An Act relating to the rehabilitation of employees of the
Commonwealth and certain corporations and to workers’ compensation for those
employees and certain other persons, and for related purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Safety,
Rehabilitation and Compensation Act 1988.
2
Commencement [see
Note 1]
(1) Sections 1 and 2 commence on the day
on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act
commence on a day or days to be fixed by Proclamation.
3
Application of Act
Subject to section 117, this Act
extends to all places outside Australia, including the external Territories.
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACT enactment means an enactment as defined
by section 3 of the ACT Self‑Government Act.
action for non‑economic loss means any action
(whether or not it involves the formal institution of a proceeding) to recover
an amount for damages for non‑economic loss sustained by an employee as a
result of an injury suffered by that employee:
(a) that is taken by the employee
against the employer, whether it is the Commonwealth, a Commonwealth authority
or a licensed corporation, or against another employee; and
(b) that follows an election made by
the first‑mentioned employee under subsection 45(1).
ACT Self‑Government Act means the Australian Capital Territory (Self‑Government) Act 1988.
administering authority means a Commonwealth
authority that, immediately before the repeal of Part VIII, was an
administering authority under that Part.
adoption means adoption under a law of a
State or Territory or of a foreign country.
aggravation includes acceleration or
recurrence.
ailment means any physical or mental ailment,
disorder, defect or morbid condition (whether of sudden onset or gradual
development).
approved Guide means:
(a) the document, prepared by Comcare
in accordance with section 28 under the title “Guide to the Assessment of
the Degree of Permanent Impairment”, that has been approved by the Minister and
is for the time being in force; and
(b) if an instrument varying the
document has been approved by the Minister—that document as so varied.
approved program provider means a person or
body approved under section 34F or 34H as a rehabilitation program
provider and includes a person or body so approved whose approval is renewed
under section 34L.
attendant care services, in relation to an
employee, means services (other than household services, medical or surgical
services or nursing care) that are required for the essential and regular
personal care of the employee.
Chairperson means the Chairperson of the
Commission.
Chief Executive Officer means the Chief
Executive Officer appointed under section 74, and includes a person who is
acting as the Chief Executive Officer.
child: without limiting who is a child of a
person for the purposes of this Act, someone is the child of a
person if he or she is a child of the person within the meaning of the Family
Law Act 1975.
claim means a claim under Part V.
claimant, in relation to a time after the
death of a claimant, has the meaning given in subsection (11).
Comcare means the body corporate established
by section 68.
Comcare subsidiary means an incorporated
company formed by Comcare.
Commission means the Safety, Rehabilitation
and Compensation Commission established by section 89A.
Commissioner means a member of the Commission
other than the Chief Executive Officer.
Commonwealth, in relation to persons employed
by a Commonwealth authority, has the additional meaning given in subsection
5(7).
Commonwealth authority means:
(a) a body corporate that is
incorporated for a public purpose by a law of the Commonwealth, other than a
body declared by the Minister, by legislative instrument, to be a body
corporate to which this Act does not apply; or
(b) a body corporate that is
incorporated for a public purpose by a law of a Territory (other than an ACT
enactment or a law of the Northern Territory) and is declared by the Minister,
by legislative instrument, to be a body corporate to which this Act applies; or
(c) a body corporate:
(i) that is incorporated
under a law of the Commonwealth or a law in force in a State or Territory;
(ii) in which:
(A) the
Commonwealth has a controlling or substantial interest; or
(B) a
Territory (other than the Australian Capital Territory or the Northern
Territory) or a body corporate referred to in paragraph (a) or (b) has a
controlling interest; and
(iii) that is declared by
the Minister, by legislative instrument, to be a body corporate to which this
Act applies; or
(d) a
body corporate:
(i) in which a body
corporate declared under paragraph (c) has a controlling interest; and
(ii) that is declared by
the Minister, by legislative instrument, to be a body corporate to which this
Act applies; or
(e) if a declaration is in force under
section 4A, the Australian Capital Territory.
Note: For the purposes of the provisions relating to
regulatory contributions under Division 4A of Part VII, Commonwealth
authority has an extended meaning—see section 96.
compensation leave means any period during
which an employee is absent from his or her employment due to an incapacity for
work resulting from an injury in respect of which compensation is payable under
section 19 or 22.
controlling interest, in relation to a body
corporate, means an interest in the body corporate that enables the person
holding the interest to:
(a) control the composition of the
board of directors of the body corporate; or
(b) cast, or control the casting of,
more than one‑half of the maximum number of votes that might be cast at a
general meeting of the body corporate; or
(c) control more than one‑half of the
issued share capital of the body corporate (excluding any part of that issued
share capital that carries no right to participate beyond a specified amount in
a distribution of either profits or capital).
corporation, in Part VIII, means:
(a) a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution; or
(b) a body corporate that is, for the
purposes of paragraph 51(xx) of the Constitution, a financial corporation
formed within the limits of the Commonwealth; or
(c) a body corporate that is, for the
purposes of paragraph 51(xx) of the Constitution, a trading corporation formed
within the limits of the Commonwealth; or
(d) a body corporate that is
incorporated in a Territory;
but does not include a Commonwealth authority.
CTPA means the Military Rehabilitation and
Compensation (Consequential and Transitional Provisions) Act 2004.
damages includes any amount paid under a
compromise or settlement of a claim for damages, whether or not legal
proceedings have been instituted, but does not include an amount paid in
respect of costs incurred in connection with legal proceedings.
de facto partner of a person has the
meaning given by the Acts Interpretation Act 1901.
Defence Department has the meaning given by
the MRCA.
dependant, in relation to a deceased employee,
means:
(a) the spouse, parent, step‑parent,
father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild,
sibling or half‑sibling of the employee; or
(b) a person in relation to whom the
employee stood in the position of a parent or who stood in the position of a
parent to the employee;
being a person who was wholly or partly dependent on the
employee at the date of the employee’s death.
Note: See also subsection 4(2).
dependent means dependent for economic
support.
Deputy Chief Executive Officer means the
Deputy Chief Executive Officer under section 86.
disease has the meaning given by section 5B.
eligible corporation, in Part VIII,
means a corporation in respect of which a declaration is in force under section 100.
employee has the meaning given in section 5,
and also applies to persons 65 years of age or older.
Entity means:
(a) an Agency, within the meaning of
the Public Service Act 1999, that is not a Commonwealth authority; or
(b) a Parliamentary Department within
the meaning of the Parliamentary Service Act 1999; or
(c) a person, body, organisation or
group of persons prescribed for this paragraph.
excluded injury means an injury that arose
out of, or in the course of, or was incidental to:
(a) State banking not extending beyond
the limits of the State concerned; or
(b) State insurance not extending
beyond the limits of the State concerned.
exempt authority means an Entity or a
Commonwealth authority declared by the Minister under section 35 to be an
exempt authority.
household services, in relation to an
employee, means services of a domestic nature (including cooking, house
cleaning, laundry and gardening services) that are required for the proper
running and maintenance of the employee’s household.
impairment means the loss, the loss of the
use, or the damage or malfunction, of any part of the body or of any bodily
system or function or part of such system or function.
injury has the meaning given by section 5A.
licence means a licence under Part VIII.
licensed authority means a Commonwealth
authority that is the holder of a licence that is in force.
licensed corporation means a corporation that
is the holder of a licence that is in force under Part VIII.
licensee means a Commonwealth authority or a
corporation that is licensed, or that is taken to be licensed, under Part VIII.
loss, in relation to property used by an
employee, includes the destruction of that property.
medical treatment means:
(a) medical or surgical treatment by,
or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at
the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the
supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under
the supervision of, a physiotherapist, osteopath, masseur or chiropractor
registered under the law of a State or Territory providing for the registration
of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
or
(e) an examination, test or analysis
carried out on, or in relation to, an employee at the request or direction of a
legally qualified medical practitioner or dentist and the provision of a report
in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair
of an artificial limb or other artificial substitute or of a medical, surgical
or other similar aid or appliance; or
(g) treatment and maintenance as a
patient at a hospital; or
(h) nursing care, and the provision of
medicines, medical and surgical supplies and curative apparatus, whether in a
hospital or otherwise; or
(i) any other form of treatment that
is prescribed for the purposes of this definition.
member means a member of the Commission,
including the Chairperson but not including the Chief Executive Officer.
MRCA means the Military Rehabilitation and
Compensation Act 2004.
MRCA commencement date means the date on
which section 3 of the MRCA commences.
non‑economic loss, in relation to an employee
who has suffered an injury resulting in a permanent impairment, means loss or
damage of a non‑economic kind suffered by the employee (including pain and
suffering, a loss of expectation of life or a loss of the amenities or
enjoyment of life) as a result of that injury or impairment and of which the
employee is aware.
normal weekly earnings means the normal
weekly earnings of an employee calculated under section 8.
normal weekly hours, in relation to an
employee, means the average number of hours (including hours of overtime)
worked in each week by the employee in his or her employment during the
relevant period as calculated for the purpose of applying the formula in
subsection 8(1) or (2).
overtime includes:
(a) any duty on shifts or on
Saturdays, Sundays or other holidays; and
(b) excess travelling time.
parent: without limiting who is a parent of a
person for the purposes of this Act, someone is the parent of a
person if the person is his or her child because of the definition of child
in this section.
permanent means likely to continue
indefinitely.
place of residence, in relation to an
employee, means:
(a) the place where the employee
normally resides;
(b) a place, other than the place
referred to in paragraph (a), where the employee resides temporarily, as a
matter of necessity or convenience, for the purposes of his or her employment;
or
(c) any other place where the employee
stays, or intends to stay, overnight, a journey to which from the employee’s
place of work does not substantially increase the risk of sustaining an injury
when compared with the journey from his or her place of work to the place
referred to in paragraph (a).
place of work, in relation to an employee,
includes any place at which the employee is required to attend for the purpose
of carrying out the duties of his or her employment.
pre‑determination period, in relation to a
claim by an employee for compensation under Division 3 of Part II,
means the period from the start of the day when the employee is injured until
the end of the day on which Comcare determines the claim.
premium, in respect of an Entity or
Commonwealth authority and a financial year, means:
(a) the amount paid or payable under
Division 4A of Part VII as the premium, other than a special premium,
in respect of that Entity or authority and that financial year; and
(b) if the financial year ended before
1 July 1991, any contribution so paid or payable under section 98 of
the Commonwealth Employees (Rehabilitation and Compensation) Act 1988,
as that Act applied in respect of that year.
prescribed child means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25;
(ii) is receiving full‑time
education at a school, college, university or other educational institution;
and
(iii) is not ordinarily in
employment or engaged in work on his or her own account.
previous Commission means the Commission for
the Safety, Rehabilitation and Compensation of Commonwealth Employees that was
established under section 68 of the Commonwealth Employees’
Rehabilitation and Compensation Act 1988 as amended and in force
immediately before the commencement of Part 2 of the Industrial
Relations Legislation Amendment Act (No. 3) 1991.
principal officer, in relation to a
Commonwealth authority, means:
(a) the person who constitutes, or is
acting as the person who constitutes, the authority or, if the authority is
constituted by 2 or more persons, the person who is entitled to preside at any
meeting of the authority at which he or she is present; or
(b) if the affairs of the authority
are administered or managed by a board or other group of persons—the person who
is entitled to preside at any meeting of that board or other group at which he
or she is present.
principal officer, in relation to a licensed
corporation, means the principal executive officer of the corporation.
principal officer,
in relation to an Entity, means:
(a) if the Entity is an Agency that is
not a Commonwealth authority—the Agency Head within the meaning of the Public
Service Act 1999; or
(b) if the Entity is a Parliamentary
Department—the Secretary of the Parliamentary Department within the meaning of
the Parliamentary Service Act 1999; or
(c) if the Entity is a person, body,
organisation or group of persons prescribed for paragraph (c) of the
definition of Entity—the person prescribed as the principal
officer.
proceeding under Part VI has the meaning
given in subsection (12).
property used by an employee means an
artificial limb or other artificial substitute, or a medical, surgical or other
similar aid or appliance, used by the employee.
public money has the same meaning as in the Financial
Management and Accountability Act 1997.
rehabilitation authority, in relation to an
employee, means:
(a) where the employee is employed by
an exempt authority—Comcare; and
(b) where the employee is employed by
a licensed authority—the principal officer of that authority; and
(ba) if the employee is employed by a
licensed corporation—the principal officer of that corporation; and
(c) if the
employee is employed by an Entity or a Commonwealth authority, other than an
exempt authority—the principal officer of the Entity or the Commonwealth
authority in which the employee is employed; and
(d) if the employee is a member of the
Defence Force—the Chief of the Defence Force.
rehabilitation program includes medical,
dental, psychiatric and hospital services (whether on an in‑patient or out‑patient
basis), physical training and exercise, physiotherapy, occupational therapy and
vocational training.
relevant authority
means:
(a) in
relation to an employee who is employed by a licensee—the licensee; and
(b) in relation to any other
employee—Comcare.
relevant period means the period calculated
under section 9.
retirement savings account means a retirement
savings account within the meaning of the Retirement Savings Accounts Act
1997.
significant degree has the meaning given by
subsection 5B(3).
special premium, in respect of an Entity or
Commonwealth authority and the financial year starting on 1 July 1999, 1 July 2000 or 1 July 2001, means the amount paid or payable as a result
of a determination under section 97B as a special premium in respect of
that Entity or authority and that financial year.
spouse includes:
(a) in relation to an employee or a
deceased employee—a person who is, or immediately before the employee’s death
was, a de facto partner of the employee; and
(b) in relation to an employee or a
deceased employee who is or was a member of the Aboriginal race of Australia or
a descendant of indigenous inhabitants of the Torres Strait Islands—a person
who is or was recognised as the employee’s husband or wife by the custom
prevailing in the tribe or group to which the employee belongs or belonged.
stepchild: without limiting who is a
stepchild of a person for the purposes of this Act, someone who is a child of a
de facto partner of the person is the stepchild of the
person if he or she would be the person’s stepchild except that the person is
not legally married to the partner.
step‑parent: without limiting who is a step‑parent
of a person for the purposes of this Act, someone who is a de facto
partner of a parent of the person is the step‑parent of the
person if he or she would be the person’s step‑parent except that he or she is
not legally married to the person’s parent.
substantial interest, in relation to a body
corporate, means an interest (other than a controlling interest) in the body
corporate that enables the person holding the interest to cast, or control the
casting of, a number of votes at a general meeting of the body corporate that is
equal to or greater than the number of votes which may be cast, or whose
casting may be controlled, by any other single person.
suitable employment, in relation to an
employee who has suffered an injury in respect of which compensation is payable
under this Act, means:
(a) in the case of an employee who was
a permanent employee of the Commonwealth or a licensee on the day on which he
or she was injured and who continues to be so employed—employment by the
Commonwealth or the licensed corporation, as the case may be in work for which
the employee is suited having regard to:
(i) the employee’s age,
experience, training, language and other skills;
(ii) the employee’s
suitability for rehabilitation or vocational retraining;
(iii) where employment is
available in a place that would require the employee to change his or her place
of residence—whether it is reasonable to expect the employee to change his or
her place of residence; and
(iv) any other relevant
matter; and
(b) in any other case—any employment (including
self‑employment), having regard to the matters specified in subparagraphs (a)(i),
(ii), (iii) and (iv).
superannuation amount, in relation to a
pension received by an employee in respect of a week, or a lump sum benefit
received by an employee, being a pension or benefit under a superannuation
scheme, means an amount equal to:
(a) if the scheme identifies a part of
the pension or lump sum as attributable to the contributions made under the
scheme by the Commonwealth, Commonwealth authority or licensed corporation—the
amount of that part; or
(b) in any other case—the amount
assessed by the relevant authority to be the part of the pension or lump sum
that is so attributable or, if such an assessment cannot be made, the amount of
the pension received by the employee in respect of that week or the amount of
the lump sum, as the case requires.
superannuation scheme means any
superannuation scheme under which, or retirement savings account to which, the
Commonwealth, a Commonwealth authority or a licensed corporation makes
contributions on behalf of employees and includes a superannuation or provident
scheme established or maintained by the Commonwealth, a Commonwealth authority
or a licensed corporation.
the 1912 Act means the Commonwealth
Workmen’s Compensation Act 1912.
the 1930 Act means the Commonwealth
Employees’ Compensation Act 1930.
the 1971 Act means the Compensation
(Commonwealth Government Employees) Act 1971.
therapeutic treatment includes an
examination, test or analysis done for the purpose of diagnosing, or treatment
given for the purpose of alleviating, an injury.
(2) For the purposes of this Act,
relationships (including the relationship of being family or being relatives)
are taken to include (without limitation):
(a) relationships between
de facto partners; and
(b) relationships of child and parent
that arise:
(i) if someone is an
exnuptial or adoptive child of a person; or
(ii) because of the
definitions of child and parent in this section;
and
(c) relationships traced through relationships
referred to in paragraphs (a) and (b).
(3) For the purposes of this Act, any
physical or mental injury or ailment suffered by an employee as a result of
medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this
Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee
to have obtained that medical treatment in the circumstances.
Note: However, members of the Defence Force with
service after the MRCA commencement date might be taken not to have suffered a
physical or mental injury or ailment (see section 4AA and subsection
6A(2A)).
(4) For the purposes of this Act, a person
shall be taken to have been wholly or partly dependent on an employee at the
date of the employee’s death if the person would have been so dependent but for
an incapacity of the employee that resulted from an injury.
(5) For the purposes of this Act, a person
who, immediately before the date of an employee’s death, lived with the
employee and was:
(a) the spouse of the employee; or
(b) a child of the employee, being a
prescribed child;
shall be taken to be a person who was wholly dependent on
the employee at that date.
(6) For the purposes of this Act, other than
subsection 17(5), a child of a deceased employee who was born alive after the
employee’s death shall be treated as if he or she had been born immediately
before the employee’s death and was wholly dependent upon the employee at the
date of the employee’s death.
(7) In
ascertaining, for the purposes of this Act, whether a child is or was dependent
on an employee, any amount of:
(a) family tax benefit calculated
under Part 2 or 3 of Schedule 1 to the A New Tax System (Family
Assistance) Act 1999 (an individual’s Part A rate); and
(c) carer allowance under that Act;
and
(d) double orphan pension under that
Act;
shall not be taken into account.
(8) A reference in this Act to an injury
suffered by an employee is, unless the contrary intention appears, a reference
to an injury suffered by the employee in respect of which compensation is
payable under this Act.
(9) A reference in this Act to an incapacity
for work is a reference to an incapacity suffered by an employee as a result of
an injury, being:
(a) an incapacity to engage in any
work; or
(b) an incapacity to engage in work at
the same level at which he or she was engaged by the Commonwealth or a licensed
corporation in that work or any other work immediately before the injury
happened.
(10) For the purposes of the application of
this Act in relation to an employee employed by a licensed authority, or a
dependant of such a person, a reference in this Act (other than in section 28
or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary
intention appears, a reference to that authority.
(10A) For the purposes of the application of this
Act in relation to an employee employed by a licensed corporation, or a
dependant of such a person, a reference in this Act (except in section 28
or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary
intention appears, a reference to that corporation.
(11) A reference in this Act to a claimant is,
in relation to any time after the death of the claimant, a reference to his or
her legal personal representative.
(12) A reference in this Act to the institution
of a proceeding under Part VI in respect of a reviewable decision is a
reference to the making of an application to the Administrative Appeals
Tribunal for review of that decision.
(13) For the purposes of this Act, an employee
who is under the influence of alcohol or a drug (other than a drug prescribed
for the employee by a legally qualified medical practitioner or dentist and
used by the employee in accordance with that prescription) shall be taken to be
guilty of serious and wilful misconduct.
(14) In spite of the definition of principal
officer in subsection (1), if the Australian Capital Territory is
a Commonwealth authority for the purposes of this Act, the following rules have
effect:
(a) if there is in force a written
declaration by the Minister, made at the written request of the Chief Minister
for the Territory, that a specified person is to be taken to be the principal
officer of the Territory, this Act has effect accordingly;
(b) if there is no such declaration in
force, the Chief Minister of the Territory is to be taken to be the principal
officer of the Territory.
4AA
Most injuries for members of the Defence Force no longer covered by this Act
(1) For the purposes of this Act (other than
this section), an employee is taken not to have suffered an injury, or an
aggravation of an injury, if:
(a) the employee is a member (within
the meaning of the MRCA); and
(b) the injury or aggravation is first
suffered on or after the MRCA commencement date; and
(c) the injury or aggravation arises
out of, or in the course of, the employee’s employment as a member; and
(d) the employment occurs either:
(i) on or after the MRCA
commencement date; or
(ii) before, and on or
after, the MRCA commencement date.
Note: After the MRCA commencement date, compensation
for members of the Defence Force is provided under the MRCA (instead of this
Act) for such an injury or aggravation.
(2) An employee is taken not to have suffered
an injury, being a disease, or an aggravation of a disease, if:
(a) the employee is a member (within
the meaning of the MRCA); and
(b) the disease or aggravation is
contracted on or after the MRCA commencement date; and
(c) the disease or aggravation is
contributed to in a material degree by the employee’s employment as a member;
and
(d) the employment occurs either:
(i) on or after the MRCA
commencement date; or
(ii) before, and on or
after, the MRCA commencement date.
Note: After the MRCA commencement date, compensation
for members of the Defence Force is provided under the MRCA (instead of this
Act) for such a disease or aggravation.
(3) To avoid doubt, employment occurs,
before, and on or after, the MRCA commencement date whether the employment
spans the commencement date or occurs during separate periods before and on or
after that date.
(4) Subsection 7(4) does not apply in
determining the day on which a disease is contracted or aggravated for the
purposes of paragraph (2)(b).
4A
Declaration that ACT a Commonwealth authority
(1) If the Chief Minister for the Australian
Capital Territory so requests in writing, the Minister may, in writing, declare
the Australian Capital Territory to be a Commonwealth authority for the
purposes of this Act.
(2) The Minister may revoke a declaration
under subsection (1).
(3) The Minister may only revoke a
declaration if either:
(a) the Minister has given the Chief
Minister at least 12 months’ notice in writing of his or her intention to
revoke the declaration; or
(b) the
Chief Minister has given the Minister a written request that the declaration be
revoked and:
(i) a
period of at least 12 months; or
(ii) such
shorter period as is agreed on by the Minister and the Chief Minister;
has elapsed since the request
was given to the Minister.
5
Employees
(1) In this
Act, unless the contrary intention appears:
Chief Minister means the Chief Minister for
the Australian Capital Territory.
employee
means:
(a) a person who is employed by the
Commonwealth or by a Commonwealth authority, whether the person is so employed
under a law of the Commonwealth or of a Territory or under a contract of
service or apprenticeship; or
(b) a person who is employed by a
licensed corporation.
(1A) For the purposes of paragraph (b) of
the definition of employee in subsection (1), a person is
taken to be employed by a licensed corporation if, and only if:
(a) a person performs work for that
corporation under a law or a contract; and
(b) pursuant to that law or pursuant
to the law that is the proper law of that contract, as the case may be, the
person would, if that corporation were not a licensed corporation, be entitled
to compensation in respect of injury, loss or damage suffered by, or in respect
of the death of, the person in connection with that work.
(2) Without limiting the generality of subsection (1):
(a) the Commissioner of the Australian
Federal Police, a Deputy Commissioner of the Australian Federal Police or an
AFP employee (all within the meaning of the Australian Federal Police Act 1979);
or
(b) a member of the Defence Force; or
(c) a person (other than a person to
whom subsection (3) applies) who is the holder of or is acting in:
(i) an office established
by a law of the Commonwealth, other than an office that is declared by the Minister,
by legislative instrument, to be an office to which this Act does not apply; or
(ii) an office that is
established by a law of a Territory (other than an ACT enactment or a law of
the Northern Territory) and is declared by the Minister, by legislative
instrument, to be an office to which this Act applies;
shall, for the purposes of this Act, be taken to be
employed by the Commonwealth, and the person’s employment shall, for those
purposes, be taken to be constituted by the person’s performance of duties as
the Commissioner of the Australian Federal Police, a Deputy Commissioner of the
Australian Federal Police or an AFP employee, by the person’s performance of
duties as such a member of the Defence Force or by the person’s performance of
the duties of that office, as the case may be.
Note: However, members of the Defence Force with
service after the MRCA commencement date might only be entitled to compensation
under the MRCA and not this Act (see section 4AA and subsection 6A(2A) of
this Act).
(3) A person who:
(a) constitutes, or is acting as the
person constituting, a Commonwealth authority;
(b) is,
or is acting as, a member of such an authority; or
(c) is a deputy of such a member;
shall, for the purposes of this Act, be taken to be
employed by that authority, and the person’s employment shall, for those
purposes, be taken to be constituted by the performance of:
(d) the duties of the authority;
(e) the person’s duties as such a
member or acting member; or
(f) the person’s duties as such a deputy;
as the case may be.
(4) A person:
(a) who is ordinarily engaged for
employment at a prearranged place at which employers engage persons for
employment; and
(b) whose last employer under an
engagement at that place was the Commonwealth, a Commonwealth authority or a
licensed corporation;
shall, for the purposes of this Act, be taken to be
employed by the Commonwealth, that authority or that corporation, as the case
may be, until the person is next engaged under such an engagement, and the
person’s employment shall, for those purposes, be taken to be constituted by
the person’s attendance at that place for the purpose of seeking such an
engagement.
(5) Subsection (4) does not operate to
make Comcare liable to pay compensation in respect of an injury sustained by an
employee during an attendance to which that subsection applies if the injury
was sustained because the employee voluntarily and unreasonably subjected
himself or herself to an abnormal risk of injury.
(6) The
Minister may, by legislative instrument (the notice), declare:
(a) that persons specified in the
notice, being persons who engage in activities or perform acts:
(i) at the request or
direction, for the benefit, or under a requirement made by or under a law, of
the Commonwealth; or
(ii) at the request or
direction, or for the benefit, of a Commonwealth authority or a licensed
corporation;
shall, for the purposes of this
Act, be taken to be employed by the Commonwealth, or by that authority or
corporation, as the case may be; and
(b) that the employment of the person
shall, for those purposes, be taken to be constituted by the performance by the
person of such acts as are specified in the notice;
and such a declaration shall have effect accordingly.
(6A) Without limiting subsection (6), the
Minister may, by legislative instrument (the notice), declare:
(a) that persons specified in the
notice, being persons who:
(i) hold an honorary rank
in the Defence Force before the MRCA commencement date; or
(ii) are, before the MRCA
commencement date, members of a philanthropic organisation that provides
services to the Defence Force; or
(iii) undertake resettlement
training, before the MRCA commencement date, under an arrangement made by the
Defence Force;
are, for the purposes of this
Act, taken to be employed by the Commonwealth; and
(b) that such persons’ employment is,
for those purposes, taken to be constituted by the performance by those persons
of such acts as are specified in the notice;
and such a declaration has effect accordingly.
Note: Declarations in respect of these kinds of
people can be made under the MRCA for service after the MRCA commencement date
(see section 8 of the MRCA).
(7) For the purposes of the application of
this Act in relation to a person employed by a Commonwealth authority,
references in this Act to the Commonwealth shall be read as references to that
authority.
(8) This Act does not apply to:
(a) a member of the Parliament or a
Minister of State;
(b) a person who is a Judge as defined
by section 4 of the Judges’ Pensions Act 1968;
(c) an officer or employee of the
Public Service of an external Territory; or
(d) a seaman to whom the Seafarers
Rehabilitation and Compensation Act 1992 applies.
(9) A reference to an employee in a provision
of this Act that applies to an employee at a time after Comcare, an
administering authority, a licensed authority or a licensed corporation has
incurred a liability in relation to the employee under this Act includes,
unless the contrary intention appears, a reference to a person who has ceased
to be an employee.
(10) Subject to subsections (10A), (10B),
(10C) and (10D), this Act does not apply in relation to service of a member of
the Defence Force in respect of which provision for the payment of pension is
made by:
(a) the Veterans’ Entitlements Act
1986; or
(b) the Papua New Guinea
(Members of the Forces Benefits) Act 1957.
Note: Compensation and other benefits might also be
available for a member of the Defence Force under the MRCA. Generally, an
injury, disease or death that is covered by that Act would not be covered by
this Act (see section 4AA and subsection 6A(2A) of this Act).
(10A) Subsection (10) does not apply in
relation to a veteran:
(a) who has rendered operational
service on or after the day on which the Military Compensation Act 1994 commences;
and
(b) for whom provision for the payment
of pension in respect of service rendered by the person is made by Part II
of the Veterans’ Entitlements Act 1986.
(10B) Subsection (10) does not apply in
relation to a member of the Defence Force who has rendered service in respect
of which provision for the payment of pension is made by Part IV of the Veterans’
Entitlements Act 1986.
(10C) Despite subsection (10), this Act
applies to a claim lodged before the commencement of this subsection for
compensation in respect of an injury of a member of the Defence Force that
arose out of, or in the course of, any service that:
(a) the member rendered before 13 May 1997; but
(b) only became on that day service in
respect of which provision for the payment of pension is made by the Veterans’
Entitlements Act 1986 (because of the amendments made to that Act by Part 1
or 8 of Schedule 1 to the Veterans’ Affairs Legislation Amendment
(Budget and Compensation Measures) Act 1997).
(10D) Despite subsection (10), this Act
applies to a claim lodged before the commencement of this subsection for
compensation in respect of an injury of a member of the Defence Force that
arose out of, or in the course of, service that:
(a) was rendered by the member; and
(b) is taken under section 6DB of
the Veterans’ Entitlements Act 1986 to have been rendered as operational
service.
Note: Part II of that Act provides for payment
of pension in respect of that service.
(11) For the purposes of this Act, the
following are taken to be employed by the Australian Capital Territory:
(a) a person who is an officer or
employee of an authority or body established by an ACT enactment, other than an
authority or body in respect of which a declaration is in force under subsection (12);
(b) a person who is an officer or
employee of a body corporate incorporated under a law of the Commonwealth or a
law in force in a State or Territory, being a body:
(i) in which the Australian Capital Territory or an authority or body established by an ACT enactment has a
controlling interest; and
(ii) in respect of which a
declaration under subsection (13) is in force;
(c) a person who is an officer or
employee of a body corporate incorporated under a law of the Commonwealth or a
law in force in a State or Territory, being a body:
(i) in which a body
corporate referred to in paragraph (b) has a controlling interest; and
(ii) in respect of which a
declaration under subsection (13) is in force;
(d) a person who is employed under the
Legislative Assembly (Members’ Staff) Act 1989 of the Australian Capital
Territory;
(e) the Commissioner, Deputy
Commissioner and members of the Australian Capital Territory Fire Brigade under
the Fire Brigade (Administration) Act 1974 of the Australian Capital
Territory;
(f) a person who holds, or is acting
in, an office established by an ACT enactment, other than an office in respect
of which a declaration is in force under subsection (12).
(12) If the Chief Minister so requests in
writing, the Minister may, by legislative instrument, declare that:
(a) an authority or body is not an
authority or body to which subsection (11) applies; or
(b) an office is not an office to
which subsection (11) applies.
(13) If the Chief Minister so requests in writing,
the Minister may make a written declaration that a body corporate is a body to
which subsection (11) applies.
(13A) A declaration under subsection (13) is
not a legislative instrument.
(14) Subsection (11) does not apply to the
following offices established by the Australian Capital Territory
(Self‑Government) Act 1988:
(a) Chief Minister for the Australian Capital Territory;
(b) Deputy Chief Minister for the Australian Capital Territory;
(c) Minister;
(d) Presiding Officer of the
Legislative Assembly for the Australian Capital Territory;
(e) deputy to the Presiding Officer of
the Legislative Assembly for the Australian Capital Territory;
(f) member of the Legislative
Assembly for the Australian Capital Territory.
(15) If the Chief Minister so requests in
writing, the Minister may make a written declaration that persons specified in
the declaration, when engaging in activities:
(a) at the request or direction, or
for the benefit, of the Australian Capital Territory; or
(b) in accordance with a requirement
made by or under an ACT enactment; or
(c) at the request or direction, or
for the benefit, of an authority or body established by an ACT enactment;
are to be taken to be employees of the Australian Capital
Territory.
(16) A declaration under subsection (15)
is not a legislative instrument.
5A
Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee;
or
(b) an injury (other than a disease)
suffered by an employee, that is a physical or mental injury arising out of, or
in the course of, the employee’s employment; or
(c) an aggravation of a physical or
mental injury (other than a disease) suffered by an employee (whether or not
that injury arose out of, or in the course of, the employee’s employment), that
is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation
suffered as a result of reasonable administrative action taken in a reasonable
manner in respect of the employee’s employment.
(2) For the purposes of subsection (1)
and without limiting that subsection, reasonable administrative action is
taken to include the following:
(a) a reasonable appraisal of the
employee’s performance;
(b) a reasonable counselling action
(whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in
respect of the employee’s employment;
(d) a reasonable disciplinary action
(whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in
connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in
connection with the employee’s failure to obtain a promotion, reclassification,
transfer or benefit, or to retain a benefit, in connection with his or her
employment.
5B
Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an
employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the
employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or
aggravation was contributed to, to a significant degree, by an employee’s
employment by the Commonwealth or a licensee, the following matters may be
taken into account:
(a) the duration of the employment;
(b) the nature of, and particular
tasks involved in, the employment;
(c) any predisposition of the employee
to the ailment or aggravation;
(d) any activities of the employee not
related to the employment;
(e) any other matters affecting the
employee’s health.
This subsection does not limit the matters that may be
taken into account.
(3) In this Act:
significant degree means a degree that is
substantially more than material.
6
Injury arising out of or in the course of employment
(1) Without limiting the circumstances in
which an injury to an employee may be treated as having arisen out of, or in
the course of, his or her employment, an injury shall, for the purposes of this
Act, be treated as having so arisen if it was sustained:
(a) as a result of an act of violence
that would not have occurred but for the employee’s employment or the
performance by the employee of the duties or functions of his or her
employment; or
(b) while the employee was at the
employee’s place of work, for the purposes of that employment, or was
temporarily absent from that place during an ordinary recess in that
employment; or
(c) while the employee was temporarily
absent from the employee’s place of work undertaking an activity:
(i) associated with the
employee’s employment; or
(ii) at the direction or
request of the Commonwealth or a licensee; or
(d) while the employee was, at the
direction or request of the Commonwealth or a licensee, travelling for the
purpose of that employment; or
(e) while the employee was at a place
of education, except while on leave without pay, in accordance with:
(i) a condition of the
employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction
of the Commonwealth or a licensee; or
(iii) the approval of the
Commonwealth or a licensee; or
(ea) while the employee was travelling
between the employee’s place of work and a place of education for the purpose
of attending that place in accordance with:
(i) a condition of the
employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction
of the Commonwealth or a licensee; or
(iii) the approval of the
Commonwealth or a licensee; or
(f) while the employee was at a place
for the purpose of:
(i) obtaining a medical
certificate for the purposes of this Act; or
(ii) receiving medical
treatment for an injury; or
(iii) undergoing a
rehabilitation program provided under this Act; or
(iv) receiving a payment of
compensation under this Act; or
(v) undergoing a medical
examination or rehabilitation assessment in accordance with a requirement made
under this Act; or
(vi) receiving money due to
the employee under the terms of his or her employment, being money that, under
the terms of that employment or any agreement or arrangement between the
employee and the Commonwealth or a licensee, is available, or reasonably
expected by the employee to be available, for collection at that place; or
(g) while the employee was travelling
between the employee’s place of work and another place for the purpose of:
(i) obtaining a medical
certificate for the purposes of this Act; or
(ii) receiving medical
treatment for an injury; or
(iii) undergoing a
rehabilitation program provided under this Act; or
(iv) undergoing a medical
examination or rehabilitation assessment in accordance with a requirement made
under this Act; or
(h) while the employee was, at the
direction or request of the Commonwealth or a licensee, at a place:
(i) outside Australia and
the external Territories; and
(ii) declared by the
Minister by legislative instrument to be a place to which this paragraph
applies; or
(i) while the employee was:
(i) at the direction or
request of the Commonwealth or a licensee, at a place outside Australia and the
external Territories; and
(ii) a member of a class of
employees declared by the Minister by legislative instrument to be a class to
which this paragraph applies.
(1A) For the
purposes of this section:
(a) a
journey from a place of residence is taken to start at the boundary of the land
where the place of residence is situated; or
(b) a journey to such a place of
residence is taken to end at that boundary.
(1B) If an employee owns or occupies a parcel of
land contiguous with the land on which the employee’s residence is situated,
the boundary referred to in subsection (1A) is the external boundary of
all of the contiguous parcels of land if treated as a single parcel.
(1C) For the purposes of paragraph (1)(d),
travel between the employee’s residence and the employee’s usual place of work
is taken not to be at the direction or request of the Commonwealth or a
licensee.
(2) In paragraph (1)(d), the reference
to the employee travelling does not include a reference to travelling to or
from a place mentioned in paragraph (1)(e) or (f).
(3) Subsection (1) does not apply where
an employee sustains an injury:
(a) while at a place referred to in
that subsection; or
(b) during an ordinary recess in his
or her employment;
if the employee sustained the injury because he or she voluntarily
and unreasonably submitted to an abnormal risk of injury.
6A
Injury arising out of or in the course of employment—extended operation
(1) This section applies to the following
employees:
(a) members of the Defence Force;
(b) members of the Australian Air
Force Cadets (see section 8 of the Air Force Act 1923);
(c) members of the Australian Army
Cadets (see section 62 of the Defence Act 1903);
(d) members of the Australian Navy
Cadets (see section 38 of the Naval Defence Act 1910);
(e) persons declared by the Minister
under subsection 5(6A).
(2) If, at any
time, whether before, on, or after, 1 December 1988:
(a) an employee to whom this section
applies received or receives medical treatment paid for by the Commonwealth;
and
(b) as an unintended consequence of
that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of,
or in the course of, the person’s employment, whether or not the person has
remained an employee to whom this section applies.
(2A) However, subsection (2) does not apply
if:
(a) the employee is a member (within
the meaning of the MRCA); and
(b) the injury or aggravation is first
suffered on or after the MRCA commencement date; and
(c) the injury or aggravation is suffered
as an unintended consequence of medical treatment paid for by the Commonwealth;
and
(d) the treatment is provided either:
(i) on or after the MRCA
commencement date; or
(ii) before, and on or
after, the MRCA commencement date (whether the treatment spans the commencement
date or is provided during separate periods before and on or after that date).
Note: After the MRCA commencement date, compensation
for members of the Defence Force is provided under the MRCA (instead of this
Act) for such an injury or aggravation.
(3) Subsection (2) applies whether or
not the original condition that was being treated was compensable under this
Act.
7
Provisions relating to diseases
(1) Where:
(a) an employee has suffered, or is
suffering, from a disease or the death of an employee results from a disease;
(b) the disease is of a kind specified
by the Minister, by legislative instrument, as a disease related to employment
of a kind specified in the instrument; and
(c) the employee was, at any time
before symptoms of the disease first became apparent, engaged by the
Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall,
for the purposes of this Act, be taken to have contributed, to a significant
degree, to the contraction of the disease, unless the contrary is established.
(2) Where an employee contracts a disease,
any employment in which he or she was engaged by the Commonwealth or a licensed
corporation at any time before symptoms of the disease first became apparent
shall, unless the contrary is established, be taken, for the purposes of this
Act, to have contributed, to a significant degree, to the contraction of the
disease if the incidence of that disease among persons who have engaged in such
employment is significantly greater than the incidence of the disease among
persons who have engaged in other employment in the place where the employee is
ordinarily employed.
(3) Where an employee suffers an aggravation
of a disease, any employment in which he or she was engaged by the Commonwealth
or a licensed corporation at any time before symptoms of the aggravation first
became apparent shall, unless the contrary is established, be taken, for the
purposes of this Act, to have contributed, to a significant degree, to the
aggravation if the incidence of the aggravation of that disease among persons
suffering from it who have engaged in such employment is significantly greater
than the incidence of the aggravation of that disease among persons suffering
from it who have engaged in other employment in the place where the employee
was ordinarily employed.
(4) For the purposes of this Act, an employee
shall be taken to have sustained an injury, being a disease, or an aggravation
of a disease, on the day when:
(a) the employee first sought medical
treatment for the disease, or aggravation; or
(b) the disease or aggravation
resulted in the death of the employee or first resulted in the incapacity for
work, or impairment of the employee;
whichever happens first.
(5) The death of an employee shall be taken,
for the purposes of this Act, to have resulted from a disease or an aggravation
of a disease, if, but for that disease or aggravation, as the case may be, the
death of the employee would have occurred at a significantly later time.
(6) An incapacity for work or impairment of
an employee shall be taken, for the purposes of this Act, to have resulted from
a disease, or an aggravation of a disease, if, but for that disease or
aggravation, as the case may be:
(a) the incapacity or impairment would
not have occurred;
(b) the incapacity would have
commenced, or the impairment would have occurred, at a significantly later
time; or
(c) the extent of the incapacity or
impairment would have been significantly less.
(7) A disease suffered by an employee, or an
aggravation of such a disease, shall not be taken to be an injury to the
employee for the purposes of this Act if the employee has at any time, for
purposes connected with his or her employment or proposed employment by the
Commonwealth or a licensed corporation, made a wilful and false representation
that he or she did not suffer, or had not previously suffered, from that
disease.
(8) If an employee:
(a) suffers a disease mentioned in the
following table; and
(b) before the disease was sustained,
was employed as a firefighter for the qualifying period mentioned for that
disease; and
(c) was exposed to the hazards of a
fire scene during that period; and
(d) in the case of a cancer of a kind
covered by item 13 of the following table—satisfies the conditions (if
any) prescribed for such a cancer;
the employment is, for the purposes of this Act, taken to
have contributed, to a significant degree, to the contraction of the disease,
unless the contrary is established.
|
Item
|
Disease
|
Qualifying period
|
|
1
|
Primary site brain cancer
|
5 years
|
|
2
|
Primary site bladder cancer
|
15 years
|
|
3
|
Primary site kidney cancer
|
15 years
|
|
4
|
Primary non-Hodgkins lymphoma
|
15 years
|
|
5
|
Primary leukemia
|
5 years
|
|
6
|
Primary site breast cancer
|
10 years
|
|
7
|
Primary site testicular cancer
|
10 years
|
|
8
|
Multiple myeloma
|
15 years
|
|
9
|
Primary site prostate cancer
|
15 years
|
|
10
|
Primary site ureter cancer
|
15 years
|
|
11
|
Primary site colorectal cancer
|
15 years
|
|
12
|
Primary site oesophageal cancer
|
25 years
|
|
13
|
A cancer of a kind prescribed for this table
|
The period prescribed for such a cancer
|
(9) For the purposes of subsection (8):
(a) an employee is taken to have been
employed as a firefighter if firefighting duties made up a substantial portion
of his or her duties; and
(b) an employee who was employed as a
firefighter for 2 or more periods that add up to the qualifying period is taken
to have been so employed for the qualifying period; and
(c) an employee is taken to have been
employed as a firefighter only if he or she was (disregarding the effect of any
declarations under subsection 5(15)) employed as a firefighter by the
Commonwealth, a Commonwealth authority or a licensed corporation.
(10) Subsection (8) does not limit, and is
not limited by, subsections (1) and (2).
8
Normal weekly earnings
(1) For the purposes of this Act, the normal
weekly earnings of an employee (other than an employee referred to in subsection (2))
before an injury shall be calculated in relation to the relevant period under
the formula:
where:
NH is the average number of hours worked in
each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary
time rate of pay during that period; and
A is the average amount of any allowance
payable to the employee in each week in respect of his or her employment during
the relevant period, other than an allowance payable in respect of special
expenses incurred, or likely to be incurred, by the employee in respect of that
employment.
(2) Where an employee is required to work
overtime on a regular basis, the normal weekly earnings of the employee before
an injury shall be the amount calculated in accordance with subsection (1)
plus an additional amount calculated in relation to the relevant period under
the formula:
where:
NH is the average number of hours of overtime
worked in each week by the employee in his or her employment during the
relevant period; and
OR is the employee’s average hourly overtime
rate of pay during that period.
(3) Where an employee was, at the date of the
injury, employed by the Commonwealth or a licensed corporation in part‑time
employment or unpaid employment, any earnings of the employee from any other
employment shall, for the purposes of this section, be treated as earnings of
the employee from his or her employment by the Commonwealth or the licensed
corporation.
(4) Where, because of the shortness of the
relevant period, it is impracticable to calculate the normal weekly earnings of
an employee before an injury under subsection (1) or (2), the normal
weekly earnings of the employee before the date of injury shall be taken to be
the normal weekly earnings before that date of another employee performing
comparable work, being normal weekly earnings from employment by the
Commonwealth or a licensed corporation and calculated under subsection (1)
or (2), as the case requires.
(5) Where, because of the shortness of the
relevant period, the normal weekly earnings as calculated in relation to the
relevant period under subsection (1) or (2) would not fairly represent the
weekly rate at which the employee was being paid in respect of his or her
employment before the injury, the normal weekly earnings before the date of the
injury shall be calculated in relation to such other period as Comcare
considers reasonable for the purpose of arriving at an amount that does fairly
represent the weekly rate at which the employee was being so paid.
(6) Subject to this section, if the minimum
amount per week payable to an employee in respect of his or her employment by
the Commonwealth or a licensed corporation at the date of the injury is
increased, or would have been increased if the employee had continued in that
employment, because of:
(a) the attainment by the employee of
a particular age;
(b) the completion by the employee of
a particular period of service; or
(c) the receipt by the employee of an
increase in salary, wages or pay by way of an increment in a range of salary,
wages or pay applicable to the employee or to his or her office, position or
appointment;
the normal weekly earnings of the employee before the
injury, as calculated under the preceding subsections, shall be increased by
the same percentage as the percentage by which that minimum amount per week is
increased, or would have been increased, as the case may be.
(7) Subject to this section, if:
(a) an employee continues to be
employed by the Commonwealth or a licensed corporation after the date of an
injury; and
(b) the
minimum amount per week payable to the employee in respect of that employment
is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the
injury, as calculated under the preceding subsections, shall be increased by
the same percentage as the percentage by which that minimum amount per week is
increased.
(8) Subject to this section, where:
(a) the employment of an employee is
of a kind referred to in subsection 5(4) or (6) or subsection (3) of this
section; and
(b) the employee is not receiving
earnings from any other employment at the date of the injury;
the normal weekly earnings of the employee before the
injury shall be an amount determined by Comcare to be the amount per week that
the employee would have been able to earn at the date of the injury (including
any amount in respect of overtime worked on a regular basis) if he or she had
engaged in suitable paid employment.
(9) The normal weekly earnings of an employee
before the date of the employee’s injury, as calculated under the preceding
subsections, must, while the employee continues to be employed by the
Commonwealth or a licensed corporation, be increased or reduced by the relevant
percentage.
(9A) For the purposes of subsection (9), relevant
percentage means the same percentage as the percentage of increase or
reduction in the minimum amount per week payable in respect of employees
included in a class of employees of which the employee was a member at the date
of the injury as a result of:
(a) the operation of a law of the
Commonwealth or of a State or Territory; or
(b) the making, alteration or
operation of an award, order, determination or industrial agreement or the
doing of any other act or thing, under such a law.
(9B) The normal weekly earnings of an employee
before injury, as calculated under subsections (1) to (8) and as increased
or reduced under subsection (9) must, if the employee has ceased, or
ceases, to be employed by the Commonwealth or a licensed corporation, be
further increased, with effect from each indexation date in relation to that
cessation, by reference to the percentage of increase (if any) of an index that
is prescribed for the purposes of this subsection over the year ending on the
31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B),
the indexation date, in relation to a cessation of employment,
is:
(a) the 1 July next following:
(i) the date on which this
Act receives the Royal Assent; or
(ii) the date of that
cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
(9D) For the purpose of subsection (9B),
the regulations may specify the manner of calculating the further increase
referred to in that subsection by reference to the movement of the index that
is prescribed for the purposes of that subsection.
(9E) The normal weekly earnings of an employee
before an injury, as calculated under the preceding subsections, must, with
effect from 1 July in each year, be further increased by the amount under subsection (9F)
if, in the 12 months immediately preceding that 1 July:
(a) there was no increase in those
earnings under subsection (6), (7) or (9); and
(b) there was no reduction in those
earnings under subsection (9).
(9F) If the normal weekly earnings of an
employee before an injury must be increased because of subsection (9E),
the amount by which they are increased is the percentage of increase (if any)
in the index prescribed by the regulations for the purposes of this subsection
over the period of 12 months ending on the 31 December immediately before
the relevant 1 July.
(9G) For the purposes of subsection (9F),
the regulations may specify the manner of calculating the further increase
mentioned in that subsection by reference to the movement of the index that is
prescribed for the purposes of that subsection.
(10) If the amount of the normal weekly
earnings of an employee before an injury, as calculated under the preceding
subsections, would exceed:
(a) where the employee continues to be
employed by the Commonwealth or a licensed corporation—the amount per week of
the earnings that the employee would receive if he or she were not
incapacitated for work; or
(b) where the employee has ceased to
be employed by the Commonwealth or a licensed corporation—whichever is the
greater of the following amounts:
(i) the amount per week of
the earnings that the employee would receive if he or she had continued to be
employed by the Commonwealth or the licensed corporation in the employment in
which he or she was engaged at the date of the injury;
(ii) the amount per week of
the earnings that the employee would receive if he or she had continued to be
employed by the Commonwealth or the licensed corporation in the employment in
which he or she was engaged at the date on which the employment by the
Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of
the excess.
9
Relevant period
(1) For the purposes of calculating the
normal weekly earnings of an employee before an injury, a reference in section 8
to the relevant period is, subject to this section, a reference to the latest
period of 2 weeks before the date of the injury during which the employee was
continuously employed by the Commonwealth or a licensed corporation.
(2) Subject to subsection (3), if,
during the period referred to in subsection (1), the minimum amount per
week payable to an employee in respect of his or her employment by the
Commonwealth or a licensed corporation was varied as a result of:
(a) the operation of a law of the
Commonwealth or of a State or Territory; or
(b) the making, alteration or
operation of an award, order, determination or industrial agreement, or the
doing of any other act or thing, under such a law;
any part of that period that occurred before the
variation, or last variation, took place shall be disregarded for the purposes
of calculating the relevant period.
(3) Where in any case the application of subsection (2)
would require that a period be disregarded for the purposes of calculating the
relevant period in relation to an employee, and as a result of disregarding
that period:
(a) it would be impracticable to
calculate under section 8 the normal weekly earnings of the employee
before an injury; or
(b) the normal weekly earnings as so
calculated would not fairly represent the weekly rate at which the employee was
being paid in respect of his or her employment by the Commonwealth or a
licensed corporation before the injury;
subsection (2) shall not apply in that case, but the
normal weekly earnings of the employee during that period shall be taken to be
the amount that would have been his or her normal weekly earnings during that
period if the variation had taken effect at the beginning of that period.
(4) If, during any part of the period calculated
under the preceding subsections, the employee’s earnings were reduced, or the
employee did not receive any earnings, because of absence from his or her
employment for any reason, that part of that period shall be disregarded for
the purposes of calculating the relevant period.
10
Recovery of damages
For the purposes of this Act, damages
shall be taken to have been recovered by an employee, or by or for the benefit
of a dependant of a deceased employee, when the amount of the damages was paid
to or for the benefit of the employee or dependant, as the case may be.
11
Liability of relevant authority
The liability of a relevant authority to
pay compensation to a person under this Act is the liability of that authority
to pay to the person such amount or amounts as are determined by that authority
to be payable to the person under this Act.
12
Amounts of compensation
An amount of compensation payable under
a provision of this Act in respect of an injury is, unless the contrary
intention appears, in addition to an amount of compensation paid or payable
under any other provision of this Act in respect of that injury.
13
Indexation—Consumer Price Index
(1) In this section:
index number, in relation to a quarter, means
the All Groups Consumer Price Index number, being the weighted average of the 8
capital cities, published by the Australian Statistician in respect of that
quarter.
relevant amount means the amount specified in
paragraph 18(4)(a) or subsection 19(7), (8) or (9), 24(9), 27(2), 29(1) or (3),
30(1) or 137(1).
relevant year means the period of 12 months
commencing on 1 July 1988 and each subsequent period of 12 months.
(2) Subject to subsection (3), if at any
time, whether before or after the commencement of this section, the Australian
Statistician has published or publishes an index number in respect of a quarter
in substitution for an index number previously published by the Australian
Statistician in respect of that quarter, the publication of the later index
number shall be disregarded for the purposes of this section.
(3) If at any time, whether before or after
the commencement of this section, the Australian Statistician has changed or
changes the reference base for the Consumer Price Index, then, for the purposes
of the application of this section after the change took place or takes place,
regard shall be had only to the index number published in terms of the new
reference base.
(4) Where the factor ascertained under subsection (5)
in relation to a relevant year is greater than one, this Act has effect as if
for each relevant amount there were substituted, on the first day of that
relevant year, an amount calculated by multiplying by that factor:
(a) if, by virtue of another
application or other applications of this section, this Act has effect as if
another amount or amounts were substituted for the relevant amount—the
substituted amount or the last substituted amount; or
(b) in any other case—the relevant
amount.
(5) The factor to be ascertained for the
purposes of subsection (4) in relation to a relevant year is the number
(calculated to 3 decimal places) ascertained by dividing the index number of
the December quarter immediately before the relevant year by the index number
for the December quarter immediately before that first‑mentioned December
quarter.
(6) Where the factor ascertained under subsection (5)
in relation to a relevant year would, if it were calculated to 4 decimal
places, end with a number greater than 4, the factor ascertained under that
subsection in relation to that relevant year shall be taken to be the factor
calculated to 3 decimal places in accordance with that subsection and increased
by 0.001.
13AA
Indexation—Wage Price Index
Definitions
(1) In this section:
index number, in relation to a quarter,
means:
(a) the Wage Price Index (total hourly
rates of pay excluding bonuses/all sectors/all Australia/original) number
published by the Australian Statistician in respect of that quarter; or
(b) if:
(i) a series of index
numbers is prescribed for the purposes of this paragraph; and
(ii) the Australian
Statistician publishes an index number in respect of the quarter; and
(iii) that index number
belongs to the series;
that index number.
relevant amount means the amount specified in
subsection 17(3), (4) or (5).
relevant year means:
(a) the financial year starting on
1 July 2009; or
(b) a later financial year.
Indexation
(2) If the indexation factor for a relevant
year is greater than one, this Act has effect as if for each relevant amount
there were substituted, on the first day of that relevant year, an amount
calculated by multiplying by that factor:
(a) if, because of one or more other
applications of this section, this Act has effect as if another amount or
amounts were substituted for the relevant amount—the substituted amount or the
last substituted amount; or
(b) in any other case—the relevant
amount.
Indexation factor
(3) For the purposes of this section, the indexation
factor for a relevant year is the number calculated, to 3 decimal
places, using the formula:
where:
base December quarter means the last December
quarter before the reference December quarter.
reference December quarter means the last
December quarter before the relevant year.
(4) If the number calculated under
subsection (3) for a relevant year would, if it were calculated to 4
decimal places, end with a number greater than 4, the number so calculated is
increased by 0.001.
Other provisions
(5) Subject to subsection (6), if at any
time, whether before or after the commencement of this section, the Australian
Statistician has published or publishes an index number for a quarter in
substitution for an index number previously published for that quarter, the
publication of the later index number is to be disregarded for the purposes of
this section.
(6) If at any time, whether before or after
the commencement of this section, the Australian Statistician has changed or
changes the reference base for:
(a) the Wage Price Index; or
(b) another index;
then, for the purposes of the application of this section
after the change took place or takes place, regard is to be had only to the
index number published in terms of the new reference base.
13A
Application of Criminal Code
Chapter 2
of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Part II—Compensation
Division 1—Injuries, property loss or damage, medical expenses
14
Compensation for injuries
(1) Subject to this Part, Comcare is liable
to pay compensation in accordance with this Act in respect of an injury
suffered by an employee if the injury results in death, incapacity for work, or
impairment.
(2) Compensation is not payable in respect of
an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of
an injury that is caused by the serious and wilful misconduct of the employee
but is not intentionally self‑inflicted, unless the injury results in death, or
serious and permanent impairment.
15
Compensation for loss of or damage to property used by employee
(1) If:
(a) an employee has an accident
arising out of and in the course of his or her employment by the Commonwealth
or a licensed corporation; and
(b) the accident does not cause injury
to the employee but results in the loss of, or damage to, property used by the
employee;
Comcare is liable to pay compensation to the employee of
an amount equal to the amount of the expenditure reasonably incurred by the
employee in the necessary replacement or repair of the property.
Note: However, members of the Defence Force with
service after the MRCA commencement date might only be entitled to compensation
under the MRCA and not this Act (see section 15A).
(2) For the purposes of subsection (1),
expenditure incurred by an employee in the necessary replacement or repair of
property used by the employee shall be taken to include any fees or charges
paid or payable by the employee to a legally qualified medical practitioner or
dentist or other qualified person for a consultation, examination, prescription
or other service reasonably rendered in connection with the replacement or
repair.
(3) Compensation is not payable under this
section if the loss or damage is attributable to the serious and wilful misconduct
of the employee.
15A
Most loss or damage to property used by members of the Defence Force etc. no
longer covered by this Act
Loss of, or damage to, property used by
an employee is taken not to have resulted from an accident arising out of, and in
the course of, the employee’s employment by the Commonwealth if:
(a) the employee is a member (as
defined in the MRCA); and
(b) the loss or damage occurs on or
after the MRCA commencement date; and
(c) the loss or damage results from an
accident arising out of, and in the course of, the employee’s employment as a
member.
Note: After the MRCA commencement date, compensation
for members of the Defence Force is provided under the MRCA (instead of this
Act) for such loss or damage.
16
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury,
Comcare is liable to pay, in respect of the cost of medical treatment obtained
in relation to the injury (being treatment that it was reasonable for the
employee to obtain in the circumstances), compensation of such amount as
Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or
not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1),
the cost of medical treatment shall, in a case where the treatment involves the
supply, replacement or repair of property used by the employee, be deemed to
include any fees or charges paid or payable by the employee to a legally
qualified medical practitioner or dentist or other qualified person for a
consultation, examination, prescription or other service reasonably required in
connection with that supply, replacement or repair.
(4) An amount of compensation payable by
Comcare under subsection (1) is payable:
(a) if the employee has paid the cost
of the medical treatment—to, or in accordance with the directions of, the
employee; or
(b) if the employee dies before the
compensation is paid and without having paid the cost referred to in subsection (1)
and another person, not being the legal personal representative of the
employee, has paid that cost—to that other person; or
(c) in any other case—to the person to
whom the cost is payable.
(5) Where a person is liable to pay any cost
referred to in subsection (1), any amount paid under subsection (4)
to the person to whom that cost is payable is, to the extent of the payment, a
discharge of the liability of the first‑mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the
cost of medical treatment is payable; and
(b) the employee reasonably incurs
expenditure in doing either or both of the following:
(i) making a necessary
journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the
purpose of obtaining that medical treatment, at a place to which the employee
has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey—of an
amount worked out using the formula:
where:
specified rate per
kilometre means such rate per kilometre as the Minister specifies, by
legislative instrument, under this subsection in respect of journeys to which
this subsection applies.
numbers of kilometres
travelled means the number of whole kilometres Comcare determines to
have been the reasonable length of such a journey as it was necessary for the
employee to make (including the return part of the journey).
(d) in respect of the employee
remaining for the purpose of obtaining the treatment—of an amount equal to the
expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation
under subsection (6) unless:
(a) the reasonable length of such a
journey as it was necessary for the employee to make (including the return part
of the journey) exceeded 50 kilometres; or
(b) if the journey made by the
employee involved the use of public transport or ambulance services—the
employee’s injury reasonably required the use of such transport or services
regardless of the distance involved.
(8) The matters to which Comcare shall have
regard in deciding questions arising under subsections (6) and (7)
include:
(a) the place or places where
appropriate medical treatment was available to the employee;
(b) the means of transport available
to the employee for the journey;
(c) the route or routes by which the
employee could have travelled; and
(d) the accommodation available to the
employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred
expenditure in connection with the transportation of the employee, or, if the
employee has died, of his or her body, from the place where the injury was
sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal
personal representative of the employee, does not make a claim for compensation
in respect of that expenditure;
Comcare is liable to pay compensation to the person who
incurred the expenditure of an amount equal to the amount of that expenditure.
Division 2—Injuries resulting in death
17
Compensation for injuries resulting in death
(1) This section applies where an injury to
an employee results in death.
(2) Subject to this section and sections 16
and 18, if the employee dies without leaving dependants, compensation is not
payable in respect of the injury.
(3) Subject to this section and to sections 16
and 18, if the employee dies leaving dependants some or all of whom were, at
the date of the employee’s death, wholly dependent on the employee, Comcare is
liable to pay compensation in respect of the injury of $400,000 and that
compensation is payable to, or in accordance with the directions of, Comcare
for the benefit of all of those dependants.
(4) If the employee dies without leaving
dependants who were wholly dependent on the employee at the date of the
employee’s death but leaving dependants who were partly dependent on the
employee at that date:
(a) subject to this section and to
sections 16 and 18, Comcare is liable to pay compensation in respect of
the injury of such amount, not exceeding $400,000, as Comcare determines,
having regard to any losses suffered by those dependants as a result of the
cessation of the employee’s earnings; and
(b) that compensation is payable to,
or in accordance with the directions of, Comcare for the benefit of those
dependants.
(5) If:
(a) a prescribed child was, at the
date of the injury or at the date of the employee’s death, wholly or mainly
dependent on the employee;
(b) a prescribed child, being a child
of the employee, was born after the employee’s death; or
(c) a
prescribed child would, if the employee had not died, have been wholly or
mainly dependent on the employee;
Comcare is liable to pay compensation at the rate of $110
a week and that compensation is payable to, or in accordance with the
directions of, Comcare for the benefit of that child from the date of the
employee’s death or the date of the birth of the child, whichever is the later.
(6) Compensation is not payable under subsection (5)
in respect of:
(a) any period during which the child
is not a prescribed child; and
(b) in the case of a child referred to
in paragraph (5)(c)—any period during which, if the employee had not died,
the child would not have been wholly or mainly dependent upon the employee.
(7) An amount of compensation paid or payable
under this Act before the death of an employee:
(a) is not affected by subsection (2);
(b) shall not be deducted from the
compensation payable under subsection (3); and
(c) shall not be taken into account in
determining the compensation payable under subsection (4).
(8) Where an amount of compensation is
payable under this section for the benefit of 2 or more dependants of the
deceased employee, Comcare shall determine the shares of those dependants in
that amount as Comcare thinks fit, having regard to any losses suffered by
those dependants as a result of the cessation of the employee’s earnings.
(9) A reference in this section to a
dependant of a deceased employee shall be read as a reference to a dependant by
or on behalf of whom a claim is made for compensation under this section.
(10) Where claims for compensation under this
section are made by or on behalf of 2 or more dependants of a deceased
employee, Comcare shall make one determination in respect of those claims.
18
Compensation in respect of funeral expenses
(1) Where an injury to an employee results in
death, Comcare is liable to pay compensation in respect of the cost of the
employee’s funeral to the person who paid the cost of the funeral or, if that
cost has not been paid, to the person who carried out the funeral.
(2) The amount of compensation is the amount,
not exceeding the amount determined in accordance with subsection (4),
that Comcare considers reasonable, having regard to:
(a) the charges ordinarily made for
funerals in the place where the funeral was carried out; and
(b) any amount paid or payable in
respect of the cost of the funeral under any other law of the Commonwealth.
(3) Where a person is liable to pay the cost
of the funeral of an employee, any amount paid under this section to the person
who carried out the funeral is, to the extent of the payment, a discharge of
the liability of the first‑mentioned person.
(4) The maximum amount of compensation under subsection (2)
is:
(a) $9,000; or
(b) if the regulations prescribe a
higher amount—that amount.
Note: The amount of $9,000 is indexed under section 13.
Division 3—Injuries resulting in incapacity for work
19
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who
is incapacitated for work as a result of an injury, other than an employee to
whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable
to pay to the employee in respect of the injury, for each week that is a
maximum rate compensation week during which the employee is incapacitated, an
amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that
the employee is able to earn in suitable employment;
(b) the amount per week (if any) that
the employee earns from any employment (including self‑employment) that is
undertaken by the employee during that week.
NWE is the amount of the employee’s normal
weekly earnings.
(2A) For the purposes of subsection (2), a
week is a maximum rate compensation week, in relation to an
employee to whom this section applies, if:
(a) it is a week during which the
employee’s incapacity prevents the employee working the employee’s normal weekly
hours because the employee is unable to work or unable to work at the level at
which the employee worked before the injury; and
(b) the total number of hours that the
employee has been prevented from working, or working at that level, during that
incapacity, in that week and in all previous weeks, if any, to which paragraph (a)
applies, does not exceed 45 times the employee’s normal weekly hours.
(2B) If, before the end of a particular week,
the total of the hours that the employee has been prevented from working, or
working at that level, in that week and in previous weeks, will exceed the
total number of hours worked out in accordance with paragraph (2A)(b),
then:
(a) subsection (2) applies in
respect of the part of the week before that total number of hours is exceeded
in accordance with subsection (2C); and
(b) subsection (3) applies in
respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a),
the compensation payable in respect of the part of the week to which that
paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that
particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal
weekly earnings.
NWH means the number of normal weekly hours
worked by the employee before his or her injury.
X is the total of the hours in that
particular week:
(a) that would have counted towards
the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total
number of hours worked out in accordance with paragraph (2A)(b) exceeds 45
times the employee’s normal weekly hours.
(2D) For the purposes of paragraph (2B)(b),
the compensation payable in respect of the part of the week to which that
paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours
worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the
rate of compensation that would have been applicable for the whole week had subsection (3)
applied throughout the whole week.
X is the total of the hours in that
particular week:
(a) that would have counted towards
the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total
number of hours worked out in accordance with paragraph (2A)(b) exceeds 45
times the employee’s normal weekly hours.
(3) Subject to this Part, Comcare is liable
to pay compensation to the employee, in respect of the injury, for each week
during which the employee is incapacitated, other than a week referred to in subsection (2),
of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal
to:
(a) if the employee is not employed
during that week—75%; or
(b) if the employee is employed for
25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for
more than 25% but not more than 50% of his or her normal weekly hours during
that week—85%; or
(d) if the employee is employed for
more than 50% but not more than 75% of his or her normal weekly hours during
that week—90%; or
(e) if the employee is employed for
more than 75% but less than 100% of his or her normal weekly hours during that
week—95%; or
(f) if
the employee is employed for 100% of his or her normal weekly hours during that
week—100%.
AE applies in relation to the whole of that
particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal
weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the
employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation
scheme is payable to the employee;
subsection (3) applies in relation to the employee in
relation to a week during which the employee is incapacitated as if the
references in the subsection to the amount he or she was able to earn during
the week in suitable employment were instead references to the sum of that
amount and any amount of the pension referred to in paragraph (b) that is
payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2)
and (3), the amount per week that an employee is able to earn in suitable
employment, Comcare shall have regard to:
(a) where the employee is in
employment (including self‑employment)—the amount per week that the employee is
earning in that employment;
(b) where, after becoming
incapacitated for work, the employee received an offer of suitable employment
and failed to accept that offer—the amount per week that the employee would be
earning in that employment if he or she were engaged in that employment;
(c) where, after becoming
incapacitated for work, the employee received an offer of suitable employment
and, having accepted that offer, failed to engage, or to continue to engage, in
that employment—the amount per week that the employee would be earning in that
employment if he or she were engaged in that employment;
(d) where, after becoming
incapacitated for work, the employee received an offer of suitable employment
on condition that the employee completed a reasonable rehabilitation or
vocational retraining program and the employee failed to fulfil that condition—the
amount that the employee would be earning in that employment if he or she were
engaged in that employment;
(e) where, after becoming
incapacitated for work, the employee has failed to seek suitable employment—the
amount per week that, having regard to the state of the labour‑market at the
relevant time, the employee could reasonably be expected to earn in such
employment if he or she were engaged in such employment;
(f) where paragraph (b), (c),
(d) or (e) applies to the employee—whether the employee’s failure to accept an
offer of employment, to engage, or to continue to engage, in employment, to
undertake, or to complete, a rehabilitation or vocational retraining program or
to seek employment, as the case may be, was, in Comcare’s opinion, reasonable
in all the circumstances; and
(g) any other matter that Comcare
considers relevant.
(5) Where an amount of compensation
calculated under subsection (3) exceeds 150% of the amount called the Average
Weekly Ordinary Time Earnings of Full‑time Adults, as published from
time to time by the Australian Statistician, the amount so calculated shall be
reduced by an amount equal to the excess.
(6) Where an amount of compensation
calculated under paragraph (3)(a) is less than the minimum earnings, the
amount so calculated shall be increased by an amount equal to the difference
between that amount and the minimum earnings.
(7) For the purposes of subsection (6),
the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8)
or (9) applies in relation to the employee, the sum of $202 and the amount or
amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the
employee’s normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or
mainly dependent on the employee, there shall be added to the amount of $202
specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in
relation to whom this Act applies (whether born before, on or after the date of
the injury) wholly or mainly dependent on the employee, there shall be added to
the amount of $202 specified in paragraph (7)(a) the amount of $25 for
each of those children, but an amount shall not be so added for a child in
relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to
the employee; and
(b) the only prescribed person who is
wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that
child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to
the employee; and
(b) wholly or mainly dependent on the
employee;
subsection (8) applies in relation to one of those
children and subsection (9) applies in relation to the remainder of those
children.
(12) In this section, prescribed person,
in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons,
being a person who is 16 or more:
(i) the parent, step‑parent,
father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild,
sibling or half‑sibling of the employee;
(ii) a person in relation
to whom the employee stands in the position of a parent or who stands in the
position of a parent to the employee;
(iii) a person (other than
the spouse of the employee or a person referred to in subparagraph (i) or
(ii)) who is wholly or mainly maintained by the employee and has the care of a
prescribed child, being a child who is wholly or mainly dependent on the
employee.
Note: In relation to subparagraph (12)(b)(i),
see also subsection 4(2).
(14) For the purposes of the definition of
prescribed person in subsection (12), a person who has the care of
a child referred to in subparagraph (12)(b)(iii) shall not be taken not to
be wholly or mainly maintained by an employee merely because the employee pays
remuneration to the person for caring for that child.
20
Compensation for injuries resulting in incapacity where employee is in receipt
of a superannuation pension
(1) Compensation payable to an employee who
is incapacitated for work as a result of an injury is determined in accordance
with this section if:
(a) the employee is retired from his
or her employment (whether the employee retired voluntarily or was compulsorily
retired); and
(b) the employee receives a pension
under a superannuation scheme as a result of the employee’s retirement.
(2) Comcare is liable to pay compensation to
the employee, in respect of the injury, in accordance with this section for
each week after the date of the retirement during which the employee is
incapacitated.
(3) The amount of compensation is the amount
worked out using this formula:
where:
amount of compensation means the amount of
compensation that would have been payable to the employee for a week if:
(a) section 19, other than
subsection 19(6), had applied to the employee; and
(b) in the case of an employee who was
not a member of the Defence Force immediately before retirement—the week were a
week referred to in subsection 19(3).
(4) In using the formula in
subsection (3) to calculate an amount of compensation for an employee who
retired before the day on which item 22 of Schedule 1 to the Safety,
Rehabilitation and Compensation and Other Legislation Amendment Act 2007
commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”.
For this purpose:
SC means the amount of superannuation
contributions that the employee would have been required to pay in that week if
he or she were still contributing to the superannuation scheme.
21
Compensation for injuries resulting in incapacity where employee is in receipt
of a lump sum benefit
(1) Compensation payable to an employee who
is incapacitated for work as a result of an injury is determined in accordance
with this section if:
(a) the employee is retired from his
or her employment (whether the employee retired voluntarily or was compulsorily
retired); and
(b) the employee receives a lump sum
benefit under a superannuation scheme as a result of the employee’s retirement.
(2) Comcare is liable to pay compensation to
the employee, in respect of the injury, in accordance with this section for
each week after the date of the retirement during which the employee is
incapacitated.
(3) The amount of compensation is the amount
worked out using this formula:
where:
amount of compensation means the amount of
compensation that would have been payable to the employee for a week if:
(a) section 19, other than
subsection 19(6), had applied to the employee; and
(b) in the case of an employee who was
not a member of the Defence Force immediately before retirement—the week were a
week referred to in subsection 19(3).
weekly interest on the lump sum means the
amount worked out by:
(a) multiplying the superannuation
amount in relation to the lump sum benefit received by the employee by the rate
specified in an instrument made under subsection (5); and
(b) dividing the result of
paragraph (a) by 52.
(4) In using the formula in
subsection (3) to calculate an amount of compensation for an employee who
retired before the day on which item 22 of Schedule 1 to the Safety,
Rehabilitation and Compensation and Other Legislation Amendment Act 2007
commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”.
For this purpose:
SC means the amount of superannuation
contributions that the employee would have been required to pay in that week if
he or she were still contributing to the superannuation scheme.
(5) For the purposes of the definition of weekly
interest on the lump sum in subsection (3) of this section and
subsection 21A(3), the Minister may, by legislative instrument, specify a rate
that applies for the period of 12 months commencing on 1 July in any year.
21A
Compensation for injuries resulting in incapacity if employee is in receipt of
a superannuation pension and a lump sum benefit
(1) Compensation payable to an employee who
is incapacitated for work as a result of an injury is determined in accordance
with this section if:
(a) the employee is retired from his
or her employment (whether the employee retired voluntarily or was compulsorily
retired); and
(b) the employee receives:
(i) a pension; and
(ii) a lump sum benefit;
under a superannuation scheme as
a result of the employee’s retirement.
(2) Comcare is liable to pay compensation to
the employee, in respect of the injury, in accordance with this section for
each week after the date of the retirement during which the employee is
incapacitated.
(3) The amount
of compensation is the amount worked out using this formula:
where:
amount of compensation means the amount of
compensation that would have been payable to the employee for the relevant week
if:
(a) section 19, other than
subsection 19(6), had applied to the employee; and
(b) in the case of an employee who was
not a member of the Defence Force immediately before retirement—the relevant
week were a week referred to in subsection 19(3).
superannuation amount in relation to the pension
means the superannuation amount in relation to the pension received by the
employee in respect of the relevant week.
weekly interest on the lump sum means the
amount worked out by:
(a) multiplying the superannuation
amount in relation to the lump sum benefit received by the employee by the rate
specified in an instrument made under subsection 21(5); and
(b) dividing the result of
paragraph (a) by 52.
(4) In using the formula in
subsection (3) to calculate an amount of compensation for an employee who
retired before the day on which item 22 of Schedule 1 to the Safety,
Rehabilitation and Compensation and Other Legislation Amendment Act 2007
commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”.
For this purpose:
SC means the amount of superannuation
contributions that the employee would have been required to pay in that week if
he or she were still contributing to the superannuation scheme.
22
Compensation where employee is maintained in a hospital
(1) Where:
(a) as a result of an injury, an
employee (other than an employee to whom section 20, 21 or 21A applies) is
maintained as a patient in a hospital, nursing home or similar place and has
been so maintained for a continuous period of not less than one year; and
(b) there are no prescribed persons or
prescribed children who are dependent on the employee;
Comcare is liable to pay compensation to the employee in
respect of the injury of such amount, for each week during which the employee
is so maintained, as is determined by Comcare having regard to:
(c) the present and probable future
needs and expenses of the employee; and
(d) the period during which the
employee is likely to be such a patient;
but the amount so determined shall not be less than one‑half
of, nor more than, the amount per week of compensation that would have been
payable to the employee under section 19, 20, 21 or 21A, as the case
requires, had that section applied to the employee.
(2) In this section, prescribed person,
in relation to an employee, has the same meaning as in section 19.
23
Compensation for incapacity not payable in certain cases
(1) Compensation is not payable under section 19,
20, 21, 21A or 22 to an employee who has reached 65.
(1A) However, if an employee who has reached 63
suffers an injury (whether before or after the commencement of this
subsection):
(a) subsection (1) does not
apply; and
(b) compensation is payable under
section 19, 20, 21, 21A or 22 in respect of the injury:
(i) to the extent that
this Act (other than subsection (1)) allows; and
(ii) for a maximum of 104
weeks (whether consecutive or not) during which the employee is incapacitated.
(2) Compensation is not payable under section 19,
20, 21 or 21A in respect of any period during which the employee is imprisoned
in connection with his or her conviction of an offence.
(3) Subject to section 31, where a
determination is made that an amount of compensation is payable to an employee
under section 30 in respect of an injury, compensation is not payable to
the employee under section 19, 20, 21 or 21A in respect of a period of
incapacity for work resulting from that injury, being a period occurring after
the day on which the determination is made.
23A
Repayment of salary, wages or pay, and re‑crediting of paid leave, where
compensation claim successful
(1) This section applies if:
(a) an employee makes a claim for
compensation under this Division; and
(b) before or after the employee does
so, the Commonwealth makes a payment (the Commonwealth salary
etc. payment) to the employee by way of salary, wages or pay in relation
to the whole or part of a day in the pre‑determination period; and
(c) Comcare determines that the
employee is entitled to the compensation.
(2) The employee must repay the Commonwealth
salary etc. payment.
(3) The amount repayable must be set off:
(a) if paragraph (b) does not
apply—by Comcare against any amount of compensation payable under this Division
to the employee in respect of the injury concerned; or
(b) if, under subsection 112A(3) or
112B(3), Comcare advises the employee’s employer of its intention to make a
payment (the advised payment) to the employer in respect of the
compensation—by the employer against any amount payable under subsection
112A(4) (the subsection 112A(4) payment) or 112B(4) by the
employer to the employee as a result.
Note: If the amount of the Commonwealth salary etc.
payment is less than the amount of compensation, the balance of the
compensation will still be payable after a set‑off.
(4) To the extent that the amount repayable
is set off, Comcare is taken for the purposes of this Act (other than section 90C)
to have made a payment in discharge of its liability to pay the compensation.
(5) If Comcare sets the amount off, it must
make a payment to the employer of an amount equal to the amount it sets off.
(6) If:
(a) the employer made the Commonwealth
salary etc. payment out of public money; and
(b) either:
(i) paragraph (3)(a)
applies and the employer receives the payment mentioned in subsection (5)
from Comcare; or
(ii) paragraph (3)(b)
applies and the employer makes the subsection 112A(4) payment before it
receives the advised payment from Comcare;
when the payment or the advised payment is received from
Comcare, it is taken for the purposes of section 30 of the Financial
Management and Accountability Act 1997 to be a repayment of the
Commonwealth salary etc. payment.
(7) To avoid doubt, if the employer made the
Commonwealth salary etc. payment out of public money, when the employer
receives the advised payment mentioned in paragraph (3)(b) or the payment
mentioned in subsection (5) from Comcare, the payment becomes public
money.
(8) To the extent that the amount repayable
is not set off under subsection (3), it may be recovered by the
Commonwealth as a debt due to the Commonwealth by action in a court of competent
jurisdiction.
(9) If the Commonwealth salary etc. payment
was in respect of leave of absence granted to the employee, the employer must
restore the employee’s leave credit.
Division 4—Injuries resulting in impairment
24
Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in
a permanent impairment, Comcare is liable to pay compensation to the employee
in respect of the injury.
(2) For the purpose of determining whether an
impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in
the employee’s condition;
(c) whether the employee has
undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of
compensation payable to the employee is such amount, as is assessed by Comcare
under subsection (4), being an amount not exceeding the maximum amount at
the date of the assessment.
(4) The amount assessed by Comcare shall be
an amount that is the same percentage of the maximum amount as the percentage
determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of
permanent impairment of the employee resulting from an injury under the
provisions of the approved Guide.
(6) The degree of permanent impairment shall
be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent
impairment other than a hearing loss; and
(b) Comcare determines that the degree
of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee
under this section.
(7A) Subject to
section 25, if:
(a) the employee has a permanent
impairment that is a hearing loss; and
(b) Comcare determines that the
binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee
under this section.
(8) Subsection (7) does not apply to any
one or more of the following:
(a) the impairment constituted by the
loss, or the loss of the use, of a finger;
(b) the impairment constituted by the
loss, or the loss of the use, of a toe;
(c) the impairment constituted by the
loss of the sense of taste;
(d) the impairment constituted by the
loss of the sense of smell.
(9) For the purposes of this section, the
maximum amount is $80,000.
25
Interim payment of compensation
(1) Where Comcare:
(a) makes a determination that an
employee is suffering from a permanent impairment as a result of an injury; and
(b) is satisfied that the degree of
the impairment is equal to or more than 10% but has not made a final
determination of the degree of impairment;
Comcare shall, on the written request of the employee made
at any time before the final determination is made, make an interim
determination of the degree of permanent impairment under section 24 and
assess an amount of compensation payable to the employee.
(2) The amount assessed by Comcare under subsection (1)
shall be an amount that is the same percentage of the maximum amount specified
in subsection 24(9) as the percentage determined by Comcare under subsection (1)
to be the degree of permanent impairment of the employee.
(3) Where, after an amount of compensation
has been paid to an employee following the making of an interim determination,
Comcare makes a final determination of the degree of permanent impairment of
the employee, there is payable to the employee an amount equal to the
difference (if any) between the amount payable under section 24 on the
making of the final determination and the amount paid to the employee under
this section.
(4) Where Comcare has made a final assessment
of the degree of permanent impairment of an employee (other than a hearing
loss), no further amounts of compensation shall be payable to the employee in
respect of a subsequent increase in the degree of impairment, unless the
increase is 10% or more.
(5) If Comcare has made a final assessment of
the degree of permanent impairment of an employee constituted by a hearing
loss, no further amounts of compensation are payable to the employee in respect
of a subsequent increase in the hearing loss, unless the subsequent increase in
the degree of binaural hearing loss is 5% or more.
26
Payment of compensation
(1) Subject to this section, an amount of
compensation payable to an employee under section 24 or 25, shall be paid
to the employee within 30 days after the date of the assessment of the amount.
(2) Where an amount of compensation is not
paid to an employee in accordance with subsection (1), interest is payable
to the employee on that amount in respect of the period commencing on the
expiration of the period of 30 days referred to in that subsection and ending
on the day on which the amount is paid.
(3) Interest payable under subsection (2)
shall be paid at such rate as is from time to time specified by the Minister
for the purposes of this section by legislative instrument.
(4) This
section does not apply where:
(a) Comcare has been requested under
Part VI to reconsider a determination under section 24 or 25, as the
case may be; or
(b) a proceeding in respect of such a
determination has been instituted under Part VI.
27
Compensation for non‑economic loss
(1) Where an injury to an employee results in
a permanent impairment and compensation is payable in respect of the injury
under section 24, Comcare is liable to pay additional compensation in
accordance with this section to the employee in respect of that injury for any
non‑economic loss suffered by the employee as a result of that injury or
impairment.
(2) The amount of compensation is an amount
assessed by Comcare under the formula:
where:
A is the percentage finally determined by
Comcare under section 24 to be the degree of permanent impairment of the
employee; and
B is the percentage determined by Comcare
under the approved Guide to be the degree of non‑economic loss suffered by the
employee.
(3) This section does not apply in relation
to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that
impairment has been made before the date of introduction of the Bill for the
Act that inserted this subsection.
28
Approved Guide
(1) Comcare may, from time to time, prepare a
written document, to be called the “Guide to the Assessment of the Degree of
Permanent Impairment”, setting out:
(a) criteria by reference to which the
degree of the permanent impairment of an employee resulting from an injury
shall be determined;
(b) criteria by reference to which the
degree of non‑economic loss suffered by an employee as a result of an injury or
impairment shall be determined; and
(c) methods by which the degree of
permanent impairment and the degree of non‑economic loss, as determined under
those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by
instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1),
and a variation or revocation under subsection (2) of such a Guide, must
be approved by the Minister.
(3A) A Guide prepared under subsection (1),
and a variation or revocation under subsection (2) of such a Guide, is a
legislative instrument made by the Minister on the day on which the Guide, or
variation or revocation, is approved by the Minister.
(4) Where Comcare, a licensee or the
Administrative Appeals Tribunal is required to assess or re‑assess, or review
the assessment or re‑assessment of, the degree of permanent impairment of an
employee resulting from an injury, or the degree of non‑economic loss suffered
by an employee, the provisions of the approved Guide are binding on Comcare, the
licensee or the Administrative Appeals Tribunal, as the case may be, in the
carrying out of that assessment, re‑assessment or review, and the assessment,
re‑assessment or review shall be made under the relevant provisions of the
approved Guide.
(5) The percentage of permanent impairment or
non‑economic loss suffered by an employee as a result of an injury ascertained
under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of
paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall
have regard to medical opinion concerning the nature and effect (including
possible effect) of the injury and the extent (if any) to which impairment
resulting from the injury, or non‑economic loss resulting from the injury or
impairment, may reasonably be capable of being reduced or removed.
(8) Comcare shall make copies of the “Guide
to the Assessment of the Degree of Permanent Impairment” that has been approved
by the Minister, and of any variation of that Guide that has been so approved,
available upon application by a person and payment of the prescribed fee (if
any).
Division 5—Household and attendant care services
29
Compensation for household services and attendant care services
(1) Subject to subsection (5), where, as
a result of an injury to an employee, the employee obtains household services
that he or she reasonably requires, Comcare is liable to pay compensation of
such amount per week as Comcare considers reasonable in the circumstances,
being not less than 50% of the amount per week paid or payable by the employee
for those services nor more than $200.
(2) Without limiting the matters that Comcare
may take into account in determining the household services that are reasonably
required in a particular case, Comcare shall, in making such a determination,
have regard to the following matters:
(a) the extent to which household
services were provided by the employee before the date of the injury and the
extent to which he or she is able to provide those services after that date;
(b) the number of persons living with
the employee as members of his or her household, their ages and their need for household
services;
(c) the extent to which household
services were provided by the persons referred to in paragraph (b) before
the injury;
(d) the extent to which the persons
referred to in paragraph (b), or any other members of the employee’s
family, might reasonably be expected to provide household services for
themselves and for the employee after the injury;
(e) the need to avoid substantial
disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also
subsection 4(2).
(3) Where, as a result of an injury to an
employee, the employee obtains attendant care services that he or she
reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an
amount per week equal to the amount per week paid or payable by the employee
for those services;
whichever is less.
(4) Without limiting the matters that Comcare
may take into account in determining the attendant care services that are
reasonably required in a particular case, Comcare shall, in making such a
determination, have regard to the following matters:
(a) the nature of the employee’s
injury and the degree to which that injury impairs his or her ability to
provide for his or her personal care;
(b) the extent to which any medical
service or nursing care received by the employee provides for his or her
essential and regular personal care;
(c) the extent to which it is
reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care
services are necessary to enable the employee to undertake or continue
employment;
(e) any assessment made in relation to
the rehabilitation of the employee;
(f) the extent to which a relative of
the employee might reasonably be expected to provide attendant care services.
Note: In relation to paragraph (4)(f), see also
subsection 4(2).
(5) Comcare is not liable to pay compensation
under subsection (1) in respect of any week within the period of 28 days
beginning on the date of the injury unless Comcare determines otherwise in a
particular case on the ground of financial hardship or the need to provide for
adequate supervision of dependent children.
(6) An amount of compensation payable by
Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for
the household services or attendant care services, as the case may be—to the
employee; or
(b) in any other case—to the person
who provided those services.
(7) Where
Comcare pays an amount to a person who provided household services or attendant
care services to an employee, the payment of the amount is, to the extent of
the payment, a discharge of the liability of the employee to pay for those
services.
Division 6—Miscellaneous
30
Redemption of compensation
(1) Where:
(a) Comcare is liable to make weekly
payments under section 19, 20, 21 or 21A to an employee in respect of an
injury resulting in an incapacity;
(b) the amount of those payments is
$50 per week or less; and
(c) Comcare is satisfied that the
degree of the employee’s incapacity is unlikely to change;
Comcare shall make a determination that its liability to
make further payments to the employee under that section be redeemed by the
payment to the employee of a lump sum.
(2) The amount of
the lump sum is the amount worked out using the formula:
(3) For the purposes
of subsection (2):
amount per week means the amount per week
payable to the employee under section 19, 20, 21 or 21A, as the case may
be, at the date of the determination.
specified number means the number specified
by the Minister.
n means the number worked out using the
formula:
where:
number of days
means the number of days in the period beginning on the day after the day on
which the determination is made and ending:
(a) if the employee is injured before
reaching 63 years of age—on the day immediately before the day on which the
employee reaches 65 years of age; and
(b) if the employee is injured on or
after reaching 63 years of age—on the day immediately before the employee would
cease to be entitled to receive compensation under section 19, 20, 21 or
21A of this Act.
(4) The Minister may, from time to time, by legislative
instrument, specify a number (being a specification of the number in decimal
notation) for the purposes of subsection (2).
31
Recurrent payments after payment of lump sum
(1) Where:
(a) at any time after a lump sum is
paid to an employee under section 30 in respect of an injury, the injury
results in the employee being incapacitated for work to the extent that the
employee is not able to engage in suitable employment; and
(b) the incapacity is likely to
continue indefinitely;
Comcare is liable to pay compensation to the employee
under this section during the period of the incapacity.
(2) The amount of compensation is an amount
per week equal to the amount per week that would, but for the payment of the
lump sum, have been payable to the employee under section 19, 20, 21 or
21A, as the case may be, in respect of the incapacity, less the amount per week
that was redeemed at the date of the determination under section 30.
32
Cancelled determinations not to affect certain payments of compensation
(1) For the purposes of subsections 23(3) and
31(2), account shall not be taken of a determination that the liability of
Comcare to make further payments to an employee under section 19, 20, 21
or 21A is to be redeemed if the determination:
(a) is revoked by Comcare; or
(b) is set aside by a tribunal or
court.
(2) Paragraph (1)(b)
does not apply if a further determination is made by a tribunal or court, being
a determination under which the liability of Comcare to make further payments
to the employee under section 19, 20, 21 or 21A is to be redeemed.
33
Reduction of compensation in certain cases
(1) Where, in relation to a day in respect of
which compensation is payable to an employee under section 19, 20, 21,
21A, 22 or 31, an amount or amounts are paid or payable to the employee by the
Commonwealth or a licensed corporation by way of salary, wages or pay, the
amount of compensation payable under that section in respect of that day shall
be reduced by the amount, or the sum of the amounts, so paid or payable to the
employee.
(2) In this section, a reference to an amount
paid or payable to an employee by the Commonwealth or a licensed corporation
does not include a reference to:
(a) an amount by way of pay in respect
of a period of leave of absence granted, or in lieu of the grant of a period of
leave of absence, under section 16 or 17 of the Long Service Leave
(Commonwealth Employees) Act 1976, section 73 or 74 of the Public
Service Act 1922 as in force before 20 December 1976 or section 7
or 8 of the Commonwealth Employees’ Furlough Act 1943 as in force before
that day;
(b) an amount by way of pay in respect
of a period of leave of absence granted, or in lieu of the grant of a period of
leave of absence, under regulations in force under the Naval Defence Act
1910, the Defence Act 1903 or the Air Force Act 1923;
(ba) an amount by way of pay in respect
of a period of leave of absence, or in lieu of the grant of a period of leave
of absence, in the nature of long service leave under a law of a State or
Territory or an industrial award, determination, order or agreement;
(c) any amount that the employee is
able to earn in suitable employment or any amount of earnings payable to an
employee, being an amount that has been taken into account for the purposes of
calculating the amount of compensation payable to the employee under section 19;
or
(d) an amount of deferred pay within
the meaning of Part III of the Defence Forces Retirement Benefits Act
1959 or of any provision of that Part; or
(e) a Commonwealth salary etc. payment
as defined in paragraph 23A(1)(b).
Part III—Rehabilitation
Division 1—Preliminary
34
Definitions
In this Part:
principal, in relation to an applicant for
approval as a rehabilitation program provider or for renewal of such an
approval, means:
(a) if the applicant is a
partnership—any of the partners; and
(b) if the applicant is a company—any
of the directors of the company and, if the person responsible for the day to
day running of the company is not a director, also that person.
renewal date means:
(a) a date occurring not later than 12
months after this Act receives the Royal Assent that is determined, in writing,
by the Minister to be the first renewal date; and
(b) the dates occurring, at intervals
prescribed for the purposes of this paragraph, after the date determined to be
the first renewal date.
Division 2—Approved rehabilitation program providers
34A
How this Part applies to partnerships
(1) A partnership may apply for approval as,
or for renewal of approval as, a rehabilitation program provider as if the
partnership were a person.
(2) If the partnership so applies, this Part
applies subject to the changes set out in subsections (3), (4), (5) and
(6), to and in relation to:
(a) that application; and
(b) if the application is approved—the
operations of the partnership as a rehabilitation program provider.
(3) If this Part would otherwise require or
permit something to be done by the partnership in relation to its application
for approval or renewal of approval as, or its operation as, a rehabilitation
program provider, the thing may be done by one or more of the partners on
behalf of the partnership.
(4) If, under this Part, a document is given,
in accordance with section 28A of the Acts Interpretation Act 1901,
to a partner of a partnership in relation to its application for approval or
renewal of approval as, or its operation as, a rehabilitation program provider,
the document is taken to have been given to the partnership.
(5) An obligation that would otherwise be
imposed upon a partnership in relation to its application for approval or
renewal of approval as, or its operation as, a rehabilitation program provider
by a provision of this Part:
(a) is imposed on each partner
instead; but
(b) may be discharged by any of the
partners.
(6) The partners are jointly and severally
liable to pay any fee that would otherwise be payable by the partnership under
a provision of this Part in relation to its application for approval or renewal
of approval as, or its operation as, a rehabilitation program provider.
(7) For the
purposes of this Part, a change in the composition of a partnership does not
affect the continuity of the partnership:
(a) as
an applicant for approval or renewal of approval as a rehabilitation program
provider; or
(b) as a provider of rehabilitation
programs.
34B
Persons may seek approval as rehabilitation program providers
A person may apply to Comcare for
approval as a rehabilitation program provider.
34C
Applications for initial approval
(1) An application for initial approval of a
person as a rehabilitation program provider must:
(a) be in writing in the approved
form; and
(b) identify the applicant and, if the
applicant is not an individual, also identify the persons who are, at the time
of the application:
(i) the principals of the
applicant; and
(ii) employees of the
applicant who will participate in the provision of rehabilitation services
under this Act; and
(c) contain such information relating
to:
(i) the criteria in force
under section 34D; and
(ii) operational standards
in force under section 34E; and
(iii) such other matters;
as the approved form specifies.
Note: For meaning of approved form see
section 34S.
(2) Applications must be accompanied by the
prescribed fee for processing the application.
(3) If Comcare receives an application that
meets the requirements of subsection (1) and is paid the prescribed fee,
it is required to process the application within 6 months of receiving it.
(4) If Comcare gives an applicant notice
under section 34N requiring the production of further information, the
period from the giving of that notice to the production of that information is
to be disregarded.
34D
Comcare to establish criteria for approval, or renewal of approval, of persons
as rehabilitation program providers
(1) Comcare must, by legislative instrument,
determine the criteria to be met by persons applying:
(a) under section 34B for
approval as rehabilitation program providers; or
(b) under subsection 34J(1) for
renewal of such an approval.
(2) Without limiting the generality of subsection (1),
the criteria must include:
(a) matters relating to the
qualifications of the applicant and, if the applicant is not an individual, of
the principals and employees of the applicant; and
(b) matters relating to the probity,
and the financial arrangements, of the applicant; and
(c) if the applicant is not an
individual—matters relating to the probity of the principals and employees of
the applicant.
34E
Comcare to establish operational standards for rehabilitation program providers
(1) Comcare must, by legislative instrument,
determine operational standards to be complied with by all persons who are
approved as rehabilitation program providers under subsection 34F(1).
(2) Without limiting the generality of subsection (1),
the standards must include:
(a) standards relating to effectiveness,
availability and cost that the person is required to meet and to maintain in
the provision of rehabilitation services as an approved rehabilitation program
provider; and
(b) such other standards as Comcare
considers appropriate concerning the operation of the person as an approved
rehabilitation program provider.
(4) Comcare may only vary standards with
effect from a renewal date but must publish the standards as proposed to be so
varied, at least 6 months before the renewal date when they take effect.
34F
The initial approval decision
(1) If Comcare is satisfied that an applicant
for approval as a rehabilitation program provider, having regard to information
in the application and to any further information that is supplied to Comcare
under section 34N:
(a) meets the criteria for approval as
a rehabilitation program provider in force under section 34D; and
(b) is likely to be able to comply
with the operational standards presently in force; and
(c) if the applicant is making an
application within 6 months of the next renewal date—is also likely to be able
to comply with the operational standards that will be in force with effect from
that renewal date;
Comcare must:
(d) approve the applicant as a
rehabilitation program provider; and
(e) inform the applicant, by written
notice, of its decision.
(2) If Comcare is not so satisfied, it must:
(a) refuse to approve the applicant as
a rehabilitation program provider; and
(b) inform the applicant, by written
notice, of its decision and of the reasons for that decision.
34G
Duration of initial approval given on application
If Comcare approves a person as a
rehabilitation program provider after consideration of an application, the
initial approval of the person as a rehabilitation program provider:
(a) comes into force on the date (the starting
date) on which the application is determined or any such later date as
is specified in the determination; and
(b) subject to section 34Q,
remains in force:
(i) if the starting date
occurs not less than 6 months before the renewal date next following the
starting date—until the end of the day immediately before that renewal date;
and
(ii) if the starting date
occurs less than 6 months before the renewal date next following the starting
date—until the end of the day immediately before the second renewal date
following the starting date.
34H
Comcare may also approve persons as rehabilitation program providers on its own
initiative
(1) Comcare may, in any circumstance where it
considers that the urgent need for the provision of rehabilitation services
makes it appropriate, also approve a person as a rehabilitation program
provider on its own initiative.
(2) Such an approval may be given despite the
fact that:
(a) the person approved has not
applied under section 34B for approval as a rehabilitation program
provider; or
(b) if the person has so
applied—Comcare has not, at the time of the approval, satisfied itself that the
person approved meets the criteria for approval as a rehabilitation program
provider in force under section 34D.
(3) An approval under this section is for
such period as Comcare specifies in the instrument of approval only and is not
able to be renewed.
(4) Nothing in subsection (3) prevents
Comcare from extending the approval period specified under that subsection or
specified under that subsection and previously extended under this subsection.
(5) Nothing in this section prevents a person
approved as a rehabilitation program provider under this section from:
(a) making an application under
section 34B as a rehabilitation program provider; or
(b) continuing an application under
section 34B already made but not fully considered at the time of the
approval under this section.
(6) If such an application is granted, the
approval under this section is taken to have been revoked with effect from the
grant.
(7) An approval under this section is subject
to such conditions as Comcare specifies in the instrument of approval.
34J
Persons may seek renewal of approval as rehabilitation program providers in
certain circumstances
(1) A person who is a rehabilitation program
provider approved under section 34F may apply to Comcare for renewal of
the person’s approval as a rehabilitation program provider.
(2) Subject to subsection (3), an
application for renewal must be made not less than 6 months before the end of
an approval period.
(3) The Chief Executive Officer may, in
exceptional circumstances, permit an application for renewal to be made less
than 6 months before the end of an approval period.
(4) In this section:
approval period means the period:
(a) of the initial approval; or
(b) if that approval has been renewed
under section 34L—of the approval as last renewed.
34K
The renewal application
(1) An application for renewal of a person as
a rehabilitation program provider must:
(a) be in writing in the approved
form; and
(b) identify the applicant and, if the
applicant is not an individual, also identify the persons who are, at the time
of the application:
(i) the principals of the
applicant; and
(ii) employees of the
applicant who will participate in the provision of rehabilitation services
under this Act; and
(c) contain such information relating
to:
(i) the criteria in force
under section 34D; and
(ii) operational standards
in force under section 34E and those standards that will have effect from
the renewal date; and
(iii) such other matters as
the approved form specifies.
Note: For meaning of approved form see
section 34S.
(2) All applications for renewal must be
accompanied by the prescribed fee for processing the application.
(3) If Comcare receives an application that
meets the requirements of subsection (1) and is paid the prescribed fee,
it is required to process the application within 6 months of receiving it.
(4) If Comcare has given an applicant notice
under section 34N requiring the production of further information, the
period from the giving of that notice to the production of that information is
to be disregarded.
34L
The renewal decision
(1) If Comcare is satisfied, having regard to
the information in the renewal application and to any further information that
is supplied to Comcare under section 34N, that the applicant:
(a) meets the criteria established in
force under section 34D; and
(b) has demonstrated compliance with
the operational standards in force under section 34E since the applicant
was initially approved or last renewed; and
(c) is likely to be able to meet the
operational standards in force under section 34E with effect from the
renewal date;
Comcare must:
(d) renew the approval of the
applicant as a rehabilitation program provider; and
(e) inform the applicant, by written
notice, of its decision.
(2) If Comcare is not so satisfied, it must:
(a) refuse to renew the applicant’s
approval; and
(b) inform the applicant, by written
notice, of its decision and of the reasons for that decision.
34M
Duration of renewal of approval
If Comcare renews the approval of a
person as an approved rehabilitation program provider, the renewal:
(a) comes into force on the day
following the end of the previous approval period; and
(b) subject to section 34Q,
remains in force until the end of the day immediately before the next following
renewal date.
34N
Further information may be required of applicants
(1) If, having regard to the material
provided in an application for initial approval or in an application for
renewal, Comcare is of the opinion that further information is required from
the applicant, Comcare may give a written notice to the applicant:
(a) setting out the nature of the
further information required; and
(b) requiring it to be supplied within
a period specified in the notice.
(2) Pending the provision of the further
information required, the processing of the application is suspended.
(3) If the information is not supplied within
the period specified in the notice requesting it, the application is taken to
have been withdrawn.
34P
Initial approval or renewal is subject to conditions
The approval of a person as a
rehabilitation program provider under section 34F, and the renewal of that
approval under section 34L, is subject to:
(a) the condition that the provider
comply with the standards in force under section 34E; and
(b) such conditions as Comcare
specifies in the instrument of approval or renewal in relation to notification
to Comcare:
(i) if the provider is not
an individual—of any change in the identity of the principals and employees of
the provider; and
(ii) of any matter that, if
the provider were not already approved, would affect the capacity of the
provider to meet the particular criteria for approval as an approved
rehabilitation program provider in force from time to time under section 34D;
and
(iii) of any matter that
affects the compliance, or the capacity for compliance, of the provider with
the operational standards in force at the time; and
(c) any other conditions specified in
the instrument of approval or renewal as Comcare considers appropriate.
34Q
Revocation of approval
If, at any time, Comcare is satisfied,
in relation to an approved rehabilitation program provider, that:
(a) the provider has failed to comply
with the conditions to which the provider’s approval is subject under section 34P;
or
(b) were the provider to be applying
for approval at that time, Comcare would not approve the provider;
Comcare may, by written notice, revoke the approval with
effect from a date specified in the notice.
34R
Review of decisions
(1) The following decisions are reviewable by
the Administrative Appeals Tribunal:
(a) a decision to refuse an
application for approval of a person as a rehabilitation program provider;
(b) a decision to refuse an
application for renewal of the approval of a person as a rehabilitation program
provider;
(c) a decision to revoke an approval
of a person as a rehabilitation program provider;
(d) a decision to impose particular
conditions under paragraph 34P(c) on the grant of an approval of a person as a
rehabilitation program provider.
(2) In subsection (1):
decision has the same meaning as it has in
the Administrative Appeals Tribunal Act 1975.
34S
Approved forms
In this Division a reference to an
approved form is a reference to a form that is approved, by legislative
instrument, by Comcare.
Division 3—Rehabilitation programs
35
Exempt authorities
The Minister may, by notice in writing,
declare an Entity or a Commonwealth authority specified in the notice to be an
exempt authority.
36
Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting
in an incapacity for work or an impairment, the rehabilitation authority may at
any time, and shall on the written request of the employee, arrange for the
assessment of the employee’s capability of undertaking a rehabilitation
program.
(2) An assessment shall be made by:
(a) a legally qualified medical
practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other
than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally
qualified medical practitioners or other suitably qualified persons (or both)
as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require
the employee to undergo an examination by the person or panel of persons making
the assessment.
(4) Where an employee refuses or fails,
without reasonable excuse, to undergo an examination in accordance with a
requirement, or in any way obstructs such an examination, the employee’s rights
to compensation under this Act, and to institute or continue any proceedings
under this Act in relation to compensation, are suspended until the examination
takes place.
(4A) However, subsection (4) does not
operate to suspend the employee’s right to compensation for the cost of medical
treatment that is payable under section 16.
(5) The relevant authority shall pay the cost
of conducting any examination of an employee and is liable to pay to the
employee an amount equal to the amount of the expenditure reasonably incurred
by the employee in making a necessary journey in connection with the
examination or remaining, for the purpose of the examination, at a place to
which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5),
a relevant authority shall have regard to:
(a) the means of transport available
to the employee for the journey;
(b) the route or routes by which the
employee could have travelled; and
(c) the accommodation available to the
employee.
(7) Where an employee’s right to compensation
is suspended under subsection (4), compensation is not payable in respect
of the period of the suspension.
(8) Where an examination is carried out, the
person or persons who carried out the examination shall give to the
rehabilitation authority a written assessment of the employee’s capability of
undertaking a rehabilitation program, specifying, where appropriate, the kind
of program which he or she is capable of undertaking and containing any other
information relating to the provision of a rehabilitation program for the
employee that the rehabilitation authority may require.
37
Provision of rehabilitation programs
(1) A rehabilitation authority may make a
determination that an employee who has suffered an injury resulting in an
incapacity for work or an impairment should undertake a rehabilitation program.
(2) If a rehabilitation authority makes a
determination under subsection (1), the authority may:
(a) provide a rehabilitation program
for the employee itself; or
(b) make arrangements with an approved
program provider for that provider to provide a rehabilitation program for the
employee.
Note: A rehabilitation program that is being
provided to a person under this section might cease if the person is also
provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(2A) A determination under subsection (1)
is not a legislative instrument.
(3) In making a determination under subsection (1),
a rehabilitation authority shall have regard to:
(a) any written assessment given under
subsection 36(8);
(b) any reduction in the future
liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s
opportunity to be employed after completing the program;
(e) the likely psychological effect on
the employee of not providing the program;
(f) the employee’s attitude to the
program;
(g) the relative merits of any
alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program
provided for an employee under this section shall be paid by the relevant
authority in relation to that employee.
(5) Where an employee is undertaking a
rehabilitation program under this section, compensation is not payable to the employee
under section 19 or 31 but:
(a) if the employee is undertaking a
full‑time program—compensation is payable to the person of an amount per week
equal to the amount per week of the compensation that would, but for this
subsection, have been payable under section 19 if the incapacity referred
to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a
part‑time program—compensation is payable to the employee of such amount per
week as the relevant authority determines, being an amount not less than the
amount per week of the compensation that, but for this subsection, would have
been payable to the employee under this Act and not greater than the amount per
week of the compensation that would have been payable under paragraph (a)
if the employee had been undertaking a full‑time program.
(7) Where an employee refuses or fails,
without reasonable excuse, to undertake a rehabilitation program provided for
the employee under this section, the employee’s rights to compensation under
this Act, and to institute or continue any proceedings under this Act in
relation to compensation, are suspended until the employee begins to undertake
the program.
(7A) However, subsection (7) does not
operate to suspend the employee’s right to compensation for the cost of medical
treatment that is payable under section 16.
(8) Where an employee’s right to compensation
is suspended under subsection (7), compensation is not payable in respect
of the period of the suspension.
38
Review of certain determinations by Comcare
(1) As soon as practicable after a
rehabilitation authority (other than a relevant authority) makes a
determination under section 36 or 37, the authority shall cause to be
served on the employee to whom the determination relates a notice in writing
setting out:
(a) the terms of the determination;
(b) the reasons for the determination;
and
(c) a statement to the effect that the
employee may, if dissatisfied with the determination, request Comcare for a
review of the determination under this section.
(2) An employee in respect of whom a
determination under section 36 or 37 is made by a rehabilitation authority
(other than a relevant authority) may, by notice in writing given to Comcare,
request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the
request; and
(b) be given to Comcare within 30 days
after the day on which the determination first came to the notice of the
employee, or within such further period (if any) as Comcare, either before or
after the expiration of that period, allows.
(4) On receipt of a request, Comcare shall
review the determination and may make a decision affirming or revoking the
determination or varying the determination in such manner as Comcare thinks
fit.
39
Compensation payable in respect of certain alterations etc.
(1) Where:
(a) an employee suffers an injury
resulting in an impairment; and
(b) the employee is undertaking, or
has completed, a rehabilitation program or has been assessed as not capable of
undertaking such a program;
the relevant authority is liable to pay compensation of
such amount as is reasonable in respect of the costs, payable by the employee,
of:
(c) any alteration of the employee’s
place of residence or place of work;
(d) any modifications of a vehicle or
article used by the employee; or
(e) any aids or appliances for the use
of the employee, or the repair or replacement of such aids or appliances;
being alterations, modifications or aids or appliances
reasonably required by the employee, having regard to the nature of the
employee’s impairment and, where appropriate, the requirements of the
rehabilitation program.
(2) The matters to which the relevant
authority shall have regard in determining the amount of compensation payable
in a particular case under subsection (1) include such of the following
matters as are relevant in that case:
(a) the likely period during which the
alteration, modification, aid or appliance will be required;
(b) any difficulties faced by the
employee in gaining access to, or enjoying reasonable freedom of movement in,
his or her place of residence or work;
(c) any difficulties faced by the
employee in gaining access to, driving or enjoying freedom and safety of
movement in, a vehicle used by the employee;
(d) any alternative means of transport
available to the employee;
(e) whether arrangements can be made
for hiring the relevant aid or appliance;
(f) when the employee has previously
received compensation under this section in respect of an alteration of his or
her place of residence or a modification of a vehicle and has later disposed of
that place of residence or vehicle—whether the value of that place of residence
or vehicle was increased as a result of the alteration or modification.
(3) An amount
of compensation payable under this section is payable:
(a) to,
or in accordance with the directions of, the employee;
(b) if the employee dies before the
compensation is paid and without having paid the cost referred to in subsection (1)
and another person, not being the legal personal representative of the
employee, has paid that cost—to that other person; or
(c) if that cost has not been paid and
the employee, or the legal personal representative of the employee, is unable,
or refuses or fails, to make a claim for the compensation—to the person to whom
that cost is payable.
(4) Where a person is liable to pay any cost
referred to in subsection (1), any amount paid under subsection (3)
to the person to whom that cost is payable is, to the extent of the payment, a
discharge of the liability of the first‑mentioned person.
40
Duty to provide suitable employment
(1) Where an employee is undertaking, or has
completed, a rehabilitation program, the relevant employer shall take all
reasonable steps to provide the employee with suitable employment or to assist
the employee to find such employment.
(2) In this
section:
relevant employer means:
(a) in relation to an employee
employed by a Commonwealth authority—that authority; and
(aa) in relation to an employee
employed by a licensed corporation—that corporation; and
(b) in relation to any other
employee—the Commonwealth.
41
Rehabilitation authorities to comply with guidelines
(1) Comcare may prepare and issue to
rehabilitation authorities guidelines in relation to the performance or
exercise by those authorities of their functions or powers under this Part.
(2) A rehabilitation authority shall comply
with any guidelines issued under subsection (1).
41A
Delegation by rehabilitation authority
(1) A rehabilitation authority who is:
(a) the principal officer of an
Entity; or
(b) the principal officer of a
Commonwealth authority in respect of which a licence is not in force under Part VIII;
or
(c) the principal officer of a
licensee;
may, in writing, delegate to an officer of, or a person
employed by, that Entity, authority or licensee all or any of the powers and
functions of the rehabilitation authority under this Part.
(2) A rehabilitation authority who is the
Chief of the Defence Force may, in writing, delegate to an officer or employee
of the Commonwealth all or any of the powers and functions of the
rehabilitation authority under this Part.
Part IV—Liabilities arising apart from this Act
42
Interpretation
In this Part:
(a) a reference to the loss of, or
damage to, property used by an employee is a reference to the loss of, or
damage to, that property in circumstances referred to in section 15;
(b) a reference to an employee is, if
the employee has died, a reference to his or her legal personal representative;
and
(c) a reference to a dependant of a
deceased employee is, if the dependant has died, a reference to the dependant’s
legal personal representative.
43
Certain persons may request cessation of compensation payments
(1) Where compensation under this Act is
payable to, or for the benefit of, a person who is:
(a) a member of the Forces, or a
member of a Peacekeeping Force, for the purposes of Part IV of the Veterans’
Entitlements Act 1986; or
(b) a veteran who has, on or after the
day on which the Military Compensation Act 1994 commences, rendered
operational service for the purposes of Part II of the Veterans’
Entitlements Act 1986; or
(c) a dependant of such a member or
veteran;
the person may, by notice in writing to Comcare, request
that an amount of compensation under this Act to which the person is entitled,
or may become entitled, not be paid to, or for the benefit of, the person.
(2) Where Comcare receives a request by a
person:
(a) an amount of compensation under
this Act that is payable to, or for the benefit of, the person at the time of
that receipt, being an amount to which the request relates, ceases to be so
payable; and
(b) an amount of compensation under
this Act that would, but for this section, become payable to, or for the
benefit of, that person during the period when the request is in force, being
an amount to which the request relates, does not become payable.
(3) A person who has made a request may, by
notice in writing to Comcare, revoke the request.
(4) The revocation of a request:
(a) has effect on the receipt of the
notice of revocation by Comcare; and
(b) does not revive any entitlement to
an amount of compensation that had ceased to be payable, or had not become
payable, as a result of the making of the request.
(5) A person who is under a legal disability
may not make or revoke a request but a request may be made or revoked on his or
her behalf by another person who Comcare is satisfied represents the first‑mentioned
person’s interests.
(6) A request or revocation made on behalf of
a person under a legal disability shall, for the purposes of this section, be
taken to have been made by that person.
44
Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or
other proceeding for damages does not lie against the Commonwealth, a
Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee
in the course of his or her employment, being an injury in respect of which the
Commonwealth, Commonwealth authority or licensed corporation would, but for
this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to,
property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or
after the commencement of this section.
(2) Subsection (1) does not apply in
relation to an action or proceeding instituted before the commencement of this
section.
(3) If:
(a) an employee has suffered an injury
in the course of his or her employment; and
(b) that injury results in that
employee’s death;
subsection (1) does not prevent a dependant of that
employee bringing an action against the Commonwealth, a Commonwealth authority,
a licensed corporation or another employee in respect of the death of the first‑mentioned
employee.
(4) Subsection (3) applies whether or
not the deceased employee, before his or her death, had made an election under
subsection 45(1).
45 Actions
for damages—election by employees
(1) Where:
(a) compensation is payable under
section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth
authority, a licensed corporation or another employee would, but for subsection
44(1), be liable for damages for any non‑economic loss suffered by the employee
as a result of the injury;
the employee may, at any time before an amount of
compensation is paid to the employee under section 24, 25 or 27 in respect
of that injury, elect in writing to institute an action or proceeding against
the Commonwealth, the Commonwealth authority, the licensed corporation or other
employee for damages for that non‑economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in
relation to an action or other proceeding subsequently instituted by the
employee against the Commonwealth, the Commonwealth authority, the licensed
corporation or the other employee for damages for the non‑economic loss to
which the election relates; and
(b) compensation is not payable after
the date of the election under section 24, 25 or 27 in respect of the
injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as
a result of an election made by an employee, the court shall not award the
employee damages of an amount exceeding $110,000 for any non‑economic loss
suffered by the employee.
(5) The election by an employee under this
section to institute an action or proceeding against the Commonwealth, a
Commonwealth authority, a licensed corporation or another employee does not
prevent the employee, before, or instead of, formally instituting such action
or proceeding, doing any other thing that constitutes an action for non‑economic
loss.
46
Notice of common law claims against third party
(1) Where:
(a) compensation is payable under this
Act in respect of the death of an employee, an injury to an employee or the
loss of, or damage to, property used by an employee;
(b) the death, injury, loss or damage
occurred in circumstances that appear to create a legal liability in a person
(other than the Commonwealth, a Commonwealth authority, a licensed corporation
or another employee) to pay damages in respect of the death, injury, loss or
damage; and
(c) the employee or a dependant of the
deceased employee, as the case may be, makes a claim against that person for
the recovery of such damages;
the employee or dependant must, as soon as practicable but
in any event not later than 7 days after the day on which he or she first
became aware of the claim, notify Comcare in writing of the claim.
Penalty: 5 penalty units
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
47
Notice of common law claims against Commonwealth
(1) If:
(a) compensation
is payable under this Act in respect of the death of an employee or an injury
to an employee; and
(b) the employee, or a dependant of
the deceased employee, as the case may be, makes a claim for damages in respect
of the death or injury against the Commonwealth, a Commonwealth authority, a
licensed corporation or another employee;
the employee or dependant must, as soon as practicable but
in any event not later than 7 days after the day on which he or she first
became aware of the claim, notify Comcare in writing of the claim.
Penalty: 5 penalty units
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
48
Compensation not payable where damages recovered
(1) This section applies where:
(a) an employee recovers damages in
respect of an injury to the employee or in respect of the loss of, or damage
to, property used by the employee, being an injury, loss or damage in respect
of which compensation is payable under this Act; or
(b) damages are recovered by, or for
the benefit of, a dependant of a deceased employee in respect of the death of
the employee and compensation is payable under this Act in respect of the
injury that resulted in that death.
(2) The employee or dependant shall, not
later than 28 days after the day on which the damages were recovered, notify
Comcare in writing of the recovery of the damages and the amount of the
damages.
Penalty: 10 penalty units.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) If, before the recovery of the damages
by, or for the benefit of, the employee or dependant, any compensation under
this Act was paid to, or for the benefit of, the employee in respect of the
injury, loss or damage, or to, or for the benefit of, the dependant in respect
of the injury that resulted in the death of the employee, as the case may be,
the employee or dependant is liable to pay to Comcare an amount equal to:
(a) the amount of that compensation;
or
(b) the amount of the damages;
whichever is less.
(4) Compensation is not payable under this
Act to the employee in respect of the injury, loss or damage, or to, or for the
benefit of, the dependant in respect of the injury that resulted in the death
of the employee, after the date on which the damages were recovered by the
employee or by, or for the benefit of, the dependant, as the case may be.
(4A) Subsection (3) does not apply if the
damages were recovered in an action for non‑economic loss or by way of a
settlement of such an action.
(5) Subsection (4) does not apply if the
damages were recovered:
(a) as a result of a claim, or fresh
claim, made by Comcare under section 50 (whether or not that claim
progressed to the formal institution of proceedings); or
(b) as a result of Comcare’s taking
over the conduct of a claim under that section; or
(c) as a result of an action for non‑economic
loss; or
(d) by way of a settlement of such a
claim or of such an action (whether or not that claim or that action progressed
to the formal institution of proceedings).
(6) A reference in subsection (3) to
compensation under this Act that was paid for the benefit of a dependant does
not include a reference to compensation paid under subsection 17(5).
(7) Where an employee, or a dependant of an
employee, establishes to the satisfaction of Comcare that a part of the damages
referred to in subsection (1) did not relate to an injury, loss or damage
in respect of which compensation is payable under this Act, subsection (3)
applies in relation to that employee or dependant as if the amount of the
damages were an amount equal to so much of the amount of the damages as did
relate to an injury, loss or damage in respect of which compensation is payable
under this Act.
(8) Subsections (3) and (4) do not apply
where the damages are recovered on or after the commencement of this section in
respect of a claim for damages made before that day (whether or not legal proceedings
were instituted) but section 99 (other than subsection 99(1)) of the 1971
Act, as in force immediately before that day, continues to apply as if:
(a) references in that section to the
Commonwealth were references to Comcare;
(b) references in that section to the
Commissioner were references to Comcare;
(c) references in that section to
compensation payable under the 1971 Act were references to compensation payable
under this Act; and
(d) the reference in subsection 99(9)
to subsection 43(5) or (7) of the 1971 Act were a reference to subsection 17(5)
of this Act.
(9) In this section, damages
does not include an amount of damages paid to the Commonwealth in accordance
with section 76 of the Veterans’ Entitlements Act 1986.
49
Dependants not claiming compensation
(1) Where:
(a) compensation is payable under this
Act in respect of an injury that resulted in the death of an employee; and
(b) damages in respect of the death of
the employee are recovered by or for the benefit of a prescribed dependant of
the deceased employee;
this section applies in relation to that prescribed
dependant.
(2) If the
prescribed dependant is the only prescribed dependant, he or she is liable to
pay to Comcare:
(a) the amount of the compensation
referred to in paragraph (1)(a); or
(b) the amount of the damages
recovered by the prescribed dependant;
whichever is less.
(3) If the prescribed dependant is not the
only prescribed dependant, he or she is liable to pay to Comcare:
(a) the prescribed amount; or
(b) the amount of the damages
recovered by the prescribed dependant;
whichever is less.
(4) In this section:
damages has the same meaning as in section 48.
prescribed amount
means an amount calculated under the formula:
where:
AC is the amount of the compensation referred
to in paragraph (1)(a);
D1 is the amount of the damages
recovered by the prescribed dependant in respect of the death of the employee;
and
D2 is the total amount of the damages
recovered by all prescribed dependants in respect of the death of the employee.
prescribed dependant, in relation to a
deceased employee, means a dependant of that employee by whom, or on whose
behalf, a claim for compensation under this Act in respect of the injury that
resulted in the death of the employee has not been made or by whom, or on whose
behalf, a request under section 43 relating to compensation under this Act
in respect of that injury has been made.
(5) For the purposes of this section, the
amount of the compensation referred to in paragraph (1)(a):
(a) shall be taken not to include:
(i) any amount of
compensation that Comcare is liable to pay for the benefit of a dependant of
the deceased employee, being a dependant who is not entitled to recover damages
in respect of the death of the employee, whether by reason of the operation of
a statute of limitations or otherwise; and
(ii) any amount of
compensation payable under subsection 17(5); and
(b) shall be taken to be reduced by
any amount that a dependant of the deceased employee is liable to pay to
Comcare under section 48.
50
Common law claims against third parties
(1) Where:
(a) an amount of compensation under
this Act:
(i) is paid to an employee
in respect of an injury to the employee or in respect of the loss of, or damage
to, property used by the employee; or
(ii) is paid for the
benefit of a dependant of a deceased employee in respect of an injury that
resulted in the death of the employee;
(b) the injury, loss, damage or death
occurred in circumstances that appear to create a legal liability in a person
to pay damages in respect of the injury, loss, damage or death; and
(c) a claim against the person for the
purpose of recovering such damages has not been made by the employee or by or
for the benefit of the dependant, or, having been made, has not been
prosecuted;
Comcare may make a claim or a fresh claim against the
person in the name of the employee or dependant for the recovery of damages in
respect of the injury, loss, damage or death or may take over the conduct of
the existing claim, as the case requires.
(2) If Comcare takes over the conduct of a
claim, it becomes liable to pay all costs of and incidental to that claim that
would otherwise be payable by the person who originally made the claim other
than costs unreasonably incurred by that person.
(3) If Comcare makes, or takes over the
conduct of, a claim under this section, Comcare may:
(a) take whatever steps are
appropriate to bring the claim to a conclusion; and
(b) if the claim is before a
court—settle the proceedings either with or without obtaining judgment; and
(c) if the claim is before a court and
judgment has been obtained in favour of the plaintiff—take such steps as are
necessary to enforce the judgment.
(4) The employee or dependant must sign any
document relevant to a claim made or taken over by Comcare under this section
(including the settlement of the claim or of any proceedings arising out of the
claim), being a document that Comcare requires the employee or dependant to
sign.
(4A) If the employee or dependant fails to sign
a document in accordance with a requirement under subsection (4):
(a) if the claim is not before a court
or tribunal at the time of the failure—the Federal Court of Australia, on the
application of Comcare, may direct that the document be signed on the employee
or dependant’s behalf by a person appointed by Comcare; and
(b) otherwise—the court or tribunal in
which proceedings relating to the claim are being heard, on the application of
Comcare, may so direct.
(4B) If Comcare proposes to make an application
under subsection (4A):
(a) Comcare must notify the employee
or dependant concerned of the fact that it is proposing to so apply; and
(b) the employee or dependant
concerned has a right of representation in the hearing of that application.
(5) If Comcare
makes or takes over the conduct of a claim under this section:
(a) the employee or dependant must
comply with any reasonable requirement of Comcare for the purposes of the
claim; and
(b) if the employee or dependant fails
to comply with such a requirement, the right of the employee or dependant to
compensation under this Act in respect of the injury, loss, damage or death to
which the claim relates is suspended until such time as the employee or
dependant complies with the requirement.
(5A) However, paragraph (5)(b) does not
operate to suspend the employee’s right to compensation for the cost of medical
treatment that is payable under section 16.
(6) Where a right to compensation is
suspended under subsection (5), compensation is not payable in respect of
the period of the suspension.
(7) Any damages obtained as a result of a
claim made or taken over by Comcare under this section (including damages
payable as a result of the settlement of such a claim) must be paid to Comcare
and Comcare must deduct from the amount of those damages:
(a) an amount equal to the total of
all amounts of compensation paid to, or for the benefit of, the employee or
dependant under this Act in respect of the injury, loss, damage or death to
which the claim relates; and
(b) the amount of any costs incidental
to the claim paid by Comcare.
Comcare must pay the balance (if any) to the employee or
dependant.
(8) Where Comcare pays an amount to an
employee or dependant under subsection (7), the employee or dependant is
not entitled to receive any further amounts of compensation under this Act in
respect of the injury, loss, damage or death to which the proceedings related
until the amount of compensation that would, but for this subsection, have been
payable to the employee or dependant in respect of that injury, loss, damage or
death equals the amount paid by Comcare to the employee or dependant under subsection (7).
(9) In this
section:
person does not include the Commonwealth, a
Commonwealth authority, a licensed corporation or an employee.
51
Payment of damages by persons to Comcare
(1) Where a person appears to be liable:
(a) to pay damages to an employee in
respect of an injury to the employee, or in respect of the loss of, or damage
to, property used by the employee, being an injury, loss or damage in respect
of which an amount of compensation has been paid under this Act; or
(b) to pay damages to a dependant of a
deceased employee in respect of the death of the employee, where that death
resulted from an injury in respect of which an amount of compensation has been
paid under this Act;
Comcare may, by notice in writing given to the person,
require that:
(c) if the person agrees to pay
damages to the employee in respect of the injury, loss or damage or to the
dependant in respect of the death; or
(d) if damages against the person are
awarded to the employee in proceedings arising out of a claim made in respect
of the injury, loss or damage, or to the dependant in proceedings arising out
of a claim made in respect of the death;
the person pay to Comcare so much of the amount of the
damages as does not exceed the amount that would be payable by the employee or
dependant to Comcare under section 48 or 49 if the damages had been paid
to the employee or dependant.
(2) Subject to subsection (3), where:
(a) a person has agreed:
(i) to pay damages to an
employee in respect of an injury to the employee, or in respect of the loss of,
or damage to, property used by the employee, being an injury, loss or damage in
respect of which an amount of compensation has been paid under this Act; or
(ii) to pay damages to a
dependant of a deceased employee in respect of the death of the employee, where
that death resulted from an injury in respect of which an amount of
compensation has been paid under this Act; or
(b) damages against a person have been
awarded:
(i) to an employee in
proceedings arising out of a claim made in respect of an injury to the employee
or in respect of the loss of, or damage to, property used by the employee, being
an injury, loss or damage in respect of which an amount of compensation has
been paid under this Act; or
(ii) to a dependant of a
deceased employee in proceedings arising out of a claim made in respect of the
death of the employee, where that death resulted from an injury in respect of
which an amount of compensation has been paid under this Act;
Comcare may, by notice in writing given to the person,
require the person to pay to Comcare so much of the amount of the damages as
does not exceed the amount that would be payable by the employee or dependant
to Comcare under section 48 or 49 if the damages had been paid to or in
respect of the employee or dependant.
(3) Where, before a notice under subsection (2)
was received by a person, the person had paid to or in respect of the employee
or dependant, all or part of the damages to which the notice related:
(a) if all of the damages had been
paid—the notice has no force or effect; or
(b) if part only of the damages had
been paid—the reference in that subsection to the amount of the damages shall
be read as a reference to so much of that amount as had not been paid.
(4) If a person fails to pay an amount to
Comcare in accordance with a notice under this section, Comcare may recover
that amount from the person in a court of competent jurisdiction as a debt due
to Comcare.
(5) The
payment of an amount to Comcare by a person in accordance with a notice under
this section is, to the extent of the amount paid, a discharge of the liability
of that person to the employee or dependant and of the liability (if any) of
the employee or dependant to Comcare under section 48 or 49.
(6) In this section:
person does not include the Commonwealth, a
Commonwealth authority, a licensed corporation or an employee.
52
Compensation not payable both under Act and under award
(1) A person who would, but for this section,
be entitled to compensation under this Act and benefits under an award in
respect of the same injury, or in respect of the same loss of, or damage to,
property, is not entitled to both but shall elect whether to receive the
compensation or the benefits.
(2) An election made by an employee is
irrevocable.
(3) Where an employee makes an election to
receive either compensation under this Act or benefits under the award but
compensation is not payable under this Act, or benefits are not payable under
the award, as the case may be, in respect of the injury, or the loss of, or
damage to, property, the election has no effect.
(4) Where an employee has made an election to
receive compensation under this Act, that compensation is not payable unless
the employee makes a claim under section 54.
(5) Where an employee who has made an
election dies, the election does not have effect in relation to his or her
dependants.
(6) In this section, award
means an award, determination, order or agreement by which provision is made
for, or in relation to, the grant of any benefits to or in relation to
employees or their dependants in respect of injury or disease causing death or
incapacity, or in respect of the loss of, or damage to, property, in
circumstances connected with the employment of those employees, being:
(a) a determination made under the Public
Service Arbitration Act 1920; or
(b) an award, determination or order
made, or agreement entered into, under a law of the Commonwealth relating to workplace
relations; or
(c) an award, determination or order
made, or agreement entered into, under a law of a State or Territory.
52A
Comcare’s rights and obligations in respect of certain action for non‑economic
loss
(1) If:
(a) an employer has paid Comcare an
amount to cover liability for actions for non‑economic loss brought by its
employees; and
(b) an employee takes action for non‑economic
loss against the employer or another employee of the employer (the party
claimed against);
this section applies in relation to such action.
(2) Comcare may, at any time during the
course of the action to which this section applies:
(a) take over the conduct of that
action on behalf of the party claimed against in the proceeding; and
(b) if the action is before a court
and Comcare thinks it appropriate to do so—apply to the court to join any other
person as a party to the action.
(3) If Comcare takes over the conduct of the
action, it becomes liable to pay all costs of or incidental to the prosecution
of the action that would otherwise be payable by the party claimed against
other than costs unreasonably incurred by that party.
(4) If Comcare takes over the conduct of an
action to which this section applies, Comcare may:
(a) take whatever steps are
appropriate to bring the proceedings to a conclusion; and
(b) if the action is before a
court—settle the proceeding, either with or without obtaining judgment; and
(c) if judgment is obtained in favour
of the party claimed against—take such steps as are necessary to enforce the
judgment.
(5) If Comcare takes over the conduct of an
action to which this section applies, the party claimed against must comply
with any reasonable requirement of Comcare for the purpose of the action
including signing of any document relevant to the conduct or settlement of the
action.
(6) If the party claimed against fails to
sign a document in accordance with a requirement under subsection (5):
(a) if the action to which this
section applies is not before a court or tribunal at the time of the
failure—the Federal Court of Australia, on the application of Comcare, may
direct that the document be signed on the party’s behalf by a person appointed
by Comcare; and
(b) otherwise—the court or tribunal in
which proceedings relating to the action are being heard, on the application of
Comcare, may so direct.
(7) If Comcare proposes to make an
application under subsection (6):
(a) Comcare must notify the party
concerned of the fact that it is proposing to so apply; and
(b) the party concerned has a right of
representation in the hearing of that application.
(8) If, in an action to which this section
applies:
(a) damages are awarded against the
party claimed against; or
(b) a settlement is agreed on that
involves the payment of an amount by the party claimed against;
then, whether or not the conduct of that action was taken
over by Comcare, Comcare must, on behalf of that party, pay any damages and
costs awarded against that party in that action or any amount agreed to be paid
by that party under the terms of settlement of that proceeding.
(9) Any payment made by Comcare under subsection (8)
is taken to have been made in satisfaction of the liability of the party
claimed against to whom the payment relates.
(10) If, in an
action to which this section applies the conduct of which has been taken over
by Comcare, any amount is payable by way of costs to the party claimed against,
that amount is payable to Comcare.
Part V—Claims for compensation
53
Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an
injury to an employee unless notice in writing of the injury is given to the
relevant authority:
(a) as soon as practicable after the
employee becomes aware of the injury; or
(b) if the employee dies without
having become so aware or before it is practicable to serve such a notice—as
soon as practicable after the employee’s death.
(2) This Act does not apply in relation to
the loss of, or damage to, property used by an employee, being a loss or damage
in circumstances referred to in section 15, unless notice in writing of
the accident that resulted in the loss or damage is given to the relevant
authority:
(a) as soon as practicable after the
employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without
having become so aware or before it is practicable to serve such a notice—as
soon as practicable after the employee’s death.
(3) Where:
(a) a notice purporting to be a notice
referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of
giving the notice or otherwise, failed to comply with the requirements of this
section; and
(c) the relevant authority would not,
by reason of the failure, be prejudiced if the notice were treated as a
sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this
section.
54
Claims for compensation
(1) Compensation is not payable to a person
under this Act unless a claim for compensation is made by or on behalf of the
person under this section.
(2) A claim shall be made by giving the
relevant authority:
(a) a written claim in accordance with
the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for
compensation under section 16 or 17—a certificate by a legally qualified
medical practitioner in accordance with the form approved by Comcare for the
purposes of this paragraph.
(3) Where a written claim, other than a claim
for compensation under section 16 or 17, is given to a relevant authority
under paragraph (2)(a) and the claim is not accompanied by a certificate
of the kind referred to in paragraph (2)(b), the claim shall be taken not
to have been made until such a certificate is given to that authority.
(4) Where a claim is given to Comcare, Comcare
shall cause a copy of the claim to be given to:
(a) where the employee concerned is or
was a member of the Defence Force at the time when the relevant injury or
accident occurred—the Secretary of the Defence Department; or
(b) in any other case—the principal
officer of the Entity, Commonwealth authority or licensed corporation in which
the employee was employed at that time.
(5) Strict compliance with an approved form
referred to in subsection (2) is not required and substantial compliance
is sufficient.
55
Survival of claims
(1) Where a person who is entitled to make a
claim for compensation under this Act dies without making a claim, a claim may
be made by the person’s personal representative.
(2) A claim is not affected by the death of
the claimant after the claim was served.
(3) Section 111 applies in relation to
an amount payable under a determination made in respect of a claim referred to
in this section as if the deceased person had died after the determination was
made.
(4) This section does not apply in relation
to a claim for compensation under section 27.
56
Claims may not be made in certain cases
Where an amount is paid to, or in
accordance with the directions of, a relevant authority under subsection 17(3)
or (4), for the benefit of a dependant of a deceased employee, by whom, or on
whose behalf, a claim was made for compensation under section 17, no other
dependant of that employee is entitled to claim compensation under that section
after the day on which that amount is so paid.
57
Power to require medical examination
(1) Where:
(a) a notice has been given to a
relevant authority under section 53 in relation to an employee; or
(b) an employee has made a claim for
compensation under section 54;
the relevant authority may require the employee to undergo
an examination by one legally qualified medical practitioner nominated by the
relevant authority.
(2) Where an employee refuses or fails,
without reasonable excuse, to undergo an examination, or in any way obstructs
an examination, the employee’s rights to compensation under this Act, and to
institute or continue any proceedings under this Act in relation to
compensation, are suspended until the examination takes place.
(3) The relevant authority shall pay the cost
of conducting any examination required under this section and is liable to pay
to the employee an amount equal to the amount of the expenditure reasonably
incurred by the employee in making a necessary journey in connection with the
examination or remaining, for the purpose of the examination, at a place to
which the employee has made a journey for that purpose.
(4) The matters to which the relevant
authority is to have regard in deciding questions arising under subsection (3)
include:
(a) the means of transport available
to the employee for the journey;
(b) the route or routes by which the
employee could have travelled; and
(c) the accommodation available to the
employee.
(5) Where an employee’s right to compensation
is suspended under subsection (2), compensation is not payable in respect
of the period of the suspension.
(6) An employee shall not be required to
undergo an examination under this section at more frequent intervals than are
specified by the Minister by legislative instrument.
58
Power to request the provision of information
(1) Where a relevant authority has received a
claim and is satisfied that the claimant:
(a) has information or a document that
is relevant to the claim; or
(b) may obtain such information or a
copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by notice in writing given to
the claimant, request the claimant to give that information or a copy of that
document to the relevant authority within 28 days after the date of the notice
or within such further period (if any) as the relevant authority, on the
request of the claimant, allows.
(2) A claimant who has received a notice
under subsection (1) shall be taken to have complied with the notice if
the claimant gives the relevant authority the information or document specified
in the notice within 28 days after the date of notice or within such further
period (if any) as the relevant authority has allowed.
(3) Where a claimant refuses or fails,
without reasonable excuse, to comply with a notice under subsection (1),
the relevant authority may refuse to deal with the claim until the claimant
gives the relevant authority the information, or a copy of the document,
specified in the notice.
59
Certain documents to be supplied on request
(1) A relevant authority shall:
(a) on request by a claimant—give to
the claimant any document held by the authority that relates to the claimant’s
claim; or
(b) on request by the Commonwealth in
respect of a claim affecting the Commonwealth or a Commonwealth authority—give
to the Commonwealth any document held by the relevant authority that relates to
the claim; or
(c) on request by a licensed
corporation in respect of a claim affecting the corporation—give to the
corporation any document held by the relevant authority that relates to the
claim.
(2) This section also applies in relation to
the determination of a request under section 25 and for that purpose:
(a) a reference to a claim shall be
read as a reference to the request under that section; and
(b) a reference to the claimant shall
be read as a reference to the person who made the request.
Part VI—Reconsideration and review of determinations
60
Interpretation
(1) In this Part:
claimant means a person in respect of whom a
determination is made.
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
determination means a determination, decision
or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A,
22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or
under Division 3 of Part X.
determining authority, in relation to a
determination, means the person who made the determination.
reviewable decision means a decision made
under subsection 38(4) or section 62.
(2) For the purposes of this Part, the
parties to proceedings instituted under this Part are:
(a) the applicant; and
(b) if the applicant is not the
claimant—the claimant; and
(c) the body responsible for the
reviewable decision.
(3) For the purposes of subsection (2),
the body responsible for the reviewable decision is:
(a) if Comcare made the reviewable
decision—Comcare; and
(b) if the reviewable decision has
been made by or on behalf of a licensee—the licensee.
(4) Subsection (2) has effect subject to
Part VIII.
61
Determinations to be notified in writing
(1A) The determining authority must consider and
determine each claim for compensation under section 14 within the period
prescribed by the regulations.
(1) As soon as practicable after a
determining authority makes a determination, it shall cause to be served on the
claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination;
and
(c) a statement to the effect that the
claimant may, if dissatisfied with the determination, request a reconsideration
of the determination under subsection 62(2).
(2) This section does not apply in relation
to a determination under subsection 16(1) that compensation of an amount equal
to the full amount of the cost of medical treatment obtained by an employee is
payable if that amount of compensation is payable to a person other than the
employee.
62
Reconsideration of determinations
(1) A determining authority may, on its own
motion:
(a) reconsider a determination made by
it; or
(b) cause such a determination to be
reconsidered by a person to whom its power under this section is delegated,
being a person other than the person who made, or was involved in the making
of, the determination;
whether or not a proceeding has been instituted or
completed under this Part in respect of a reviewable decision made in relation
to that determination.
(2) A request to a determining authority to
reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the
Commonwealth—the Commonwealth; or
(c) if the determination affects a
Commonwealth authority—that Commonwealth authority.
(2A) If a determining authority holds a licence
under Part VIII that is subject to conditions requiring the determining authority
to arrange for the reconsideration by another person of any determination made
by the determining authority, nothing in subsection (1) or (2) is to be
taken to derogate from that requirement.
(3) A request for reconsideration of a
determination shall:
(a) set out the reasons for the
request; and
(b) be given to the determining
authority within 30 days after the day on which the determination first came to
the notice of the person making the request, or within such further period (if
any) as the determining authority, either before or after the expiration of
that period, allows.
(4) On receipt of a request, the determining
authority shall reconsider the determination or cause the determination to be
reconsidered by a person to whom its power under this section is delegated,
being a person other than a person who made, or was involved in the making of,
the determination.
(5) Where a person reconsiders a
determination, the person may make a decision affirming or revoking the
determination or varying the determination in such manner as the person thinks
fit.
(6) The determining authority or person must
decide a request made by a claimant to reconsider a determination within the
period prescribed by the regulations.
63
Reviewable decision to be notified in writing
As soon as practicable after a person
makes a reviewable decision, the person shall cause to be served on the
claimant a notice in writing setting out:
(a) the terms of the decision;
(b) the reasons for the decision; and
(c) a statement to the effect that,
subject to the Administrative Appeals Tribunal Act 1975, application may
be made to the Administrative Appeals Tribunal for review of the decision to
which the notice relates.
64
Applications to the Administrative Appeals Tribunal
(1) Application to the Administrative Appeals
Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the
Commonwealth—the Commonwealth; or
(c) if the decision affects a
Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a
corporation that holds a licence under Part VIII—the licensed corporation.
(3) Despite section 27 of the Administrative
Appeals Tribunal Act 1975, a person may not make an application to the
Administrative Appeals Tribunal for a review of a reviewable decision except as
provided by subsection (1) of this section.
65
Modifications of the Administrative Appeals Tribunal Act 1975
(1) This section has effect for the purposes
of the application of the Administrative Appeals Tribunal Act 1975 (in
this section called the Act) in relation to a reviewable
decision.
(3) Section 20A of the Act has effect as
if the reference to any place in Australia or an external Territory were a
reference to any place, whether within or outside Australia.
(4) Subsection 29(2) of the Act has effect as
if the reference to “the twenty‑eighth day” (first occurring) were a reference
to “the sixtieth day”.
66
Evidence in proceedings before Administrative Appeals Tribunal
(1) Where:
(a) a
claimant who has instituted proceedings under this Part seeks to adduce any
matter in evidence before the Administrative Appeals Tribunal in those
proceedings; and
(b) the claimant had not disclosed
that matter to the Tribunal at least 28 days before the day fixed for the
hearing of those proceedings;
that matter is not admissible in evidence in those
proceedings without the leave of the Tribunal.
(2) Where:
(a) a determining authority has
determined a claim and, before doing so, gave the claimant a notice under
section 58 requesting the claimant to give the authority the information,
document or copy of the document, specified in the notice;
(b) the claimant failed to comply with
the notice; and
(c) the claimant had the information,
document or copy, or could have obtained the information, document or copy
without unreasonable expense or inconvenience before the determination was
made;
the information, document or copy shall not, without leave
of the Administrative Appeals Tribunal, be admissible in proceedings instituted
under this Part in relation to the determination.
(3) The Administrative Appeals Tribunal shall
not give leave under subsection (2) unless:
(a) the claimant provides a statement
of reasons why he or she failed to comply with the notice under section 58;
and
(b) the Tribunal is satisfied that
there are special circumstances justifying the admission of the information,
document or copy in evidence.
67
Costs of proceedings before Administrative Appeals Tribunal
(1A) In this section,
responsible authority, in relation to a determination, means:
(a) if the determination affected the
Commonwealth or a Commonwealth authority other than a licensed
authority—Comcare; and
(b) if the determination affected a
Commonwealth authority, or a corporation, that holds a licence under Part VIII
authorising acceptance of liability for claims in respect of which the
determination is made—that authority or corporation; and
(c) if the determination affected a
Commonwealth authority that holds a licence under Part VIII but the
licence does not authorise acceptance of liability for claims in respect of
which the determination is made—Comcare.
(1) Subject to this section, the costs
incurred by a party to proceedings instituted under this Part in respect of
that reviewable decision shall be borne by that party.
(2) Subject to this section, where a
proceeding instituted under this Part in respect of a reviewable decision
relating to a determination is rendered abortive because a decision has been
made, following a reconsideration under subsection 62(1), varying or revoking
that determination, the responsible authority is liable to reimburse the
claimant for costs reasonably incurred by the claimant in connection with that
proceeding.
(3) Where:
(a) a determining authority has
determined a claim (in this subsection called the original determination);
(b) the authority, before making that
determination, gave the claimant a notice under section 58 requesting the
claimant to give it the information specified in the notice (in this subsection
called the relevant information);
(c) the claimant failed to comply with
the notice;
(d) at the time when the authority
determined the claim, it did not have the relevant information nor was the
relevant information reasonably available to it;
(e) after the claim was determined,
the claimant disclosed the relevant information to the authority or to the
Administrative Appeals Tribunal;
(f) the authority reconsidered the
original determination under subsection 62(1) and made a determination more
favourable to the claimant than the original determination;
(g) the authority is satisfied that,
if it had had the relevant information at the time when the original
determination was made, it would have made a determination more favourable to
the claimant than the original determination; and
(h) the responsible authority would,
but for subsection (5), be liable under subsection (2), to reimburse
the claimant for costs reasonably incurred by the claimant;
the determining authority may make a declaration, in
writing, that subsection (2) does not apply to those costs.
(4) Where:
(a) a determining authority has
determined a claim (in this section called the original determination);
(b) the authority, before making that
determination, gave the claimant a notice under section 58 requesting the
claimant to give it a document, or a copy of the document, specified in the
notice (in this subsection called the relevant document);
(c) the claimant failed to comply with
the notice;
(d) at the time when the authority
determined the claim, it did not have the information contained in the relevant
document nor was that information reasonably available to it;
(e) after the claim was determined,
the claimant gave the document, or a copy of the document, or the information
contained in the relevant document, to the authority or to the Administrative
Appeals Tribunal;
(f) the authority reconsidered the
original determination under subsection 62(1), and made a determination more
favourable to the claimant than the original determination;
(g) the authority is satisfied that,
if it had had the information contained in the relevant document at the time
when the original determination was made, it would have made a determination
more favourable to the claimant than the original determination; and
(h) the responsible authority would,
but for subsection (5), be liable, under subsection (2), to reimburse
the claimant for costs reasonably incurred by the claimant;
the determining authority may make a declaration, in
writing, that subsection (2) does not apply in relation to those costs.
(5) Where a determining authority makes a
declaration under subsection (3) or (4) that subsection (2) does not
apply in relation to costs incurred by a claimant, subsection (2) does not
apply in relation to those costs.
(6) A determining authority shall give a copy
of a declaration made by it under subsection (3) or (4) to the claimant.
(7) Application may be made to the
Administrative Appeals Tribunal for review of a decision by a determining
authority to make a declaration under subsection (3) or (4).
(8) Where, in any proceedings instituted by
the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a
manner favourable to the claimant; or
(b) setting aside a reviewable
decision and making a decision in substitution for the reviewable decision that
is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the
costs of those proceedings incurred by the claimant, or a part of those costs,
shall be paid by the responsible authority.
(8A) Subject to this section, the Administrative
Appeals Tribunal may order that the costs incurred by the claimant of any proceedings
instituted by the Commonwealth be paid by:
(a) if the Tribunal varies the
relevant reviewable decision in a manner less favourable to the claimant, or
sets aside the relevant reviewable decision and substitutes a decision that is
less favourable to the claimant—Comcare; or
(b) in any other case—the
Commonwealth.
(8B) Subject to this section, if in any
proceedings instituted by a licensed authority or a licensed corporation, the
Tribunal affirms the reviewable decision or varies that decision in a manner
more favourable to the claimant, or sets aside the relevant reviewable decision
and substitutes a decision that is more favourable to the claimant, the
Administrative Appeals Tribunal may order that the costs of the proceedings
incurred by the claimant be paid by the responsible authority.
(9) Where the Administrative Appeals Tribunal
gives a decision setting aside a reviewable decision and remitting the case for
re‑determination by the determining authority, the Tribunal shall, subject to
this section, order that the costs of the proceedings before it incurred by the
claimant shall be paid by the responsible authority.
(10) Nothing in subsection (8), (8A) or
(9) authorises the Administrative Appeals Tribunal to order a person to pay any
costs incurred by a claimant in relation to an application for an extension of
time for applying to the Tribunal for a review of a reviewable decision.
(11) Where, in any proceedings, the
Administrative Appeals Tribunal varies or sets aside a reviewable decision, the
Tribunal shall not make an order under subsection (8) or (9) in favour of
a claimant in relation to the costs of those proceedings if:
(a) the authority, before making the
reviewable decision, gave the claimant a notice under section 58
requesting the claimant to give Comcare or authority information specified in
the notice (in this subsection called the relevant information);
and
(b) the Tribunal is satisfied that:
(i) the claimant failed to
comply with that notice;
(ii) at the time when the
authority made the reviewable decision, it did not have the relevant
information, nor was the relevant information reasonably available to it; and
(iii) if the authority had
had the relevant information at the time when it made the reviewable decision
it would have made a decision more favourable to the claimant than the
reviewable decision.
(12) Where, in any proceedings, the
Administrative Appeals Tribunal varies or sets aside a reviewable decision, the
Tribunal shall not make an order under subsection (8) or (9) in favour of
a claimant in relation to the costs of those proceedings if:
(a) the determining authority, before
making the reviewable decision, gave the claimant a notice under section 58
requesting the claimant to give the authority a copy of the document specified
in the notice (in this subsection called the relevant document);
and
(b) the Tribunal is satisfied that:
(i) the claimant failed to
comply with that notice;
(ii) at the time when the
authority made the reviewable decision, it did not have the information
contained in the relevant document, nor was that information reasonably
available to it; and
(iii) if the authority had
had the information contained in the relevant document at the time when it made
the reviewable decision it would have made a decision more favourable to the
claimant than the reviewable decision.
(13) Where the Administrative Appeals Tribunal
orders a responsible authority to pay costs incurred by a claimant, the
Tribunal may, in the absence of agreement between the parties as to the amount
of the costs, tax or settle the amount of the costs or order that the costs be
taxed by the Registrar, a District Registrar or a Deputy Registrar of the
Tribunal.
(14) For the purposes of section 69A of
the Administrative Appeals Tribunal Act 1975, the responsible authority
is taken to be a party to the proceeding before the Administrative Appeals
Tribunal.
Part VII—Administration and finance
Division 1—Comcare
68
Establishment
This section establishes a body called
Comcare.
69 Functions
Subject to this Act, Comcare has the
following functions, in addition to its other functions under this Act:
(a) to make determinations accurately
and quickly in relation to claims and requests made to Comcare under this Act;
(b) to minimise the duration and
severity of injuries to its employees and employees of exempt authorities by
arranging quickly for the rehabilitation of those employees under this Act;
(c) to co‑operate with other bodies or
persons with the aim of reducing the incidence of injury to employees;
(d) to conduct and promote research
into the rehabilitation of employees and the incidence and prevention of injury
to employees;
(da) to promote the adoption in Australia and elsewhere of effective strategies and procedures for the rehabilitation of
injured workers;
(e) to publish material relating to
any of the functions referred to in paragraphs (a), (c) and (d) and
relating to the rehabilitation of employees under this Act;
(ea) in respect of actions for non‑economic
loss—to take over the conduct of such actions under section 52A on behalf
of the Commonwealth, Commonwealth authorities or employees against whom such
actions were taken;
(eb) to determine the premiums payable
by Entities and Commonwealth authorities in respect of the financial year
starting on 1 July 2002 and each subsequent financial year and, where
appropriate, the special premiums payable by Entities and Commonwealth
authorities in respect of one or more of the financial years starting on 1 July
1999, 1 July 2000 or 1 July 2001, and to collect such premiums and
special premiums;
(ec) to apply such premiums and special
premiums, together with interest earned on those premiums, in meeting:
(i) Comcare’s liability
under this Act in relation to compensation in respect of injuries suffered,
whether before, on or after 1 July 2002, by employees of such Entities and
authorities; and
(ii) Comcare’s liability
under this Act for payment, on behalf of such Entities, authorities and
employees, of damages or costs awarded under, or of amounts agreed to be paid
in settlement of, actions for non‑economic loss in respect of such injuries or
for costs in proceedings against third parties; and
(iii) the cost incurred by
Comcare in managing such claims for compensation and in conducting such actions
for non‑economic loss and claims against third parties;
(ed) to determine, under section 97D,
the amount of the regulatory contributions payable by Entities, and by
Commonwealth authorities, and to collect such contributions;
(ee) to collect application and licence
fees payable under Part VIII by Commonwealth authorities and eligible
corporations;
(ef) to apply such regulatory
contributions and application and licence fees, together with interest earned
on those contributions and fees, in meeting:
(i) the cost incurred by
the Commission and Comcare in carrying out their respective functions under
this Act (other than the function referred to in paragraph (ec)); and
(ii) the cost incurred by
the Commission and Comcare in carrying out their respective functions under the
Occupational Health and Safety Act 1991.
(f) to maintain contact with each
rehabilitation authority to the extent necessary to ensure that, in performing
or exercising its functions or powers under Part III, the authority is
complying with any guidelines issued under section 41;
(fa) to advise the Minister about
anything relating to Comcare’s functions and powers;
(fb) such other functions as are
conferred on Comcare by the regulations;
(g) such other functions as are
conferred on Comcare by any other Act.
Note: Functions have also been conferred on Comcare
by other Acts, such as the Asbestos‑related Claims (Management of
Commonwealth Liabilities) Act 2005 and the Occupational Health and
Safety Act 1991.
70
Powers
Comcare has power to do all things
necessary or convenient to be done for, or in connection with, the performance
of its functions.
70A
Comcare may charge for certain services
Without limiting the generality of
section 70, Comcare may enter into an arrangement with the principal
officer of an Entity or a Commonwealth authority, or any other person, under
which:
(a) Comcare will provide to the Entity, authority or other person specified services
related to the performance by Comcare of its functions; and
(b) the Entity,
authority or other person will pay to Comcare such amount as is agreed between
them for the provision of those services.
70B
Formation and activities of Comcare subsidiaries
(1) Without limiting the generality of
section 70, Comcare may form incorporated companies for the purposes of
the performance of its functions or for the performance of functions under this
Act that may be performed by subsidiaries of Comcare.
(2) Section 29 of the Commonwealth
Authorities and Companies Act 1997 does not apply to Comcare in relation to
the activities of Comcare subsidiaries under Part VIII or contracts
referred to in that Part.
71
Power to obtain information from Departments and authorities
(1) Without limiting the generality of
section 70, Comcare may, by notice in writing, require the principal
officer of an Entity, a Commonwealth authority or a licensed corporation to
give Comcare, within such period as is specified in the notice, such documents
or information (or both) as are specified in the notice, being documents or
information in the possession, custody or control of the Entity or authority
that are relevant to a claim made by, or in relation to, an employee of the
Entity or authority or that relate to the performance of functions or the exercise
of powers by the principal officer under Part III.
(2) A principal officer to whom a notice is
given shall comply with the notice without delay.
72
Manner in which claims are to be determined
In performing the function referred to
in paragraph 69(a), Comcare:
(a) shall be guided by equity, good
conscience and the substantial merits of the case, without regard to
technicalities;
(b) is not required to conduct a
hearing; and
(c) is not bound by the rules of
evidence.
72A
Duty to assist the Commission and the Seafarers Safety, Rehabilitation and
Compensation Authority
(1) Comcare must give the Commission such
secretarial and other assistance, and make available to it the services of such
members of Comcare’s staff and such other resources, as the Commission
reasonably requires from time to time for the proper performance of its
functions or exercise of its powers.
(2) Comcare must:
(a) give the Seafarers Safety,
Rehabilitation and Compensation Authority (established under section 103
of the Seafarers Rehabilitation and Compensation Act 1992) such
secretarial and other assistance; and
(b) make available to the Authority
the services of such members of Comcare’s staff and such other resources;
as the Authority reasonably requires from time to time for
the proper performance of its functions or exercise of its powers.
73
Directions by Minister
(1) The Minister may, by notice in writing
given to the Chief Executive Officer, give a direction to Comcare with respect
to the performance of its functions or the exercise of its powers under this
Act, otherwise than in relation to a particular case.
(2) Comcare shall comply with a direction
given under subsection (1).
(3) This section does not affect the
application of section 28 of the Commonwealth Authorities and Companies
Act 1997 in relation to Comcare.
73A
Guidelines by Commission
(1) The Commission may prepare and issue to
the Chief Executive Officer written general policy guidelines in relation to
the operation of this Act or any other Act (except the Asbestos‑related
Claims (Management of Commonwealth Liabilities) Act 2005) to the extent
that the Act confers functions or powers on Comcare.
(2) The Commission may prepare and issue to
the principal officer of a licensee written general policy guidelines in
relation to the operation of this Act to the extent that the Act confers
functions or powers on the licensee.
(3) The Commission must not issue guidelines
that are inconsistent with any directions under section 73 of this Act or
section 12A of the Occupational Health and Safety Act 1991.
(4) Any guidelines that are inconsistent with
a direction of the kind referred to in subsection (3) have no effect to
the extent of the inconsistency.
(5) Comcare must comply with any guidelines
issued and in force under subsection (1).
(6) A licensee and any person acting on its
behalf must comply with any guidelines issued and in force under subsection (2).
73B
Delegation by Comcare
Comcare may, in writing, delegate to an
officer of, or a person employed by, the Commonwealth or a Commonwealth
authority all or any of Comcare’s functions and powers.
Note: In certain circumstances Comcare requires the
consent of the Minister before delegating the function conferred on it by
section 12 of the Asbestos‑related Claims (Management of Commonwealth
Liabilities) Act 2005 or a power to do anything in connection with the
performance of that function: see section 14 of that Act.
74
Constitution of Comcare
(1) Comcare:
(a) is a body corporate with perpetual
succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
Note: The Commonwealth Authorities and Companies
Act 1997 applies to Comcare. That Act deals with matters relating to
Commonwealth authorities, including reporting and accountability, banking and
investment, and conduct of officers.
(1A) Comcare is constituted by a Chief Executive
Officer appointed by the Governor‑General.
(2) Comcare’s common seal must be kept in
such custody as the Chief Executive Officer directs and must not be used except
as authorised by the Chief Executive Officer.
(3) All courts, judges and persons acting
judicially shall take judicial notice of the imprint of the common seal of Comcare
appearing on a document and shall presume that it was duly affixed.
(4) Comcare is not subject to any
requirement, obligation, liability, penalty or disability under a law in force
in a State or Territory to which the Commonwealth is not subject.
76 The
Chief Executive Officer
(1) The Chief Executive Officer holds office
for the term (not longer than 5 years) specified in the instrument of
appointment, but is eligible for re‑appointment on 2 occasions after his or her
first appointment.
(2) The Chief Executive Officer holds office
on a full‑time basis and must not engage in paid employment outside the duties
of the office without the Minister’s approval.
(3) The Minister must not give an approval
unless satisfied that the paid employment will not interfere with the Chief
Executive Officer’s performance of his or her duties.
(4) The Chief Executive Officer is a director
of Comcare for the purposes of the Commonwealth Authorities and Companies
Act 1997.
(5) If the Chief Executive Officer has a material
personal interest in a matter that Comcare is considering or is about to
consider, he or she must give written notice of the interest to the Minister.
79
Persons acting as Chief Executive Officer
(1) Subject to subsection (2), the
Deputy Chief Executive Officer shall act as the Chief Executive Officer:
(a) during a vacancy in the office of
the Chief Executive Officer, whether or not an appointment has previously been
made to the office; or
(b) during any period when the Chief
Executive Officer is absent from duty or from Australia or is, for any other
reason, unable to perform the functions of his or her office;
but shall not continue to act during a vacancy for more
than 12 months.
Note: For rules that apply to persons acting as the
Chief Executive Officer, see section 33A of the Acts Interpretation Act
1901.
(2) The Deputy Chief Executive Officer shall
not act as the Chief Executive Officer while a person appointed under subsection (4)
is acting as the Chief Executive Officer.
(4) The
Governor‑General may appoint a person to act as the Chief Executive Officer:
(a) during a vacancy in the office of
Chief Executive Officer, whether or not an appointment has previously been made
to the office; or
(b) during any period or during all
periods when the Chief Executive Officer is absent from duty or from Australia
or is, for any other reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments,
see section 33A of the Acts Interpretation Act 1901.
80
Remuneration and allowances
(1) The Chief Executive Officer is to be paid
such remuneration as is determined by the Remuneration Tribunal, but, if no
such determination is in operation, the Chief Executive Officer is to be paid
such remuneration as is prescribed.
(3) The Chief Executive Officer is to be paid
such allowances as are prescribed.
(4) This section has effect subject to the
Remuneration Tribunal Act 1973.
81
Leave of absence
(1) The Chief Executive Officer has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Chief
Executive Officer leave of absence, other than recreation leave, on such terms
and conditions as to remuneration or otherwise as the Minister determines.
83
Resignation
The Chief Executive Officer may resign
by delivering to the Governor‑General a signed notice of resignation.
84
Termination of appointment
(1) The Governor‑General may terminate the
Chief Executive Officer’s appointment for misbehaviour or physical or mental incapacity.
(2) If the Chief Executive Officer:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) contravenes subsection 76(5) or
section 89M without reasonable excuse; or
(c) is absent from 3 consecutive
meetings of the Commission, or is absent from duty for 14 consecutive days, or
for 28 days in any period of 12 months, except on leave of absence; or
(d) engages in paid employment outside
the duties of his or her office without the Minister’s approval;
the Governor‑General is to terminate the Chief Executive
Officer’s appointment by notice in the Gazette.
Division 2—Deputy Chief Executive Officer, staff and consultants
86
Deputy Chief Executive Officer
(1) There shall be a Deputy Chief Executive
Officer.
(2) The Deputy Chief Executive Officer shall
be an APS employee who is performing the duties of such position in Comcare as
the Minister designates, in writing signed by the Minister, for the purpose of
this section.
87
Duties of Deputy Chief Executive Officer
The Deputy Chief Executive Officer shall
assist the Chief Executive Officer as directed by the Chief Executive Officer.
88
Staff
(1) The staff of Comcare comprises:
(a) persons engaged under the Public
Service Act 1999 for the purposes of Comcare; and
(b) such other persons (if any) as
Comcare thinks necessary to employ to assist Comcare in the performance of its
functions and the exercise of its powers.
(2) For the purposes of the Public Service
Act 1999:
(a) the Chief Executive Officer and
the APS employees assisting the Chief Executive Officer together constitute a
Statutory Agency; and
(b) the Chief Executive Officer is the
Head of that Statutory Agency.
(3) Persons employed under paragraph (1)(b)
shall be employed under an agreement in writing.
(4) The terms and conditions of employment of
persons employed under paragraph (1)(b) are such as are from time to time
determined by the Chief Executive Officer.
89
Consultants
(1) The Chief Executive Officer may engage,
under agreements in writing, persons having suitable qualifications and
experience to perform services as consultants to Comcare.
(2) The terms and conditions of engagement of
persons referred to in subsection (1) are such as are from time to time
determined by the Chief Executive Officer.
Division 3—The Commission
89A
Establishment
This section establishes a commission
called the Safety, Rehabilitation and Compensation Commission.
89B
Functions
The Commission has the following
functions, in addition to its other functions under this Act:
(a) to ensure that, as far as
practicable, there is equity of outcomes resulting from administrative practices
and procedures used by Comcare and a licensee in the performance of their
respective functions;
(b) to advise the Minister about
anything relating to the operation of this Act or to the Commission’s functions
and powers;
(c) such other functions as are
conferred on the Commission by any other Act.
89C
Powers
The Commission has power to do all
things necessary or convenient to be done for, or in connection with, the
performance of its functions.
89D
Directions by Minister
(1) The Minister may, by notice in writing
given to the Chairperson, give a direction to the Commission with respect to
the performance of its functions or the exercise of its powers under this Act.
(2) The Commission must comply with a
direction given under subsection (1).
89E Constitution
(1) The
Commission comprises the following:
(a) a Chairperson;
(b) the Chief Executive Officer;
(c) 2 members nominated by the
Australian Council of Trade Unions;
(d) a member who, in the Minister’s
opinion, represents the licensees;
(e) a member who, in the Minister’s
opinion, represents the Commonwealth, and Commonwealth authorities other than
licensed authorities;
(f) the Chief Executive Officer of
Safe Work Australia;
(fa) a member who, in the Minister’s
opinion, represents the interests of members and former members of the Defence
Force;
(fb) a member who has been nominated by
the Chief Minister for the Australian Capital Territory and who, in the
Minister’s opinion, represents the interests of the Australian Capital
Territory’s public sector employers;
(g) 2 members with qualifications or
experience relevant to the Commission’s functions, or the exercise of its
powers.
(2) The performance of the Commission’s
functions, or the exercise of its powers, is not affected merely because of a
vacancy in its membership.
(2A) The Commissioners are not directors of
Comcare for the purposes of the Commonwealth Authorities and Companies Act
1997.
Note: Commissioner does not include
the Chief Executive Officer: see subsection 4(1).
89F
Appointment
(1) The members must be appointed by the
Governor‑General.
(2) The member mentioned in paragraph 89E(d)
is to be nominated by the Minister after consulting the licensed authorities.
89G
Term of office
A member holds office on a part‑time
basis for the term (not longer than 3 years) specified in the instrument of
appointment, but is eligible for re‑appointment.
89H
Deputies of members
(1) A member (other than the Chairperson)
may, with the Minister’s approval, appoint a person to be the member’s deputy.
(2) A person must not be appointed to be the
deputy of the member referred to in paragraph 89E(1)(f) unless the person is a member
of the staff of Safe Work Australia referred to in subsection 59(1) of the Safe
Work Australia Act 2008.
(3) A member may revoke the appointment of
his or her deputy, but the revocation is not effective until the member has
given written notice of the revocation to the Minister.
(4) If a member who has appointed a deputy is
absent from a meeting of the Commission, the deputy is entitled to attend that
meeting and, when so attending, is taken to be a member.
(5) A deputy may resign by delivering to the
member who appointed him or her a signed notice of resignation.
(6) Anything done by or in relation to a
deputy purporting to act under this section is not invalid merely because:
(a) there is a defect or irregularity
in connection with the appointment; or
(b) the appointment had ceased to have
effect; or
(c) the occasion for the deputy to act
had not arisen or had ceased.
89J
Acting Chairperson
The Minister may appoint a person to act
in the office of Chairperson:
(a) during a vacancy in that office,
whether or not an appointment has previously been made to the office; or
(b) during any period, or during all
periods, when the Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments,
see section 33A of the Acts Interpretation Act 1901.
89K
Remuneration and allowances
(1) A member is to be paid such remuneration
as is determined by the Remuneration Tribunal, but, if no such determination is
in operation, the member is to be paid such remuneration as is prescribed.
(2) A deputy of a member is to be paid, in
respect of the deputy’s attendance at a meeting of the Commission, such fee as
is determined by the Remuneration Tribunal, but, if no such determination is in
operation, the deputy is to be paid such fee as is prescribed.
(3) A member and the deputy of a member are
to be paid such allowances as are prescribed.
(4) This section has effect subject to the
Remuneration Tribunal Act 1973.
89L
Leave of absence
The Minister may grant a member leave to
be absent from one or more meetings of the Commission on such conditions as the
Minister thinks fit.
89M
Disclosure of interests
(1) A member who has a direct or indirect
pecuniary interest in a matter being considered or about to be considered by
the Commission must, as soon as possible after the relevant facts have come to
his or her knowledge, disclose the nature of the interest at a meeting of the
Commission.
(2) A disclosure must be recorded in the
minutes of the meeting of the Commission and the member must not, unless the
Minister or the Commission otherwise determines:
(a) be present during any deliberation
of the Commission with respect to that matter; or
(b) take part in any decision of the
Commission with respect to that matter.
(3) For the purpose of the making of a
determination by the Commission under subsection (2) in relation to a
member who has made a disclosure, a member who has a direct or indirect
pecuniary interest in the matter to which the disclosure relates must not:
(a) be present during any deliberation
of the Commission for the purpose of making the determination; or
(b) take part in the making by the
Commission of the determination.
(4) In this
section:
member includes:
(a) a person who is acting in the
office of a member or is taken to be a member; and
(b) the Chief Executive Officer.
89N
Resignation
A member may resign by delivering to the
Governor‑General a signed notice of resignation.
89P
Termination of appointment
(1) The Governor‑General may terminate a
member’s appointment for misbehaviour or physical or mental incapacity.
(2) If a member:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) contravenes section 89M
without reasonable excuse; or
(c) is absent, except on leave granted
under section 89L, from 3 consecutive meetings of the Commission;
the Governor‑General is to terminate the member’s
appointment by notice in the Gazette.
(3) If the organisation on whose nomination a
member referred to in paragraph 89E(c) was appointed asks (by written notice to
the Minister) that the member’s appointment be terminated, the Governor‑General
is to terminate the member’s appointment by notice in the Gazette.
89Q
Meetings
(1) Subject to this section, meetings of the
Commission are to be held at such times and places as it determines from time
to time.
(2) The Chairperson:
(a) may convene a meeting of the
Commission; and
(b) must convene a meeting of the
Commission on receipt of a written request signed by at least 4 members.
(3) The Commission must hold at least 3
meetings each calendar year.
(4) At a meeting of the Commission, 5 members
constitute a quorum if:
(a) at least one of them is a member
referred to in paragraph 89E(1)(c); and
(b) one of them is the member referred
to in paragraph 89E(1)(d); and
(c) one of them is the member referred
to in paragraph 89E(1)(e).
(5) Questions arising at a meeting of the
Commission must be determined by the majority of the votes of the members
present and voting at the meeting.
(6) If the Commission so determines, a
resolution is taken to have been passed at a meeting of the Commission if,
without meeting, a majority of the members who would, if present at a meeting
and entitled to vote on the resolution at that meeting, have constituted a
quorum indicate agreement with the resolution in accordance with a method
determined by the Commission.
(7) The Chairperson is to preside at all
meetings of the Commission at which he or she is present.
(8) If the Chairperson is not present at a
meeting of the Commission, the members present at the meeting must elect one of
their number to preside at the meeting.
(9) The member presiding at a meeting of the
Commission has a deliberative vote and, if there is an equality of votes, also
has a casting vote.
(10) Subject to this section, the Commission
may determine the procedure to be followed at its meetings.
(11) In this section:
member includes the Chief Executive Officer.
89R
Delegation by Commission and sub‑delegation
(1) The Commission may, in writing, delegate
to the Chief Executive Officer or any of its members all or any of its
functions and powers.
(2) Despite paragraph 34AB(1)(b) of the Acts
Interpretation Act 1901, the Chief Executive Officer may, by writing signed
by him or her, delegate to the Deputy Chief Executive Officer or a member of
the staff of Comcare any functions or powers that the Commission delegates to
the Chief Executive Officer.
(3) Despite paragraph 34AB(1)(b) of the Acts
Interpretation Act 1901, a member may, by writing signed by him or her,
delegate to the Chief Executive Officer, the Deputy Chief Executive Officer or
a member of the staff of Comcare any functions or powers that the Commission
delegates to the member.
89S
Annual reports
(1) As soon as possible after each 30 June,
the Chairperson must give the Minister, for presentation to the Parliament, a
report of the Commission’s activities during the financial year that ended on that
day.
(2) A report under this section must include
particulars of:
(a) any directions given by the
Minister under section 89D; and
(b) any guidelines issued by the
Commission under section 73A; and
(c) the
operations of each licensee under this Act;
during the financial year to which the report relates.
Division 4—Finance
90
Application of the Commonwealth Authorities and Companies Act 1997
(1) The Commonwealth Authorities and
Companies Act 1997 (except sections 27F to 27L) applies in relation to
Comcare as if the Chief Executive Officer were a director of Comcare for the
purposes of that Act.
(2) Each report on Comcare for a year
prepared by the Chief Executive Officer under section 9 of that Act must
include particulars of each direction given under section 73 of this Act
during that year.
90B
Payments to Comcare in respect of long‑term liabilities
There are payable to Comcare, out of the
Consolidated Revenue Fund, such amounts as are necessary:
(a) to enable Comcare to discharge any
liability that is taken, by section 128, to have been incurred by Comcare
and has not been discharged before the commencement of this section; and
(ab) to enable Comcare to discharge a
liability incurred because of an event or process that:
(i) happened or commenced
before 1 December 1988; and
(ii) results in an injury,
loss or damage that first manifests itself on or after 1 December 1988.
Example: An event—a person’s inhalation of asbestos
fibres—that happened before 1 December 1988 and results in an injury, loss
or damage—the person’s contraction of mesothelioma—that manifests itself on or
after 1 December 1988.
(b) to meet any administrative
expenses incurred by Comcare after the commencement of this section that are
attributable to the performance by Comcare of its functions in respect of
claims for a liability mentioned in paragraph (a) or (ab).
90C
Source of funds to enable Comcare to meet its liabilities and other expenses
(1) Subject to this section, Comcare must
pay, from Comcare‑retained funds, the money required by Comcare:
(a) to enable it to discharge:
(i) any liability in
relation to compensation (other than a liability referred to in paragraph
90B(a) or (ab)) that was incurred by Comcare or by the previous Commission
under this Act but that has not been discharged before 1 July 2002; and
(ii) any liability in
relation to compensation that Comcare incurs under this Act on or after that
date; and
(b) to enable it to pay, on behalf of
an Entity or Commonwealth authority:
(i) any damages or costs
awarded under, or any amount agreed to be paid in settlement of, an action for
non‑economic loss, that Comcare or the previous Commission was liable to pay
but that had not been paid before 1 July 2002; and
(ii) any damages awarded
under, or amount agreed to be paid in settlement of, an action for non‑economic
loss, that Comcare becomes liable to pay on and after that date; and
(c) to meet any administrative
expenses incurred by it on or after that date that are attributable to the
performance of its functions in respect of claims for injury, loss or damage
suffered by, or for the death of, an employee on or after 1 July 1989.
(2) If there is insufficient money in Comcare‑retained
funds to make a particular payment under subsection (1), there is payable
by the Commonwealth to Comcare such an amount as is necessary to enable Comcare
to make that payment.
(3) A payment
(the relevant payment) is not to be made to Comcare under subsection (2)
if the amount of the relevant payment exceeds an amount worked out at the time
of the payment using the formula:
where:
notional interest means an amount of notional
interest, being the interest at such rates as are from time to time determined
by the Minister responsible for the administration of the Commonwealth Authorities
and Companies Act 1997 that would have accrued, on or after 1 July
1989 and before the relevant payment is made, in respect of the premiums
received if such interest had been payable to the previous Commission and to
Comcare.
premiums received
means the total amount of the premiums paid, or notionally paid, to the
Commonwealth in respect of financial years or parts of financial years starting
on 1 July 1989 and ending before 1 July 2002, in accordance with a
direction of the Minister under section 96G of the Safety,
Rehabilitation and Compensation Act 1988 as in force from time to time
during that period.
previous payments means the total of the
amounts paid by the Commonwealth to the previous Commission or to Comcare for
the purposes of the performance of their functions under this Act before the
relevant payment is made.
(4) For the purpose of the application on, or
at any time after, 1 July 2002 of the formula referred to in subsection (3),
the Minister responsible for the administration of the Commonwealth
Authorities and Companies Act 1997 may determine:
(a) the total of the amounts of the
premiums paid, or notionally paid, to the Commonwealth in respect of financial
years or parts of financial years starting on 1 July 1989 and ending
before 1 July 2002 that would have been received at that time; and
(b) the notional interest (within the
meaning of that subsection) that would have accrued to that time; and
(c) the previous payments (within the
meaning of that subsection) made before that time.
(5) In this section:
Comcare‑retained funds means so much of the
funds from time to time standing to Comcare’s credit in the bank account
maintained in accordance with section 18 of the Commonwealth
Authorities and Companies Act 1997 as is attributable to:
(a) premiums paid to Comcare by
Entities and Commonwealth authorities in respect of the financial year starting
on 1 July 2002 and subsequent financial years; and
(b) special premiums paid to Comcare
by Entities and Commonwealth authorities in respect of one or more of the
financial years starting on 1 July 1999, 1 July 2000 or 1 July
2001; and
(c) interest earned on the premiums
and special premiums referred to in paragraphs (a) and (b).
90D
Appropriation
The Consolidated Revenue Fund is
appropriated for the purposes of sections 90B and 90C.
91
Money of Comcare
(1) There is payable to Comcare such money as
is appropriated by the Parliament otherwise than under section 90D of this
Act or section 8 of the Asbestos‑related Claims (Management of Commonwealth
Liabilities) Act 2005 for the purposes of Comcare.
(2) The Finance Minister may give directions
as to the amounts in which, and the times at which, money referred to in
section 90B or 90C or subsection (1) is to be paid to Comcare.
(3) The money of Comcare shall be applied
only:
(a) in payment or discharge of the
expenses, charges, obligations and liabilities incurred or undertaken by
Comcare in the performance of its functions and the exercise of its powers
under this Act, the Occupational Health and Safety Act 1991 or the Asbestos‑related
Claims (Management of Commonwealth Liabilities) Act 2005;
(b) in payment of remuneration and
allowances payable under this Act; and
(c) in making any other payments
required or permitted to be made by Comcare.
(4) Subsection (3) does not prevent
investment of surplus money of Comcare under section 18 of the Commonwealth
Authorities and Companies Act 1997.
(5) In this section:
Finance Minister means the Minister who
administers the Financial Management and Accountability Act 1997.
92
Estimates of receipts and expenditure
For the purposes of section 14 of
the Commonwealth Authorities and Companies Act 1997, the receipts and
expenditure of Comcare shall be taken not to include a reference to amounts of
compensation paid or payable to, or in accordance with the directions of,
Comcare under this Act.
93
Exemption from taxation
Comcare is not subject to taxation under
any law of the Commonwealth, of a State or of a Territory.
95
Borrowing
(1) Comcare may, with the written approval of
the Finance Minister, borrow money otherwise than from the Commonwealth on
terms and conditions that are specified in, or consistent with, the approval.
(2) An approval may be in respect of
particular borrowings or a specified class or classes of borrowings.
(3) The Finance Minister may, on behalf of
the Commonwealth, guarantee the repayment by Comcare of the amounts borrowed
under this section and the payment of interest on such amounts.
(4) Comcare may give security over the whole
or any part of its assets for the repayment of money borrowed by Comcare and
the payment of any money that it is otherwise liable to pay in respect of those
borrowings, including the payment of any interest on such money.
(5) Comcare shall not borrow money, except
under this section, or otherwise raise money.
(6) The Finance Minister may, by written
instrument, delegate any of the Finance Minister’s powers or functions under
this section to an official (within the meaning of the Financial Management
and Accountability Act 1997). In exercising powers or functions under a
delegation, the official must comply with any directions of the Finance
Minister.
(7) In this section:
Finance Minister means the Minister who
administers the Financial Management and Accountability Act 1997.
Division 4A—Premiums and regulatory contributions
96
Extended meaning of Commonwealth authority for purposes of regulatory
contributions
For the purposes of section 97D,
and the other provisions of this Division as they apply in relation to
regulatory contributions under that section, a body that would not otherwise be
a Commonwealth authority for the purposes of this Act is taken to be such an
authority if it is a Commonwealth authority for the purposes of the Occupational
Health and Safety Act 1991.
97
Determination of premiums
Comcare must make a determination, in
accordance with guidelines issued by the Commission under section 97E, of
the amount (if any) of premium to be paid by each Entity and by each
Commonwealth authority in respect of the financial year starting on 1 July
2002 and in respect of each later financial year.
97A
Matters for consideration in determination of premium
(1) In determining the amount of the premium
payable by an Entity or Commonwealth authority in respect of a financial year
under section 97, Comcare must:
(a) have regard to:
(i) the prescribed amount;
and
(ii) any penalty amount or
bonus amount;
in relation to the Entity or
authority and that year; and
(b) comply with any guidelines issued
by the Commission under section 97E in relation to the determination of
premiums.
(2) In this section:
bonus amount, in relation to an
Entity or a Commonwealth authority and a financial year, means the amount (if
any) determined by Comcare to be an appropriate amount to be deducted from the
prescribed amount in relation to the Entity or authority and that year, having
regard to:
(a) the number of claims made by, or
in relation to, employees of the Entity or authority in each previous financial
year; and
(b) the amount of compensation paid
to, or in relation to, such employees under this Act.
penalty amount, in relation to an Entity or
Commonwealth authority and a financial year, means the amount if any,
determined by Comcare to be an appropriate amount to be added to the prescribed
amount in relation to the Entity or authority and that year, having regard to:
(a) the number of claims made by, or
in relation to, employees of the Entity or authority in each previous financial
year; and
(b) the amount of compensation paid
to, or in relation to, such employees under this Act.
prescribed amount, in relation to an Entity
or Commonwealth authority and a financial year, means the amount worked out in
accordance with subsection (3) in relation to that Entity or authority and
that year.
(3) Comcare must work out the prescribed
amount, in relation to an Entity or Commonwealth authority and a particular
financial year, using the formula:
where:
estimated liability component, in respect of
an Entity or a Commonwealth authority and a financial year, means the estimated
amount of Comcare’s liability (if any) under this Act (including liability
under actions for non‑economic loss), in that financial year and in subsequent
financial years, in respect of the number of injuries that Comcare estimates
will be suffered during that financial year:
(a) in the case of an Entity or of an
authority that does not hold a licence in force under Part VIII at the
commencement of that financial year—by employees of the Entity or authority;
and
(b) in the case of an authority that
holds such a licence at the commencement of that financial year—by employees of
the authority in respect of whom the authority is not authorised to accept
liability;
being an amount estimated using such methods and having
regard to such matters (if any) as the guidelines under section 97E
specify.
estimated management component, in respect of
an Entity or a Commonwealth authority and a financial year, means the estimated
cost (if any) to Comcare, in that financial year and in subsequent financial
years, of all claims management (including the cost of taking over the conduct
of actions for non‑economic loss) reasonably attributable to the Entity or
authority, having regard to the number of injuries that Comcare estimates will
be suffered during that financial year:
(a) in the case of an Entity or of an
authority that does not hold a licence under Part VIII at the commencement
of that financial year—by employees of the Entity or authority; and
(b) in the case of an authority that
holds such a licence at the commencement of that financial year—by employees of
the authority in respect of whom the authority is not authorised to manage
claims;
being a cost estimated using such methods and having
regard to such matters (if any) as the guidelines under section 97E
specify.
97B
Determination of special premiums for non‑economic loss in respect of injuries
suffered after 30 June 1999 and before 1 July 2002
(1) Comcare must, in respect of each Entity
and Commonwealth authority that did not make arrangements for insurance cover
in respect of possible liability under actions for non‑economic loss in respect
of injuries suffered by its employees at any time during:
(a) the financial year starting on 1 July 1999; or
(b) the financial year starting on 1 July 2000; or
(c) the financial year starting on 1 July 2001;
determine, within 12 months after the commencement of this
section, a special premium to be paid by that Entity or authority in respect of
either, or both, of those financial years, as the case requires.
(2) The Commission may prepare and issue to
the Chief Executive Officer written guidelines in relation to the determination
of the special premium.
(3) The Commission must not issue guidelines
that are inconsistent with any directions under section 73 of this Act.
(4) Any guidelines that are inconsistent with
a direction of the kind referred to in subsection (3) have no effect to
the extent of the inconsistency.
(5) The
provisions of this Division relating to:
(a) notification of the determination
of premium; and
(b) the date of effect of a
determination of premium and provision for payment of the premium; and
(c) procedures for review of the
premium by Comcare and the Commission; and
(d) provisions for refund or variation
of the premium and for repayments of any premium excess;
apply, subject to such modifications and adaptations (if
any) as the regulations provide, in relation to the special premium in similar
manner as they apply in relation to a premium paid in respect of the financial
year starting on 1 July 2002 as if:
(e) the special premium were a premium
determined under section 97; and
(f) the financial year, or each
financial year, to which a special premium relates were the financial year starting
on that date.
(6) If a special premium is paid to Comcare:
(a) it is to be dealt with in the same
manner as if it were a premium paid in respect of the financial year starting
on 1 July 2002; and
(b) it may be applied by Comcare under
section 90C to pay, on behalf of an Entity or Commonwealth authority, any
damages or costs awarded under, or any amount agreed to be paid in settlement
of, an action for non‑economic loss.
97C
Estimate of premium for certain Commonwealth authorities
When a Commonwealth authority is liable
under section 128A to pay an amount in respect of an injury, loss or
damage suffered by one of its employees, Comcare, in determining the amount of
the premium of the authority for a financial year, must disregard:
(a) any claim relating to that injury,
loss or damage; and
(b) any amount paid by the authority
under section 128A in respect of that injury, loss or damage.
97D
Regulatory contributions
(1) Comcare must make a determination of the
amount of the regulatory contribution to be paid by each Entity and by each
Commonwealth authority (other than a Commonwealth authority that holds a
licence under Part VIII) in respect of the financial year starting on 1 July 2002 and in respect of each later financial year.
(2) For the purposes of subsection (1),
the amount of the regulatory contribution to be paid in respect of a particular
financial year:
(a) by an Entity; or
(b) by a Commonwealth authority that
does not hold a licence in force under Part VIII at the commencement of that
financial year;
is the sum of:
(c) that part of the estimated cost
incurred by the Commission and Comcare in carrying out their respective
functions under this Act (other than excluded functions) that Comcare
determines, in accordance with guidelines under section 97E, to be
referrable to that Entity or authority; and
(d) that part of the estimated cost
incurred by the Commission and Comcare in carrying out their respective
functions under the Occupational Health and Safety Act 1991 that Comcare
determines, in accordance with those guidelines, to be referrable to that
Entity or authority.
(3) For the purposes of subsection (2), excluded
functions, in relation to an Entity or Commonwealth authority, means
functions of Comcare under this Act the cost of which would count towards the
estimated management component under subsection 97A(3) in relation to the
Entity or authority.
97E
Commission may issue guidelines for determination of premiums and regulatory
contributions
(1) The Commission may prepare and issue to
the Chief Executive Officer written guidelines in relation to the determination
by Comcare of premiums to be paid by Entities and Commonwealth authorities in
respect of a financial year.
(2) The Commission may prepare and issue to
the Chief Executive Officer written guidelines in relation to the determination
by Comcare of regulatory contributions to be paid by Entities and by
Commonwealth authorities (other than Commonwealth authorities that hold a
licence under Part VIII) in respect of a financial year.
(3) The Commission must not issue guidelines
that are inconsistent with any directions under section 73 of this Act.
(4) Any guidelines that are inconsistent with
a direction of the kind referred to in subsection (3) have no effect to
the extent of the inconsistency.
97F
Information to be given to Comcare
(1) The principal officer of each Entity or
each Commonwealth authority must give Comcare, not later than the prescribed
day in 2003 and in each later year, a written estimate of the amount to be paid
to employees of the Entity or authority, as the case may be, by way of salary,
wages or pay during the next financial year.
(2) The principal officer of an Entity or a
Commonwealth authority, must, on request by Comcare, give Comcare the information
specified in the request, being information needed by Comcare to enable it:
(a) to determine a premium under
section 97; or
(b) to determine a regulatory
contribution under section 97D;
in relation to the Entity or authority.
(3) In this
section:
prescribed day, in relation to a year, means
30 April in that year, or if the regulations specify another day for the
purposes of this definition, the day so specified in that year.
97G
Notice of determinations
(1) Comcare must give a copy of a determination
made under section 97 or 97D in relation to an Entity to the principal
officer of the Entity.
(2) Comcare must give a copy of a
determination made under section 97 or 97D in relation to a Commonwealth
authority to the principal officer of the Commonwealth authority.
97H
Payment of the premium or regulatory contribution
(1) A determination under section 97 or
97D relating to an Entity or Commonwealth authority takes effect 14 days after
the day on which the Entity or authority receives a copy of the determination.
(2) The Commission may give directions, in
writing, to the principal officer of an Entity or a Commonwealth authority
relating to the payment of the premium or regulatory contribution of the Entity
or authority.
(3) The principal officer of an Entity or an
authority must comply with any directions given to him or her by the
Commission.
(4) The Commission may vary a direction given
to the principal officer of an Entity or a Commonwealth authority on the
written request of the principal officer.
97J
Review by Comcare of determination of premium or regulatory contribution
(1) The principal officer of the Entity or
the Commonwealth authority, to which a determination under section 97 or
97D relates may, by written notice of objection, ask Comcare to review the
determination. The notice must be given to Comcare within 14 days after the day
on which the Entity or authority received a copy of the determination.
(2) The notice must set out the grounds of
the objection.
(3) As soon as practicable after receiving
the notice, Comcare must review the determination and must decide either:
(a) to confirm the determination; or
(b) to vary the determination in such
manner as it thinks fit and confirm the determination as so varied.
(4) Comcare must give a written notice to the
principal officer of the Entity or the Commonwealth authority of the result of
the review of the determination.
(5) If the principal officer of an Entity or
a Commonwealth authority gives notice of objection to a determination of the
premium or regulatory contribution payable by the Entity or authority under subsection (1),
the Entity or the authority is still obliged to pay the premium or regulatory
contribution in accordance with any directions given under section 97H.
97K
Further review by Commission of outcome of Comcare’s review
(1) If:
(a) a determination under section 97
or 97D in relation to an Entity or a Commonwealth authority has been reviewed
by Comcare under section 97J; and
(b) the principal officer of the
Entity or authority, objects to the determination (or to the determination as
varied as a result of the review);
the principal officer may, by written notice of objection
given to the Commission within 14 days after the date of the notice mentioned
in subsection 97J(4), ask the Commission to review the determination, or the
determination as so varied, as the case may be.
(2) The notice must set out the grounds of
the objection.
(3) As soon as practicable after receiving
the notice, the Commission must review the determination, or the determination
as so varied, and must decide either:
(a) to confirm the determination; or
(b) to vary the determination in such
manner as it thinks fit and confirm the determination as so varied.
(4) The Commission must give written notice
of the result of the review to the principal officer of the Entity or the
Commonwealth authority.
97L
Refund of premium or regulatory contribution
(1) If:
(a) an amount equal to the premium, or
regulatory contribution, of an Entity or Commonwealth authority for a financial
year has been paid to Comcare in accordance with a direction of the Commission;
and
(b) the amount of the premium or
regulatory contribution is later reduced as a result of a review under section 97J
or 97K;
the Entity or authority is entitled to the difference
between the amount so paid and the reduced amount.
(2) The difference must be repaid by Comcare
to the Entity or authority concerned.
(3) Interest is payable on the difference, at
such rate as is from time to time specified by the Minister by notice in the Gazette,
in respect of each day of the overpayment period. However, interest is not
payable under this section if it is less than $100.
(4) In this section:
overpayment period means the period beginning
on the day on which an Entity’s or authority’s premium or regulatory
contribution in respect of a financial year was paid under section 97H and
ending on the day on which the amount of the difference under subsection (1)
was repaid under subsection (2).
97M
Variation of determination of premium or regulatory contribution
(1) Comcare may, in writing, vary a
determination of the amount of an Entity’s or Commonwealth authority’s premium
or regulatory contribution if, and only if:
(a) there is an error in information
given to Comcare under section 97F that affected the determination; or
(b) Comcare has made an error in
determining the amount of the premium or contribution; or
(c) there is a significant change in
the number of persons employed by the Entity or authority during the financial
year to which the determination relates; or
(d) there is a significant change in
the estimated amount of salary, wages or pay payable to those persons during
that year; or
(e) in the case of a Commonwealth
authority:
(i) a licence is, or is to
be, granted to the authority; or
(ii) a licence held by the
authority is, or is to be, revoked.
(2) Comcare must send a copy of the
variation, together with a statement of the reasons for the variation, to the
principal officer of the Entity or the Commonwealth authority.
(3) Sections 97J and 97K apply to a
variation of a determination in the same way they apply to a determination.
(4) If:
(a) an amount equal to the premium or
regulatory contribution of an Entity or Commonwealth authority in respect of a
financial year has been paid to Comcare in accordance with a direction of the
Commission; and
(b) the amount of the premium or
regulatory contribution is later reduced as a result of a variation under this
section;
the Entity or authority is entitled to the difference
between the amount so paid and the reduced amount.
(5) The difference must be repaid by Comcare
to the Entity or authority concerned.
(6) If Comcare erroneously charges an Entity
or Commonwealth authority a premium or regulatory contribution in excess of the
premium or contribution that it should have charged, Comcare must, in addition
to repaying the amount of the excess, also pay the Entity or authority interest
on the excess.
(7) Interest on the excess is payable at such
rate as is from time to time specified by the Minister by notice in the Gazette,
in respect of each day after the overpayment and before the excess is repaid.
However, interest is not payable on the excess if it is less than $100.
97N
Repayment of premium excess etc.
(1) Comcare must make the payments required
under section 97L or 97M from Comcare‑retained funds within the meaning of
subsection 90C(5).
(2) If there is insufficient money in Comcare‑retained
funds to make a particular payment under subsection (1) there is payable
to Comcare, out of the Consolidated Revenue Fund, which is appropriated
accordingly, such an amount as is necessary to enable Comcare to make that
payment.
97P
Penalty for late payment of premium or regulatory contribution
If an amount of premium or regulatory
contribution payable by an Entity or Commonwealth authority is not paid by the
Entity or authority:
(a) by 31 July in the financial
year to which the premium or regulatory contribution relates; or
(b) within 30 days after the day on
which notice of the determination of the premium or regulatory contribution is
issued;
whichever is the later, interest is payable on the amount,
at such rate as is from time to time specified by the Minister by legislative
instrument, in respect of each day on which the amount is not so paid. However,
interest is not payable under this section if it is less than $100.
Part VIII—Licences to enable Commonwealth authorities and certain
corporations to accept liability for, and/or manage, claims
Division 1—Preliminary
98A
Outline of Part
(1) This Part enables the Commission to grant
licences to Commonwealth authorities or eligible corporations.
(2) If a licence is granted to a Commonwealth
authority, this Act continues to apply in relation to employees of the
authority but, depending on the scope of the licence, the application of this
Act is subject to either or both of the following:
(a) the acceptance by the authority of
the whole or a part of the liability under this Act for payments in respect of
injury, loss or damage suffered by, or the death of, some or all of its
employees;
(b) the acceptance by the authority of
the responsibility for managing certain claims under this Act in respect of
injury, loss or damage suffered by, or the death of, some or all of its
employees.
(3) If a licence is granted to an eligible
corporation, this Act applies in relation to some or all of the employees of
the corporation in a similar way to the way in which it applies to employees of
the Commonwealth but the application is subject to:
(a) the acceptance by the corporation
of the whole or a part of the liability under this Act for payments in respect
of injury, loss or damage suffered by, or the death of, those employees; and
(b) the acceptance by the corporation
of the function of managing claims under this Act in respect of that injury,
loss, damage or death.
(4) If a licence is granted to a Commonwealth
authority or to a corporation, the application of this Act is also subject to
the conditions to which the licence is subject.
99
Definitions
In this Part:
claim includes a request.
determination includes a decision or
requirement.
eligible corporation means a corporation that
is declared by the Minister to be an eligible corporation under section 100.
eligible applicant means a Commonwealth
authority or an eligible corporation.
manage, in relation to a claim for payment of
compensation or other amounts under this Act, includes determination of the
claim, reconsideration of the determination, and any subsequent administrative
action in relation to the claim as so determined.
variation, in relation to the conditions to
which a licence is subject, includes the addition of a new condition, an
alteration to an existing condition or the omission of an existing condition.
100
Minister may declare a corporation eligible to be granted a licence under this
Part
(1) If the Minister is satisfied that it
would be desirable for this Act to apply to employees of a corporation that:
(a) is, but is about to cease to be, a
Commonwealth authority; or
(b) was previously a Commonwealth
authority; or
(c) is carrying on business in
competition with a Commonwealth authority or with another corporation that was
previously a Commonwealth authority;
the Minister may, by legislative instrument, declare the
corporation to be eligible to be granted a licence under this Part.
(2) However, the Minister is not required to
consider a request for a declaration under subsection (1).
101
Ministerial directions concerning licences
(1) The Minister’s power to give directions
to the Commission under section 89D extends to directions concerning any
matter relating to the grant of licences under this Part. Without limiting the
matters the directions may deal with, the Minister may give directions
concerning:
(a) criteria and procedures for the
grant of such licences; or
(b) the scope of licences and the
conditions to which licences having a particular scope may be expressed to be
subject; or
(c) the exercise by the Commission of
the power to vary the conditions to which such licences are subject; or
(d) criteria and procedures for the
extension, suspension or revocation of such licences or for varying the scope
of such licences; or
(e) publication of notices about any
grant, extension, suspension or revocation of such licences or for varying the
scope of such licences or the conditions to which they are subject; or
(f) requirements to be observed by
the Commission in relation to the keeping of records, and the periodic
reporting of particulars, in relation to such licences.
Note: Criteria for the grant of a licence may
address issues relating not only to the licence applied for but also to other
licences that have been granted or that are being sought.
(2) Directions given by the Minister to the
Commission under section 89D concerning licences are legislative
instruments to which section 42 of the Legislative Instruments Act 2003
applies.
Division 2—Powers of the Commission in relation to licences
102
Application for grant of a licence
(1) An application by an eligible applicant
for the grant of a licence must:
(a) be in writing in the prescribed
form; and
(b) contain such particulars of the
eligible applicant as the regulations prescribe; and
(c) having regard to the scope of the
licence sought—contain such other information, and be accompanied by such
documents, as the regulations provide; and
(d) be lodged with the Commission.
(2) The eligible applicant is liable to pay
to Comcare in respect of the application an application fee equal to the amount
estimated by the Commission to be the cost of considering the application.
(3) The Commission is to give written notice
to the eligible applicant of the amount of the application fee and:
(a) if the notice is given before the
application is made—the application fee is to accompany the application; or
(b) otherwise—the application fee is
to be paid as soon as practicable after the notice is given.
(4) An eligible applicant may withdraw an
application at any time before a decision is made on the application.
(5) If the application is withdrawn after
receipt by Comcare of the application fee, the Commission may, depending upon
the extent to which it has already considered the application:
(a) request Comcare to refund the
application fee entirely; or
(b) reduce the application fee by such
amount as it considers reasonable having regard to the extent of that
consideration and request Comcare to refund the amount of the reduction.
(6) For the purpose of subsection (5),
the reference to the extent of the Commission’s consideration of an application
includes a reference to any act or thing done by Comcare to assist the
Commission in that consideration.
103
The Commission’s power to grant licences
(1) The Commission may, on application made
in accordance with section 102, grant the eligible applicant a licence for
a specified period.
(2) If the Commission grants a licence to an
eligible applicant, the Commission must determine:
(a) in accordance with Division 3—the
scope of the licence so far as concerns the degree to which, and the
circumstances in which, the licensee may accept liability for compensation; and
(b) in accordance with Division 4—the
scope of the licence so far as concerns the degree to which, and the
circumstances in which, the licensee is authorised to manage claims; and
(c) in accordance with Division 5—the
conditions (if any) to which the grant of the licence is subject.
104
Licence decision
(1) If the Commission considers, having
regard to:
(a) the information contained in an
application received by it; and
(b) any further information that is
provided to the Commission by the applicant for the purpose of enabling
consideration of the application; and
(c) any other matter that the
Commission considers relevant;
that it is appropriate to do so, the Commission may grant
the licence sought. On granting the licence, the Commission must, by written
notice given to the applicant, inform the applicant of its decision.
(2) In order for the Commission to be
satisfied, for the purposes of subsection (1), that it is appropriate to
grant an applicant the licence sought, the Commission must be satisfied that:
(a) the applicant has sufficient
resources to fulfil the responsibilities imposed on it under the licence; and
(b) the applicant has the capacity to
ensure (where the scope of the licence so provides) that claims that are to be
managed either by the licensee, or by another person identified in the licence
on the licensee’s behalf, will be managed in accordance with standards set by
the Commission for the management of claims; and
(c) the grant of the licence will not
be contrary to the interests of the employees of the licensee whose affairs
fall within the scope of the licence; and
(d) the applicant has the capacity to meet
the standards set by the Commission for the rehabilitation and occupational
health and safety of its employees.
(3) If the Commission does not consider it
appropriate to grant the applicant the licence sought, it must, by written
notice given to the applicant, inform the applicant that it has decided to
refuse the application and provide reasons for its decision.
(4) Nothing in subsection (3) prevents
the Commission, with the written agreement of the applicant, granting the
applicant a licence having a different scope to the licence sought by the
applicant.
104A
Licence fees
(1) At the date of commencement of a licence,
and at each 1 July after that date, while the licence is in force, the
licensee becomes liable to pay a licence fee in respect of the holding or
continued holding of the licence.
(2) The amount of the licence fee is the
amount notified in writing to the licensee by the Commission, being the amount
estimated by the Commission to represent:
(a) that part of the cost incurred by
the Commission and by Comcare in carrying out their respective functions under
this Act (other than the function referred to in paragraph 69(ec)) during the
relevant period that is reasonably referrable to the licensee; and
(b) so far as concerns a licensee who
is covered by the Occupational Health and Safety Act 1991—that part of
the cost incurred by the Commission and by Comcare in carrying out their
respective functions under that Act during the relevant period that is
reasonably referrable to the licensee.
(3) For the purposes of subsection (2),
the relevant period is:
(a) in the case of the first licence
fee payable in respect of the licence—the period starting on the date of
commencement of the licence and ending on the next 30 June; or
(b) in the case of a subsequent
licence fee payable in respect of a financial year while the licence remains in
force—that financial year.
(4) The fee is payable to Comcare within such
period after it is notified to the licensee as the Commission determines.
105
The Commission may vary the scope of a licence or extend its term
(1) The Commission may, at any time while a
licence is in force, on the written application of the licensee, vary the scope
of the licence or extend its term.
(2) Nothing in subsection (1) implies
that an applicant whose licence, or licence as extended, has expired, or is to
expire, may not apply for a new licence under this Part.
106
Suspension or revocation of licences at the instance of the Commission
(1) If the Commission considers it appropriate
to do so, the Commission may, by written notice given to the licensee:
(a) suspend the licence for a
specified period; or
(b) revoke the licence.
(2) Before taking action under subsection (1),
the Commission must follow such procedures, if any, as are specified in the
Minister’s directions as procedures preliminary to the suspension or revocation
of a licence at the instance of the Commission.
107
Revocation of licence at request of licensee
The Commission may, at the written
request of a licensee, by written notice to the licensee, revoke the licence
held by the licensee.
107A
Effect of suspension or revocation
The regulations may provide for the
consequences of:
(a) the suspension of a licence under
section 106; or
(b) the revocation of a licence under
section 106 or 107.
Division 3—Authorisation to accept liability in respect of certain
claims
108
Licence can authorise licensee to accept liability
(1) A licence may provide that the licensee
is authorised to accept liability to pay compensation and other amounts under
this Act in respect of particular injury, loss or damage suffered by, or in
respect of the death of, some or all of its employees under this Act.
(2) The scope of the licence, so far as it
authorises acceptance of liability to pay such compensation and other amounts,
may be determined by the Commission.
(3) The Commission may determine, as part of
the scope of the licence, that the licensee may accept such liability in
respect of such injury, loss, damage or death occurring at a time before the
licence came into force.
108A
The consequences of a licensee’s authorisation to accept liability
(1) If:
(a) a licensee is authorised to accept
liability to pay compensation and other amounts under this Act in respect of
particular injury, loss or damage suffered by, or in respect of the death of,
some or all of its employees; and
(b) such injury, loss, damage or death
occurs;
then:
(c) the licensee is liable to pay
compensation and other amounts under this Act in respect of that injury, loss,
damage or death; and
(d) Comcare is not liable to pay
compensation or other amounts under this Act in respect of that injury, loss,
damage or death.
(2) Nothing in subsection (1) affects
Comcare’s liability to pay compensation or other amounts under this Act in
respect of a particular injury, loss, damage or death for which Comcare would
have been liable, but for the operation of the licence, to the extent that the
liability is not a liability that the licensee is authorised to accept.
(3) The fact that a licensee is authorised to
accept liability to pay compensation and other amounts under this Act in
respect of a particular injury, loss, damage or death does not render the
licensee liable to have any proceedings (including proceedings under Part VI)
brought against it in respect of that particular injury, loss, damage or death
other than proceedings for the recovery of that compensation and those other
amounts.
Note: If licensees are authorised to manage claims,
proceedings may be brought against them in respect of the management of those
claims (see subsection 108C(7)).
(4) If proceedings have been brought against
Comcare in respect of a particular injury, loss, damage or death for which a
licensee is liable to pay compensation or other amounts under this Act, Comcare
must inform the licensee, in writing, as soon as practicable, that the
proceedings have been brought.
(5) On being informed that proceedings have
been brought against Comcare in respect of a particular injury, loss, damage or
death, the court or tribunal before which the proceedings have been brought
must, on application of the licensee, join the licensee as a party to the
proceedings.
(6) A decision in any proceedings referred to
in subsection (4) is binding on Comcare and on the licensee concerned,
whether or not the licensee has made application to become a party to the
proceedings.
(7) If a licensee who is a corporation is
authorised to accept liability to pay compensation and other amounts under this
Act in respect of a particular injury, loss or damage suffered by, or in
respect of the death of, some or all of its employees after the licence comes
into force then:
(a) no law of a State or Territory
relating to workers compensation applies to a licensee in respect of such
injury, loss, damage or death; and
(b) any liability or obligation of the
corporation under a law of a State or Territory in respect of such injury, loss
or damage suffered, or death occurring, before the licence came into force is
unaffected.
Division 4—Authorisation to manage claims
108B
Licence can authorise licensee to manage claims
(1) A licence may authorise the licensee, or
a specified person acting on the licensee’s behalf, to manage some or all of
the claims made by employees of the licensee under this Act.
(2) The scope of the licence, so far as it
authorises management by the licensee of claims made under this Act, may be
determined by the Commission.
(3) A licensee may at any time enter into a
contract with another person for the management, on the licensee’s behalf, of
the claims that the licensee is authorised to manage.
(4) If the licensee enters into such a
contract it does not come into force unless and until the Commission has varied
the licence to note the identity of the person with whom the licensee has
contracted for the management of claims.
(5) Nothing in this section implies that the
scope of the licence, so far as it authorises management of claims by the
licensee, may not extend to the management of claims that were made at a time
before the licence came into force, whether or not the management of those
claims has been commenced before the licence came into force.
(6) The scope of the licence, so far as it
authorises management of claims made by employees of an eligible corporation,
must relate to the same employees of the corporation as those covered by the
scope of the licence so far as it relates to acceptance of liability.
108C
The consequences of a licensee’s authorisation to manage claims
(1) If a licensee is authorised to manage
claims, the licensee must determine any particular claim that the licensee is
authorised to manage in accordance with the scope of its licence.
(2) If a licensee is authorised to manage
claims made before the licence comes into force, then, in respect of any
particular claim that the licensee is authorised to manage:
(a) a determination made by Comcare
that is in force immediately before the licence comes into force is taken,
after that time, to have been a determination made by the licensee in relation
to that claim; and
(b) any other thing done by Comcare
that is in force immediately before the licence comes into force is taken,
after that time, to have been done by the licensee in relation to that claim.
(3) If a licensee is authorised to manage
claims, then, in respect of any particular claim that the licensee is
authorised to manage:
(a) any notice or claim given or made
under Part V after the licence comes into force is to be given or made to
the licensee; and
(b) any notice or claim given or made
under Part V to Comcare, in force immediately before the licence comes
into force, continues in force, after that time, as if it had been given or
made to the licensee.
(4) If:
(a) any proceedings (including
proceedings under Part VI) to which Comcare is a party are brought in
relation to a determination made, or thing done, by Comcare before a licence
comes into force; and
(b) those proceedings have not been
concluded before the licence comes into force;
those proceedings may be continued after that time and,
for the purpose of the proceedings as so continued, the licensee is taken to
replace Comcare as a party to the proceedings.
(5) If, after a licence comes into force:
(a) a determination made or other
thing done by Comcare is treated under subsection (2) as having been made
or done by the licensee; or
(b) a notice or claim given or made
under Part V to Comcare is treated under subsection (3) as if it had
been given or made to the licensee; or
(c) proceedings (including proceedings
under Part VI) to which Comcare is a party are treated under subsection (4)
as proceedings to which the licensee is a party;
Comcare must inform the licensee, as soon as practicable,
of that determination made or other thing done, of that notice or claim, or of
those proceedings.
(6) If, in accordance with subsection (4),
the licensee replaces Comcare as a party to the proceedings, the court or
tribunal before which the proceedings have been brought must, on application by
Comcare, join Comcare as a party to the proceedings.
(7) If a licensee is authorised to manage
claims, any proceedings (including proceedings under Part VI) that may be
brought:
(a) in relation to a determination
made, or taken to have been made, by the licensee in managing such a claim; or
(b) in relation to any thing done, or
taken to have been done, by the licensee in managing such a claim;
must be brought against the licensee.
(8) If proceedings are brought against the
licensee in accordance with subsection (7):
(a) the licensee must inform Comcare
as soon as practicable that the proceedings have been brought; and
(b) the court or tribunal before which
the proceedings have been brought must, on application by Comcare, join Comcare
as a party to the proceedings.
(9) An application by Comcare under subsection (6)
or (8):
(a) may be made by filing a notice in
the registry of the court or tribunal concerned; and
(b) must be notified to the other
parties to the proceeding by serving on them a copy of the notice so filed.
(10) A decision in proceedings referred to in subsection (4)
or (7) is binding on the licensee and on Comcare, whether or not Comcare is
joined as a party to the proceedings.
Division 5—Conditions of a licence
108D
The Commission may grant licence on conditions
(1) The Commission may, in granting a licence
under this Part, express the licence to be subject to any conditions it
considers are necessary to achieve the objects of this Act in its application
to the licensee. Without limiting the matters the conditions may deal with, the
conditions may include:
(a) a condition that the licensee, and
any person acting on its behalf, will comply with the requirements of the Act
and any relevant directions given by the Commission; and
(b) a condition that the licensee will
pay such licence fees and other fees as are calculated in such manner, and
payable at such times, as the Commission specifies; and
(c) a condition that the licensee will
maintain such funds, and in such form, as the Commission directs for the
purpose of enabling the due discharge of the licensee’s liability to pay:
(i) compensation and other
amounts under this Act; or
(ii) so much of that
liability as exceeds a specified amount; and
(d) a condition that the licensee will
obtain bank or other guarantees for the due discharge of the licensee’s
liability to pay:
(i) compensation and other
amounts under this Act; or
(ii) so much of that
liability as exceeds a specified amount; and
(e) a condition that the licensee will
comply with the requirements of any applicable laws of the Commonwealth, States
and Territories with respect to the safety, health and rehabilitation of
employees; and
(f) a condition that, in all
circumstances or specified circumstances, the licensee will not cause or permit
to be made on its behalf to a court or tribunal any submission that Comcare or
the Commission has requested the licensee not to make; and
(g) conditions
concerning performance of functions in relation to the licence by persons other
than the licensee, including conditions concerning the reconsideration of
determinations made by the licensee; and
(h) conditions requiring provision of
information and notifications in respect of specified events.
(2) At any time while the licence is in force
the Commission may vary the conditions to which the licence is subject by
notice in writing given to the licensee. The notice must set out the terms of
the variation and the date of effect of the variation, which must not be a date
earlier than the date of notification of the variation.
Division 6—Miscellaneous
108E
Functions of licensees
The functions of a licensee include, in
addition to any functions conferred under other legislation or, in the case of
a corporation, in the constitution of the corporation, the following additional
functions:
(a) if the licence confers on the
licensee an authority to pay compensation or other amounts under this Act—to
make those payments accurately and quickly; and
(b) if the licence confers on the
licensee an authority to manage claims under this Act—to determine those claims
accurately and quickly and to take all necessary action in respect of the
subsequent management of those claims; and
(c) to maintain contact with the
Commission and with Comcare to ensure that, as far as practicable, there is
equity of outcomes resulting from administrative practices and procedures used
by Comcare and the licensee in the performance of their respective functions;
and
(d) to do anything, and to meet any
obligation, the doing or meeting of which:
(i) is incidental to the
performance of either or both of the functions referred to in paragraphs (a)
and (b); and
(ii) would be required of
Comcare if Comcare had responsibility for the performance of the function
referred to in either or both of those paragraphs; and
(e) to comply with the conditions to
which the licence is subject.
108F
Powers of licensee
A licensee has power to do all things
necessary or convenient to be lawfully done for, or in connection with, the
performance of functions conferred by section 108E.
108G
Date of effect of certain notices under this Part
Any
notice given by the Commission to a person that concerns:
(a) the
grant, extension, suspension or revocation of a licence; or
(b) the variation of the conditions to
which a licence is subject;
has effect on and after a date specified in the notice
that is not earlier than the date the notice is given to the person.
108H
Delegation by licensed authority
A licensed authority may, by writing
signed by its principal officer, delegate to an officer of, or a person
employed by:
(a) that authority; or
(b) the Commonwealth; or
(c) any other Commonwealth authority;
all or any of the powers and functions of the licensed
authority under this Act.
Part IX—Miscellaneous
109A Jurisdiction
of courts with respect to extraterritorial offences
(1) Subject to this section, the several
courts of the States are invested with federal jurisdiction, and jurisdiction
is conferred on the several courts of the external Territories, with respect to
external offences.
(2) The jurisdiction invested in, or
conferred on, courts by subsection (1) is invested or conferred within the
limits (other than limits based on the places at which offences are committed)
of their several jurisdictions, whether those limits are as to subject‑matter
or otherwise.
(3) Jurisdiction with respect to an external
offence is not conferred on a court of an external Territory unless the offence
was committed in that Territory.
(4) Subject to this section, the Judiciary
Act 1903 applies in relation to offences in relation to which this section
applies.
(5) In this section:
external offence means an offence against
this Act committed outside Australia.
109
Determinations to be in writing
(1) A determination under this Act shall be
in writing.
(2) A determination shall be taken to be in
writing if it is entered into, or recorded with the use of, a computer.
110
Money paid to relevant authority for benefit of person
(1) Where any money is payable under this Act
to an employee who is under a legal disability, the money shall be paid to, or
in accordance with the directions of, the relevant authority for the benefit of
the employee and, when so paid, shall, for the purposes of this Act other than
this section, be deemed to have been paid to the employee.
(2) Where money is held by a relevant
authority under this Act for the benefit of a person, the relevant authority
shall, subject to subsections (3) and (4), invest the money in any manner
for the time being allowed by an Act, a State Act or an Ordinance of a
Territory for the investment of trust money and income resulting from any such
investment shall be deemed to form part of the first‑mentioned money.
(3) A relevant authority may pay any money
referred to in subsection (2) to, or in accordance with the directions of,
the person or apply the money in such manner as it thinks fit, for the benefit
of the person.
(4) Where money is held by a relevant
authority for the benefit of an employee who is under a legal disability, the
relevant authority shall, when the employee ceases to be under a legal
disability, pay the money to, or in accordance with the directions of, the
employee or, if the money has been invested, deal with the investments in
accordance with the directions of the employee.
111
Provisions applicable on death of beneficiary
(1) Subject to this section, where a
determination is made that an amount of compensation is payable under this Act
to a person and the person dies before the amount is paid, the amount forms
part of the estate of the person.
(2) Subject to subsections (2A), (3),
(4) and (5), where a relevant authority holds any money or investments for the
benefit of a person under this Act and that person dies, that money or those
investments form part of the estate of that person.
(2A) Subsections (3) and (4) do not apply
in relation to a relevant authority that is:
(a) a licensed corporation; or
(b) a Comcare subsidiary, in respect
of the performance of functions under a contract with a licensed corporation.
(3) Where a
person referred to in subsection (1) dies intestate and there is no other
person apparently entitled to claim the estate (including that amount of
compensation) of that person, subsection (1) does not apply and, subject
to subsection (5), if the amount of compensation is held by a relevant
authority, it shall pay the amount to the Commonwealth.
(4) Where a person referred to in subsection (2)
dies intestate and there is no other person apparently entitled to claim the
estate (including that money or those investments) of that person, subsection (2)
does not apply and, subject to subsection (5), the relevant authority
shall pay the money, or realise the investments and pay the proceeds of the
realisation, as the case may be, to the Commonwealth.
(5) Nothing in this section prevents a
relevant authority from rendering any provision of this section inoperative in
a particular case by making a decision under section 62.
112
Assignment, set‑off or attachment of compensation
(1) An assignment of any compensation payable
under this Act is void as against a relevant authority.
(2) Except as provided by this Act, an amount
payable by an employee or a dependant of a deceased employee to the
Commonwealth or a relevant authority shall not be set off against the amount of
any compensation payable under this Act to the employee or for the benefit of
the dependant.
(3) Except as provided by the Maintenance
Orders (Commonwealth Officers) Act 1966, the Child Support Act 1988
or the Social Security Act 1991, or by, or by regulations under, the Family
Law Act 1975, any compensation payable under this Act is not subject to
attachment.
112A
Making of compensation payments through employers of employees paid out of
public money
(1) This section applies if:
(a) Comcare is liable to pay an amount
of compensation under Division 3 of Part II to an employee; and
(b) payments by the employer to the
employee of salary or wages (ignoring section 116) are made out of public
money.
(2) Comcare may instead make a payment to the
employer in respect of the compensation.
(3) Before making the payment, Comcare must
advise the employer of its intention to do so (the payment is called the advised
payment).
(4) Subject to section 23A, the employer
must:
(a) before receiving the advised
payment, make a payment of an equal amount (the anticipatory payment)
to the employee; or
(b) on receiving the advised payment,
hold it for the benefit of the employee until such time as the employer pays it
to the employee.
Note: Section 23A requires the employer to set
off repayments of salary etc. made to the employee in relation to the pre‑determination
period against amounts payable by the employer under this subsection.
(5) When the employer pays the employee the
anticipatory payment, or the payment that it holds for the benefit of the
employee, the payment is taken for the purposes of this Act (other than section 90C)
to be a payment by Comcare in discharge of its liability to pay the
compensation.
(6) Also, in the case of the anticipatory
payment:
(a) to avoid doubt, the provision of
an Act that appropriates the Consolidated Revenue Fund for the purposes of any
payments by the employer to the employee of salary or wages (ignoring section 116)
also appropriates the Consolidated Revenue Fund for the purposes of the
anticipatory payment; and
(b) when the advised payment is
received by the employer, it is taken for the purposes of section 30 of
the Financial Management and Accountability Act 1997 to be a repayment
of the anticipatory payment.
(7) To avoid doubt, when the advised payment
is received by the employer, it becomes public money.
112B
Making of compensation payments through employers of employees not paid out of
public money
(1) This section applies if:
(a) Comcare is liable to pay an amount
of compensation under Division 3 of Part II to an employee; and
(b) payments by the employer to the
employee of salary or wages (ignoring section 116) are not made out of
public money.
(2) Comcare may instead make a payment to the
employer in respect of the compensation.
(3) Before making the payment, Comcare must
advise the employer of its intention to do so (the payment is called the advised
payment).
(4) Subject to section 23A, the employer
must, either before or after receiving the advised payment, make a payment of
an equal amount to the employee, out of money that the employer holds on its
own account.
Note: Section 23A requires the employer to set
off repayments of salary etc. made to the employee in relation to the pre‑determination
period against amounts payable by the employer under this subsection.
(5) The payment by the employer is taken for
the purposes of this Act (other than section 90C) to be a payment by
Comcare in discharge of its liability to pay the compensation.
(6) When the advised payment is received by
the employer, it is money that the employer holds on its own account.
113
Recovery of amounts due to relevant authority
Where:
(a) a person (in this section called the
debtor) is liable to pay an amount to a relevant authority under this
Act; and
(b) the relevant authority holds on
behalf of the debtor:
(i) money, being
compensation payable under this Act for the benefit of the debtor; or
(ii) investments acquired
out of money of a kind referred to in subparagraph (i);
the relevant authority shall recover from the money so
held, or shall realise the investments so held and recover from the proceeds of
the realisation, an amount not exceeding the amount referred to in paragraph (a)
and the recovery of that amount is, to the extent of the amount, a discharge of
the liability of the debtor to the relevant authority and of the relevant
authority to the debtor.
114
Recovery of overpayments
(1) Subject to subsection (1A), if:
(a) an amount of compensation under this
Act has been paid to a person in consequence of a false or misleading statement
or representation or in consequence of a failure or omission to comply with a
provision of this Act;
(b) an amount of compensation that has
been paid to a person under this Act should not have been paid; or
(c) a person is liable to pay an
amount to a relevant authority under this Act;
the amount concerned is recoverable by the relevant
authority from the person in a court of competent jurisdiction as a debt due to
the relevant authority.
(1A) Paragraph (1)(b) does not apply to an
amount of compensation that the relevant authority is entitled to recover under
section 114B.
(2) Where an amount is recoverable from a
person under subsection (1) and an amount is payable under this Act to or
for the benefit of that person, the recoverable amount may be deducted from the
amount so payable.
114A
Notice to Comcare of retirement of employee
(1) If:
(a) an employee of:
(i) the Commonwealth; or
(ii) a Commonwealth
authority that holds a licence under Part VIII and is required, in
accordance with the conditions to which that licence is subject, to notify
Comcare of the retirement of the employee; or
(iii) a Commonwealth
authority that is not the holder of a licence under Part VIII;
is receiving, or is entitled to
receive, compensation under this Act; and
(b) the appropriate officer in
relation to the employee becomes aware that the employee has retired from his
or her employment;
then, as soon as practicable after becoming so aware, the
officer must give written notice to Comcare stating that the employee has
retired and the date of the retirement and identifying the superannuation
scheme of which the employee was a member at the time of his or her retirement.
(2) In this section:
appropriate officer, in relation to an
employee, means:
(a) if the employee is employed in an
Entity—the principal officer of that Entity; or
(b) if the employee is employed by the
Commonwealth otherwise than in an Entity—a
person prescribed by the regulations; or
(c) if the employee is employed by a
Commonwealth authority—the principal officer of that authority.
114B
Recovery of overpayment to retired employee
(1) If:
(a) an employee retires from his or
her employment; and
(b) the retired employee is or may be
entitled to a pension or a lump sum, or both a pension and a lump sum, under a
superannuation scheme; and
(c) Comcare or a licensed authority is
of the opinion that it may pay, or may have paid, to the retired employee an
amount or amounts of compensation under this Act in excess of the amount or
amounts that he or she was entitled to receive because of section 20, 21
or 21A;
the following provisions of this section apply.
(2) Comcare or the authority, as the case may
be, may give written notice to the administrator of the scheme:
(a) stating that Comcare or the
authority may make, or may have made, an overpayment of compensation to the
retired employee; and
(b) requiring the administrator to
tell Comcare or the authority whether the retired employee has received any
payment in respect of his or her entitlement referred to in paragraph (1)(b)
or whether all the retired employee’s benefits under the scheme have been
deferred; and
(c) requiring the administrator, if
the retired employee has not received any such payment (unless all the retired
employee’s benefits under the scheme have been deferred):
(i) not to pay any pension
or lump sum to the retired employee until the administrator receives a notice
from Comcare or the authority under subsection (5); and
(ii) to give Comcare or the
authority, as soon as practicable, particulars of the rate of pension, or the
lump sum worked out as at the date of retirement, or the rate of pension and
the lump sum as so worked out, as the case may be, that is payable to the
retired employee under the superannuation scheme.
(3) Comcare or the authority, as the case may
be, must give to the retired employee a written notice stating that it has
given a notice to the administrator of the scheme under subsection (2) and
explaining how this section works.
(4) The following provisions apply if the
retired employee has not received any payment in respect of his or her
entitlement referred to in paragraph (1)(b) but do not apply if all the
retired employee’s benefits under the scheme have been deferred.
(5) When Comcare or a licensed authority
receives from the administrator of the superannuation scheme particulars of the
rate of pension, or the lump sum, or the rate of pension and the lump sum,
payable to the retired employee, then Comcare or the authority, as the case may
be, must, within 2 working days after receiving those particulars:
(a) determine whether an overpayment
of compensation to the employee has occurred; and
(b) give written notice to the administrator:
(i) if it determines that
no overpayment has occurred—stating that fact; or
(ii) otherwise—stating the
amount of the overpayment and requiring the administrator to pay that amount to
Comcare or the authority in accordance with this section.
(6) Comcare or a licensed authority must not
reduce the rate or amount of compensation payable to the retired employee under
this Act until it has given to the administrator of the superannuation scheme
the notice referred to in subsection (5).
(7) The amount to be stated in the notice
under subparagraph (5)(b)(ii) is the amount by which the sum of the
amounts of any compensation paid after the retirement of the employee exceeds
the sum of the amounts of compensation that should have been paid because of
section 20, 21 or 21A, as the case requires.
(8) The administrator of the superannuation
scheme is to pay the amount of the overpayment of compensation to Comcare or
the licensed authority in accordance with subsections (9) and (10) out of
the payments of pension or of a lump sum that would otherwise have been made by
the administrator to the retired employee.
(9) If the amount of any payment of pension
or of a lump sum that would otherwise have been made by the administrator to
the relevant employee on any day is less than or equal to the adjusted
overpayment worked out as at that day, that amount is to be paid by the
administrator to Comcare or the authority instead of to the retired employee.
(10) If the amount of any payment of pension or
of a lump sum that would otherwise have been made by the administrator to the
relevant employee on any day is greater than the adjusted overpayment worked
out as at that day, so much of that amount as is equal to that adjusted
overpayment is to be paid by the administrator to Comcare or the authority
instead of to the retired employee.
(11) For the purposes of subsections (9)
and (10), the adjusted overpayment as at a particular day is the amount of the
original overpayment less any amounts that have been paid by the administrator
to Comcare or the authority before that day in reduction of the original
overpayment.
(12) The payment by the administrator of an
amount to Comcare or a licensed authority under a notice given under subsection (5)
discharges, to the extent of that amount:
(a) the liability of the administrator
to pay that amount to the retired employee; and
(b) the liability of the employee to
pay that amount to Comcare or the authority, as the case may be.
(13) The administrator of a superannuation
scheme must comply with a requirement made of the administrator under this
section by Comcare or a licensed authority. However, failure to comply with the
requirement is not an offence.
(14) This
section has effect despite:
(a) sections 143
and 143A of the Superannuation Act 1922; and
(b) sections 85 and 85A of the Defence
Force Retirement Benefits Act 1948; and
(c) sections 129 and 130 of the Defence
Force Retirement and Death Benefits Act 1973; and
(d) sections 118 and 119 of the Superannuation
Act 1976.
(15) In this section:
working day, in relation to a notice to be
given by Comcare or a licensed authority, means a day other than a Saturday, a
Sunday, or a day that is a public holiday in any State or Territory.
114C
Comcare may write off debt
(1) Comcare may decide, in writing, to write
off a debt due to Comcare.
(2) A decision made under subsection (1)
takes effect:
(a) if no day is set out in the
decision—on the day on which the decision is made; or
(b) if a day is set out in the
decision—on the day so set out (whether that day is before, on, or after, the
day on which the decision is made).
Note: If Comcare writes off a debt, this means an
administrative decision has been made that, in the circumstances, there is no
point in trying to recover the debt. In law, however, the debt still exists and
may later be pursued.
114D
Comcare may waive debt
(1) Comcare may decide, in writing, to waive
its right to recover from a person the whole or a part of a debt due to
Comcare.
(2) In exercising the power under subsection (1),
Comcare must act in accordance with directions from time to time in force under
subsection (3).
(3) The Minister may, by legislative
instrument:
(a) give a direction to Comcare
relating to the exercise of its power under subsection (1); and
(b) revoke or vary a direction so
given.
(4) Section 42 of the Legislative
Instruments Act 2003 does not apply to a direction given by the Minister
under subsection (3).
(5) A decision of Comcare under subsection (1)
takes effect:
(a) if no day is set out in the
decision—on the day on which the decision is made; or
(b) if
a day is set out in the decision—on the day so set out (whether that day is
before, on, or after the day on which the decision is made).
Note: If Comcare waives its rights to recover, this
is a permanent bar to recovery of the debt—the debt effectively ceases to
exist.
115
Deduction of overpayments of repatriation pensions
(1A) Where:
(a) an amount of pension has been paid
to a person under the Veterans’ Entitlements Act 1986 in respect of the
incapacity or death of a veteran who has rendered operational service within
the meaning of Part II of that Act; and
(b) that amount is not payable to that
person by virtue of Division 5A of Part II of the Veterans’
Entitlements Act 1986;
that amount is recoverable from that person by deducting
it from any amounts of compensation payable to that person under this Act in
respect of the injury to, or death of, the veteran.
(1) Where:
(a) an amount of pension has been paid
to a person under the Veterans’ Entitlements Act 1986 in respect of the
incapacity or death of a member of the Forces, or a member of a Peacekeeping
Force, within the meaning of Part IV of that Act; and
(b) that amount is not payable to that
person by virtue of section 74 of that Act;
that amount is recoverable from that person by deducting
it from any amounts of compensation payable to that person under this Act in
respect of the injury to, or death of, the member.
(2) For the purposes of subsections (1A)
and (1), a person authorised by the Repatriation Commission may, by writing
signed by the person, certify that:
(a) an amount specified in the
certificate has been paid by way of pension under the Veterans’ Entitlements
Act 1986 to a person specified in the certificate;
(b) that amount was paid in respect of
the incapacity or death of a person specified in the certificate;
(c) the person referred to in paragraph (b)
is or was a veteran within the meaning of Part II of that Act or a member
of the Forces, or a member of a Peacekeeping Force, within the meaning of Part IV
of that Act; and
(d) by virtue of Division 5A of
Part II, or section 74, of that Act, the amount referred to in paragraph (a)
is not payable to the person referred to in paragraph (a).
(3) For the purposes of subsection (1A)
or (1), a certificate under subsection (2) is prima facie evidence
of the matters certified.
(4) Nothing in this section prevents the
recovery of an amount referred to in subsection (1A) or (1) otherwise than
in accordance with that subsection, but such amount shall not be recovered
twice.
116
Employees on compensation leave
(1) In spite of the provisions of any other
Act or an industrial award, determination or agreement, an employee is not
entitled to be granted any kind of leave of absence with pay (other than
maternity leave with pay) during, or in respect of, any period when the
employee is or was on post‑determination compensation leave but:
(a) sick leave and recreation leave
entitlements continue to accrue in relation to the employee during each of the
first 45 weeks during which he or she is on post‑determination compensation
leave; and
(b) long service leave entitlements
continue to accrue in relation to the employee during the whole of the period
of the post‑determination compensation leave;
as if the employee were not absent from work.
(2) In this section:
post‑determination compensation leave means
compensation leave that takes place after the end of the pre‑determination
period in relation to the claim for compensation.
117
Compensation payable to locally engaged overseas employees
(1) This section applies to employees who
were engaged outside Australia for employment outside Australia and are performing the duties of their employment outside Australia.
(2) Where a compensation scheme in force in a
foreign country applies (whether because of contributions made by the
Commonwealth or a licensed corporation under the scheme or otherwise) in
respect of the employment by the Commonwealth or the licensed corporation in that
country of employees to whom this section applies, or such a compensation
scheme would, but for this Act, be so applicable, this Act does not apply in
respect of the employment by the Commonwealth or the licensed corporation in
that country of those employees.
(3) Where a
compensation scheme in force in a foreign country:
(a) does not, and, but for this Act,
would not apply, in respect of the employment by the Commonwealth or a licensed
corporation in that country of a class of employees to whom this section
applies; and
(b) does apply (whether because of
contributions made by the Commonwealth or the licensed corporation under the
scheme or otherwise) in respect of the employment by the Commonwealth or the
licensed corporation in that country of other such employees or would, but for
this Act, be so applicable;
that compensation scheme shall be taken to apply in
respect of the employment by the Commonwealth or a licensed corporation in that
country of the employees referred to in paragraph (a) and the relevant
authority is liable to provide benefits for those employees in accordance with
that compensation scheme in respect of their employment by the Commonwealth or
a licensed corporation in that country.
(4) Where, in a foreign country, there is no
compensation scheme in force that applies, or, but for this Act, would apply,
in respect of the employment by the Commonwealth or a licensed corporation in
that country of employees to whom this section applies, but there is a
compensation scheme in force in that country that applies in respect of persons
employed by the Government of that country, that compensation scheme shall be
taken to apply in respect of the employment by the Commonwealth or the licensed
corporation of those employees in that country and the relevant authority is
liable to provide benefits for those employees in accordance with that
compensation scheme in respect of that employment.
(5) A relevant authority is not liable,
otherwise than under this section, to pay compensation in respect of the
employment of an employee to whom this section applies in circumstances where a
compensation scheme referred to in this section applies, or is to be taken to
apply, in respect of that employment.
(6) In this section:
(a) a reference to a foreign country
includes a reference to an external Territory;
(b) a reference to the Government of a
foreign country, in relation to an external Territory, is a reference to the
Administration of that Territory;
(c) a reference to benefits is a
reference to compensation benefits for persons in the event of their death or
incapacity due to an injury or disease occurring in circumstances connected
with their employment; and
(d) a reference to a compensation
scheme is a reference to a scheme (whether constituted by a law or not) for the
provision of compensation benefits.
118
Double benefits
(1) If:
(a) an employee recovers State
workers’ compensation in respect of an injury or the loss of, or damage to,
property used by the employee; or
(b) State workers’ compensation is
recovered by, or for the benefit of, a dependant of a deceased employee;
compensation is not payable under this Act to that
employee in respect of that injury, loss or damage, or to, or for the benefit
of, that dependant in respect of the injury that resulted in the death.
(2) If, after any compensation has been paid
by a relevant authority under this Act:
(a) to an employee in respect of an
injury or the loss of, or damage to, property used by the employee; or
(b) to, or for the benefit of, a dependant
of a deceased employee;
any State workers’ compensation is recovered by the
employee in respect of that injury, loss or damage or to, or for the benefit
of, the dependant in respect of the injury that resulted in the death, as the
case may be, the relevant authority may recover the amount of compensation paid
by it from the person to whom it was paid in a court of competent jurisdiction
as a debt due to the authority.
(3) A relevant authority that has received a
claim may require the claimant to give it a statutory declaration stating
whether any State workers’ compensation has been paid to or in respect of the
claimant in respect of the injury or loss of, or damage to, property, as the
case may be, to which the claim relates.
(4) Where a claimant for compensation refuses
or fails, without reasonable excuse, to give a statutory declaration under subsection (3),
the claimant’s rights to compensation under this Act in respect of the injury
or loss of, or damage to, property to which the claim relates, and to institute
or continue any proceedings under this Act in relation to that compensation,
are suspended until the statutory declaration is given.
(5) Where a claimant’s right to compensation
is suspended under subsection (4), compensation is not payable in respect
of the period of the suspension.
(6) In this section:
State workers’ compensation means
compensation recoverable under a law of a State or of a Territory, or of a
foreign country, relating to workers’ compensation.
119
Compensation where State compensation payable
(1) If:
(a) an employee recovers State
compensation in respect of an injury to the employee or in respect of the loss
of, or damage to, property used by the employee; or
(b) State compensation is recovered
by, or for the benefit of, a dependant of a deceased employee;
the succeeding provisions of this section have effect.
(2) Subject to this section, the compensation
that is payable under this Act to the employee in respect of the injury, loss
or damage, or for the benefit of the dependant in respect of the injury that
resulted in the death, as the case may be, is so much (if any) of the
compensation under this Act that, but for this section, would be so payable as
exceeds the amount of State compensation recovered by the employee or by, or
for the benefit of, the dependant, as the case may be.
(3) Subject to this section, if, before the
recovery of State compensation by or for the benefit of the employee or
dependant, compensation under this Act was paid to the employee by a relevant
authority in respect of the injury, loss or damage, or for the benefit of the
dependant in respect of the injury that resulted in the death, as the case may
be, the employee or dependant is liable to pay to the relevant authority:
(a) the amount of the compensation
paid by it under this Act; or
(b) the amount of the State
compensation recovered by the employee or for the benefit of the dependant;
whichever is less.
(4) Where:
(a) a person (in this subsection
called the debtor) is liable to pay an amount to a relevant
authority under this section; and
(b) any other person holds on behalf
of the debtor:
(i) money, being
compensation payable under this Act for the benefit of, or State compensation
payable to, the debtor; or
(ii) investments acquired
out of money of a kind referred to in subparagraph (i);
the other person shall:
(c) deduct from the money so held, or
realise those investments so held and deduct from the proceeds of the
realisation, an amount not exceeding the amount referred to in paragraph (a);
and
(d) pay the amount so deducted to the
relevant authority;
and the payment of that amount is, to the extent of the
amount paid, a discharge of the liability of the debtor to the relevant
authority and of the other person to the debtor.
(5) A reference in subsection (3) to
compensation under this Act that was paid for the benefit of a dependant does
not include a reference to compensation paid under subsection 17(5).
(6) Where an employee, or a dependant of an
employee, establishes, to the satisfaction of the relevant authority, that the
whole or part of the State compensation referred to in subsection (2)
recovered by the employee or by, or on behalf of, the dependant, as the case
may be, did not relate to an injury, loss or damage, in respect of which
compensation is payable under this Act, this section has effect in relation to
that employee or that dependant, as the case may be, as if the amount of the
State compensation recovered by that employee or that dependant were an amount
equal to so much (if any) of the amount of the specified compensation as did
relate to an injury, loss or damage, in respect of which compensation is
payable under this Act to that employee or that dependant, as the case may be.
(7) In this section:
State compensation means compensation
recoverable under a specified law.
specified law means a law of a State or of a
Territory that provides for the payment of compensation, other than workers’
compensation, and is declared by the Minister, by legislative instrument, to be
a specified law for the purposes of this Act.
120
Notice of departure from Australia etc.
(1) This section applies to a person to whom
payments of compensation under section 19 are being made, and have been
made for a period of 3 months or longer, by a relevant authority.
(2) Where the person proposes to leave Australia (whether or not the person proposes to return to Australia), the person may give
the relevant authority a notice in writing:
(a) stating that the person proposes
to leave Australia; and
(b) specifying the day on which the
person proposes to leave.
(3) Where the person has left Australia
(whether or not the person proposes to return to Australia) without giving a
notice of the kind referred to in subsection (2) to the relevant authority,
the person shall, within 7 days after the day on which the person left
Australia, send the relevant authority a notice in writing:
(a) stating that the person has left Australia; and
(b) specifying the day on which the
person did so.
(4) Where the person is absent from Australia for a period of more than 3 months, the person shall:
(a) within 7 days after the expiration
of the period of 3 months commencing on the day on which the person left Australia; and
(b) within 7 days after the expiration
of each successive period of 3 months (if any) ending while the person is still
absent from Australia;
give the relevant authority a notice in writing setting
out particulars of the residential address of the person on the day on which
the notice is given.
Penalty: 5 penalty units.
(5) Subsection (4) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
121A
Confidential commercial information not to be published
If a provision of this Act requires the publication
of any matter relating to a licensee:
(a) the provision is not taken to
require the publication of confidential commercial information; and
(b) it is a sufficient compliance with
the requirement to publish a general description of the matter that does not
disclose any confidential commercial information.
122
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Part X—Transitional provisions, consequential amendments and
repeals
Division 1—Preliminary
123
Interpretation
In this Part:
combined benefit, in relation to a former
employee, means an amount equal to the sum of:
(a) the amount of compensation payable
to the former employee under this Act; and
(b) the employee’s superannuation
amount.
commencing day means the day on which this
Part commences.
former employee means a person who,
immediately before the commencing day, was receiving weekly payments of
compensation under the 1971 Act in respect of an injury resulting in an
incapacity and had ceased to be an employee within the meaning of that Act
before that day.
total benefit, in relation to a former
employee, means an amount equal to the sum of:
(a) the amount of compensation payable
per week to the former employee under the 1971 Act; and
(b) the employee’s superannuation
amount.
1971 amount, in relation to a former
employee, means the amount of compensation that was, immediately before the
commencing day, payable per week to the former employee under the 1971 Act.
123A
Injuries suffered before the commencing day
A
reference in this Part to an injury suffered before the commencing day is a
reference to an injury within the meaning of whichever of the 1912 Act, the
1930 Act or the 1971 Act was in force when the injury was suffered, as that Act
was then in force.
Division 2—Transitional provisions
124
Application of Act to pre‑existing injuries
(1) Subject to this Part, this Act applies in
relation to an injury, loss or damage suffered by an employee, whether before
or after the commencing day.
(1A) Subject to this Part, a person is entitled
to compensation under this Act in respect of an injury, loss or damage suffered
before the commencing day if compensation was, or would have been, payable to
the person in respect of that injury, loss or damage under the 1912 Act, the
1930 Act or the 1971 Act.
(2) A person is not entitled to compensation
under this Act in respect of an injury, loss or damage suffered before the
commencing day if compensation was not payable in respect of that injury, loss
or damage:
(a) where the injury, loss or damage
was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage
was suffered after the commencement of the 1930 Act but before the commencement
of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage
was suffered; or
(c) in any other case—under the 1971
Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation
under section 24 or 25 in respect of a permanent impairment, or under
section 17 in respect of the death of an employee, being an impairment or
death that occurred before the commencing date, if:
(a) the person received compensation
of a lump sum in respect of that impairment or death under the 1912 Act, the
1930 Act or the 1971 Act; or
(b) the person was not entitled to
receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment
or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment
or death occurred after the commencement of the 1930 Act but before the commencement
of the 1971 Act—under the 1930 Act as in force when the impairment or death
occurred; or
(iii) in any other
case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that
a person is, by virtue of this section, entitled to receive under section 24
or 25 in respect of a permanent impairment, or under section 17 in respect
of the death of an employee, being an impairment or death that occurred before
the commencing day, shall be the same as the amount of the compensation that
would have been payable to that person, if this Act had not been enacted,
under:
(a) where the impairment or death
occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death
occurred after the commencement of the 1930 Act but before the commencement of
the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as
in force when the impairment or death occurred.
(5) A person is not entitled to compensation
under section 29 in respect of any period occurring before the commencing
day.
(6) A person is not entitled to compensation
under subsection 17(5) in respect of the death of an employee, or under section 19,
20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to
a period occurring before the commencing day, if:
(a) that person received weekly
payments of compensation in respect of that death or incapacity in relation to
that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to
receive weekly payments of compensation in respect of that death or incapacity
in relation to that period:
(i) where the death or
period of incapacity occurred before the commencement of the 1930 Act—under the
1912 Act;
(ii) where the death or
period of incapacity occurred after the commencement of the 1930 Act but before
the commencement of the 1971 Act—under the 1930 Act as in force when the death
or period of incapacity occurred; or
(iii) in any other
case—under the 1971 Act as in force when the death or period of incapacity
occurred.
(7) The rate of compensation (if any) that a
person is, by virtue of this section, entitled to receive under subsection
17(5) in respect of the death of an employee, or under section 19, 20, 21,
22 or 31 in respect of an incapacity, where the compensation relates to a
period occurring before the commencing day, shall be the same as the rate of
compensation that would have been payable to that person in relation to that
period, if this Act had not been enacted, under:
(a) where the period occurred before
the commencement of the 1930 Act—the 1912 Act;
(b) where the period occurred after
the commencement of the 1930 Act but before the commencement of the 1971
Act—the 1930 Act as in force during the period; or
(c) in any other case—the 1971 Act as
in force during the period.
(8) A person is not entitled to compensation
under subsection 16(1) or (6) or section 18 in respect of any cost, the
liability to pay which arose before the commencing day, or of any expenditure
incurred before that day, if:
(a) an amount was paid in respect of
that cost or expenditure under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) an amount was not payable in
respect of that cost or expenditure:
(i) where the liability
for the cost arose, or the expenditure was incurred, before the commencement of
the 1930 Act—under the 1912 Act;
(ii) where the liability
arose, or the expenditure was incurred, after the commencement of the 1930 Act
but before the commencement of the 1971 Act—under the 1930 Act as in force when
the liability arose or the expenditure was incurred; or
(iii) in any other
case—under the 1971 Act as in force when the liability arose or the expenditure
was incurred.
(9) The amount of the compensation (if any)
that is, by virtue of this section, payable under subsection 16(1) or (6) or
section 18 in respect of any cost, the liability to pay which arose before
the commencing day, or of any expenditure incurred before that day, shall be
the same as the amount that would have been payable in respect of that cost or
expenditure, if this Act had not been enacted, under:
(a) where the liability for the cost
arose, or the expenditure was incurred, before the commencement of the 1930
Act—the 1912 Act;
(b) where the liability arose, or the
expenditure was incurred, after the commencement of the 1930 Act but before the
commencement of the 1971 Act—the 1930 Act as in force when the liability arose
or the expenditure was incurred; or
(c) in any other case—the 1971 Act as
in force when the liability arose or the expenditure was incurred.
(10) Where:
(a) proceedings for the recovery of
compensation under the 1912 Act, in respect of any injury suffered before the
commencement of the 1930 Act, were not maintainable by a person because of
section 5 of the 1912 Act;
(b) a claim for compensation by a
person under the 1930 Act, in respect of an injury suffered after the
commencement of the 1930 Act but before the commencement of the 1971 Act, was
not admissible because of section 16 of the 1930 Act; or
(c) a claim for compensation by a
person under the 1971 Act, in respect of an injury suffered after the
commencement of the 1971 Act but before 1 July 1986, was not admissible
because of section 54 of the 1971 Act, as that section was in force before
1 July 1986;
that person is not entitled to compensation under this Act
in respect of that injury.
(11) Section 48 does not apply where the
damages referred to in that section were recovered before the commencing day.
(12) Section 49 does not apply in relation
to a prescribed dependant who recovered the damages referred to in that section
before the commencing day.
124A Northern Territory to reimburse Comcare for certain compensation payments and
administrative expenses
(1) The Northern Territory must reimburse
Comcare for the amount of any payments of compensation made by Comcare under
this Act in relation to a claim in respect of an injury, loss or damage
suffered by a person if:
(a) the person suffered the injury,
loss or damage on or after 1 July 1978 and before 1 January 1987; and
(b) the Northern Territory would have
been liable to pay compensation in relation to the claim under section 7A
or 7B of the Compensation (Commonwealth Government Employees) Act 1971,
had that Act not been repealed.
(2) The Northern Territory must reimburse
Comcare for the administrative expenses incurred by Comcare in managing claims
referred to in subsection (1).
125
Payments under previous Acts
(1) Any payment made before the commencing
day in respect of a liability of the Commonwealth, or of a Commonwealth
authority, under the 1912 Act, the 1930 Act or the 1971 Act for an injury
suffered by an employee shall, on and after that day, be deemed to have been
made by the relevant authority in respect of the corresponding liability of
that relevant authority to make such a payment under this Act for that injury.
(2) Without limiting the generality of subsection (1),
any payment referred to in that subsection that had effect as a redemption of a
liability of the Commonwealth, or of a Commonwealth authority, referred to in
that subsection, has effect as a redemption under section 30 of the
corresponding liability of the relevant authority under this Act.
126
Notices, claims etc. under previous Acts
(1) A notice duly served before the
commencing day under:
(a) section 5 of the 1912 Act;
(b) section 16 of the 1930 Act;
or
(c) section 53 of the 1971 Act;
in relation to an accident or an injury, loss or damage
suffered by an employee shall be taken to be a notice duly given to the
relevant authority under section 53 of this Act in relation to the
accident, injury, loss or damage.
(2) A claim for compensation duly made before
the commencing day under the 1971 Act shall be taken to be a claim for
compensation duly made to the relevant authority under this Act.
(3) Where a requirement was made under
subsection 58(1) of the 1971 Act that an employee submit himself or herself for
examination by a medical referee or other legally qualified medical
practitioner but the requirement had not been complied with before the
commencing day, the requirement continues to have effect as if it had been made
by the relevant authority under subsection 57(1) of this Act and the medical
referee or medical practitioner were a medical practitioner nominated under
that subsection.
(4) An election made by an employee under
section 103 of the 1971 Act shall:
(a) in the case of an election to
receive benefits under a determination referred to in that section—be taken to
be an election under section 52 of this Act to receive benefits under that
determination; or
(b) in the case of an election to
receive compensation under that Act—be taken to be an election made under
section 52 of this Act to receive compensation under this Act.
(5) A notice given to a person under section 102
of the 1971 Act shall, on and after the commencing day, be taken to be a notice
given by the relevant authority to that person under section 51 of this
Act.
127
Settlements and determinations under previous Acts
(1) Any settlement, whether by agreement,
arbitration or judicial decision, under the 1912 Act and in force immediately
before the commencing day, being a settlement of the liability of the
Commonwealth, or of a Commonwealth authority, to pay compensation or make any
other payment under that Act in respect of an injury shall, on and after that
day, be taken to be a determination made by the relevant authority under this
Act in respect of the corresponding liability of the relevant authority to pay
compensation or make a similar payment under this Act in respect of that
injury, but Part VI does not apply in relation to that settlement.
(2) Any
determination made or action taken by the Commissioner for Employees’
Compensation under the 1930 Act or the 1971 Act and having effect immediately
before the commencing day, being a determination or action in respect of the
liability of the Commonwealth to pay compensation or make any other payment to
a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken
to be a determination made by the relevant authority under this Act in respect
of the corresponding liability of that relevant authority to pay compensation
or make a similar payment under this Act to that person.
(3) Where a determination or action referred
to in subsection (2) is, or has been, varied by a court or a tribunal, subsection (2)
has effect in relation to that determination or action as so varied.
128
Liability under previous Acts
Any liability of the Commonwealth, or of
a Commonwealth authority, to pay compensation or make any other payment to a
person under any provision of the 1912 Act, the 1930 Act or the 1971 Act shall,
to the extent that it had not been discharged before the commencing day, be
taken to have been incurred by the relevant authority on that day under the
corresponding provision of this Act.
128A
Comcare’s liability to be discharged by prescribed Commonwealth authorities in
some cases
(1) In spite of anything in this Act, an
amount that Comcare is liable to pay under this Act in respect of any injury,
loss or damage suffered before 1 July 1989 (whether or not suffered before
the commencing day) by an employee of a prescribed Commonwealth authority must
be paid by the authority and any such payment operates, to the extent of the
payment, as a discharge of Comcare’s liability.
(2) An action or proceeding does not lie
against Comcare for recovery of an amount mentioned in subsection (1), but
such an action or proceeding may be brought against the prescribed Commonwealth
authority concerned.
(3) Nothing in this Act requires the
Commission to prepare an estimate in relation to a prescribed Commonwealth
authority for any period before the financial year starting on 1 July 1989.
(4) In this section:
prescribed Commonwealth authority means any
of the following authorities, however subsequently named, constituted or
established, or any person or body that becomes liable to discharge the
liabilities of such an authority:
(a) Aboriginal Hostels Limited;
(b) A.C.T. Electricity and Water;
(c) Army and Airforce Canteen Service;
(d) Australian Airlines Limited;
(f) Australian Dried Fruits
Corporation;
(g) Australian Honey Board;
(i) Australian Meat and Livestock
Corporation;
(k) Australian National University;
(n) Australian Shipping Commission;
(p) Australian Tobacco Board;
(q) Australian Wheat Board;
(r) Wine Australia Corporation;
(s) Australian
Wool Corporation;
(t) Central Land Council;
(u) Civil Aviation Authority;
(v) Commonwealth Banking Corporation;
(w) Commonwealth Serum Laboratories
Commission;
(x) Coselco Insurance Pty Ltd;
(y) Coselco Mimotopes Pty Ltd;
(z) Federal Airports Corporation;
(zb) Housing Loans Insurance
Corporation;
(zc) National Exhibition Centre Trust;
(zd) Northern Land Council;
(ze) Snowy Mountains Engineering
Corporation;
(zg) Superannuation Fund Investment
Trust;
(zh) Telstra Corporation Limited;
(zi) The Pipeline Authority;
(zj) Reserve Bank of Australia.
129
Application for review and other proceedings under previous Acts
(1) Where a person was, immediately before
the commencing day, entitled to apply to the Administrative Appeals Tribunal
for review of a determination under the 1971 Act but had not made such an application
before that day, Part VI of this Act applies as if:
(a) the person were a claimant under
this Act; and
(aa) the determination were a
determination by Comcare within the meaning of Part VI of this Act; and
(b) the reference in subsection 62(3) to
30 days after the day on which the determination first came to the notice of
the claimant were a reference to 30 days after the commencing day.
(2) Where the Commonwealth is a party to any
proceedings relating to any matter arising under the 1912 Act, the 1930 Act or
the 1971 Act (including proceedings under Part V of the 1971 Act), being
proceedings instituted but not completed before the commencing day, those
proceedings may be continued on and after that day and, where the proceedings
are so continued, the relevant authority and the Commonwealth shall be parties
to those proceedings.
(3) Where proceedings under Part V of
the 1971 Act in relation to a determination are continued under subsection (2),
Part VI of this Act applies to the proceedings as if the determination
were a reviewable decision by Comcare within the meaning of Part VI of
this Act.
129A
Reconsideration and review of certain determinations under 1971 Act
(1) Comcare may, on its own motion,
reconsider under section 62 of this Act a determination under the 1971 Act
having effect immediately before the commencing day but not covered by
subsection 129(1) and, for that purpose, section 62 of this Act applies as
if:
(a) the person in respect of whom the
determination was made were a claimant under this Act; and
(b) the determination were a
determination by Comcare within the meaning of Part VI of this Act.
(2) Part VI of this Act applies to a
decision of Comcare on a reconsideration of a determination mentioned in subsection (1)
as if the decision were a reviewable decision by Comcare within the meaning of
that Part.
130
Money and investments held under 1971 Act
All money and investments held
immediately before the commencing day for the benefit of a person or persons by
the Commissioner for Employees’ Compensation under the 1971 Act are, by force
of this section, vested in the relevant authority and shall be held by that
authority for the benefit of that person or those persons, as the case may be.
Division 3—Special transitional provisions relating to certain former
employees
131
Former employees under 65 who are in receipt of superannuation benefits and are
unable to engage in any work
(1) This section applies to a former employee
who:
(a) on the commencing day, was under
65 and in receipt of a pension under a superannuation scheme; and
(b) is not capable of engaging in any
work.
(2) Subject to this Division, if the former
employee’s total benefit immediately before the commencing day was equal to or
more than 95% of his or her normal weekly earnings as at that day, the amount
of compensation payable per week to the former employee under this Act is the
amount that, when added to the former employee’s superannuation amount, results
in a combined benefit equal to 95% of those normal weekly earnings.
(2A) If, as a result of an increase in the
amount of a former employee’s normal weekly earnings, the amount of combined
benefit payable to the former employee under subsection (2) is less than
70% of those increased normal weekly earnings, the amount of compensation must
be increased or further increased (as the case may be) until it is equal to 70%
of those increased normal weekly earnings.
(3) Subject to this Division, if the former
employee’s total benefit immediately before the commencing day was equal to or
more than 70%, but less than 95%, of his or her normal weekly earnings as at
that day, the amount of compensation payable per week to the former employee
under this Act is an amount equal to the employee’s 1971 amount.
(3A) If, as a result of an increase in the
amount of a former employee’s normal weekly earnings, the amount of
compensation payable to the former employee under subsection (3) is less
than 70% of those increased normal weekly earnings, the amount of compensation
must be increased or further increased (as the case may be) until it is equal
to 70% of those increased normal weekly earnings.
(4) Subject to this Division, if the former
employee’s total benefit immediately before the commencing day was less than
70% of his or her normal weekly earnings as at that day, the amount of
compensation payable per week to the former employee under this Act is the
amount that, when added to the former employee’s superannuation amount, results
in a combined benefit equal to 70% of his or her normal weekly earnings for the
time being.
(5) Whenever the superannuation amount of a
former employee referred to in subsection (2), (3) or (4) is increased,
the amount of compensation payable under that subsection shall be reduced, or
further reduced, as the case requires, by:
(a) an amount equal to the amount of
the increase; or
(b) an amount that will result in a
combined benefit equal to 70% of the former employee’s normal weekly earnings
as at the date of the increase;
whichever is less.
(6) Subsection (5) does not require a
reduction or further reduction in the amount of compensation payable to a
former employee under subsection (2), (3) or (4) where the reduction or
further reduction would result in a combined benefit of less than 70% of the
employee’s normal weekly earnings as at the date of the increase in the
superannuation amount.
132
Former employees under 65 who are not in receipt of superannuation benefits and
are unable to engage in any work
(1) This section applies to a former employee
who:
(a) on the commencing day, was under
65 and not in receipt of a pension under a superannuation scheme; and
(b) is not capable of engaging in any
work.
(2) Subject to this Division, if the former
employee’s 1971 amount was equal to or more than 95% of his or her normal
weekly earnings as at the commencing day, the amount of compensation payable
per week to the former employee under this Act is an amount equal to 95% of
those normal weekly earnings.
(3) Subject to this Division, if the former
employee’s 1971 amount was equal to or more than 70%, but less than 95%, of his
or her normal weekly earnings as at the commencing day, the amount of
compensation payable per week to the former employee under this Act is an
amount equal to the 1971 amount.
(4) Subject to this Division, if the former
employee’s 1971 amount was less than 70% of his or her normal weekly earnings
as at the commencing day, the amount of compensation payable per week to the
former employee under this Act is an amount equal to 70% of those normal weekly
earnings.
(5) Where, as a result of an increase in the
amount of a former employee’s normal weekly earnings, the amount of
compensation payable to the former employee under subsection (2), (3) or
(4) is less than 70% of those increased normal weekly earnings, that amount of
compensation shall be increased, or further increased, as the case requires,
until it is equal to 70% of those increased normal weekly earnings.
132A
Former employees under 65 who are capable of engaging in any work
(1) This section applies to a former employee
who:
(a) on the commencing day, was under
65; and
(b) is capable of engaging in any
work.
(2) Where a person to whom this section
applies was in receipt of a pension under a superannuation scheme on the
commencing day, then, subject to this Division, the amount of compensation
payable per week to the former employee is:
(a) the amount of compensation per
week that would have been payable under section 131 if that section had
applied to the former employee, less an amount that is the greater of the
following amounts:
(i) the amount per week
(if any) that the employee is able to earn in suitable employment;
(ii) the amount per week
(if any) that the employee earns from any employment (including self‑employment)
that is undertaken by the employee during that week; or
(b) the amount of compensation per
week that would have been payable under section 20 if that section had
applied to the former employee;
whichever is greater.
(3) Where a person to whom this section
applies was not in receipt of a pension under a superannuation scheme on the
commencing day, then, subject to this Division, the amount of compensation
payable per week to the former employee is:
(a) the amount of compensation per
week that would have been payable under section 132 if that section had
applied to the former employee, less an amount that is the greater of the
following amounts:
(i) the amount per week
(if any) that the employee is able to earn in suitable employment;
(ii) the amount per week
(if any) that the employee earns from any employment (including self‑employment)
that is undertaken by the employee during that week; or
(b) the amount of compensation per
week that would have been payable under section 19 if that section had
applied to the former employee, less an amount equal to 5% of his or her normal
weekly earnings;
whichever is greater.
(4) In determining, for the purposes of this
section, the amount per week a former employee is able to earn in suitable
employment, Comcare must have regard to the factors mentioned in paragraphs 19(4)(a), (b), (c), (d), (e), (f) and (g) as if those paragraphs referred to the former
employee.
133
Minimum benefit payable
(1) Where:
(a) the
amount of combined benefit that would, but for this section, be payable to a
former employee under section 131; or
(b) the amount of compensation that
would, but for this section, be payable to a former employee under section 132;
is less than the minimum earnings, that amount of combined
benefit or compensation, as the case may be, shall be increased by an amount
equal to the difference between that amount and the minimum earnings.
(2) In this
section:
minimum earnings, in relation to a former
employee, has the same meaning as that expression has in relation to employees
under section 19.
134
Reduction of compensation on reaching 65
(1) When a former
employee to whom section 131, 132 or 132A applies reaches 65, the amount
of compensation payable per week to the former employee but for this section
shall be reduced by an amount calculated under the formula:
where:
A is the age of the former employee,
expressed in completed years, as at the commencing day; and
C is that amount of compensation payable per
week to the former employee.
(2) Neither section 8 nor section 13
applies to the amount of compensation payable to an employee from time to time
in accordance with subsection (1).
135
Former employees 65 and over who are in receipt of superannuation benefits
(1) This section applies in relation to a
former employee who, on the commencing day, is at least 65 and is in receipt of
a pension under a superannuation scheme.
(2) The amount of compensation payable per
week to the former employee under this Act is an amount equal to the employee’s 1971 amount.
136
Former employees 65 and over who are not in receipt of superannuation benefits
(1) This section applies in relation to a
former employee who, on the commencing day, is at least 65 and is not in
receipt of a pension under a superannuation scheme.
(2) The amount of compensation payable per
week to the former employee under this Act is an amount equal to the employee’s 1971 amount.
137
Redemption on request by former employee
(1) If:
(a) a relevant authority is liable to
make weekly payments of compensation to a former employee in respect of an
injury resulting in an incapacity; and
(b) the amount of those payments if
$62.99 per week or less; and
(c) the relevant authority is
satisfied that the degree of the former employee’s incapacity is unlikely to
change;
the relevant authority must, on written request by the
former employee, make a determination that its liability to make further
payments to the former employee be redeemed by the payment to the former
employee of a lump sum.
(2) The amount of the lump sum is the sum of:
(a) the amount worked out using the
formula in subsection (3); and
(b) the amount worked out using the
formula in subsection (4).
(3) The formula for the purposes of paragraph (2)(a)
is:
(4) The formula for the purposes of paragraph (2)(b)
is:
(5) For the purposes of this section:
amount per week means the amount of
compensation per week payable to the former employee.
specified number means the number specified
by the Minister for the purposes of subsection 30(2).
n means the number worked out using the
formula:
where:
number of days means the number of days in
the period beginning on the day after the day on which the determination is
made and ending on the day immediately before the day on which the employee
reaches 65 years of age.
reduced amount per week means the amount per
week less the amount calculated under the formula in section 134.
l means the number worked out in using the
formula:
expectation of life means the number of years
in the complete expectation of life of the former employee at the date of the
determination, as ascertained by reference to the latest Australian Life Tables
published by the Australian Statistician.
age means the number of completed years in
the age of the former employee at the date of the determination.
Division 4—Consequential amendments
138
Consequential amendments
The Acts specified in the Schedule are
amended as set out in the Schedule.
Division 5—Repeals
139
Repeals
The following Acts are repealed:
Compensation (Commonwealth Employees) Act 1971
Compensation (Commonwealth Employees) Act 1972
Compensation (Australian Government Employees) Act 1973
Compensation (Australian Government Employees) Act 1974
Compensation
(Commonwealth Government Employees) Amendment Act 1976
Compensation
(Commonwealth Government Employees) Amendment Act 1978
Compensation
(Commonwealth Government Employees) Amendment Act 1979.
Part XI—Operation of this Act in relation to certain defence‑related
injuries and deaths etc.
Division 1—Preliminary
140
Simplified outline of this Part
This Part confers on the Military
Rehabilitation and Compensation Commission the functions:
(a) of
determining and managing claims under this Act that relate to defence service
that occurred before the MRCA commencement date; and
(b) of managing
the provision of compensation and rehabilitation provided as a result of the
making of claims of that kind.
This Part also modifies the operation
of this Act in relation to the Safety, Rehabilitation and Compensation Commission
and in relation to the liabilities of Comcare and the Commonwealth for members
of the Defence Force.
141
Definitions
In this Part:
Defence Force has the meaning given by the
MRCA.
defence‑related claim means a claim under
this Act made before or after the MRCA commencement date (including a claim
made but not determined before that date) in respect of an injury, loss, damage
or death:
(a) to which the MRCA does not apply;
and
(b) that relates to defence service
that occurred before the MRCA commencement date.
Note 1: For injuries, diseases and deaths to which the
MRCA applies, see Parts 2 and 3 of the Military Rehabilitation and
Compensation (Consequential and Transitional Provisions) Act 2004.
Note 2: Rehabilitation may be provided following a
defence‑related claim in respect of an injury.
defence service has the meaning given by the
MRCA.
MRCC means the Military Rehabilitation and
Compensation Commission established by section 361 of the MRCA.
service chief has the meaning given by the
MRCA.
Veterans’ Affairs Department means the
Department of State that deals with veterans’ affairs and that is administered
by the Veterans’ Affairs Minister.
Veterans’ Affairs Minister has the meaning
given by the MRCA.
Division 2—Management of defence‑related claims
142
Functions of MRCC
(1) The functions of the MRCC include:
(a) determining defence‑related claims
under this Act accurately and quickly; and
(b) arranging the payment of
compensation, and the provision of rehabilitation, as a result of the making of
defence‑related claims; and
(c) maintaining contact with the
Safety, Rehabilitation and Compensation Commission and with Comcare to ensure
that, as far as practicable, there is equity of outcomes resulting from
administrative practices and procedures used by Comcare and the MRCC in the
performance of their respective functions; and
(d) doing anything the doing of which:
(i) is incidental to the
performance of the function referred to in paragraph (a) or (b); and
(ii) would be required of
Comcare if Comcare had responsibility for the performance of that function.
(2) In performing the function referred to in
paragraph (1)(a), the MRCC:
(a) is to be guided by equity, good
conscience and the substantial merits of the case, without regard to technicalities;
and
(b) is not required to conduct a
hearing; and
(c) is not bound by the rules of
evidence.
(3) The performance by the MRCC of the
functions referred to in subsection (1) is subject to the condition that
the MRCC will not cause or permit to be made on its behalf to a court or
tribunal a submission that Comcare or the Commission has requested not be made.
(4) The MRCC has power to do all things
necessary or convenient to be done for, or in connection with, the performance
of functions conferred by subsection (1).
(5) Paragraph 89B(a) has effect as if there
were included in that paragraph a reference to the administrative practices and
procedures used by the MRCC in the performance of its functions under this
Part.
143
Giving copies of defence‑related claims etc.
(1) The MRCC must give a copy of a defence‑related
claim made by or in respect of an employee to the employee’s service chief if
the employee was a member of the Defence Force at the time when the relevant
injury or accident occurred or the relevant disease was contracted.
(2) Comcare must give a copy of each defence‑related
claim made before the MRCA commencement date but not determined before that
date, and a copy of any other document it has that is relevant to that claim,
to the MRCC.
(3) Comcare must also give to the MRCC a copy
of each notice given to Comcare under section 53 before the MRCA
commencement date if the notice relates to an injury, loss or damage for which
a defence‑related claim might be made.
(4) Subsection 54(4) does not apply to:
(a) a defence‑related claim made on or
after the MRCA commencement date; or
(b) a defence‑related claim made
before the MRCA commencement date but not determined before that date.
144
Provisions relating to management of claims etc.
(1) For a defence‑related claim made before
the MRCA commencement date:
(a) a determination made by Comcare
that is in force immediately before that date is taken, after that date, to
have been a determination made by the MRCC in relation to that claim; and
(b) any other thing done by Comcare
that is in force immediately before the MRCA commencement date is taken, after
that date, to have been done by the MRCC in relation to that claim.
(2) For any defence‑related claim:
(a) a notice or claim given or made
under Part V after the MRCA commencement date is to be given or made to
the MRCC; and
(b) a notice or claim given or made
under Part V to Comcare and in force immediately before the MRCA
commencement date continues in force, after that date, as if it had been given
or made to the MRCC.
(3) If, for a defence‑related claim:
(a) any proceedings (including
proceedings under Part VI) to which Comcare is a party are brought in
relation to a determination made, or thing done, by Comcare before the MRCA commencement
date; and
(b) those proceedings have not been
concluded before that date;
those proceedings may be continued on or after that date.
For the purpose of the proceedings as so continued, the MRCC replaces Comcare
as a party to the proceedings.
(4) If, on or after the MRCA commencement
date:
(a) a determination made or other
thing done by Comcare is treated under subsection (1) as having been made
or done by the MRCC; or
(b) a notice or claim given or made
under Part V to Comcare is treated under subsection (2) as if it had
been given or made to the MRCC; or
(c) proceedings (including proceedings
under Part VI) to which Comcare is a party are treated under subsection (3)
as proceedings to which the MRCC is a party;
Comcare must inform the MRCC, as soon as practicable, of
that determination made or other thing done, of that notice or claim, or of
those proceedings.
(5) If, under subsection (3), the MRCC
replaces Comcare as a party to proceedings, the court or tribunal before which
the proceedings have been brought must, on application by Comcare, join Comcare
as a party to the proceedings.
(6) Any proceedings (including proceedings
under Part VI) that may be brought:
(a) in relation to a determination
made, or taken to have been made, by the MRCC in managing such a claim; or
(b) in relation to any thing done, or
taken to have been done, by the MRCC in managing such a claim;
must be brought against the MRCC.
(7) If proceedings are brought against the
MRCC in accordance with subsection (6):
(a) the MRCC must inform Comcare as
soon as practicable that the proceedings have been brought; and
(b) the court or tribunal before which
the proceedings have been brought must, on application by Comcare, join Comcare
as a party to the proceedings.
(8) An application by Comcare under subsection (5)
or (7):
(a) may be made by filing a notice in
the registry of the court or tribunal concerned; and
(b) must be notified to the other
parties to the proceeding by serving on them a copy of the notice so filed.
(9) A decision in proceedings referred to in subsection (3)
or (6) is binding on the MRCC and on Comcare, whether or not Comcare is joined
as a party to the proceedings.
(10) For proceedings referred to in this
section:
(a) in which the MRCC replaces Comcare
as a party; or
(b) brought against the MRCC;
the Commonwealth is liable to pay any amounts for which
the MRCC would otherwise be liable.
Division 3—Administrative matters
145
Relevant authority
(1) This Act applies in relation to an
employee by whom or in respect of whom a defence‑related claim has been made,
and in relation to dependants of the employee, as if the MRCC were the relevant
authority in relation to the employee for that claim.
(2) However, for defence‑related claims, this
Act has effect as if references in this Act to a relevant authority, in
relation to liability to pay an amount, in relation to a debt being due or in
relation to the receipt of an amount, were references to the Commonwealth.
146
Rehabilitation authority etc.
(1) This Act applies to the employee in
relation to a defence‑related claim as if the rehabilitation authority in
relation to the employee were the rehabilitation authority applicable under
subsection 39(3) of the MRCA.
(2) Section 40 of the MRCA (rules where
rehabilitation authority changes) applies for the purposes of the application
of this Act to the employee in relation to a defence‑related claim.
(3) The duty under section 40 to take
steps to provide suitable employment, or to assist in finding suitable employment,
for a person who is undertaking, or has completed, a rehabilitation program
must be performed by the person’s rehabilitation authority rather than the
Commonwealth.
147
References to Comcare etc.
(1) For the purposes of applying this Act to
defence‑related claims and matters arising out of those claims:
(a) Part II applies as if
references in that Part to Comcare (except references in section 28 and
references covered by paragraph (b)) were references to the MRCC; and
(b) this Act applies as if references
in this Act to Comcare, in relation to liability to pay an amount, in relation
to a debt being due or in relation to the receipt of an amount, were references
to the Commonwealth; and
(c) this Act applies as if another
reference in this Act to Comcare (other than in Division 2 of Part III,
section 41 or Part VI, VII or VIII) were, unless the contrary
intention appears, a reference to the MRCC.
(2) In addition, this Act applies to defence‑related
claims and matters arising out of those claims with the modifications specified
in this table:
|
Modifications of this
Act
|
|
Item
|
Provision
|
Modification
|
|
1
|
Paragraph 48(8)(a)
|
The paragraph does not apply
|
|
2
|
Section 52A
|
The section does not apply
|
|
3
|
Subsection 111(2)
|
The reference to a relevant authority has effect as a
reference to the Commonwealth
|
|
4
|
Subsections 111(2A), (3) and (4)
|
The subsections do not apply
|
|
5
|
Sections 112 and 113
|
References to a relevant authority have effect as
references to the Commonwealth
|
|
6
|
Paragraph 114B(1)(c)
|
The paragraph applies as if it read:
(c) the MRCC is of the opinion that the retired employee may
have been paid, or might be paid, amounts of compensation under this Act in
excess of the amounts that he or she was entitled to receive because of
section 20, 21 or 21A;
|
|
7
|
Paragraph 114B(2)(a)
|
The paragraph applies as if it read:
(a) stating that the retired employee may receive, or may
have received, an overpayment of compensation; and
|
|
8
|
Section 121A
|
The section does not apply
|
148
Rehabilitation programs
(1) Despite section 37, the MRCC or a
service chief as the rehabilitation authority for an employee in relation to a
defence‑related claim may make arrangements for the provision of a
rehabilitation program for the employee by:
(a) an approved program provider; or
(b) a person nominated in writing by
the MRCC or the service chief, being a person the MRCC or service chief is
satisfied has appropriate skills and expertise to design and provide
rehabilitation programs.
(2) Before nominating a person under paragraph (1)(b),
the MRCC or service chief must consult with Comcare about the proposed
nomination.
149
Directions by Minister
(1) The Minister may, by notice in writing
given to the Chair of the MRCC, give a direction to the MRCC with respect to
the performance of its functions or the exercise of its powers under this Act,
otherwise than in relation to a particular case.
(2) The MRCC must comply with a direction
given under subsection (1).
150
Guidelines by Commission
(1) The Commission may, by legislative
instrument, make general policy guidelines in relation to the operation of this
Part.
(2) The Commission must not make guidelines
that are inconsistent with any directions under section 149 of this Act or
section 12A of the Occupational Health and Safety Act 1991.
(3) Any guidelines that are inconsistent with
a direction referred to in subsection (2) have no effect to the extent of
the inconsistency.
(4) The MRCC must comply with any guidelines made
under subsection (1).
151
Obtaining information
(1) The MRCC may,
by notice in writing, require:
(a) the Secretary of the Defence
Department; or
(b) the Secretary of the Veterans’
Affairs Department; or
(c) a service chief;
to give the MRCC, within the period specified in the
notice, the documents or information (or both) specified in the notice, being
documents or information in the possession, custody or control of that person
that are relevant to a defence‑related claim.
(2) A person to whom a notice is given must
comply with the notice without delay.
152
Delegation
(1) The MRCC may, by resolution, delegate any
of its functions or powers under a provision of this Act to a person to whom it
can, under section 384 of the MRCA, delegate functions or powers under
that Act.
(2) A service chief may, in writing, delegate
any of his or her functions or powers under a provision of this Act to a person
to whom the service chief can, under section 438 of the MRCA, delegate
functions or powers under that Act.
153
Holding money on trust for person under a legal disability
(1) The MRCC may establish trust funds for
the purposes of section 110.
(2) Comcare must pay to the credit of a trust
fund established under subsection (1) any money that it holds for the
benefit of a person referred to in section 110 as a result of a defence‑related
claim.
154
Settlements and determinations etc. under the 1912 Act, the 1930 Act or the
1971 Act
(1) Subsection (2) applies to a
settlement that:
(a) under subsection 127(1), is taken
to be a determination made by the relevant authority under this Act; and
(b) is in force immediately before the
MRCA commencement date; and
(c) concerns an injury that relates to
defence service.
(2) On and after the MRCA commencement date,
the settlement is taken to be a determination made by the MRCC under this Act
in respect of the corresponding liability of the Commonwealth to pay
compensation or make a similar payment under this Part in respect of that
injury, but Part VI does not apply in relation to that settlement.
(3) Subsection (4) applies to a determination
made or action taken that:
(a) under subsection 127(2), is taken
to be a determination made by the relevant authority under this Act; and
(b) is in force immediately before the
MRCA commencement date; and
(c) concerns compensation or a payment
that relates to defence service.
(4) On and after the MRCA commencement date,
the determination or action is taken to be a determination made or action taken
by the MRCC under this Act in respect of the corresponding liability of the
Commonwealth to pay compensation or make a similar payment under this Part.
(5) If a determination or action referred to
in subsection (3) is, or has been, varied by a court or a tribunal, subsection (4)
has effect in relation to that determination or action as so varied.
Division 4—Reconsideration and review
155
Reconsideration and review
(1) The MRCC is a party to proceedings
instituted under Part VI in relation to a determination affecting a
defence‑related claim.
(2) For the purposes of subsection 60(2), the
MRCC is the body responsible for a reviewable decision in relation to a defence‑related
claim.
(3) The MRCC is a responsible authority for
the purposes of section 67 in relation to a determination affecting a
defence‑related claim. However, any costs for which the MRCC would be
responsible under that section are to be paid by the Commonwealth.
Division 5—Modifications relating to Comcare and Defence Department for
employees who are engaged in defence service
156
Liabilities of Comcare and the Commission with respect to defence service
Neither Comcare nor the Commission has
any liability under this Act in respect of an injury, loss, damage or death
that relates to defence service (whenever it occurred).
157
Application of certain provisions to Defence Department
(1) Sections 97, 97A, 97B, 97C and 97D
do not apply to the Defence Department in relation to defence service on or
after the MRCA commencement date.
(2) Any payment made by the Defence
Department under, or purportedly under, section 97H for a determination
under section 97 or 97D in respect of defence service before the MRCA
commencement date is taken to have been validly made.
(3) Any payment made by the Defence
Department under, or purportedly under, section 67H of the Occupational
Health and Safety Act 1991 in respect of defence service before the MRCA
commencement date is taken to have been validly made.
158
Regulatory contributions by Defence Department
(1) Comcare must make a determination of the
regulatory contribution to be paid by the Defence Department for the financial
year in which the MRCA commencement date occurs and later financial years in
relation to employees engaged in defence service.
(2) The amount of the regulatory contribution
to be paid for a particular financial year under subsection (1) is the sum
of:
(a) that part of the estimated cost
incurred by the Commission and Comcare in carrying out their respective
functions under this Act that Comcare determines, in accordance with guidelines
under section 97E, to be referable to the Defence Department in relation
to defence service; and
(b) that part of the estimated cost
incurred by the Commission and Comcare in carrying out their respective
functions under the Occupational Health and Safety Act 1991 that Comcare
determines, in accordance with those guidelines, to be referable to the Defence
Department in relation to defence service.
159
Modifications of provisions relating to contributions
Sections 97E to 97P apply to the
Defence Department in relation to employees engaged in defence service, but
only so far as they relate to determinations under section 158.
Division 6—Appropriation
160
Appropriation
The Consolidated Revenue Fund is
appropriated for the purposes of paying compensation and other amounts payable
in relation to defence service under this Act.
Division 7—Annual report
161
Annual report
(1) As soon as possible after each 30 June,
the Chair of the MRCC must give the Minister, for presentation to the
Parliament, a report of the MRCC’s activities under this Act during the
financial year that ended on that day.
(2) A report under subsection (1) must
include particulars of:
(a) any directions given by the
Minister under section 149; and
(b) any guidelines issued by the
Commission under section 150;
during the financial year to which the report relates.