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PARLIAMENT OF VICTORIA
Transport Accident (Amendment) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--AMENDMENT OF TRANSPORT ACCIDENT ACT 1986 3
3. Definitions 3
4. Transport accident to include certain incidents with pedal cyclists 5
5. Pre-accident weekly earnings 6
6. TAC no longer a reorganising body 6
10A. TAC no longer a reorganising body 6
7. Proceedings and resolutions of the Board 7
8. Authorisation of disability services 7
9. Extension of time for review 7
10. Transport Accident Fund 8
11. Capital and dividends 8
29A. Repayment of capital 8
29B. Dividends 8
12. Sections 39 and 40 substituted 8
39. Circumstances in which a person is not entitled to
compensation 9
40. Circumstances in which certain compensation is not
payable or is reduced 10
40A. General provisions 14
13. Degree of impairment 16
14. Impairment benefit 17
15. Calculation of loss of earning capacity 19
16. Review of entitlement 20
17. Surviving spouse 20
18. Surviving children 20
19. Medical and like benefits 21
20. Home and motor vehicle modifications 25
21. Notice of accident 26
22. Sections 65 and 66 substituted 26
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Clause Page
65. Provisions applying to notice under section 64 26
66. Payment of penalty 27
23. Form of claim 28
24. Time for making claim under Part 3 28
25. Time period for considering claims 29
26. Medical examinations 29
27. Reviews 29
28. Evidence as to alcohol or drugs 31
29. Release from liability for payments under section 60 32
30. Serious injury 32
31. Provisions relating to determination of a serious injury 33
32. Appeals 33
93A. Effect of decision on application 33
93B. Hearing of Appeal 34
93C. Giving of reasons 34
33. Procedures under section 93 34
93D. Directions 34
34. Indemnity 35
35. Unindemnified vehicles 35
36. Indemnity by third party 36
37. Rates of charges 36
38. Amendments consequential to section 37 37
39. Provision of information 37
40. Supreme Court-limitation of jurisdiction 38
132C. Supreme Court-limitation of jurisdiction 38
PART 3--AMENDMENT OF ACCIDENT COMPENSATION ACT
1985 39
41. Amendment of section 135A 39
42. Liability of Transport Accident Commission 39
43. Amendment of proposed section 134AG and commencement 39
44. Supreme Court-limitation of jurisdiction 40
252E. Supreme Court-limitation of jurisdiction 40
PART 4--AMENDMENT OF DANGEROUS GOODS ACT 1985 41
45. Amendment of Dangerous Goods Act 1985 41
ENDNOTES 43
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541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000
PARLIAMENT OF VICTORIA
Initiated in Assembly 4 October 2000
As amended in Assembly 26 October 2000
A BILL
to amend the Transport Accident Act 1986 to increase certain
compensation payments, to provide for improved access to benefits
and to revise claims procedures, to amend the Accident
Compensation Act 1985 and the Dangerous Goods Act 1985 and for
other purposes.
Transport Accident (Amendment) Act
2000
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to--
(a) amend the Transport Accident Act 1986
5 to--
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(i) compensate claimants receiving weekly
payments for the effect of the GST;
(ii) include as a transport accident a
collision between a pedal cyclist
5 travelling to or from work and a motor
vehicle;
(iii) provide improved access to certain
benefits;
(iv) revise procedures relating to claims and
10 reviews;
(v) improve the operation of the Act; and
(b) make miscellaneous amendments to the
Accident Compensation Act 1985 and the
Dangerous Goods Act 1985.
15 2. Commencement
(1) This section and sections 1, 6, 9, 10, 11, 13, 14(3),
15(4), 17, 18, 21, 22, 24, 25, 26, 27(4), 29, 31, 32,
34, 35, 36, 39, 40, 41, 43 and 44 come into
operation on the day after the day on which this
20 Act receives the Royal Assent.
(2) Section 15(3) is deemed to have come into
operation on 1 July 2000.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
25 day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 July 2002, it
comes into operation on that day.
_______________
30
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PART 2--AMENDMENT OF TRANSPORT ACCIDENT ACT
1986
3. Definitions
(1) In section 3(1) of the Transport Accident Act
5 1986 for the definition of "dependent spouse"
substitute--
' "dependent spouse" in relation to a person
means the spouse of that person, if the
spouse would but for the injury or death of
10 that person--
(a) be wholly, mainly or in part dependent
on that person for economic support; or
(b) be wholly dependent on the person for
the care of the children of the spouse or
15 of that person;'.
(2) After section 3(1A) of the Transport Accident
Act 1986 insert--
'(1B) The definition of "dependent spouse" as
substituted by section 3(1) of the Transport
20 Accident (Amendment) Act 2000 applies to
and in respect of a transport accident which
occurs on or after the commencement of that
section.'.
(3) In section 3(1) of the Transport Accident Act
25 1986--
(a) after the definition of "dependent spouse"
insert--
' "disability service" means the provision to
or for a person who is disabled as a
30 result of an injury in a transport
accident of any service (other than a
rehabilitation service) relating to
attendant care, assistance,
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accommodation support, community
access, respite care or household help,
the provision of which service is an
authorised service in accordance with
5 section 23;';
(b) in the definition of "injury" after "nervous
shock" insert "suffered by a person who was
directly involved in the transport accident or
who witnessed the transport accident or the
10 immediate aftermath of the transport
accident";
(c) in the definition of "medical service", for
paragraph (e) substitute--
"(e) the provision by a medical practitioner,
15 registered dentist, registered
optometrist, registered physiotherapist,
registered chiropractor, registered
osteopath or registered podiatrist of any
certificate required by the person, the
20 person's dependants or the Commission
for any purpose relating to the
operation of this Act or any report
authorised by the Commission;";
(d) for the definition of "rehabilitation service"
25 substitute--
' "rehabilitation service" means the
provision to or for a person for the
purpose of rehabilitation of any aid,
treatment, counselling, appliance,
30 apparatus or other service, the
provision of which is an authorised
service in accordance with section 23;';
(e) after the definition of "transport accident"
insert--
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' "transportation costs" means costs
incurred travelling to or from--
(a) a rehabilitation service; or
(b) an approved program of disability
5 services the provision of which is
authorised in accordance with
section 23;';
(f) in the definition of "registered motor
vehicle", in paragraph (b) after "registered"
10 insert "and is not registered under the law of
another State or Territory".
(4) After section 3(2) of the Transport Accident Act
1986 insert--
'(2A) The definition of "injury" as amended by
15 section 3(3)(b) of the Transport Accident
(Amendment) Act 2000 applies to and in
respect of a transport accident which occurs
on or after the commencement of that
section.'.
20 (5) In section 57 of the Transport Accident Act
1986--
(a) for "an earner" (wherever occurring)
substitute "a person";
(b) for "the earner" (wherever occurring)
25 substitute "the person".
4. Transport accident to include certain incidents with
pedal cyclists
After section 3(1A)(b) of the Transport Accident
Act 1986 insert--
30 "(c) involving a collision between a pedal cycle
and a motor vehicle while the cyclist is
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travelling to or from his or her place of
employment.".
5. Pre-accident weekly earnings
After section 4(1B) of the Transport Accident
5 Act 1986 insert--
"(1BA) For the purposes of sub-section (1), in
calculating the earner's ordinary time rate of
pay for the normal number of hours per week
under sub-section (1B), payments for regular
10 overtime and regular shift allowances are to
be included but only if--
(a) during the relevant period under sub-
section (1), the earner has worked
overtime or shift work in accordance
15 with a regular and established pattern;
and
(b) that pattern was substantially uniform
in the number of hours of overtime
worked; and
20 (c) the earner would have continued to
work overtime or shift work in
accordance with that pattern if not for
the injury.".
6. TAC no longer a reorganising body
25 After section 10 of the Transport Accident Act
1986--
"10A. TAC no longer a reorganising body
(1) The Commission is by virtue of this section
declared not to be a reorganising body.
30 (2) The Commission is a statutory corporation
under this Act and is not subject to the State
Owned Enterprises Act 1992.
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(3) The Order of the Governor in Council made
under section 7(1) of the State Owned
Enterprises Act 1992 and published in the
Government Gazette on 6 May 1993 is
5 revoked.
(4) This section does not affect the validity,
status, operation or effect of any act, matter
or thing done by or under the Order revoked
under sub-section (3).".
10 7. Proceedings and resolutions of the Board
(1) In section 20(6) of the Transport Accident Act
1986, for "present and voting" substitute "able to
vote".
(2) After section 20(6) of the Transport Accident
15 Act 1986 insert--
"(6A) Despite sub-section (4), a question is to be
taken to have been determined under sub-
section (6) if the majority is constituted by
not less than 3 Directors.".
20 (3) After section 20A(3) of the Transport Accident
Act 1986 insert--
"(4) Sub-sections (6) and (6A) of section 20
apply in respect of the making of a resolution
under this section.".
25 8. Authorisation of disability services
In section 23(1)(a) of the Transport Accident
Act 1986 after "to be" insert "disability services
or".
9. Extension of time for review
30 In section 23(4) of the Transport Accident Act
1986, for "28 days" substitute "12 months".
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10. Transport Accident Fund
After section 27(3)(e) of the Transport Accident
Act 1986 insert--
"(ea) any payment of an amount to the State under
5 section 29A or 29B;".
11. Capital and dividends
For section 29A of the Transport Accident Act
1986 substitute--
"29A. Repayment of capital
10 (1) The capital of the Commission is repayable
to the State, at the times and in the amounts,
determined by the Treasurer after
consultation with the Commission and the
Minister.
15 (2) In making a determination under this section,
the Treasurer must have regard to any advice
that the Commission has given to the
Treasurer in relation to the Commission's
affairs.
20 29B. Dividends
(1) The Commission must pay to the State a
dividend at the time and in the manner
determined by the Treasurer after
consultation with the Commission and the
25 Minister.
(2) The Treasurer must in determining the
dividend policy that applies to the
Commission have regard to the solvency
margin determined to maintain the long term
30 financial viability of the transport accident
scheme.".
12. Sections 39 and 40 substituted
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For sections 39 and 40 of the Transport Accident
Act 1986 substitute--
'39. Circumstances in which a person is not
entitled to compensation
5 (1) The Commission is not liable to pay
compensation under this Act in respect of a
person who is injured or dies as a result of a
transport accident if--
(a) in the case of a transport accident
10 involving a motor vehicle (other than a
recreation vehicle)--
(i) that occurred in Victoria--a report
is not made to a member of the
police force whether under section
15 61 of the Road Safety Act 1986
or otherwise; or
(ii) that occurred in another State or in
a Territory--a report is not made
to a member of the police force of
20 that State or Territory; and
(b) in the case of a transport accident
involving a railway train or a tram, a
report of the transport accident is not
made to the operator of the railway
25 train or the tram.
(2) Sub-section (1) does not apply in respect of a
person if--
(a) a person is injured or dies as a result of
a transport accident involving a motor
30 vehicle; and
(b) a report of the transport accident was
not made in accordance with sub-
section (1)(a); and
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(c) the Commission determines that in all
the circumstances the failure should be
excused.
(3) The Commission is not liable to pay
5 compensation under this Act (other than
under section 60) to a person who is injured
in a transport accident if the person--
(a) was driving a motor vehicle at the time
of the transport accident; and
10 (b) is convicted of an offence under section
318(1) of the Crimes Act 1958 in
respect of driving the motor vehicle at
that time.
40. Circumstances in which certain
15 compensation is not payable or is reduced
(1) The Commission is not liable to pay
compensation under section 44 or 45 to a
person who is injured as a result of a
transport accident if--
20 (a) the person--
(i) was driving a motor vehicle at the
time of the transport accident; and
(ii) is convicted, in respect of driving
the motor vehicle at that time, of
25 an offence under section 49(1)(a)
of the Road Safety Act 1986 or
under a law that is, in relation to
that Act, a corresponding law--
unless the person satisfies the
30 Commission that the intoxicating liquor
or drug did not contribute in any way to
the transport accident; or
(b) the person was, at the time of the
transport accident, the driver of, or a
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passenger in, a motor vehicle owned by
the person in respect of which a
transport accident charge payable in
respect of a period including that time
5 had not been paid; or
(c) the person was, at the time of the
transport accident, the driver of a motor
vehicle and--
(i) had never held a licence to drive a
10 motor vehicle of that class under
the Road Safety Act 1986 or a
corresponding previous enactment
or under a law that is in relation to
the Road Safety Act 1986 a
15 corresponding law or under a law
of another country; or
(ii) held or had held such a licence
but, at the time of the transport
accident, it was suspended or had
20 been cancelled; or
(iii) in the case of a transport accident
occurring on or after the
commencement of section 12 of
the Transport Accident
25 (Amendment) Act 2000, held or
had held such a licence but , at the
time of the transport accident, it
had not been renewed for at least
3 years; or
30 (d) the person--
(i) was, at the time of the transport
accident, the driver of or a
passenger in a motor vehicle being
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used for or in connection with or
in the commission of an indictable
offence, stealing or attempting to
steal a motor vehicle, resisting or
5 preventing the lawful
apprehension or detention of that
person or any other person or
intentionally causing or
attempting to cause injury to that
10 person or any other person; and
(ii) is convicted of that offence.
(2) The Commission is not liable to pay
compensation under section 44, 45, 47, 48,
49, 50 or 51 to a person who is injured in a
15 transport accident if the person--
(a) was driving a motor vehicle at the time
of the transport accident; and
(b) is convicted of an offence in relation to
the transport accident under section
20 49(1)(c), 49(1)(d), 49(1)(e), 56(2) or
56(7) of the Road Safety Act 1986 or
under a law that is, in relation to that
Act, a corresponding law.
(3) The Commission is not liable to pay
25 compensation under section 47, 48, 49, 50 or
51 to a person who is injured in a transport
accident if the person was driving a motor
vehicle at the time of the transport accident
and is convicted, in respect of driving the
30 motor vehicle at that time--
(a) of an offence under section 49(1)(a) of
the Road Safety Act 1986 or under a
law that is, in relation to that Act, a
corresponding law; or
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(b) of an offence under section 49(1)(b),
49(1)(f) or 49(1)(g) of the Road Safety
Act 1986 or under a law that is, in
relation to that Act, a corresponding
5 law and the relevant level of
concentration of alcohol was
0·24 grams or more per 100 millilitres
of blood--
unless the person satisfies the Commission
10 that the intoxicating liquor or drug or the
concentration of alcohol in the blood, as the
case may be, did not contribute in any way to
the transport accident.
(4) Sub-section (5) applies if a person who is
15 injured in a transport accident was driving a
motor vehicle at the time of the transport
accident and is convicted in respect of
driving the motor vehicle at that time--
(a) of an offence under section 49(1)(b),
20 49(1)(f) or 49(1)(g) of the Road Safety
Act 1986 or under a law that is in
relation to that Act, a corresponding
law; and
(b) the relevant level of concentration of
25 alcohol was more than 0·05 grams per
100 millilitres of blood.
(5) The compensation under section 44 or 45 in
respect of a person to whom sub-section (4)
applies--
30 (a) is reduced by one-third if the
concentration was more than 0·05 and
less than 0·12; and
(b) is reduced by two-thirds if the
concentration was 0·12 or more and
35 less than 0·24; and
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(c) is not payable if the concentration was
0·24 or more--
unless the person satisfies the Commission
that the concentration of alcohol in the blood
5 of the person did not contribute in any way
to the transport accident.
(6) For the purposes of sub-section (1), a person
who drives a motor vehicle at a particular
time is not to be deemed never to have held a
10 licence to drive a motor vehicle of that class
if at that time--
(a) the person was--
(i) the holder of a learner permit in
respect of a motor vehicle of that
15 class under the Road Safety Act
1986 or under a law that is, in
relation to that Act, a
corresponding law; or
(ii) participating in a training program
20 accredited under the Road Safety
Act 1986; and
(b) in the case of a motor vehicle other than
a motor cycle or a tractor, the person
had a licensed driver (not being the
25 holder of a licence issued on probation)
sitting beside him or her.
40A. General provisions
(1) Sub-section (2) applies if--
(a) a person who is injured as a result of a
30 transport accident applies for
compensation under this Act and a
charge for an offence has been laid or it
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appears to the Commission that a
charge for an offence may be laid
against the person; and
(b) the Commission is not liable under
5 section 39 or 40 to make a payment to
that person if he or she is convicted of
that offence.
(2) The Commission may withhold a payment
referred to in sub-section (1)--
10 (a) if the charge is laid within the
limitation period after the date of the
transport accident, until the charge is
heard or withdrawn; or
(b) if no such charge is laid within the
15 limitation period after the date of the
transport accident, until the expiration
of that period.
(3) In sub-section (2), "the limitation period
after the date of the transport accident"
20 means--
(a) the period after the transport accident
within which the charge could be laid;
or
(b) the period of two years after the
25 transport accident--
whichever is the shorter.
(4) If--
(a) a person is convicted of an offence
referred to in section 39 or 40; and
30 (b) the court by which the person was
convicted made a finding as to the
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concentration of alcohol in the person's
blood at a particular time--
the court must, at the request of the
Commission, cause a certificate with
5 particulars of its finding to be given to the
Commission.
(5) For the purposes of this Act--
(a) a certificate of a court given under sub-
section (4) is evidence of the finding of
10 the court as to the concentration of
alcohol in a person's blood at a
particular time; and
(b) any finding of the court as to the
concentration of alcohol in the blood of
15 the person or as to the analysis of a
sample of a person's blood or breath is
conclusive evidence of the facts so
found; and
(c) a finding of a concentration of alcohol
20 in the blood of a person exceeding 0·05
but otherwise unspecified is conclusive
evidence that the concentration was
more than 0·05 and less than 0·12.'.
13. Degree of impairment
25 After section 46A(1) of the Transport Accident
Act 1986 insert--
"(1A) If the Commission has not made a
determination of the degree of impairment of
a person injured as a result of a transport
30 accident as at 18 months after a transport
accident because it does not appear to the
Commission that the person is or is likely to
be entitled to an impairment benefit, the
person may, before the expiry of the period
35 of 6 years after an injury resulting from the
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transport accident first manifests itself, apply
to the Commission for a determination of the
degree of impairment as at the date of the
application.
5 (1B) The period of 6 years referred to in sub-
section (1A) applies--
(a) in respect of a transport accident that
occurred before the commencement of
section 13 of the Transport Accident
10 (Amendment) Act 2000, from the
commencement of that section; and
(b) in respect of a transport accident that
occurs on or after the commencement
of section 13 of the Transport
15 Accident (Amendment) Act 2000,
from the time that the transport accident
occurs.".
14. Impairment benefit
(1) After section 47(3) of the Transport Accident
20 Act 1986 insert--
"(3AA) The Commission must make any payment
under sub-section (3) to the person in respect
of whom the impairment benefit or interim
benefit is assessed without setting off any
25 legal costs.".
(2) In section 47(3A) of the Transport Accident Act
1986 omit "or interim benefit".
(3) For section 47(6) of the Transport Accident Act
1986 substitute--
30 '(6) If as a result of two or more transport
accidents, a person has a total degree of
impairment that is more than 10 percent
suffered as a result of the transport
accidents--
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(a) this section and sections 48 and 54
apply--
(i) on the first occasion that the
impairment is 11 percent or more,
5 as if a reference to a degree of
impairment suffered as a result of
a transport accident were a
reference to the degree of
impairment suffered as a result of
10 one or more transport accidents;
(ii) in relation to any subsequent
transport accident, as if a
reference to a degree of
impairment suffered as a result of
15 a transport accident were a
reference to the degree of
impairment suffered as a result all
of the transport accidents and as if
"B" in the formula in sub-section
20 (2) was equal to the total degree of
impairment suffered as a result all
of the transport accidents for
which compensation has already
been made; and
25 (b) section 93(3) does not apply unless the
degree of impairment is determined to
be 30 percent or more as the result of
one of the transport accidents.'.
(4) For section 47(7) of the Transport Accident Act
30 1986 substitute--
"(7) Despite section 46A(1), the Commission
may for the purposes of proceedings for the
recovery of damages in respect of the injury
at any time determine the degree of
35 impairment of a person who is injured as a
result of a transport accident and who--
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(a) is or may be entitled to compensation
under this Act; or
(b) is not entitled to compensation under
this Act by virtue of section 37, 38 or
5 38A--
if the Commission is satisfied that the injury
has stabilised or has substantially
stabilised.".
15. Calculation of loss of earning capacity
10 (1) In section 49(5) of the Transport Accident Act
1986, for the definition of "pre-accident earning
capacity" substitute--
' "pre-accident earning capacity" in relation to
an earner who suffers loss of earning
15 capacity as a result of an injury in a transport
accident, means the amount the Commission
determines as the weekly amount the earner
had the capacity to earn before the transport
accident in employment reasonably available
20 to the earner in view of the earner's training,
skills and experience less such amount as the
Commission reasonably considers to be the
amount of income tax that would have been
payable on that weekly amount under the
25 Commonwealth Income Tax Assessment Act
1936.'.
(2) After section 49(5) of the Transport Accident
Act 1986 insert--
'(5A) If an amount cannot be determined in
30 accordance with the definition of "pre-
accident earning capacity", the amount is
deemed to be the amount which is equal to
80 percent of average weekly earnings of all
employees for Victoria last published by the
35 Australian Statistician.'.
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(3) After section 49(7) of the Transport Accident
Act 1986 insert--
"(8) The amount of a weekly payment under this
section to which a person is entitled on or
5 after 1 July 2000 in respect of a transport
accident that occurred before 1 July 2000 is
increased by 4 percent.".
(4) In section 50(3)(b) of the Transport Accident
Act 1986 after "capacity" insert ", less the
10 earner's post-accident earning capacity".
(5) In section 61(1) of the Transport Accident Act
1986, after "or this Division" (where twice
occurring) insert "or calculated under section
49(5)".
15 16. Review of entitlement
After section 55(6) of the Transport Accident
Act 1986 insert--
"(7) Despite sub-section (4), if the Commission
has reviewed the earning capacity of a
20 person who has returned to work by
participating in an approved vocational
rehabilitation program and the return to work
is unsuccessful, the Commission must--
(a) restore the entitlement of the person to
25 receive weekly payments; and
(b) take into account earnings received
during the period of the return to
work.".
17. Surviving spouse
30 In section 58(6) of the Transport Accident Act
1986, in the definition of "the earner's assessed
earnings" for "but for the death" substitute "but
for the transport accident".
18. Surviving children
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After section 59(11) of the Transport Accident
Act 1986 insert--
"(12) Sub-section (13) applies if--
(a) the Commission has determined that it
5 is liable to make payments under this
section; and
(b) the Tribunal upon a review determines
that the Commission is liable to make
payments under sections 57 and 58 to
10 the surviving spouse of an earner.
(13) If this sub-section applies--
(a) State Trustees must, at the request in
writing of the Commission, refund to
the Commission any lump sum paid to
15 State Trustees on behalf of a dependent
child; and
(b) the Commission is entitled to set-off
payments made as weekly payments
and education allowance under this
20 section against the payments that the
Commission is liable to make under
sections 57 and 58 to the surviving
spouse of the earner.
(14) Sub-sections (12) and (13) as inserted by
25 section 18 of the Transport Accident
(Amendment) Act 2000 apply to and in
respect of a transport accident which occurs
on or after the commencement of that
section.".
30 19. Medical and like benefits
(1) In section 60 of the Transport Accident Act
1986, for sub-sections (1), (1A) and (2)
substitute--
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'(1) This section specifies amounts that the
Commission is liable to pay as compensation
in addition to any other compensation paid
under this Act.
5 (1A) The Commission is only liable to make a
payment under this section if the application
to the Commission for payment relates to an
expense or cost incurred within the period of
2 years immediately before the application is
10 made.
(2) The Commission is liable to pay as
compensation to a person who is injured or
in respect of a person who dies as a result of
a transport accident--
15 (a) the reasonable costs of road accident
rescue services, medical services,
hospital services, nursing services,
disability services, rehabilitation
services, transportation costs and
20 ambulance services received in
Australia because of the transport
accident; and
(b) the reasonable costs of attendant care
services that would be otherwise
25 payable under paragraph (a) if the
injured person had received those
services in Australia because of the
transport accident, if the injured person
receives those services while travelling
30 overseas for a period of not more than
8 weeks in any year; and
(c) if the person, during the period of one
month preceding the transport accident,
was engaged mainly in housekeeping
35 duties or the care of a child and did not
receive salary or wages in respect of
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those duties or that care, the reasonable
costs incurred after the transport
accident in employing, during the first
5 years after the death or injury, an
5 authorised person to undertake in
Australia housekeeping duties or care
of the child, but the payment of the
reasonable costs is not to exceed a total
of 40 hours per week of housekeeping
10 or child care services ; and
(d) in the case of a person who is injured,
the reasonable costs incurred after the
transport accident in employing an
authorised person to provide in
15 Australia services of a domestic nature
or services relating to nursing and
attendance but not exceeding 40 hours
per week, less the amount paid under
paragraph (c).
20 (2A) The Commission is liable to pay as
compensation in respect of a person who is
injured or dies as a result of a transport
accident--
(a) where death or severe injury results
25 from the transport accident, the
reasonable costs incurred in Australia
of family counselling services provided
to family members by a medical
practitioner or registered psychologist
30 not exceeding $1670 in respect of that
death or severe injury; and
(b) where death results from the transport
accident, the reasonable costs incurred
in Australia of burial or cremation.
35 (2B) In sub-section (2A)(a)--
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"family member" means a spouse, parent,
sibling or child of the person who dies
as a result of a transport accident;
"severe injury" means--
5 (a) a severe closed head injury,
paraplegia, quadriplegia,
amputation of a limb, or burns to
more than 50 percent of the body;
or
10 (b) any other injury prescribed for the
purposes of this sub-section.
(2C) If a parent or guardian of a dependent child
injured and admitted to hospital as a result of
a transport accident incurs reasonable
15 travelling or accommodation expenses by
reason of visiting the dependent child in the
hospital, the Commission is, subject to this
Act, liable to pay as compensation, payments
in respect of those expenses.
20 (2D) If the spouse or a dependent child of a
person injured and admitted to hospital as a
result of a transport accident incurs
reasonable travelling or accommodation
expenses by reason of visiting the person
25 who is an in-patient in a hospital that is
located at least 100 kilometres from the
spouse's or dependent child's normal
residence, the Commission is, subject to this
Act, liable to pay as compensation to the
30 spouse and any dependent child, payments
not exceeding
$5000 in respect of those expenses.".
(2) In section 23(1)(b) of the Transport Accident
Act 1986 for "paragraph (b) or (c) of section
35 60(1)" substitute "section 60(2)(c) or 60(2)(d)".
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20. Home and motor vehicle modifications
(1) For section 60(3) of the Transport Accident Act
1986 substitute--
"(3) If a person who is injured as a result of a
5 transport accident reasonably requires
modifications to a motor vehicle in
Australia, the Commission is liable to--
(a) pay the reasonable cost of
modifications to the person's motor
10 vehicle; or
(b) contribute to the reasonable purchase
cost of a motor vehicle, if the person
does not own a motor vehicle which is
capable of being modified.
15 (4) If a person who is injured as a result of a
transport accident reasonably requires
modifications to a home in Australia because
of the injury, the Commission is liable to--
(a) pay the reasonable cost of
20 modifications to the person's home; or
(b) contribute to--
(i) the reasonable purchase cost of a
semi detachable portable unit; or
(ii) reasonable relocation costs to
25 another home--
if the person does not own a home
which is capable of being modified.
(5) The Commission must not make a payment
or contribution under sub-section (3) or (4)
30 which exceeds $5000, unless the person
enters into an agreement with the
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Commission in relation to the ownership of,
and maintenance of modifications to, the
motor vehicle, home or semi-detachable
portable unit.
5 (6) An agreement under sub-section (5) must
include provisions in respect of--
(a) subsequent modifications;
(b) changes of ownership;
(c) the frequency of modifications and
10 changes of ownership.".
(2) In section 61(2) of the Transport Accident Act
1986 after "$30 520," insert "$5000,".
21. Notice of accident
In sections 64(1) and 64(3) of the Transport
15 Accident Act 1986 for "make a report in the
prescribed form to the Commission within 28 days
after the accident" substitute ", if requested by a
notice served by the Commission, make a report
in the prescribed form within 28 days of receiving
20 the notice".
22. Sections 65 and 66 substituted
For sections 65 and 66 of the Transport Accident
Act 1986 substitute--
"65. Provisions applying to notice under
25 section 64
(1) A notice under section 64(1) or 64(3) may be
served--
(a) personally; or
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(b) by post addressed to the driver at the
last known place of residence or
business.
(2) The notice must state that if the person on
5 whom the notice is served does not make the
report under section 64 within the specified
period, a penalty of $50 is payable to the
Commission.
(3) If the Commission is satisfied that there is a
10 good reason for the report not being made,
the Commission must by further notice
served in accordance with sub-section (1) at
any time within 28 days after the notice
under section 64 was served, withdraw the
15 first notice.
(4) If a notice under section 64 is withdrawn
after the penalty has been paid, the
Commission must refund the amount of the
penalty.
20 (5) A person must not fail to comply with a
notice under section 64 that has not been
withdrawn.
Penalty applying to this sub-section:
1½ penalty units.
25 66. Payment of penalty
(1) If the penalty specified in a notice under
section 64(1) or 64(3) is paid--
(a) within 14 days after the expiry of the
period specified in the notice; or
30 (b) if the Commission so allows, at any
time before service of a summons in
respect of the failure to comply with the
notice--
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no further proceedings may be taken against
the person in respect of the failure to make a
report.
(2) Nothing in this Part prejudices the institution
5 or prosecution of proceedings for an offence
under section 65(5), if the penalty specified
in a notice under section 64(1) or 64(3) has
not been paid within the period specified in
sub-section (1).".
10 23. Form of claim
(1) Sections 67(1)(b) and 67(3) of the Transport
Accident Act 1986 are repealed.
(2) After section 67(1) of the Transport Accident
Act 1986 insert--
15 "(1A) An authority to release information in a
claim for compensation has effect and cannot
be revoked until a claim is finally
determined.".
24. Time for making claim under Part 3
20 (1) For section 68(1)(d) of the Transport Accident
Act 1986 substitute--
"(d) in the case of injury, if no injury manifested
itself at the time of the transport accident,
after any injury first manifests itself.".
25 (2) After section 68(2) of the Transport Accident
Act 1986 insert--
"(3) Despite sub-section (1) but subject to sub-
section (2), if--
(a) a person who is injured as a result of a
30 transport accident to which Part 3
applies was not 18 years of age at the
time of the transport accident; and
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(b) a claim for compensation by or on
behalf of that person has not been made
under that Part--
the person may make a claim for
5 compensation under that Part within one year
of attaining the age of 18 years.".
25. Time period for considering claims
In sections 70(1) and 70(2) of the Transport
Accident Act 1986, for "28 days" substitute
10 "21 days".
26. Medical examinations
(1) In section 71(1) of the Transport Accident Act
1986, for "medical practitioners" substitute
"medical service providers".
15 (2) After section 71(2) of the Transport Accident
Act 1986 insert--
'(3) In sub-section (1), "medical service
provider" means--
(a) medical practitioner;
20 (b) registered psychologist;
(c) registered dentist;
(d) registered optometrist;
(e) registered physiotherapist;
(f) registered chiropractor;
25 (g) registered osteopath;
(h) registered podiatrist.'.
27. Reviews
(1) In section 77(4) of the Transport Accident Act
1986 for "the expiration of 28 days after a copy of
29
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the application has been served on the
Commission" substitute--
"--
(a) notice is received under section 80 (2) that
5 the Commission has re-affirmed the
decision; or
(b) the Commission is deemed by section 80(3)
to have re-affirmed the decision; or
(c) an application is made under section 78(5).".
10 (2) In section 78(1) of the Transport Accident Act
1986 after "reconsider the decision" insert "or
give the applicant a notice under sub-section (2)".
(3) After section 78(2) of the Transport Accident
Act 1986 insert--
15 "(3) An applicant must comply with a notice
under sub-section (2) within 90 days of
being given the notice.
(4) The Commission must hold a conference or
conclude the review within 28 days of
20 receiving the particulars and information
required under sub-section (2).
(5) If the Commission has not received the
particulars and information required under
sub-section (2) within 180 days of giving the
25 notice, the Commission may apply to the
Tribunal to have the proceedings dismissed
or struck out.".
(4) After section 79(2) of the Transport Accident
Act 1986 insert--
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"(3) This section is subject to sections 112 to 115
of the Victorian Civil and Administrative
Tribunal Act 1998.".
(5) For section 80(2) of the Transport Accident Act
5 1986 substitute--
"(2) Within 14 days of holding a conference or
concluding the review under section 78(4),
the Commission must give notice in writing
to the applicant and the Tribunal that it has
10 determined to--
(a) re-affirm the decision; or
(b) vary or revoke the decision as specified
in the notice.
(3) If the Commission fails to comply with
15 section 78(2) or 78(4) or fails to give notice
under sub-section (2), the Commission is
deemed to have determined to re-affirm the
decision.".
28. Evidence as to alcohol or drugs
20 After section 93(6) of the Transport Accident
Act 1986 insert--
"(6A) Despite anything to the contrary in any other
Act, a party may in proceedings under this
section when adducing evidence on the
25 question of whether any person was at the
time of the transport accident under the
influence of intoxicating liquor or any other
drug, use the analysis or the results of the
analysis of a blood sample or breath analysis
30 lawfully taken under the Road Safety Act
1986 at or after the time of the transport
accident.
(6B) A party must not adduce material referred to
in sub-section (6A) in evidence in
35 proceedings under this section, unless a copy
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of the material has been provided to all the
other parties in the proceedings.
(6C) Sub-sections (6A) and (6B) as inserted by
section 28 of the Transport Accident
5 (Amendment) Act 2000 apply to and in
respect of a transport accident which occurs
on or after the commencement of that
section.".
29. Release from liability for payments under section 60
10 After section 93(18) of the Transport Accident
Act 1986 insert--
"(18A) Despite sub-section (18), if an award of
damages under this section includes an
amount for the future cost of services of a
15 kind set out in section 60 if provided in
Australia, the Commission is released from
any further liability for compensation under
that section.
(18B) Sub-section (18A) as inserted by section 29
20 of the Transport Accident (Amendment)
Act 2000 applies to and in respect of a
transport accident which occurs on or after
the commencement of that section.".
30. Serious injury
25 After section 93(17) of the Transport Accident
Act 1986 insert--
'(17A) For the purposes of determining whether
there is an impairment or loss of body
function as defined in paragraph (a) of the
30 definition of serious injury in sub-
section (17), psychological or psychiatric
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consequences are not to be taken into
account.
(17B) Sub-section (17A) as inserted by section 30
of the Transport Accident (Amendment)
5 Act 2000 applies to and in respect of a
transport accident which occurs on or after
the commencement of that section.'.
31. Provisions relating to determination of a serious
injury
10 After section 93(19) of the Transport Accident
Act 1986 insert--
'(19A) For the purposes of sub-section (4)(d)--
(a) a court must not give leave unless it is
satisfied on the balance of probabilities
15 that the injury is a serious injury;
(b) no finding (other than a finding that the
injury is a serious injury) made on an
application for leave to bring
proceedings shall give rise to an issue
20 estoppel.
(19B) For the purposes of the assessment of
"serious injury" in accordance with sub-
sections (4) and (19A), the monetary
thresholds and statutory maximums specified
25 by or under sub-section (7) must be
disregarded.'.
32. Appeals
After section 93 of the Transport Accident Act
1986 insert--
30 "93A. Effect of decision on application
A decision granting or refusing leave made
on an application made under section
93(4)(d) shall be taken not to be a judgment
or order in an interlocutory application for
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the purposes of an appeal to the Court of
Appeal.
93B. Hearing of Appeal
On the hearing of an appeal to the Court of
5 Appeal from a decision made on an
application under section 93(4)(d), the Court
of Appeal shall decide for itself whether the
injury is a serious injury on the evidence and
other material before the judge who heard
10 the application and on any other evidence
which the Court of Appeal may receive
under any other Act or rules of court.
93C. Giving of reasons
The reasons given by the court in deciding
15 an application under section 93(4)(d) shall
not be summary reasons but shall be detailed
reasons which are as extensive and complete
as the court would give on the trial of an
action.".
20 33. Procedures under section 93
After section 93C of the Transport Accident Act
1986 insert--
"93D. Directions
(1) For the purposes of section 93, the Minister
25 may issue directions for or with respect to
procedures under that section.
(2) The directions must be published in the
Government Gazette.
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(3) The directions may include directions about
the provision of information by affidavit and
the attending of conferences.
(4) A person to whom a direction under this
5 section applies, and the legal representatives
and agents of such a person, must comply
with the direction.".
34. Indemnity
(1) After section 94(2) of the Transport Accident
10 Act 1986 insert--
"(2A) Sub-section (1) does not apply in respect of
any liability in respect of a transport accident
involving an organised motor vehicle race or
speed trial or a test in preparation for such a
15 race or trial to which section 41(1) applies.".
(2) After section 94(7) of the Transport Accident
Act 1986 insert--
"(7A) The entitlement of a person to recover
against the Commission under sub-section
20 (7) is not affected by the death of an owner
or driver indemnified under that sub-section
before any proceedings are commenced.".
35. Unindemnified vehicles
For section 96(4) of the Transport Accident Act
25 1986 substitute--
"(4) It is a defence to proceedings under sub-
section (3)--
(a) in the case of the owner of an
unindemnified vehicle, that the vehicle
30 being an unindemnified vehicle was not
the result of any default of the owner;
(b) in the case of the driver of an
unindemnified vehicle--
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(i) that judgment could not have been
obtained against the driver but for
this section; or
(ii) that the driver had reasonable
5 grounds for believing that he or
she had the authority of the owner
to drive the vehicle and that the
vehicle was not an unindemnified
vehicle.".
10 36. Indemnity by third party
In section 104(2) of the Transport Accident Act
1986, after "the amount" insert "(including the
payment of interest)".
37. Rates of charges
15 (1) After section 110(1) of the Transport Accident
Act 1986 insert--
'(1AA) In this section "prescribed" means
prescribed by a charges order made under
this section after the commencement of
20 section 37 of the Transport Accident
(Amendment) Act 2000.'.
(2) In section 110(6) of the Transport Accident Act
1986, for "regulations" (wherever occurring)
substitute "charges order".
25 (3) After section 110(7) of the Transport Accident
Act 1986 insert--
"(8) The Governor in Council may on the
recommendation of the Commission by
Order in Council make a charges order.
30 (9) A charges order--
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(a) must be published in the Government
Gazette;
(b) takes effect on and from the date on
which it is published or any later date
5 of commencement as may be specified
in the order.
(10) A charges order may--
(a) apply generally or be limited in its
application by reference to specified
10 exceptions or factors;
(b) apply differently according to different
factors of a specified kind;
(c) specify different methods of calculation
whether by reference to formulas,
15 scales, tables or other means;
(d) apply, adopt or incorporate (with or
without modification) the provisions of
any document, code, standard, rule,
specification or method whether as
20 formulated, issued, prescribed or
published at the time the order is made;
(e) authorise any specified person or body
to determine or apply a specified matter
or thing.".
25 38. Amendments consequential to section 37
(1) Section 110A of the Transport Accident Act
1986 is repealed.
(2) Section 132(1)(e) of the Transport Accident Act
1986 is repealed.
30 39. Provision of information
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After section 127(3) of the Transport Accident
Act 1986 insert--
'(3A) In sub-section (3), "employer" includes a
former employer at any time during the
5 period of 3 years immediately preceding the
transport accident, of the person who is
injured or dies in the transport accident.'.
40. Supreme Court-limitation of jurisdiction
After section 132B of the Transport Accident
10 Act 1986 insert--
"132C. Supreme Court-limitation of jurisdiction
It is the intention--
(a) of sections 93(19A) and 93(19B) as
inserted by section 31; and
15 (b) of sections 93A, 93B and 93C as
inserted by section 32--
of the Transport Accident (Amendment)
Act 2000 to alter or vary section 85 of the
Constitution Act 1975.".
20 _______________
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PART 3--AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985
41. Amendment of section 135A
After section 135A(2A) of the Accident
5 Compensation Act 1985 insert--
"(2AA) For the purposes of the procedures relating
to an application for a determination from a
worker made under sub-section (2B) and
received by the Authority or a self-insurer
10 after 10 August 2000 but before 1 September
2000, sub-sections (2B), (2D) and (2DB)
have effect as if the reference in each of
those sub-sections to 120 days was a
reference to 210 days.".
15 42. Liability of Transport Accident Commission
In section 137(5B) of the Accident
Compensation Act 1985 after "death or injury"
(where last occurring) insert "less an amount
equal to the employer's excess that would be
20 applicable under section 125A if a WorkCover
insurance policy was in force".
43. Amendment of proposed section 134AG and
commencement
(1) After section 2(7) of the Accident Compensation
25 (Common Law and Benefits) Act 2000 insert--
"(7A) Section 19 (as amended by section 43 of the
Transport Accident (Amendment) Act
2000) comes into operation on the day after
the day on which the Transport Accident
30 (Amendment) Act 2000 receives the Royal
Assent.".
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(2) In section 2(8) of the Accident Compensation
(Common Law and Benefits) Act 2000 omit
"19,".
(3) In section 19 of the Accident Compensation
5 (Common Law and Benefits) Act 2000, in
proposed section 134AG--
(a) in sub-section (1)(a), after "section 134AB"
insert ", 135, 135A or 135B";
(b) in sub-section (4), after "Section
10 134AB(29)" insert ", 135A(13B) or
135B(7)".
44. Supreme Court-limitation of jurisdiction
After section 252D of the Accident
Compensation Act 1985 insert--
15 "252E. Supreme Court-limitation of jurisdiction
It is the intention of section 134AG as
amended by section 43 of the Transport
Accident (Amendment) Act 2000 to alter or
vary section 85 of the Constitution Act
20 1975.".
_______________
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PART 4--AMENDMENT OF DANGEROUS GOODS ACT 1985
45. Amendment of Dangerous Goods Act 1985
(1) In section 3(1) of the Dangerous Goods Act
1985--
5 (a) insert the following definition--
' "ADG Code" means the document known
as the Australian Code for the
Transport of Dangerous Goods by Road
and Rail (Sixth edition or a later
10 prescribed edition), as amended from
time to time;';
(b) the definition of "Competent Authorities
Sub-committee" is repealed;
(c) in the definition of "dangerous goods" for
15 "Transport Code" substitute "ADG Code";
(d) the definition of "Transport Code" is
repealed.
(2) In the Dangerous Goods Act 1985--
(a) in sections 4(f), 9B(4), 10(1) and 10(2) for
20 "Transport Code" substitute "ADG Code";
(b) in section 10(1), "or" after paragraph (b) and
paragraph (c) are repealed;
(c) section 14(1) is repealed.
(3) After section 10(2) of the Dangerous Goods Act
25 1985 insert--
'(3) Any reference in any Act, regulation, local
law, subordinate instrument or other
document to the "Transport Code" is as from
the commencement of section 45 of the
30 Transport Accident (Amendment) Act
2000 to be construed as a reference to the
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"ADG Code", unless the context otherwise
requires.'.
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
43
541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000
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