (WorkCover
Insurance) Act 1993.
Example:
The Authority may agree to pay a representative of a
group of employers an annual amount that represents
20 the difference between the amount the group paid
collectively in premiums in the previous year and the
amount of premium that it is likely would have been
paid in that year had the group of employers been a
single employer. Under this scheme each employer
25 would still have to pay the premium in respect of the
year that he, she or it would normally have to pay.
(2) Nothing in this section authorises the
Authority to agree to waive or reduce the
amount of premium an employer is liable to
30 pay under the Accident Compensation
(WorkCover Insurance) Act 1993, but the
Authority may make payments in the nature
of a refund of premium.".
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14. Insertion of Schedule 2
After Schedule 1 to the Accident Compensation
Victorian Legislation and Parliamentary Documents
Act 1985 insert--
"SCHEDULE 2
5 MODIFICATION TO DEGREES OF
IMPAIRMENT FOR THE PURPOSES OF
SECTION 98C
Column 1 Column 2
Whole person impairment
as assessed in accordance
with Chapter 3 of the Modified whole person
A.M.A. Guides impairment
5 10.00
6 10.20
7 10.40
8 10.60
9 10.80
10 11.00
11 11.95
12 12.90
13 13.85
14 14.80
15 15.75
16 16.70
17 17.65
18 18.60
19 19.55
20 20.50
21 21.45
22 22.40
23 23.35
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Column 1 Column 2
Whole person impairment
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as assessed in accordance
with Chapter 3 of the Modified whole person
A.M.A. Guides impairment
24 24.30
25 25.25
26 26.20
27 27.15
28 28.10
29 29.05
".
__________________
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Arrangements
PART 3--AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985--INTERSTATE
Victorian Legislation and Parliamentary Documents
ARRANGEMENTS
15. New section 80 inserted
5 In Division 1 of Part IV of the Accident
Compensation Act 1985, before section 81
insert--
'80. Entitlement to compensation only if
employment connected with Victoria
10 (1) There is no entitlement to compensation
under this Act other than in respect of
employment that is connected with this State.
(2) The fact that a worker is outside this State
when the injury happens does not prevent an
15 entitlement to compensation arising under
this Act in respect of employment that is
connected with this State.
(3) A worker's employment is connected with--
(a) the State in which the worker usually
20 works in that employment; or
(b) if no State or no one State is identified
by paragraph (a), the State in which the
worker is usually based for the
purposes of that employment; or
25 (c) if no State or no one State is identified
by paragraph (a) or (b), the State in
which the employer's principal place of
business in Australia is located.
(4) In the case of a worker working on a ship, if
30 no State or no one State is identified by sub-
section (3), a worker's employment is, while
working on a ship, connected with the State
in which the ship is registered or (if the ship
is registered in more than one State) the State
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in which the ship most recently became
registered.
Victorian Legislation and Parliamentary Documents
(5) If no State is identified by sub-section (3) or
(if applicable) (4), a worker's employment is
5 connected with this State if--
(a) a worker is in this State when the injury
happens; and
(b) there is no place outside Australia
under the legislation of which the
10 worker may be entitled to
compensation for the same matter.
(6) In deciding whether a worker usually works
in a State, regard must be had to the worker's
work history with the employer over the
15 preceding 12 months and the intentions of
the worker and employer. However, regard
must not be had to any temporary
arrangement under which the worker works
in a State for a period of not longer than
20 6 months.
(7) Subject to sub-section (6), in determining
whether a worker usually works in a State or
is usually based in a State for the purposes of
employment, regard must be had to any
25 period during which a worker works in a
State or is in a State for the purposes of
employment whether or not under the
statutory workers compensation scheme of
that State the person is regarded as a worker
30 or as working or employed in that State.
(8) Compensation under this Act does not apply
in respect of the employment of a worker on
a ship if the Seafarers Rehabilitation and
Compensation Act 1992 of the
35 Commonwealth applies to the worker's
employment.
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(9) In this section--
"ship" means any kind of vessel used in
Victorian Legislation and Parliamentary Documents
navigation by water, however propelled
or moved, and includes--
5 (a) a barge, lighter, or other floating
vessel; and
(b) an air-cushion vehicle, or other
similar craft--
used wholly or primarily in navigation
10 by water;
"State" includes Territory and, in a
geographical sense, a State's or
Territory's relevant adjacent area as
described in Schedule 3.'.
15 16. Application to sailors
(1) In section 81(1) of the Accident Compensation
Act 1985--
(a) in the definition of "sailor", for "employed or
engaged" substitute "working";
20 (b) for the definition of "ship" substitute--
' "ship" has the same meaning as in
section 80.';
(c) the definition of "Victorian ship" is
repealed.
25 (2) In section 81(2) of the Accident Compensation
Act 1985, for the expression commencing "in
respect of an injury" and ending "following
modifications" substitute "with the following
modifications in respect of an injury that happens
30 on a ship to a sailor working on the ship where the
sailor's employment is connected with Victoria".
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17. Compensation for workers injured outside Australia
(1) In section 84(1), (2) and (4) of the Accident
Victorian Legislation and Parliamentary Documents
Compensation Act 1985, for "outside Victoria"
substitute "outside Australia".
5 (2) In section 84(3)(b) of the Accident
Compensation Act 1985, after "outside Victoria"
insert "(whether within or outside Australia)".
18. New section 84B inserted
Before section 85 of the Accident Compensation
10 Act 1985 insert--
"84B. Person not to be compensated twice
(1) Compensation under this Act is not payable
in respect of an injury to the extent that
compensation has been received in respect of
15 the same injury under the laws of a place
other than this State (whether within or
outside Australia).
(2) If a person receives compensation under this
Act in respect of an injury and, in respect of
20 the same injury, subsequently receives
compensation under the laws of a place other
than this State (whether within or outside
Australia), the person from whom
compensation under this Act is received
25 may, in a court of competent jurisdiction, sue
and recover from the person the amount
described in sub-section (3).
(3) The amount that is recoverable under sub-
section (2) is--
30 (a) the amount of compensation paid under
this Act; or
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(b) the amount of compensation received
under the laws of the place other than
this State--
Victorian Legislation and Parliamentary Documents
whichever is less.".
5 19. Amendment of section 85
(1) Insert the following heading to section 85 of the
Accident Compensation Act 1985--
"Entitlement to damages outside Victoria".
(2) In section 85(1) of the Accident Compensation
10 Act 1985--
(a) omit "a right to claim compensation or";
(b) after "Victoria" insert "(whether within or
outside Australia)".
(3) In section 85(2) of the Accident Compensation
15 Act 1985--
(a) in paragraph (a) omit "compensation or";
(b) in paragraph (b) omit "an award of
compensation or";
(c) after "Victoria" (where first occurring) insert
20 "(whether within or outside Australia)";
(d) omit "right to claim compensation or".
(4) In section 85(3) of the Accident Compensation
Act 1985--
(a) omit "a right to claim compensation or";
25 (b) after "Victoria" (where first occurring) insert
"(whether within or outside Australia)";
(c) in paragraph (a) omit "compensation or";
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(d) for paragraph (b) substitute--
"(b) judgment for damages has been given
Victorian Legislation and Parliamentary Documents
or entered;";
(e) in paragraph (e) omit "claim for
5 compensation or".
(5) In section 85(4) of the Accident Compensation
Act 1985--
(a) in paragraph (a) omit "compensation or";
(b) in paragraph (b) omit "an award of
10 compensation or";
(c) after "Victoria" insert "(whether within or
outside Australia)".
(6) In section 85(5) of the Accident Compensation
Act 1985, after "Victoria" insert "(whether within
15 or outside Australia)".
(7) In section 85(6) of the Accident Compensation
Act 1985--
(a) omit "compensation or" (wherever
occurring);
20 (b) after "Victoria" insert "(whether within or
outside Australia)".
(8) In section 85(8) of the Accident Compensation
Act 1985--
(a) after "Victoria" insert "(whether within or
25 outside Australia)".
(b) omit "compensation or" (where first and
secondly occurring).
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20. New Division 1A inserted in Part IV
After Division 1 of Part IV of the Accident
Victorian Legislation and Parliamentary Documents
Compensation Act 1985 insert--
'Division 1A--Determination by Courts and
5 Recognition of Determinations
91A. Determination of State with which
worker's employment is connected in
proceedings under this Act
(1) If the question of whether this State is
10 connected with a worker's employment
arises in proceedings in a court in relation to
a claim for compensation under this Act, that
court must--
(a) determine the State with which the
15 worker's employment is connected in
accordance with section 80; and
(b) cause that determination to be entered
in the records of the court.
(2) Sub-section (1) does not apply if there is a
20 determination that is to be recognised under
section 91C.
91B. Determination by County Court of State
with which worker's employment is
connected
25 (1) If a claim for compensation has been made
under this Act, a party to the claim may
apply to the County Court for a
determination of the question of which State
is the State with which the worker's
30 employment is connected.
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(2) The County Court must determine an
application under sub-section (1) in
accordance with section 80 and cause that
Victorian Legislation and Parliamentary Documents
determination to be entered in the records of
5 the court.
(3) An application under sub-section (1) is not to
be made or heard if there is a determination
that is to be recognised under section 91C.
91C. Recognition of previous determinations
10 (1) If a determination of the State with which a
worker's employment is connected has been
made--
(a) by a court of this State under section
91A or 91B; or
15 (b) by a designated court under a provision
of a law that corresponds with section
91A or 91B; or
(c) by a court of this State or another State
in the course of proceedings on a claim
20 for damages--
the State so determined is to be recognised
for the purposes of this Act as the State with
which the worker's employment is
connected.
25 (2) This section does not prevent any appeal
relating to any such determination of a court.
If the determination is altered on appeal, the
altered determination is to be recognised
under sub-section (1).
30 (3) In this section--
"corresponding law" means the provisions
of the statutory workers compensation
scheme of another State that
corresponds with section 80;
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s. 21
Arrangements
"designated court" means--
(a) the Supreme Court of a State in
Victorian Legislation and Parliamentary Documents
which a corresponding law is in
force; or
5 (b) a court, tribunal or other decision-
making body of a State in which a
corresponding law is in force that
is declared by the regulations to be
a designated court for the
10 purposes of this section;
"State" includes Territory.
91D. Determination may be made by consent
In this Division a reference to a
determination made by a court or a
15 designated court in a proceeding includes a
reference to a determination made by the
court with the consent of the parties to the
proceeding.'.
21. New Division 6AB inserted in Part IV
20 After Division 6A of Part IV of the Accident
Compensation Act 1985 insert--
'Division 6AB--Choice of Law
129MA. The applicable substantive law for work
injury claims
25 (1) If there is an entitlement to compensation
under the statutory workers compensation
scheme of a State in respect of an injury to a
worker (whether or not compensation has
been paid), the substantive law of that State
30 is the substantive law that governs--
(a) whether or not a claim for damages in
respect of the injury can be made; and
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(b) if it can be made, the determination of
the claim.
Victorian Legislation and Parliamentary Documents
(2) This Division does not apply if
compensation is payable in respect of the
5 injury under the statutory workers
compensation scheme of more than one
State.
(3) For the purposes of this section,
compensation is considered to be payable
10 under a statutory workers compensation
scheme of a State in respect of an injury if
compensation in respect of it--
(a) would have been payable but for a
provision of the scheme that excludes
15 the worker's right to compensation
because the injury is attributable to any
conduct or failure of the worker that is
specified in that provision; or
(b) would have been payable if a claim for
20 that compensation had been duly made,
and (where applicable) an election to
claim that compensation (instead of
damages) had been duly made.
(4) A reference in this section to compensation
25 payable in respect of an injury does not
include a reference to compensation payable
on the basis of the provisional acceptance of
liability.
(5) In this Division--
30 "State" includes Territory.
129MB. Claims to which Division applies
(1) This Division applies only to a claim for
damages or recovery of contribution brought
against a worker's employer in respect of an
35 injury that was caused by--
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(a) the negligence or other tort (including
breach of statutory duty) of the worker's
employer; or
Victorian Legislation and Parliamentary Documents
(b) a breach of contract by the worker's
5 employer.
(2) This Division also applies to a claim for
damages or recovery of contribution brought
against a person other than a worker's
employer in respect of an injury if--
10 (a) the worker's employment is connected
with Victoria; and
(b) the negligence or other tort or the
breach of contract on which the claim is
founded occurred in Victoria.
15 (3) Sub-sections (1)(a) and (2) apply even if
damages resulting from the negligence or
other tort are claimed in an action for breach
of contract or other action.
(4) A reference in this Division to a worker's
20 employer includes a reference to--
(a) a person who is vicariously liable for
the acts of the employer; and
(b) a person for whose acts the employer is
vicariously liable.
25 129MC. What constitutes injury and employment
and who is employer
For the purposes of this Division--
(a) "injury" and "employer" include
anything that is within the scope of a
30 corresponding term in the statutory
workers compensation scheme of
another State; and
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(b) the determination of what constitutes
employment or whether or not a person
is the worker's employer is to be made
Victorian Legislation and Parliamentary Documents
on the basis that those concepts include
5 anything that is within the scope of a
corresponding concept in the statutory
workers compensation scheme of
another State.
129MD. Claim in respect of death included
10 For the purposes of this Division, a claim for
damages in respect of death resulting from
an injury is to be considered as a claim for
damages in respect of the injury.
129ME. Meaning of "substantive law"
15 In this Division--
"a State's legislation about damages for a
work related injury" means--
(a) for this State--this Part and the
Accident Compensation
20 (WorkCover Insurance) Act
1993 and any other provision of
this Act providing for the
interpretation of anything in this
Part; and
25 (b) for any other State--any
provisions of a law of the State
that is declared by the regulations
to be the State's legislation about
damages for a work related injury;
30 "substantive law" includes--
(a) a law that establishes, modifies or
extinguishes a cause of action or a
defence to a cause of action; and
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(b) a law prescribing the time within
which an action must be brought
(including a law providing for the
Victorian Legislation and Parliamentary Documents
extension or abridgment of that
5 time); and
(c) a law that provides for the
limitation or exclusion of liability
or the barring of a right of action
if a proceeding on, or arbitration
10 of, a claim is not commenced
within a particular time limit; and
(d) a law that limits the kinds of
injury, loss or damage for which
damages or compensation may be
15 recovered; and
(e) a law that precludes the recovery
of damages or compensation or
limits the amount of damages or
compensation that can be
20 recovered; and
(f) a law expressed as a presumption,
or rule of evidence, that affects
substantive rights; and
(g) a provision of a State's legislation
25 about damages for a work related
injury, whether or not it would be
otherwise regarded as procedural
in nature--
but does not include a law prescribing
30 rules for choice of law.
129MF. Availability of action in another State not
relevant
(1) It makes no difference for the purposes of
this Division that, under the substantive law
35 of another State--
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(a) the nature of the circumstances is such
that they would not have given rise to a
cause of action had they occurred in
Victorian Legislation and Parliamentary Documents
that State; or
5 (b) the circumstances on which the claim is
based do not give rise to a cause of
action.
(2) In this section--
"another State" means a State other than
10 the State with which the worker's
employment is connected.'.
22. New Schedule 3 inserted
At the end of the Accident Compensation Act
1985 insert--
15 'SCHEDULE 3
ADJACENT AREAS
1. Definitions
In this Schedule--
"continental shelf" has the same meaning as
20 in the Seas and Submerged Lands Act
1973 of the Commonwealth;
"territorial sea" has the same meaning as in
the Seas and Submerged Lands Act 1973
of the Commonwealth.
25 2. Adjacent areas
(1) The "adjacent area" for Victoria, New South
Wales, South Australia or Tasmania is so much
of the area described in Schedule 2 to the
Petroleum (Submerged Lands) Act 1967 of the
30 Commonwealth in relation to that State as is
within the outer limits of the continental shelf
and includes the space above and below that
area.
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(2) The "adjacent area" for Queensland is--
(a) so much of the area described in
Victorian Legislation and Parliamentary Documents
Schedule 2 to the Petroleum (Submerged
Lands) Act 1967 of the Commonwealth
5 in relation to Queensland as is within the
outer limits of the continental shelf; and
(b) the Coral Sea area (within the meaning of
sub-section (7) of section 5A of the
Petroleum (Submerged Lands) Act 1967
10 of the Commonwealth) other than the
territorial sea within the Coral Sea area;
and
(c) the areas within the outer limits of the
territorial sea adjacent to certain islands
15 of Queensland as determined by
proclamation of 4 February 1983 under
section 7 of the Seas and Submerged
Lands Act 1973 of the Commonwealth;
and
20 (d) the space above and below the areas
described in paragraphs (a), (b) and (c).
(3) The "adjacent area" for Western Australia is
so much of the area described in Schedule 2 to
the Petroleum (Submerged Lands) Act 1967 of
25 the Commonwealth in relation to Western
Australia as--
(a) is within the outer limits of the
continental shelf; and
(b) is not within Area A of the Zone of
30 Cooperation--
and includes the space above and below that
area.
(4) The "adjacent area" for the Northern
Territory is--
35 (a) so much of the area described in
Schedule 2 to the Petroleum (Submerged
Lands) Act 1967 of the Commonwealth
in relation to the Northern Territory as--
(i) is within the outer limits of the
40 continental shelf; and
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(ii) is not within Area A of the Zone of
Cooperation;
Victorian Legislation and Parliamentary Documents
(b) the adjacent area for the Territory of
Ashmore and Cartier Islands (within the
5 meaning of sub-section (3) of section 5A
of the Petroleum (Submerged Lands) Act
1967 of the Commonwealth) other than
the territorial sea within that area; and
(c) the space above and below the areas
10 described in paragraphs (a) and (b).
(5) However, the adjacent area for a State does not
include any area inside the limits of any State
or Territory.'.
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s. 23
Transitional Provisions
PART 4--AMENDMENTS TO THE ACCIDENT
COMPENSATION ACT 1985--SAVINGS AND
Victorian Legislation and Parliamentary Documents
TRANSITIONAL PROVISIONS
23. Insertion of Part IX
5 After Part VIII of the Accident Compensation
Act 1985 insert--
'PART IX--SAVINGS AND TRANSITIONAL
PROVISIONS--AMENDING ACTS
Division 1--Accident Compensation
10 (Miscellaneous Amendment) Act 1997
254. Definition of amending Act
In this Division "amending Act" means the
Accident Compensation (Miscellaneous
Amendment) Act 1997.
15 255. Section 91 (Assessment of impairment)
(1) Section 91, as amended by section 25 of the
amending Act, applies to all claims for
compensation under section 98C,
irrespective of when the injury occurred or
20 the claim is made.
(2) Section 91, as in force immediately before
1 September 1998, continues to apply--
(a) to claims for compensation under
section 98;
25 (b) to applications for determinations under
section 135A(3);
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(c) to all claims for weekly payments to
which section 93C applies--
Victorian Legislation and Parliamentary Documents
irrespective of when the injury occurred or
the claim is made.
5 Note: 1 September 1998 is the date of commencement of
section 25 of the Accident Compensation
(Miscellaneous Amendment) Act 1997.
Division 2--Accident Compensation (Common
Law and Benefits) Act 2000
10 256. Definition of amending Act
In this Division "amending Act" means the
Accident Compensation (Common Law
and Benefits) Act 2000.
257. Section 5A (Pre-injury average weekly
15 earnings)
(1) Section 5A(1A), as amended by section 4 of
the amending Act, applies in respect of a
claim for weekly payments given, served or
lodged--
20 (a) on or after 1 September 2000; but
(b) before the date of commencement of
section 5 of the Accident
Compensation and Transport
Accident Acts (Amendment) Act
25 2003.
(2) Section 5A as in force immediately before
1 September 2000 continues to apply in
respect of a claim for weekly payments
given, served or lodged before that date.
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(3) Section 5A(4), as amended by section 4 of
the amending Act, applies in respect of a
claim for weekly payments given, served or
Victorian Legislation and Parliamentary Documents
lodged on or after 1 September 2000.
5 Note: 1 September 2000 is the date of commencement of
section 4 of the Accident Compensation (Common
Law and Benefits) Act 2000.
Division 3--Accident Compensation and
Transport Accident Acts (Amendment) Act
10 2003
258. Definitions
In this Division--
"amending Act" means the Accident
Compensation and Transport
15 Accident Acts (Amendment) Act
2003;
"commencement date" means the day after
the day on which the amending Act
receives the Royal Assent.
20 259. Section 5(1) (Definition of "injury")
The definition of "injury" in section 5(1), as
amended by section 3(1) of the amending
Act, only applies to injuries that occur on or
after the date of commencement of section 3.
25 260. Section 5(1) (Definition of "medical
service")
The definition of "medical service" in
section 5(1), as amended by section 4(1) of
the amending Act, only applies to services
30 provided on or after the date of
commencement of section 4.
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261. Section 5A (Pre-injury average weekly
earnings)
Victorian Legislation and Parliamentary Documents
Section 5A, as amended by section 5 of the
amending Act, applies in respect of a claim
5 for weekly payments given, served or lodged
on or after the date of commencement of
section 5.
262. Section 82 (Entitlement to compensation)
Section 82, as amended by section 3 of the
10 amending Act, applies to all injuries that
occur on or after the date of commencement
of section 3.
263. Section 86 (Compensation for disease due
to employment)
15 Section 86, as amended by section 3(7) of
the amending Act, applies to all injuries that
occur on or after the date of commencement
of section 3.
264. Section 91 (Assessment of impairment)
20 (1) Section 91, as amended by section 7 of the
amending Act, applies to all assessments
(including assessments made for the
purposes of claims and applications referred
to in section 255) made on or after the date
25 of commencement of section 7.
(2) For the purposes of assessments made for the
purposes of claims and applications referred
to in section 255(2), a reference in
sections 91(9) and 91(10) to the A.M.A.
30 Guides is to be read as a reference to the
American Medical Association's Guides to
the Evaluation of Permanent Impairment
(Second Edition).
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(3) Section 91(7), as amended by section 8(3) of
the amending Act, only applies in respect of
assessments for injuries that are made on or
Victorian Legislation and Parliamentary Documents
after the date of commencement of section 8.
5 (4) Despite the repeal of sections 91(11) and
91(12) by section 9(1) of the amending Act,
those sections continue to apply according to
their terms in respect of claims for
compensation lodged before the date of
10 commencement of section 9(1).
265. Section 98C (Compensation for non-
economic loss)
Section 98C, as amended by section 8 of the
amending Act, only applies in respect of
15 injuries that occur on or after the date of
commencement of section 8.
Note: The only effective changes made by section 8 are the
inclusion of section 98C(2)(b), an increase to the
formula amounts in section 98C(2)(c) and the
20 inclusion of associated section 98C(2A). The other
amendments made to amounts by section 8 were
made for the purposes of consistency and merely
reflect the amounts that applied under section 98C on
the date of commencement of section 8 as a result of
25 the indexation that occurred under section 100.
Therefore nothing in section 265 affects those
amounts.
266. Section 99 (Compensation for medical and
like services)
30 (1) Section 99, as amended by section 4(2) of
the amending Act, only applies to claims for
compensation under section 99 made after
the commencement date.
(2) This Act continues to apply to a person who
35 was injured before the commencement date
for 18 months after the commencement date
as if it had not been amended by section 4(2)
of the amending Act.
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267. Part IV (Payment of Compensation)
(1) The amendments made to Part IV by Part 3
Victorian Legislation and Parliamentary Documents
of the amending Act do not apply in respect
of an injury that occurred before the
5 commencement of Part 3, and Part IV
applies in respect of such an injury as if
those amendments had not been made.
(2) If the death of a worker results from both an
injury that occurred before the date of
10 commencement of Part 3 of the amending
Act and an injury that occurred on or after
that date, the worker is, for the purposes of
the application of the amendments made by
Part 3 of that Act to and in respect of the
15 death of the worker, to be treated as having
died as a result of the injury that occurred on
or after that date.
(3) If a period of incapacity for work resulted
both from an injury that occurred before the
20 date of commencement of Part 3 of the
amending Act and an injury that occurred on
or after that date, the incapacity is, for the
purposes of the application of the
amendments made by Part 3 of that Act to
25 and in respect of that incapacity for work, to
be treated as having resulted from the injury
that occurred on or after that date.
(4) The amendments made by Part 3 of the
amending Act and sub-sections (2) and (3)
30 do not affect the apportionment of liability in
a case where one or more of the injuries
concerned occurred before, and one or more
occurred on or after, the date of
commencement of Part 3.
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268. Sections 155A and 155B (Employer to
re-employ worker)
Victorian Legislation and Parliamentary Documents
(1) Sections 155A and 155B, as inserted by
section 10 of the amending Act, only apply
5 in respect of injuries that occur on or after
the date of commencement of section 10.
(2) Section 122, despite its repeal by section 11
of the amending Act, continues to apply in
respect of injuries that occur before the date
10 of commencement of section 11.
(3) Sections 160(1)(a)(iii) and 242(1), in the
form they were in immediately before the
date of commencement of section 11 of the
amending Act, continue to apply in respect
15 of injuries that occur before that date.
269. Section 156 (Occupational rehabilitation
and risk management programs)
(1) Section 156, as amended by section 12 of the
amending Act, only applies in respect of
20 injuries that occur on or after the date of
commencement of section 12.
(2) Section 156, in the form it was in
immediately before the date of
commencement of section 12 of the
25 amending Act, continues to apply in respect
of injuries that occur before that date.'.
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Part 5--Amendment to the Accident Compensation (WorkCover Insurance)
s. 24
Act 1993
PART 5--AMENDMENT TO THE ACCIDENT
COMPENSATION (WORKCOVER INSURANCE) ACT 1993
Victorian Legislation and Parliamentary Documents
24. Amendment of Accident Compensation
(WorkCover Insurance) Act 1993
5 (1) After section 7(1) of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
'(1AA) It is a defence to a prosecution for an offence
against sub-section (1) concerning an
employer's liability in respect of injuries to a
10 worker if the court is satisfied that at the time
of the alleged offence--
(a) the employer believed on reasonable
grounds that the employer could not be
liable under the Accident
15 Compensation Act 1985 or at common
law or otherwise in respect of injuries
to the worker because under section 80
of that Act the worker's employment
was not connected with this State; and
20 (b) the employer had workers
compensation cover in respect of the
worker's employment under the law of
the State or Territory with which the
employer believed on reasonable
25 grounds the worker's employment was
connected under section 80 of that Act.
(1AB) In sub-section (1AA), "workers
compensation cover" means insurance or
registration required under the law of a State
30 or Territory in respect of liability for
statutory workers compensation under that
law.'.
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Act 1993
(2) After section 7(7) of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
Victorian Legislation and Parliamentary Documents
'(7A) Despite any other provision of this section, if
the Authority is satisfied that--
5 (a) the reason for the employer not
obtaining or keeping in force a policy
of insurance as required in accordance
with sub-section (1) in respect of
injuries to a worker in a period is that
10 the employer believed on reasonable
grounds that the employer could not be
liable under the Accident
Compensation Act 1985 or at common
law or otherwise in respect of injuries
15 to the worker because under section 80
of that Act the worker's employment
was not connected with this State; and
(b) the employer had workers
compensation cover in respect of the
20 worker's employment under the law of
the State or Territory with which the
employer believed on reasonable
grounds the worker's employment was
connected under section 80 of that
25 Act--
the employer is not liable to pay a penalty
under sub-section (6) in respect of that
liability.
(7B) In sub-section (7A), "workers
30 compensation cover" has the same meaning
as in sub-section (1AB).'.
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Part 6--Amendments to the Transport Accident Act 1986
s. 25
PART 6--AMENDMENTS TO THE TRANSPORT ACCIDENT
ACT 1986
Victorian Legislation and Parliamentary Documents
25. Compensation not to include cost of accommodation
etc. unless medically necessary
5 (1) In section 3(1) of the Transport Accident Act
1986, in the definition of "medical service", after
paragraph (e) insert--
"and
(f) the provision, at the request of a medical
10 practitioner, hospital or provider of a hospital
service, of special food or a special food
formula; and
(g) the provision, at the request of a medical
practitioner, of room temperature control
15 equipment for a person who is unable to
adequately regulate his or her own body
temperature; and
(h) the provision, at the request of a medical
practitioner, of equipment intended to treat
20 or stabilize any injury or condition resulting
from a transport accident;
Examples
Examples of equipment referred to in paragraph (h)
include life support equipment, ventilators and special
25 lighting.
(i) the provision of anything needed to operate,
run, maintain or repair any equipment
referred to in paragraph (g) or (h);
Examples
30 Examples of things referred to in paragraph (i) include
electricity, water, lubricating oil and replacement
filters and batteries.
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s. 25
Note: Paragraphs (f) to (i) only apply to services provided
on or after the date of commencement of section 26
of the Accident Compensation and Transport
Victorian Legislation and Parliamentary Documents
Accident Acts (Amendment) Act 2003--see
5 section 179.".
(2) After section 60(6) of the Transport Accident
Act 1986 insert--
'(7) Nothing in this section renders the
Commission liable to pay as compensation
10 the cost of the provision to, or for, a person
who is injured as a result of a transport
accident of any of the following things
unless the provision of a particular thing to
the person is a medical service, or a hospital
15 service, provided as a result of the injury--
(a) accommodation (including
accommodation-related costs such as
rent, bonds, rates, accommodation costs
levied in accordance with
20 Commonwealth legislation, capital
contributions and costs associated with
the buying or selling of property, but
not including the costs and
contributions referred to in sub-
25 section (4));
(b) food or household or personal items;
(c) power, water or any other service
provided by a utility;
(d) room temperature controls;
30 (e) any other thing specified by the
regulations for the purposes of this sub-
section.
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(8) Sub-section (7) does not apply in the case of
a person who is under 18 years of age and
who, as a result of his or her injury, is unable
Victorian Legislation and Parliamentary Documents
to reside at the place that he or she resided at
5 before he or she was injured.
(9) Sub-section (7) also does not apply to a
person--
(a) who receives a hospital service as a
result of a transport accident; and
10 (b) who is then discharged from hospital;
and
(c) who then resides in a nursing home,
aged person's hostel, group home or
facility approved by the Commission,
15 supported residential service,
residential care service or state-funded
residential care service--
during the first 18 months after the person is
first discharged from hospital.
20 (10) For the purposes of sub-section (9)--
(a) a person can only be "first" discharged
once from hospital in relation to a
particular transport accident; and
(b) it does not matter if, during the relevant
25 period, the person changes
accommodation, or does not live
continuously in accommodation of the
sort listed in sub-section (9)(c)
(although in this latter case sub-
30 section (9) only applies to the person
while he or she is living in
accommodation of that sort); and
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(c) the 18 month period referred to in sub-
section (9) is to be extended by the
addition of any period during which a
Victorian Legislation and Parliamentary Documents
person is in a hospital receiving a
5 hospital service after he or she is first
discharged from hospital.
Note: Sub-sections (7) to (10) only apply to applications for
payment made after the date of commencement of
section 25 of the Accident Compensation and
10 Transport Accident Acts (Amendment) Act
2003--see section 181(1). Also, those sub-sections
do not apply to people who had been injured in a
transport accident before that date until the expiry of
18 months after that date--see section 181(3).'.
15 26. Entitlement to compensation outside Victoria
For sections 42(2)(b) to 42(2)(e) of the Transport
Accident Act 1986 substitute--
"(b) an award of compensation or judgment for
damages has been made, given or entered in
20 favour of the person, dependant or surviving
spouse; or
(c) any payment into court has been accepted by
the person, dependant or surviving spouse; or
(d) there has been a compromise or settlement of
25 a claim by the person, dependant or
surviving spouse; or
(e) a claim for compensation in favour of the
person, dependant or surviving spouse has
been accepted; or
30 (f) the person, dependant or surviving spouse
has commenced an action for damages in a
court of competent jurisdiction--
unless the Commission is liable under
section 94(1) to pay compensation to the person,
35 dependant or surviving spouse under the law of a
place outside Victoria.".
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27. Re-positioning of transitional provisions
Sections 46A(8) and 46A(9) of the Transport Act
Victorian Legislation and Parliamentary Documents
1983 are repealed.
Note: Section 177 re-enacts sections 46A(8) and 46A(9)
5 (which were transitional provisions in relation to
amendments made by the Transport Accident
(Amendment) Act 1998).
28. Insertion of section 46C
After section 46B of the Transport Accident Act
10 1986 insert--
"46C. Rounding of assessments of impairment
(1) Despite anything to the contrary in the
A.M.A. Guides, in determining a person's
degree of impairment for the purposes of
15 section 46A, 47, 54 or 55, no number
determined under the A.M.A. Guides is to be
rounded up or down, regardless of whether
the number represents an initial, an
intermediate, a combined or a final value,
20 unless the rounding is expressly required or
permitted by this Act.
(2) A number determined under the A.M.A.
Guides must be rounded to the nearest whole
percent.
25 Example:
A final degree of impairment of 95% must be
rounded to 10%. A final degree of impairment of
84% must be rounded to 8%.
Note: Section 180 sets out the transitional provisions
30 that apply to this section.".
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29. Preservation of rights of international visitors
In section 47(7)(b) of the Transport Accident
Victorian Legislation and Parliamentary Documents
Act 1986, for "or 38A" substitute ", 38A or 42".
30. Payment of medical and like benefits
5 For section 60(1A) of the Transport Accident
Act 1986 substitute--
"(1A) The Commission is only liable to pay
compensation under this section for the
expenses and costs incurred in the following
10 periods--
(a) if the application for compensation is
made within 3 years after the date of
the transport accident, the period
between the date of the accident and the
15 date the application is granted; or
(b) in any other case, the period of 2 years
immediately before the application is
made.
Note: Sub-section (1A) applies in respect of all
20 applications for compensation made on or after
1 January 2001--see section 181(2).".
31. Extension of time limit for reviews of decisions on
eligibility for compensation
In section 70(3)(b) of the Transport Accident
25 Act 1986, for "28 days" substitute "12 months".
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32. Insertion of Part 11
After Part 10 of the Transport Accident Act
Victorian Legislation and Parliamentary Documents
1986 insert--
'PART 11--SAVINGS AND TRANSITIONAL
5 PROVISIONS--AMENDING ACTS
Division 1--Transport Accident (Amendment)
Act 1998
176. Definition of "amending Act"
In this Division, "amending Act" means the
10 Transport Accident (Amendment) Act
1998.
177. Section 46A (Degree of impairment)
(1) Section 46A, as amended by section 8 of the
amending Act, applies for the purpose of
15 determining the degree of impairment in
respect of an injury as a result of a transport
accident on or after 19 May 1998.
(2) Section 46A, as in force, and the Transport
Accident (Impairment) Regulations 1988 as
20 in force, immediately before 19 May 1998,
continue to apply for the purpose of
determining the degree of impairment in
respect of an injury as a result of a transport
accident before 19 May 1998 as if those
25 Regulations formed part of section 46A.
Note: 19 May 1998 is the date of commencement of
section 8 of the Transport Accident (Amendment)
Act 1998.
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Division 2--Accident Compensation and
Transport Accident Acts (Amendment) Act
2003
Victorian Legislation and Parliamentary Documents
178. Definitions
5 In this Division--
"amending Act" means the Accident
Compensation and Transport
Accident Acts (Amendment) Act
2003;
10 "commencement date" means the day after
the day on which the amending Act
receives the Royal Assent.
179. Section 3 (Definition of "medical service")
The definition of "medical service" in
15 section 3(1), as amended by section 25(1) of
the amending Act, only applies to services
provided on or after the date of
commencement of section 25.
180. Section 46C (Rounding of assessments of
20 impairment)
(1) Section 46C applies to any determination of
the degree of impairment in respect of an
injury (including any determination of the
degree of impairment in respect of an injury
25 referred to in section 177(1)) made on or
after the date of commencement of
section 28.
(2) If--
(a) a determination of a degree of
30 impairment had been made before the
date of commencement of section 28 of
the amending Act; and
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(b) no number determined under the
A.M.A. Guides was rounded up or
down in the making of the
Victorian Legislation and Parliamentary Documents
determination--
5 in reviewing the determination, the
Commission or a court or tribunal (as the
case may be) must not round up or down any
number determined under the A.M.A.
Guides.
10 (3) Sub-section (2) applies regardless of whether
or not an application for review, or an
appeal, had been lodged in respect of the
determination before that date of
commencement, and regardless of whether
15 or not the fact that there was no rounding in
determining the number was one of the
grounds on which an application for review,
or an appeal, was based.
(4) Despite sub-section (2), the Commission or a
20 court or tribunal may round a final value
determined under the A.M.A. Guides to the
nearest whole percent.
181. Section 60 (Medical and like benefits)
(1) Section 60, as amended by section 25(2) of
25 the amending Act, only applies to
applications for payment made after the
commencement date.
(2) Section 60(1A), as substituted by section 31
of the amending Act, applies in respect of all
30 applications for compensation made on or
after 1 January 2001.
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(3) This Act continues to apply to a person who
was injured in a transport accident before the
commencement date for 18 months after the
Victorian Legislation and Parliamentary Documents
commencement date as if it had not been
5 amended by section 25(2) of the amending
Act.
182. Section 70 (Decision on eligibility for
compensation)
Section 70(3)(b), as amended by section 31
10 of the amending Act, applies to all claims--
(a) that are in existence on the
commencement date; or
(b) that are made on or after the
commencement date;
15 (c) that lapsed before the commencement
date, but in respect of which an
application for a review could have
been made to the Tribunal had
section 70(3)(b), as amended by
20 section 31, been in force at the end of
the period specified in section 70(1) or
70(2) (as the case requires).'.
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Endnotes
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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