2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mr Brendan Smyth)

2002

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mr Brendan Smyth)

An Act to create a system for dealing with public liability in relation to commercial premises that addresses the current crisis in public liability in the ACT, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Insurance Compensation Framework Act 2002.

This Act commences on 1 October 2002.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act 2001, s 75).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation.

For example, the signpost definition ‘compulsory insurance policy—see section 14.’ means that the expression ‘compulsory insurance policy’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act 2001, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act 2001, s 127 (1), (4) and (5) for the legal status of notes.

The object of this Act is to provide a system that focuses on rehabilitating people who are injured on commercial premises in the ACT and providing an assured outcome for those people and for insurers covering public liability risk for commercial premises in the ACT.

(1) This Act applies to injuries that happen on commercial premises in the ACT after this Act commences.

(2) This Act does not apply to an injury—

(a) to which the Workers Compensation Act 1951 applies; or

(b) covered by a third-party policy under the Road Transport (General) Act 1999, part 10 (Compulsory vehicle insurance).

In this Act:

injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury.

(1) In this Act:

commercial premises are premises, or part of premises, at which a business is ordinarily operated.

(2) Commercial premises also include the following premises:

(a) a school or other educational facility;

(b) a place of worship;

(c) a shopping centre;

(d) a hospital or other medical facility;

(e) a sports ground.

(1) In this Act:

business operator means a person who operates a business at commercial premises in the ACT.

(2) Also, business operator, in relation to a compensable injury, means the person who operates the business at the premises where the injury happened.

(3) Business operator also includes a person who operates the following:

(a) a school or other educational facility;

(b) a place of worship;

(c) a shopping centre;

(d) a hospital or other medical facility;

(e) a sports ground.

In this Act:

insurer, in relation to an injury, means—

(a) the approved insurer of the business operator for the injury; or

(b) if the business operator for the injury was a self-insurer when the injury happened—the business operator ; or

(c) if, when the injury happened, the business operator for the injury was not a self-insurer and has or had no compulsory insurance policy that applies to the injury—the nominal insurer.

(1) In this Act:

awe indexed, for an amount, means the amount as adjusted in line with any adjustment in the AWE after the commencement of the provision in which the amount appears.

CPI means the All Groups Consumer Price Index (Canberra) issued by the ABS.

Note In June 2001, this was series 6401.0.

cpi indexed, for an amount, means the amount as adjusted in line with any adjustment in the CPI since the commencement of the provision in which the amount appears.

Note  AWE and ABS are defined in the dict.

(2) However, if an amount to be awe indexed or cpi indexed would, if adjusted in line with the adjustment (the negative adjustment) to the AWE or CPI, become smaller, the amount is not reduced in line with the negative adjustment.

(3) An amount that, in accordance with subsection (2), is not reduced may be increased in line with an adjustment in the AWE or CPI that would increase the amount only to the extent that the increase, or part of the increase, is not one that would cancel out the effect of the negative adjustment.

(4) Subsection (3) does not apply to a negative adjustment once the effect of the negative adjustment has been offset against an increase in line with an adjustment in the AWE or CPI.

An amount in a section is $100 cpi indexed.

There is a 20% increase in the CPI after the section commences. The amount in the section becomes $120 (100 + 20%).

There is then a 10% drop in the CPI. The amount does not change from $120 (although if it had changed it would be $108).

There is a 20% increase in the CPI. The 20% increase is not to the $120, but to the $108. $108 + 20% = $129.60. So the $120 becomes $129.60. This is the amount ($120) increased by so much of the 20% increase that did not cancel out the effect of the adjustment down to $108.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

(1) For this Act, an injured person is totally incapacitated for work if—

(a) there is no suitable paid employment reasonably available to the person that the person can do because of a functional impairment caused by the injury; or

(b) the person is taken to be totally incapacitated under subsection (2).

(2) For this Act, an injured person is taken to be totally incapacitated for work if—

(a) a doctor certifies that the injured person is partially incapacitated for work; and

(b) the partial incapacity prevents the injured person from performing the work the injured person performed before becoming incapacitated; and

(c) the worker cannot find appropriate alternative employment.

For this Act, an injured person is partially incapacitated for work if, because of a functional impairment caused by the injury, the person—

(a) cannot do all the work the person could do before the injury; but

(b) is not totally incapacitated.

(1) In this Act:

compulsory insurance policy, for a business operator, means an insurance policy—

(a) for an unlimited amount for any liability of the business operator under this Act, for an injury to, or the death of, a person on premises at which the business operator operates a business; and

(b) that complies with this Act.

Note If a form is approved under s 184 (Approved forms) for a compulsory insurance policy, the form must be used.

(2) A cover note may be a compulsory insurance policy only if it is in force for not longer than 30 days and—

(a) the business operator maintained a compulsory insurance policy (other than a cover note) immediately before maintaining the cover note; or

(b) the business operator was not a business operator immediately before beginning to maintain the cover note; or

(c) the business operator was a self-insurer immediately before beginning to maintain the cover note.

(1) A business operator , other than a self-insurer, must maintain a compulsory insurance policy with an approved insurer.

Maximum penalty:

(a) for a 1st offence—50 penalty units; or

(b) for a 2nd or subsequent offence—

(i) if the person charged is an individual—250 penalty units, imprisonment for 2 years or both; or

(ii) if the person charged is a corporation—1 000 penalty units.

(2) If 2 or more business operators could become liable to pay compensation in relation to the same premises, any of the business operators may comply with subsection (1) in relation to the premises with a joint insurance policy for their joint liability.

(1) This section applies if—

(a) a business operator , other than a self-insurer, fails to maintain a compulsory insurance policy; but

(b) the business operator maintains an insurance policy (the other policy) for a liability under this Act.

(2) The failure to maintain a compulsory insurance policy does not—

(a) annul the other policy; or

(b) affect the liability of the insurer under the other policy; or

(c) affect the liability of the insurer under section 147 (Funds for payments by nominal insurer).

If a business operator , other than a self-insurer, fails to maintain a compulsory insurance policy, the nominal insurer may recover as a debt from the business operator an amount equal to triple the amount of the premiums that would have been payable to an approved insurer if the business operator had maintained a compulsory insurance policy.

A statement in an information against a business operator that there was no compulsory insurance policy issued by an approved insurer in favour of the business operator in force on a stated date, or during a stated period, is evidence of the matter.

(1) The Minister may, by written notice given to a business operator , exempt the business operator from complying with section 15 (1) (Compulsory insurance—business operators) for a stated period.

(2) The regulations may make provision in relation to the following:

(a) how a business operator may apply for an exemption;

(b) the criteria to be considered by the Minister when deciding whether to exempt a business operator;

(c) conditions on exemptions;

(d) renewals of exemptions;

(e) revocation and suspension of exemptions.

(1) If a person (the injured person) suffers personal injury while on commercial premises, the business operator is liable to pay compensation under this Act.

(2) However, if the injury is caused by a disease, the injury is taken to have been suffered on the commercial premises only if something on the premises substantially contributes to the injury.

(3) Also, an injury suffered by a person partly or completely because the person had any of the following pre-existing conditions is taken to have been suffered on the commercial premises only if something on the premises substantially contributes to the injury:

(a) diseased heart valve;

(b) coronary artery disease;

(c) aortic aneurism;

(d) cerebral aneurism;

(e) any other condition prescribed under the regulations for this section.

(4) Further, this section is subject to the following provisions:

(a) part 5 (Exceptions to entitlements to compensation);

(b) in relation to the entitlement to weekly compensation—

(i) section 33 (What if injured person dead?);

(ii) section 96 (Compliance by injured people with pt 11).

An amount of compensation payable under a provision of this Act in relation to an injury is, unless otherwise expressly stated, in addition to any amount of compensation paid or payable under any other provision of this Act.

(1) If compensation under this Act is payable to someone with a legal disability, the Magistrates Court may make any order about the payment of the compensation that it considers appropriate to protect the person or the person’s interests.

(2) In this section:

person with a mental disability means a person who is not legally competent to conduct the person’s legal affairs because of a mental disability, whether or not a guardian has not been appointed for the person under the Guardianship and Management of Property Act 1991.

someone with a legal disability means someone who is—

(a) a child; or

(b) a person with a mental disability.

(1) This Act does not stop the business operator for an injury from claiming contribution from another person in relation to the injury.

(2) However, the business operator is not entitled to withhold any compensation the business operator is liable to pay under this Act because someone else is liable to pay compensation, unless the other person has paid the compensation in relation to the injury.

(1) In working out average pre-incapacity weekly earnings for an injured person who is not a contractor—

(a) if the person was, immediately before the injury, employed by 2 or more employers—the person’s earnings from all employment must be taken into account; and

(b) the actual weekly earnings of the person may be taken into account over—

(i) a period of 1 year before the injury; or

(ii) if the person has not been employed for 1 year—the period of employment.

(2) However, if it is not possible to work out fair average pre-incapacity weekly earnings for the injured person under subsection (1) because the person has only been employed for a short time, because of the terms of the person’s employment or for some other reason, the person’s average pre-incapacity weekly earnings may be worked out by reference to the average weekly amount being earned by—

(a) others in the same employment who perform similar work at the same grade as the person; or

(b) if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the person, who perform similar work at the same grade as the person.

In working out average pre-incapacity weekly earnings for an injured person who is a contractor, the person’s average pre-incapacity weekly earnings are to be worked out—

(a) as if the person were an employee; and

(b) if there is an award or industrial agreement applying to the class and grade of work in which the person was engaged—by reference to the award or industrial agreement.

(1) In working out average pre-incapacity weekly hours for an injured person who is not a contractor—

(a) if the person was, immediately before the injury, employed by 2 or more employers—the person’s work hours from all employment must be taken into account; and

(b) the actual weekly work hours of the person over a period of up to 1 year before the injury may be taken into account.

(2) However, if it is not possible to work out fair average pre-incapacity weekly hours for the injured person under subsection (1) because the person has only been employed for a short time, because of the terms of the person’s employment or for some other reason, the person’s average pre-incapacity weekly hours may be worked out by reference to the average weekly hours being worked by—

(a) others in the same employment who perform similar work at the same grade as the person; or

(b) if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the person, who perform similar work at the same grade as the person.

In working out average pre-incapacity weekly hours for an injured person who is a contractor, the person’s average pre-incapacity weekly hours are to be worked out as if the person were an employee.

(1) This section applies to a component of the injured person’s earnings or hours attributable to overtime.

(2) The overtime is to be taken into account in working out average pre-incapacity weekly earnings or average pre-incapacity weekly hours only if—

(a) the injured person worked overtime in accordance with a regular and established pattern; and

(b) the pattern was substantially uniform as to the number of hours of overtime worked; and

(c) the person would have continued to work overtime in accordance with the established pattern if the person had not been injured.

(1) This section applies if, because of the gradual onset of an injured person’s injury, it appears that the level of the person’s average pre-incapacity weekly earnings, or average pre-incapacity weekly hours, have been affected.

(2) The injured person’s average pre-incapacity weekly earnings, or average pre-incapacity weekly hours, must be set at an amount that fairly represents the weekly amount that the person would have been earning or working if the level had not been affected.

(1) This section applies if, apart from this section, compensation in relation to an injured person’s injury is payable under this Act.

(2) Compensation is not payable if the injury to, or death of, the injured person is caused by an intentionally self-inflicted injury.

(3) Compensation is not payable if it is proved that the injury is attributable to the injured person’s serious and wilful misconduct.

(4) In subsection (3), the personal injury received by the injured person is attributable to the person’s serious and wilful misconduct if—

(a) at the time of the injury, the person was under the influence of alcohol or another drug, unless the alcohol or other drug did not contribute to the injury or was not consumed or taken voluntarily; or

(b) the injury was otherwise attributable to the person’s serious and wilful misconduct.

(5) In this section:

drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.

An injured person who is otherwise entitled to compensation under this Act is not entitled to compensation for a period when the person is imprisoned because the person has been convicted of an offence against a law of the Territory, the Commonwealth, a State or another Territory.

A person is not entitled to receive compensation for an injury sustained because of his or her engagement in professional sporting activity.

(1) An injured person is not entitled to weekly compensation if the person is dead.

(2) However, this section does not affect an entitlement to weekly compensation that accrued before the person’s death.

(1) If the injured person is, or may be, entitled to compensation for a compensable injury—

(a) the payment of weekly compensation must begin when the person gives notice of the injury to the business operator ; and

(b) the person is entitled to weekly compensation from the date of the injury.

(1) This section applies if—

(a) an injured person is totally incapacitated because of a compensable injury; and

(b) immediately before the injury, the person was in paid employment.

(2) For 26 weeks after the incapacity date, the injured person is entitled to receive weekly compensation equal to the person’s average pre-incapacity weekly earnings.

Note  Incapacity date is defined in the dict.

(3) After the 26 weeks, the injured person is entitled to receive weekly compensation equal to—

(a) if 100% of the person’s average pre-incapacity weekly earnings is less than the pre-incapacity floor for the person—100% of the person’s average pre-incapacity weekly earnings; or

(b) if 100% of the person’s average pre-incapacity weekly earnings is more, but 65% of those earnings is less, than the pre-incapacity floor for the person—the statutory floor; or

Note Statutory floor is defined in the dict.

(c) if 65% of the person’s average pre-incapacity weekly earnings is more than the pre-incapacity floor for the person—whichever of following is (at the time of payment) more:

(i) 65% of the person’s average pre-incapacity weekly earnings;

(ii) the statutory floor.

(4) An injured person stops being entitled to compensation under this section at the earliest of the following times:

(a) when the person stops being totally incapacitated;

(b) when the person returns to work;

(c) for a person who, at the time of the injury being compensated, was more than 2 years younger than pension age—when the person reaches pension age;

(d) for a person who, at the time of the injury being compensated, was 2 years younger than pension age, or older—2 years after the person first became entitled to compensation under this section;

(e) when the person dies.

(5) In this section:

pre-incapacity floor, for an injured person, means the statutory floor that applied immediately before the person’s incapacity date.

(1) This section applies if—

(a) the injured person is partially incapacitated because of a compensable injury; and

(b) immediately before the injury, the person was in paid employment.

(2) For 26 weeks after the incapacity date, the injured person is entitled to receive weekly compensation equal to the difference between—

(a) the person’s average pre-incapacity weekly earnings; and

(b) the average weekly amount that the person is being paid for working or could earn in reasonably available suitable employment.

(3) In working out the average weekly amount the injured person could earn, consideration may be given to the following:

(a) suitable employment that the person unreasonably rejects;

(b) suitable employment that the person obtains but unreasonably discontinues.

(1) This section applies if—

(a) the injured person is partially incapacitated because of a compensable injury; and

(b) immediately before the injury, the person was in paid employment; and

(c) 26 weeks have passed since the incapacity date.

(2) The injured person is entitled to receive weekly compensation equal to the difference between the weekly amount the person is being paid for working and—

(a) if 100% of the person’s average pre-incapacity weekly earnings is less than the statutory floor—100% of the person’s average pre-incapacity weekly earnings; or

(b) if the relevant percentage of the person’s average pre-incapacity weekly earnings is less than the statutory floor—the statutory floor; or

(c) if the relevant percentage of the person’s average pre-incapacity weekly earnings is more than the statutory ceiling—the statutory ceiling; or

(d) in any other case—the relevant percentage of the person’s average pre-incapacity weekly earnings.

(3) For subsection (2), the relevant percentage is—

(a) if the injured person is not working or works 25% of the person’s average pre-incapacity weekly hours or less—65%; or

(b) if the person is working more than 25% of the person’s average pre-incapacity weekly hours but not more than 50%—75%; or

(c) if the person is working more than 50% of the person’s average pre-incapacity weekly hours but not more than 75%—85%; or

(d) if the person is working more than 75% of the person’s average pre-incapacity weekly hours but not more than 85%—95%; or

(e) if the person is working more than 85% of the person’s average pre-incapacity weekly hours—100%.

(4) In this section:

statutory ceiling, in relation to an amount, means 150% of AWE at the time the amount is to be paid.

A person stops being entitled to payments under section 36 (Partially incapacitated people up to 26 weeks after incapacity date) or section 37 (Partially incapacitated people after 26 weeks after incapacity date) at the earliest of the following times:

(a) when the person stops being partially incapacitated;

(b) for a person who, at the time of the injury being compensated, was more than 2 years younger than pension age—when the person reaches pension age;

(c) for a person who, at the time of the injury being compensated, was 2 years younger than pension age, or older—2 years after the person first became entitled to compensation under section 35 (Totally incapacitated people), 36 or 37, whichever is earliest;

(d) when the person dies.

(1) This section applies if a person would be entitled to weekly compensation under section 35 (Totally incapacitated people), section 36 (Partially incapacitated people up to 26 weeks after incapacity date) or section 37 (Partially incapacitated people after 26 weeks after incapacity date) but the payment of the compensation has been stopped under section 31 (No compensation while imprisoned) or section 96 (Compliance by injured people with pt 11).

(2) The period when the person’s entitlement to payment has stopped is counted as part of the period for payment under sections 35, 36 and 37.

(1) A person who is otherwise entitled to receive weekly compensation is not entitled to the compensation if the person stops living in Australia.

(2) Subsection (1) does not apply to the person if a medical referee certifies that—

(a) the incapacity resulting from the injury is likely to be permanent; or

(b) the person’s absence from Australia is likely to help the person recuperate.

(1) This section applies if the injured person lives outside Australia but is, apart from this section, still entitled to weekly compensation.

Note A person living outside Australia is still entitled to compensation if s 40 (2) applies to the person.

(2) The injured person is not entitled to weekly compensation, but is entitled to receive quarterly the amount of the weekly compensation payable during the previous quarter.

(3) However, the injured person is entitled to receive quarterly payment of compensation only if the person proves the person’s identity and that the person continues to be incapacitated by the incapacity in relation to which the weekly compensation is payable.

(4) In this section:

quarter means a period of 3 months beginning on 1 July, 1 October, 1 December or 1 April.

This part is not intended to affect an entitlement that, apart from this Act, the injured person has to a benefit or payment except so far as a law in force in the Territory otherwise applies.

1 accrual of long service leave

2 accrual of annual leave.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

Weekly compensation (including compensation payable under section 41 (Effect of living outside Australia if compensation still payable)) may not—

(a) be assigned, charged or attached; and

(b) pass to anyone else by operation of law; and

(c) have a claim set off against it.

In this part:

loss, in relation to a thing—

(a) means—

(i) the loss of the thing; or

(ii) the permanent loss of the use, or efficient use, of the thing; and

(b) includes the following:

(i) permanent musculoskeletal impairment, or another permanent impairment;

(ii) a loss, damage, impairment, disfigurement or disease mentioned in schedule 1 (Compensation for permanent injuries).

In this part:

single loss amount means $100 000 cpi indexed.

In this part:

maximum loss amount means $150 000 cpi indexed.

(1) A person who has suffered a loss mentioned in an item of schedule 1 as the result of a compensable injury is entitled to receive from the business operator, as compensation for the loss, the percentage of the single loss amount mentioned in the item.

(2) For this section, the loss is to be worked out when the last of the following happens:

(a) the business operator became liable to pay compensation;

(b) it is unlikely that there will be an improvement or further improvement in the use, or efficient use, of the injured part of the body.

(3) If a payment of compensation under this part has been made in relation to an injury, nothing prevents a further payment of compensation under this part from being made in relation to the same injury if there is an increase in the loss of the efficient use of the injured part of the body.

A loss, or further loss, of sight in an injured eye.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

A person who has suffered 2 or more losses mentioned in schedule 1 (Compensation for permanent injuries) because of a compensable injury is not entitled to receive as compensation under this part more than the maximum loss amount for the losses.

If a person’s left arm or hand is the person’s dominant limb, in working out the loss for the person—

(a) the loss of the person’s left arm, left hand or fingers of left hand is to be compensated as if it is the loss of the person’s right arm, right hand or fingers of right hand; and

(b) the loss of the person’s right arm, right hand or fingers of right hand is to be compensated as if it is the loss of the person’s left arm, left hand or fingers of left hand.

If a loss (other than the impairment of the back, neck or pelvis) may be compensated by a combination of items in schedule 1 (Compensation for permanent injuries) or by a proportionate loss of a single item, the loss is to be compensated by a proportionate loss of the single item.

1 Loss of 2 or more fingers is to be compensated as a proportionate loss of the hand.

2 Loss of a hand includes the loss of the thumb and other fingers of the hand and is to be compensated as a loss, or proportionate loss, of the hand.

3 Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of the arm at or above the elbow.

4 Loss of a leg at or above the knee includes the loss of the leg below the knee and loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg at or above the knee.

5 Loss of a leg below the knee includes the loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg below the knee.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

Loss of an only arm, leg, hand or foot is treated under schedule 1 as the loss of both arms, legs, hands or feet.

The following percentages of the single loss amount are payable for the loss of sexual organs (subject to the maximum percentage of 47% and without limiting compensation for the loss of another sexual organ):

(a) the percentage payable for loss of the penis is 47%;

(b) the percentage payable for loss of 1 testicle is 10%;

(c) the percentage payable for loss of 2 testicles or an only testicle is 47%.

To work out whether and to what extent a injured person has suffered permanent loss of bowel function—

(a) the bowel is taken to include the anal sphincter; and

(b) permanent ileostomy and permanent colostomy are each taken to constitute permanent loss of bowel function for which the maximum percentage is payable.

(1) If a loss suffered by a person consists of the loss of a proportion, but not all, of a thing mentioned in schedule 1 (Compensation for permanent injuries), a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the person is payable as compensation under section 47 (Compensation for permanent injuries generally).

(2) In working out the extent of the loss of the thing, the extent to which the loss, or the effect of the loss, may be reduced or limited by an external removable aid or appliance is not to be taken into account.

(3) The amount of compensation payable for a particular case must, unless decided by agreement, be worked out by conciliation or arbitration under this Act.

(1) Compensation is not payable under section 47 (Compensation for permanent injuries generally) for a loss that is related to HIV infection or AIDS if the HIV or AIDS was contracted during voluntary sexual activity or illicit drug use.

(2) Section 54 does not apply to a loss that is HIV infection or AIDS.

(3) In this section:

AIDS means Acquired Immune Deficiency Syndrome.

HIV infection means an infection by the Human Immunodeficiency Virus.

(1) In working out the compensation payable under this part for a loss (the initial loss), an amount must be deducted from the compensation (the deductible proportion) for any proportion of the loss attributable to—

(a) a previous injury (whether or not it is an injury for which compensation has been paid, or is payable, under this part); or

(b) a pre-existing condition or abnormality.

(2) In subsection (1), it does not matter whether the initial loss is a total or partial loss.

(3) If there is a deductible proportion for a loss but the extent of the deductible proportion (or a part of it) will be difficult or costly to work out, it is to be assumed that the deductible proportion for the loss (or the relevant part of the loss) is 10% of the loss, unless this assumption is contrary to the available evidence.

If this subsection requires it to be assumed that the deductible proportion in relation to a particular loss is 10% and the loss is 30% of the loss of the use of the right arm, the deductible proportion for the loss is 3% (that is, 10% of 30%).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

(1) This section applies in working out the compensation payable for a further loss (the further loss) resulting from an initial loss.

(2) An amount proportionate to the deductible proportion of the initial loss must be deducted from the compensation payable for the further loss.

(3) A deduction under subsection (2) in relation to a further loss is in addition to, not in substitution for, any deductible proportion for the further loss.

(1) Obtaining a medical certificate, and any examination required for the certificate, is taken to be medical or related treatment for this Act if the injured person gives the business operator a copy of the certificate.

(2) In this section:

medical certificate means a report or certificate, from a doctor, that complies with the requirements for medical assessments prescribed under the regulations and that certifies—

(a) that an injured person has suffered a loss mentioned in schedule 1 (Compensation for permanent injuries); or

(b) the extent of the loss to allow the amount of compensation payable for the loss to be worked out.

(1) This section applies if—

(a) a person has received a compensable injury; and

(b) the person dies within 3 months after receiving the compensable injury because of the compensable injury or another injury received at the same time.

(2) The person is not entitled to receive compensation for the compensable injury under the following items of schedule 1 (Compensation for permanent injuries):

(a) item 2 (loss of sense of taste or smell);

(b) item 3 (loss of senses of taste and smell);

(c) item 41 (loss of sexual organs);

(d) item 42 (loss of both breasts);

(e) item 43 (loss of 1 breast);

(f) item 44 (permanent and total loss of capacity to engage in sexual intercourse);

(g) item 49 (severe facial disfigurement);

(h) item 50 (severe bodily disfigurement).

This part applies if—

(a) compensation under this Act is payable by a business operator to, or in relation to, an injured person in relation to the injury; or

(b) compensation would be payable by a business operator to, or in relation to, an injured person in relation to an injury except that—

(i) the injured person is not incapacitated for work; or

(ii) the injured person is imprisoned (see section 31); or

(iii) weekly compensation has been suspended under section 96 (Compliance by injured people with pt 11); or

(iv) the injured person has contravened this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).

(1) The business operator is liable to pay—

(a) for the cost of medical treatment reasonably obtained in relation to the injury—an amount of compensation appropriate for the provision of the medical treatment, having regard to the charges customarily made for similar medical treatment in the place where the treatment is obtained; and

(b) in relation to any damage to, or loss of, the injured person’s clothing sustained in association with the injury—compensation of a reasonable amount for the repair or replacement of the damaged or lost clothing.

(2) However, the total amount payable under subsection (1) for each of the following must not be more than the maximum amount:

(a) for the cost of medical treatment consisting of the repair or replacement of an injured person’s contact lenses, crutches, prosthesis, spectacles or other artificial aid;

(b) for damage to or loss of an injured person’s clothing.

(3) In subsection (2):

maximum amount, in relation to a treatment, damage or loss, means—

(a) if an amount has been agreed between the injured person and the business operator—the agreed amount; or

(b) in any other case—$500 cpi indexed.

(4) For this section, the cost of medical treatment is taken to include—

(a) the amount of wages lost by the injured person because of the person’s attendance at a place (the treatment place) to undergo the treatment; and

(b) the cost of taking the injured person (whether the injured person or someone else does the taking) to and from the treatment place worked out under section 65 (Transport costs other than private car) or section 66 (Working out transport costs for private cars); and

(c) the cost of any accommodation (including the cost of meals) required by the injured person because of the person’s attendance at the treatment place worked out under section 67 (Costs of accommodation and meals).

(1) An injured person may make a claim for compensation under this part for the cost of medical treatment or in relation to damage to, or loss of, the injured person’s clothing only if the injured person has given the business operator written notice stating—

(a) the amount of compensation sought; and

(b) reasonable details of the expenses for which compensation is sought.

(2) However, a failure to give notice, or a defect or inaccuracy in the notice, does not affect a claim for compensation under this part if it is found in the proceeding on the claim that—

(a) if a notice or amended notice were then given and the hearing postponed, the business operator’s defence is not, or would not be, prejudiced by the failure, defect or inaccuracy; or

(b) the failure, defect or inaccuracy was caused by mistake or other reasonable cause.

(1) This section applies if the injured person receives medical treatment and claims the cost of it from the business operator under this part.

(2) The business operator may, in consultation with the doctor or other person providing the treatment, and before making a payment under this part, require the injured person to be assessed by a doctor, or other person, chosen by the business operator.

(1) This section applies if the business operator is liable under this part to pay an amount in relation to medical treatment received by the injured person from a hospital.

(2) The business operator must pay the amount, less any amount previously paid by the injured person in relation to the treatment, on demand—

(a) for a private hospital—to the proprietor of the hospital; or

(b) for any other hospital—to the person authorised in writing by the governing entity in charge of the hospital to receive payments payable to the hospital.

(1) This section sets out how the costs of taking an injured person to and from a place (other than by private motor vehicle) to undergo medical treatment must be worked out.

(2) If the injured person cannot be taken in a motor vehicle (other than an ambulance) because of the person’s injury, the transport cost is the actual cost of the transport by ambulance.

(3) The transport cost is the actual cost of the public transport if the injured person is taken by public transport because, although the person can be taken in a private motor vehicle—

(a) the person is prohibited by law from taking himself or herself in a private motor vehicle and no-one else is available to take the injured person in a private motor vehicle; or

(b) no private motor vehicle is available.

(4) The transport cost is the reasonable cost of transport if a private motor vehicle or public transport is not reasonably available, or reasonably appropriate, to transport the injured injured person in the circumstances.

(5) In this section:

public transport means a public bus or taxi within the meaning of the Road Transport (Public Passenger Services) Act 2001.

(1) The costs of taking an injured person by private motor vehicle (the car) to and from a place to undergo medical treatment must be worked out in accordance with this section.

(2) The transport cost is the cost worked out by multiplying the number of kilometres travelled to and from the place by the per kilometre cost for the car.

(3) The per kilometre cost for the car is the amount mentioned in the Income Tax Assessment Regulations 1997 (Cwlth), schedule 1, part 2 in relation to the size of the car for the financial year in which the cost was incurred.

(1) The cost of accommodation for the person is the relevant amount set out in a public ruling by the Commonwealth Commissioner of Taxation in relation to reasonable allowance amounts for the year in which the costs were incurred.

Note For the financial year 2000-2001, the ruling in relation to reasonable allowance amounts is TR2000/13. It is available on the website of the Australian Taxation Office (www.ato.gov.au).

(2) The regulations may prescribe the relevant amount.

(3) The inured person is not entitled to payment for a meal unless the meal is eaten while the person—

(a) is travelling to or from medical treatment (the treatment) for which compensation is payable under this part; or

(b) is at a place to receive the treatment; or

(c) is staying at accommodation for which compensation is payable under this part.

(4) In this section:

accommodation, for an injured person, includes meals for the person, other than a meal to which the person is not entitled to payment because of subsection (3).

public ruling—see the Taxation Administration Act 1953 (Cwlth), section 14ZAAA (Interpretation).

(1) This section applies to the death of a person for which compensation is payable under this Act.

(2) The dependants of the person are entitled to the following:

(a) a single lump sum payment of $150 000 cpi indexed to be divided between the dependants;

(b) for each dependant who is a child—weekly compensation of $50 cpi indexed;

(c) the funeral expenses of the person to a maximum of $4 000 cpi indexed.

(3) In working out for this Act whether or not a child is, or was, dependent on the earnings of the injured person, any family tax benefit within the meaning of the A New Tax System (Family Assistance) Act 1999 (Cwlth), section 3 (Definitions) in relation to the child must be disregarded.

(4) To remove any doubt, the payment under subsection (2) (a) need not be divided equally between the dependants, but may be divided between them as the Magistrates Court considers appropriate.

(5) Compensation under subsection (2) (b) is payable only while the person receiving it is a child.

(6) If the person did not have dependants, the personal representative of the person is entitled to a maximum of $4 000 cpi indexed for the funeral expenses of the person.

(1) A payment mentioned in section 68 (2) (a) (the lump sum) must be paid into the Magistrates Court, unless the court otherwise orders.

(2) The Magistrates Court must, until the lump sum is paid to the person entitled to it—

(a) invest, apply or otherwise deal with the lump sum payment in the way the court considers appropriate for the benefit of the person entitled to it under this Act; or

(b) deal with it under the Public Trustee Act 1985, section 25 (Payment of money etc to public trustee on behalf of a person under disability).

(3) The receipt of the registrar of the Magistrates Court is a sufficient discharge for the amount paid in.

(1) If the injured person agrees to receive an amount of compensation under section 47 (Compensation for permanent injuries generally) for a loss or under section 118 (How injured person may commute rights) for the commutation of a right, a party to the agreement may apply to the Magistrates Court for registration of the agreement.

(2) The Magistrates Court may refuse to register the agreement if the court considers that the agreement is inaccurate or that the agreed amount of compensation is manifestly inadequate.

(3) The Magistrates Court must refuse to register the agreement unless satisfied that the injured person received independent legal advice about the agreement before entering into it.

(4) An agreement may deal with the payment of costs.

(1) An injured person with a registered agreement in relation to a loss or the commutation of a right is not entitled to receive any additional compensation for the loss or commutation of the right under an award of the Magistrates Court.

(2) However, the Magistrates Court may award additional compensation if satisfied that—

(a) the agreement was obtained by fraud or undue influence; or

(b) the agreed amount of compensation was manifestly inadequate.

(1) On application by a party to a registered agreement, the Magistrates Court may amend the registered agreement or cancel the registration of the agreement.

(2) The Magistrates Court may act under subsection (1) only if—

(a) a party becomes aware of evidence that was not available to the party when the agreement was made; and

(b) the court considers that, if the party had been aware of the evidence, the agreement would not have been made, or would not have been made as registered.

The object of this part is to establish a system the aim of which is to achieve the best results for the timely, safe and durable return to health of injured people following injuries to which this Act applies.

In this part:

business operator’s injury notice—see section 80 (2).

injured person’s injury notice—see section 80 (1).

injury means an injury in relation to which compensation is or may be payable under this Act.

injury management means the process that consists of activities and procedures that are carried out or established to achieve a timely, safe and durable return to health for injured people.

injury management program means a coordinated and managed program that integrates all aspects of injury management (including treatment, rehabilitation, retraining, claims management and employment management practices) to achieve the best results for a timely, safe and durable return to health of injured people.

insured person—see section 76 (2).

nominated treating doctor, for an injured person, means the doctor or medical practice nominated under section 89 (Nomination of doctor for personal injury plan).

personal injury plan, for an injured person, means a plan for coordinating and managing the aspects of injury management, that relate to the treatment, rehabilitation and retraining of the person, to achieve a timely, safe and durable return to health for the person.

(1) An insurer must establish and maintain an injury management program.

(2) An insurer must review the effectiveness of its injury management program at least once every 2 years and revise the program in accordance with the results of the review.

(3) An insurer must give a copy of its injury management program, and any revised injury management program, to the Minister.

(1) An insurer must give effect to its injury management program, in particular by complying with the obligations imposed on the insurer under the program.

(2) An insurer must take appropriate steps to ensure that each person (an insured person) who is insured by the insurer in relation to a liability covered by this Act is aware of the person’s obligations under this part and is aware of the requirements of the insurer’s injury management program.

(3) Subsection (2) does not apply to a self-insurer.

(1) If an insurer is required under this Act to pay an amount for a service, the insurer must pay the amount to the person who provided the service (the service provider) within 30 days after the service is provided.

Maximum penalty: 10 penalty units.

(2) Subsection (1) does not apply if the insurer does not pay for the service because—

(a) the insurer believes on reasonable grounds that the service has not been provided, or has not been properly provided, and the insurer has told the service provider, in writing, why the insurer has not paid for the service; or

(b) the insurer has another reasonable ground for not paying for the service.

An insured person must comply with the reasonable obligations imposed on the insured person by the person’s insurer under the insurer’s injury management program.

Maximum penalty: 10 penalty units.

(1) This section applies to commercial premises.

(2) A register of injuries (the register) is to be kept at the premises in a place that is readily accessible to people on the premises.

(3) The person in charge of the premises and, if different from the person in charge, the owner of the business operating at the premises must ensure the register is kept in accordance with subsection (2).

Maximum penalty: 50 penalty units.

(4) A person must not, without lawful authority or excuse, change, damage, deface, remove or otherwise interfere with the register.

Maximum penalty: 20 penalty units.

(5) A person injured on the premises, or a person acting on the injured person’s behalf, may enter in the register details of an injury received by the injured person.

(6) If details of the injury are entered in the register as soon as possible after the injury happens, the entry is taken to be notice of the injury given to the business operator by the injured person for this Act.

(1) The injured person must give the business operator notice (an injured person’s injury notice) that the injured person has received an injury on the premises as soon as possible after being injured.

Note  An injured person may give notice of an injury by making an entry in a register of injuries (see s 79).

(2) The business operator must give the insurer notice of the injury (a business operator’s injury notice) under section 82 within 48 hours after becoming aware that the injured person has received an injury.

(3) Subsection (2) does not apply if the insurer is a self-insurer.

An injured person’s injury notice given to the business operator must contain—

(a) the name and address of the injured person; and

(b) the cause of the injury (in ordinary language); and

(c) the date and time the injury happened.

(1) A business operator’s injury notice must state—

(a) the name and address of the injured person; and

(b) the cause of the injury (in ordinary language); and

(c) the date and time the injury happened; and

(d) the name and address of the business operator; and

(e) the name and address of the nominated treating doctor or, if there is no treating doctor, a doctor who has treated the person for the injury.

(2) The business operator may give the notice orally, in writing or in electronic form.

(3) However, if the business operator gives the notice orally, the business operator must give the notice in writing or in electronic form within 3 days after giving the notice orally.

(4) The notice of injury is taken to have been given to a business operator—

(a) if it is given to a person designated for the purpose by the business operator; or

(b) if it is given to a person apparently in charge of the premises.

(1) This section applies if a business operator (other than a self-insurer) is given an injured person injury notice, but does not give the insurer the business operator’s injury notice within the time (the notification time) mentioned in section 80 (2) (Early notification of injury).

(2) The business operator is liable to pay the injured person weekly compensation from the end of the notification time until the business operator gives the insurer the business operator’s injury notice.

(3) The business operator must not be indemnified by the insurer for a payment mentioned in subsection (2).

Within 3 business days after receiving the business operator’s injury notice, the insurer must take action under the insurer’s injury management program and must (in accordance with the program) make contact with the injured person, the business operator (except if the insurer is a self-insurer) and (if appropriate and practicable) the injured person’s nominated treating doctor.

Maximum penalty: 10 penalty units.

(1) If it appears to an insurer who is, or may be, liable to pay compensation to an injured person on behalf of a business operator that the injury is a significant injury, the insurer must establish a personal injury plan for the injured person.

(2) The personal injury plan must be established—

(a) in agreement with the injured person, to the maximum extent that their cooperation and participation allow; and

(b) with the assistance of an approved rehabilitation provider.

(3) The insurer must give effect to the personal injury plan established for the injured person and, for that purpose, must comply with the obligations imposed on the insurer under the plan.

(4) In this section:

significant injury means an injury that is likely to result in the injured person being incapacitated for work for a continuous period of longer than 7 days, whether or not any of those days are business days and whether or not the incapacity is total or partial or a combination of both.

(1) The insurer must give the injured person information about the personal injury plan.

(2) The information must include a statement to the effect that the injured person’s entitlement to weekly compensation may stop if the person unreasonably fails to comply with the requirements of this Act after being asked to do so by the insurer.

The insurer must ensure, as far as possible, that vocational rehabilitation provided or arranged for the injured person under the personal injury plan is of a kind that may reasonably be thought likely to lead to a real prospect of employment or a real increase in earnings for the injured person.

(1) The injured person must take part and cooperate in the establishment of a personal injury plan for the person.

Note  If the injured person does not take part and cooperate in the establishment of the injured person’s personal injury plan, the person’s weekly compensation may be stopped while time for payment of weekly compensation continues to run against the person (see s 96).

(2) The injured person must comply with reasonable obligations imposed on the person under the person’s personal injury plan, including any obligation to receive medical or surgical treatment or take part in rehabilitation or retraining.

(1) The injured person must nominate a doctor, or medical practice, as the person’s treating doctor for the person’s personal injury plan.

(2) The injured person may only nominate a doctor, or medical practice, that is prepared to take part in the development of, and in the arrangements under, the person’s personal injury plan.

(3) The nomination of a medical practice as treating doctor for the injured person’s personal injury plan is the nomination of the members of the practice who treat the injured person from time to time.

(4) The injured person must authorise the person’s nominated treating doctor to provide relevant information to the insurer for the injured person’s personal injury plan.

(5) The injured person’s personal injury plan must provide a way for the person to change the person’s nominated treating doctor.

A medical certificate required under a personal injury plan in relation to a claim for ongoing compensation under this Act must be from a doctor.

(1) The injured person’s personal injury plan may provide for the insurer to pay the following costs:

(a) the cost of any treatment for the injury provided to the injured person by the nominated treating doctor if the nominated treating doctor is prepared to take part in the arrangements under the plan;

(b) the cost of other treatment described in the plan that is provided to the injured person for the injury.

Treatment may be identified by reference to factors like the kind of treatment, the identity of the health care professional who provides the treatment, and the circumstances in which the treatment is provided.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

(2) For a payment under subsection (1), it does not matter that the injured person has not made a claim for compensation, that the insurer has not accepted liability for the injury or if the insurer disputes liability for the injury.

(3) If the insurer makes the payments in relation to the injury and another insurer (the other insurer) or another business operator (the other business operator ) accepts liability to pay compensation to the injured person in relation to the injury, the insurer is entitled to recover the costs (to the extent that compensation is payable under this Act in relation to the costs) as a debt from the other insurer or other business operator.

(4) An amount recoverable under subsection (3) is taken to be payable by the other insurer or other business operator as compensation to the injured person.

(1) This section applies if, before the compensable injury, the injured person was employed.

(2) The injured person must make all reasonable efforts to return to work as soon as possible, considering the nature of the injury.

(1) The person’s personal injury plan may provide for the insurer to pay the following costs:

(a) the cost of any treatment for the compensable injury provided to the injured person by the nominated treating doctor if the nominated treating doctor is prepared to take part in the arrangements under the plan;

(b) the cost of other treatment described in the plan that is provided to the injured person for the compensable injury.

Treatment may be identified by reference to factors like the kind of treatment, the identity of the health care professional who provides the treatment, and the circumstances in which the treatment is provided.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act 2001, s 126 and s 132).

(2) For a payment under subsection (1), it does not matter that the injured person has not made a claim for compensation, that the insurer has not accepted liability for the injury or if the insurer disputes liability for the injury.

(3) If the insurer makes the payments in relation to the injury and another insurer (the other insurer) or another business operator (the other business operator) accepts liability to pay compensation to the injured person in relation to the injury, the insurer is entitled to recover the costs (to the extent that compensation is payable under this Act in relation to the costs) as a debt from the other insurer or other business operator.

(4) An amount recoverable under subsection (3) is taken to be payable by the other insurer or other business operator as compensation to the injured person.

The Minister must monitor compliance by insurers with the requirements of this part.

It is a condition of an insurer’s approval that the insurer must comply with the requirements of this part.

(1) An injured person is not entitled to weekly compensation for a period when the person unreasonably contravenes a requirement under this part (including under the person’s personal injury plan) after being asked in writing by the insurer to comply with the requirement.

(2) An injured person’s entitlement to weekly compensation does not stop under this section until 2 weeks after the day, or latest day, the insurer gives written notice to the injured person and to the Minister that the compensation will stop.

(3) The notice must be accompanied by a statement of the reasons for the entitlement stopping and the action that the insurer considers the injured person must take to be entitled to the continuation, or resumption, of weekly compensation.

(4) The resumption of weekly compensation does not entitle the injured person to weekly compensation for the period when the person had no entitlement to weekly compensation.

(1) This section applies if an insurer gives the injured person and Minister notice under section 96 and stops the injured person’s weekly compensation.

(2) If the Minister considers that stopping the weekly compensation may have been unreasonable, the Minister may do either or both of the following:

(a) ask the insurer, in writing, for further information about the stoppage;

(b) direct the insurer, in writing, not to stop paying the weekly compensation, or to continue to pay the weekly compensation, for a stated time that is not longer than 1 month.

(3) If the Minister considers that stopping payment of the weekly compensation is unreasonable, the Minister may—

(a) tell the insurer so in writing; and

(b) direct the insurer, in writing, not to stop paying the weekly compensation, or to continue to pay the weekly compensation until the Minister otherwise directs or the claim is settled or decided.

(4) The insurer must not, without reasonable excuse, contravene a direction under this section.

Maximum penalty: 10 penalty units.

Nothing done under or for an injury management program or personal injury plan by an insurer or business operator is an admission of liability by the insurer or business operator under this Act or independently of this Act.

(1) An injured person may claim compensation under this Act.

(2) A claim for weekly compensation must be accompanied by a medical certificate from a doctor.

(3) Failure to make a claim under this Act does not prevent the recovery of compensation if it is found that the failure was caused by ignorance, mistake or other reasonable cause.

(1) This section applies to the loss of, or damage to, property because of a compensable injury.

(2) The details required to be given in the claim in relation to the loss or damage are details that adequately identify the property and how it was lost or damaged.

To the extent that information or material has been given in the course of the making of a claim for compensation for an injury, it is not necessary to give the information or material when making any further claim for compensation in relation to the same injury.

A proceeding for the recovery of compensation for an injury may continue only if—

(a) an injured person’s injury notice in relation to the injury was given as soon as practicable after the injury happened; and

(b) the claim for compensation was made—

(i) within 3 years after the injury happened; or

(ii) if the injured person was not aware of the injury when it happened—within 3 years after the person became aware of the injury; or

(iii) if the injured person dies—within 3 years after the claimant became aware of the death.

(1) A claim for compensation payable under part 7 (Compensation for permanent injuries) in relation to an injury may not be made earlier than 2 years after the injury.

(2) However, the claim may be made earlier than 2 years after the injury if—

(a) the Magistrates Court allows the claim to be made; or

(b) the injury has stabilised.

(3) The Magistrates Court may allow the claim to be made earlier than 2 years after the injury only if satisfied that an early application is justified by the severity of the injury or the prospect of the injured person’s imminent death.

(1) A claim is made on the day the claim is given to the business operator or insurer.

(2) If the claim is given to the business operator and insurer on different days, the claim is made on the day the claim is given to the first of them.

Note Section 105 (No notice or defective or inaccurate notice) contains an exception to this regulation.

(1) This section applies to a claim in relation to which—

(a) an injured person’s injury notice has not been given; or

(b) the injured person’s injury notice given was defective or inaccurate.

(2) A proceeding may be maintained in relation to the claim if the Magistrates Court or arbitrator finds, in the proceeding for the claim, that—

(a) the injured person’s defence is not, or would not be, prejudiced by the lack of notice, or defect or inaccuracy in the notice, if a notice or amended notice were given and the hearing postponed; or

(b) the lack of notice, or defect or inaccuracy in the notice, was caused by ignorance, mistake or another reasonable cause.

A written statement in relation to an injured person’s injury given by the injured person to the business operator or the insurer is admissible in evidence on behalf of the business operator in a proceeding under this Act only if the business operator gives the injured person a copy of the statement at least 2 weeks before the proceeding is begun.

(1) If a business operator receives a claim for compensation or another document in relation to a claim, the business operator must, within 1 week after the day the person receives the claim or document, give it to the insurer that the person believes is liable to indemnify the person for the claim (the liable insurer).

Maximum penalty: 50 penalty units.

(2) If the business operator receives a written request from the liable insurer for further stated information in relation to the claim or document, the person must, within 1 week after the day the business operator receives the request, either—

(a) give the insurer the requested information; or

(b) if the information is not in the business operator’s possession and is not reasonably obtainable by the person—tell the insurer that in writing.

Maximum penalty: 50 penalty units.

(3) If a business operator has received an amount of compensation under this Act from an insurer, the business operator must immediately pay the amount to the person entitled to the compensation.

Maximum penalty: 50 penalty units.

(4) This section does not apply to a business operator who is a self-insurer.

(5) A person does not commit an offence by contravening this section if there was a reasonable excuse for the contravention.

For this division, a claim is given to the insurer if the claim is given to the insurer or the insurer is given notice of the claim by the business operator or injured person.

If the insurer does not reject an injured person’s claim for compensation under this Act within 28 days after the claim is given to the insurer—

(a) the insurer is taken to have accepted the claim; and

(b) any payment made by the insurer in relation to the claim is not recoverable.

(1) An insurer rejects a claim for compensation under this Act by written notice given to the injured person and, unless the insurer is a self-insurer, the business operator.

(2) The claim is taken to be rejected when the notice is received by the injured person and, unless the insurer is a self-insurer, the business operator.

(3) If the injured person and the business operator do not receive the notice on the same day, the notice is taken to have been given on the day the notice is received by the last of them.

(4) The notice must include the reason the insurer is rejecting the claim.

(5) If the insurer rejects the claim 28 days or later after the claim is given to the insurer, the notice must include a statutory declaration explaining why the insurer is rejecting the claim.

Note The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws (see that Act, s 5).

(6) For this section, a notice is taken not to contain the reason the insurer is rejecting the claim if it simply says the claim is being rejected for medical reasons without including the medical reasons.

(1) If the insurer rejects the injured person’s claim within 28 days after the claim is given to the insurer, the insurer may—

(a) stop weekly compensation to the injured person 2 weeks after the insurer rejects the claim; and

(b) stop payment of compensation mentioned under part 8 (Compensation for medical treatment, damage and other costs) for costs incurred 2 weeks or later after the insurer rejects the claim.

Note For how a claim is rejected, see s 110.

(2) However, the insurer is not entitled to reject the injured person’s claim within 28 days after the claim is given to the insurer only on the ground that the insurer has not had time to adequately assess the claim.

If the insurer rejects the injured person’s claim 28 days or later, but not later than 1 year, after the claim is given to the insurer, the insurer may—

(a) stop weekly compensation to the person 8 weeks after the insurer rejects the claim; and

(b) stop payment of compensation mentioned under part 8 (Compensation for medical treatment, damage and other costs) for costs incurred 8 weeks or later after the claim is rejected.

Note For how a claim is rejected, see s 110.

(1) An insurer may reject an injured person’s claim for compensation 1 year or later after the claim is given to the insurer only with the leave of the Magistrates Court.

(2) If the Magistrates Court gives leave to the insurer to reject the injured person’s claim for compensation—

(a) the insurer need not give the injured person notice of the rejection if the injured person, or the injured person’s lawyer, is present when the court gives leave for the insurer to reject the claim; and

(b) the insurer may stop paying weekly compensation—

(i) on the day stated by the court in the order giving leave to the insurer to reject the claim; or

(ii) 8 weeks after the injured person gets notice of the rejection if no day is stated in the order.

(3) For this section, the injured person gets notice of the rejection—

(a) if the injured person is present when the court gives leave to the insurer to reject the claim—on the day the court gives leave; or

(b) when the injured person receives notice of the rejection from the insurer.

(4) The regulations may prescribe the how and why the Magistrates Court may approve termination.

An insurer may, when making a payment in relation to a claim, state that the payment is not an admission of liability for the injury in relation to which it is made.

(1) If an injured person makes a claim in relation to an injury, the insurer is liable to pay weekly compensation and compensation for costs in relation to the injury until the insurer rejects or settles the claim.

(2) A payment under this section may not be recovered by the insurer.

(1) This section applies to a payment (an overpayment) to a person (the overpaid person), purportedly made because of an obligation arising under this Act, to which the overpaid person is not entitled under this Act.

(2) However, this section only applies if the court before which a proceeding for an offence against section 177 (False claims etc) is taken against the overpaid person is satisfied on the balance of probabilities that the person has received an overpayment because or partly because of the act or omission that is alleged to constitute the offence.

(3) The court may, on the application of the business operator or insurer (whether or not the overpaid person is convicted of the offence), order the overpaid person to refund the amount of the overpayment to the person who made the payment.

(4) Unless the compensation is payable under an award of a court, the refund may be deducted from future payments of compensation in accordance with the terms of the court’s order.

(5) Subsection (3) applies even if the compensation is weekly compensation that is payable under a direction of a conciliator.

(6) This section does not limit any other right of recovery that a person may have against someone else in relation to an overpayment to the overpaid person.

(1) A provision of an agreement or other document is void if it purports to exclude, or limit in any way—

(a) a right given to an injured person under this Act; or

(b) a liability imposed on an insured person or a business operator under this Act.

(2) However, this section does not apply to an agreement by an injured person to commute an existing right to compensation for a compensable injury under this part.

(1) An insured person may commute, in writing, an existing right to compensation for a compensable injury on payment of an amount by the insurer (the settlement).

(2) The settlement may include a payout of 1 or more of the following:

(a) the injured person’s entitlement to weekly compensation under part 6;

(b) the injured person’s entitlement to compensation for permanent injuries under part 7;

(c) the injured person’s entitlement to compensation for medical treatment, damage and other costs under part 8;

(d) an entitlement of the injured person to compensation apart from this Act;

(e) any other amount.

A payout of weekly compensation may not—

(a) be assigned, charged or attached; and

(b) pass to anyone else by operation of law; and

(c) have a claim set off against it.

(1) In this part:

approved rehabilitation provider means a person approved by the Minister to provide vocational rehabilitation for this Act.

(2) The regulations may make provision about the approval of rehabilitation providers, including—

(a) the criteria for approving rehabilitation providers; and

(b) the conditions that may be imposed on the approval of rehabilitation providers; and

(c) how and why the approval of an approved rehabilitation provider may be revoked or suspended.

(3) The regulations may also make provision about the role of approved rehabilitation providers under this Act.

(1) In this part:

vocational rehabilitation, for the injured person, means—

(a) the assessment of the needs of the person for paragraph (b); and

(b) the provision of appropriate, adequate and timely services for the person aimed at maintaining the person in suitable employment or returning the person to suitable employment.

(2) For the definition of vocational rehabilitation, services are taken to be appropriate, adequate and timely if they are in accordance with a relevant protocol.

(1) In this part:

protocol means a protocol about vocational rehabilitation approved under the regulations.

(2) The regulations may allow the Minister to approve a protocol about vocational rehabilitation.

(1) This section applies in relation to an injured person if, before the injury happened, the person was employed.

(2) The insurer must provide the person with vocational rehabilitation in accordance with this Act.

Maximum penalty: 50 penalty units.

(3) The provision of vocational rehabilitation to the injured person is not taken to be an admission of liability for the person’s claim for compensation.

(4) The regulations may exempt insurers from subsection (2), either completely or in prescribed circumstances.

A person must not pretend to be an approved rehabilitation provider.

Maximum penalty: 30 penalty units.

(1) The Minister may, in accordance with the regulations, approve an insurer for this Act.

(2) The regulations may prescribe the following:

(a) the criteria for approving insurers;

(b) the conditions that may be imposed on the approval of insurers;

(c) the records to be kept by approved insurers, who the records are to be provided to and how they are to be provided;

(d) how insurance premium calculations by approved insurers may be reviewed;

(e) how approved insurers’ performance may be monitored and reviewed;

(f) what and when approved insurers must report to the Minister;

(g) how and why the approval of an insurer may be revoked or suspended.

(1) If the approval of the insurer for this Act is revoked or suspended, section 15 (which requires a business operator to have a compulsory insurance policy) applies in relation to an insurance policy (a pre-revocation policy) issued by the insurer when the insurer was approved, or the approval was not suspended, as if the insurer were still approved or the approval not suspended.

(2) The revocation or suspension of the approval of an insurer does not—

(a) annul a pre-revocation policy; or

(b) affect the liability of the insurer under a pre-revocation policy; or

(c) affect the liability of the insurer under section 147 (Funds for payments by nominal insurer).

(3) However, the regulations may prescribe circumstances in which (and when) a pre-revocation policy issued by an insurer whose approval has been revoked stops being a compulsory insurance policy.

(1) An approved insurer must not refuse to issue a compulsory insurance policy required by a business operator for section 15 (1) (Compulsory insurance—business operators).

Maximum penalty: 100 penalty units.

(2) An approved insurer must not issue an insurance policy required by a business operator for section 15 (1) that is not a compulsory insurance policy.

Maximum penalty: 100 penalty units.

(3) It is not an offence against subsection (1) for an insurer to refuse to issue a compulsory insurance policy if—

(a) the business operator has not paid for the policy; or

(b) the business operator has not given the insurer information reasonably requested by the insurer in relation to the policy.

An approved insurer may cancel a compulsory insurance policy only in accordance with a protocol about cancellation.

Maximum penalty: 50 penalty units.

(1) An insurer must not issue a cover note that is a compulsory insurance policy for longer than 30 days.

Maximum penalty: 10 penalty units.

(2) An insurer may recover a premium from a business operator for a period for which a cover note from the insurer was in force in relation to the business operator if, at the end of the cover note, the business operator does not obtain a policy of insurance from the insurer.

(1) This section applies to the following entitites:

(a) an approved insurer;

(b) a self-insurer;

(c) if an approved insurer or business operator is a corporation—an officer of the corporation on behalf of the corporation.

(2) The Minister may, by written notice (an information notice) given to an entity to whom this section applies, require the entity to give the Minister, within the reasonable time stated in the notice—

(a) details of the number of injuries for which compensation has been paid during the period stated in the notice and the total compensation paid during the period; and

(b) any other details relating to the operation of this Act stated in the notice.

(3) The information notice may require the information to be given in accordance with a protocol.

(4) The information notice must set out the requirements of subsection (6) in relation to the notice, and the penalty for contravention of subsection (6).

(5) An entity is not excused from giving details in accordance with the information notice on the ground that giving the details would incriminate, or tend to incriminate, the entity or someone else or would tend to expose the entity to a proceeding for an offence against a law in force in Australia or elsewhere.

(6) If an entity is required to give details under an information notice, the details given, or any information, document or thing obtained as a direct or indirect consequence of giving the details, is not admissible in evidence against the entity in civil or criminal proceedings in a court other than proceedings for perjury or for an offence against subsection (7).

(7) An entity must not—

(a) fail to comply with an information notice given to the entity; or

(b) give details in response to an information notice given to the entity that are false or misleading in a material particular.

Maximum penalty: 50 penalty units.

(1) The Minister may appoint a person to be the nominal insurer for this Act.

Note 1 For the making of appointments (including acting appointments), see Legislation Act 2001, div 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act 2001, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

Note 3 Certain ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act 2001, div 19.3.3).

(2) The appointment must be made on the nomination of the approved insurers or a majority of them or, if there is no such nomination, directly by the Minister.

(3) An appointment is a notifiable instrument.

Note  A notifiable instrument must be notified under the Legislation Act 2001.

(1) This section applies if—

(a) a claim has been made against a business operator that the business operator is liable to pay compensation under this Act in relation to a compensable injury; and

(b) in relation to the claim, the business operator has agreed to pay any compensation or the liability of the business operator to pay any compensation has been established; and

(c) the liability of the business operator to pay the compensation is not completely covered by a compulsory insurance policy; and

(d) the business operator defaults in payment of any of the compensation for longer than 1 month.

(2) The person entitled to the compensation may make a claim against the nominal insurer for payment of the amounts of compensation payable and to become payable.

(3) In this section:

compensation includes—

(a) an amount in settlement of a claim for compensation; and

(b) costs payable to an injured person by a business operator in relation to a claim for compensation.

(1) This section applies if—

(a) a final judgment has been obtained against a business operator in relation to the business operator’s liability independently of this Act for a compensable injury or a death caused by a compensable injury; and

(b) execution of the judgment is not stayed; and

(c) the liability of the business operator under the judgment is not covered, or is not completely covered, by a compulsory insurance policy; and

(d) the judgment is completely or partly unsatisfied 1 month after the day judgment is obtained.

(2) The person in whose favour the judgment was given may make a claim against the nominal insurer for payment of the amount by which the judgment remains unsatisfied.

(1) This section applies if—

(a) a business operator has agreed to pay an amount to discharge the business operator’s liability independently of this Act in relation to a compensable injury, or a death caused by a compensable injury; and

(b) the liability of the business operator is not covered, or is not completely covered, by a compulsory insurance policy; and

(c) the business operator has failed to pay all or part of the amount payable by the business operator under the agreement for 1 month or longer.

(2) The person to whom the amount is payable under the agreement may make a claim against the nominal insurer for payment of the amount the business operator has failed to pay.

(1) A claim under this part may be made within 1 month after the day the right to make the claim arose or within any further time the Minister allows.

(2) The Minister may allow further time on an application made before or after the end of the 1 month.

(1) If a person makes a claim against the nominal insurer under this part, the nominal insurer must pay the person—

(a) if the claim is made under section 132 (Claims for payment by nominal insurer if liability agreed or established)—the compensation payable at the date of the claim or becoming payable afterwards; or

(b) if the claim is made under section 133 (Claims for payment by nominal insurer after final judgment)—the amount payable for damages and costs under the judgment to which the claim relates; or

(c) if the claim is made under section 134 (Claims for payment by nominal insurer if default on agreement)—the amount payable by the business operator under the agreement.

(1) This section applies if a claim is made against the nominal insurer under section 132 (Claims for payment by nominal insurer if liability agreed or established).

(2) The nominal insurer may apply to the Magistrates Court for an order directing that the agreement or award under which the compensation is payable be reopened on the ground that there is reason to believe that the business operator has not honestly tried to protect the business operator’s own interests, and taken all reasonable steps to protect the business operator’s own interests, in relation to the agreement, the appointment of a committee or the arbitration.

(3) On the application, the Magistrates Court may order that the agreement or award be reopened.

(1) If the Magistrates Court makes an order under section 137, the court must decide or redecide the claim for compensation by arbitration.

(2) The nominal insurer must be a party to the arbitration.

(3) In an award made by the Magistrates Court under this section, the court may set aside a previous agreement or award.

(4) If an award of compensation is made against the business operator by the Magistrates Court, the nominal insurer must pay the person entitled the amounts payable under the award.

(5) An agreement by a person to accept, in settlement of a claim against the nominal insurer, an amount less than the amount payable according to the relevant agreement or award has no effect unless approved by the Magistrates Court.

(1) If a claim is made against the nominal insurer under section 134 (Claims for payment by nominal insurer if default on agreement), the nominal insurer may apply to the Supreme Court for an order setting aside the agreement to which the claim relates.

(2) If, on an application under subsection (1), the Supreme Court is satisfied there are reasonable grounds for believing that, in relation to the agreement the subject of the application, the business operator has not honestly tried to protect the business operator’s own interests and taken all reasonable steps to protect the business operator’s own interests, the court may, by order, set aside the agreement.

(3) If an agreement is set aside under this section—

(a) the agreement is, for any proceeding in a court, taken never to have had effect; and

(b) evidence of a statement or communication, or a part of a statement or communication tending to establish the existence of the agreement is not, unless the Supreme Court directs otherwise, admissible in any proceeding in a court.

(4) The Supreme Court may give a direction for subsection (3) (b) only if satisfied that the admission of the evidence is necessary to avoid injustice to a party to the proceeding.

(1) If the Supreme Court sets an agreement aside under section 139, the costs of the respondent of, and incidental to, the application must be paid by the nominal insurer.

(2) However, the Supreme Court may direct that subsection (1) is not to apply in relation to an application.

(3) The Supreme Court may give a direction under subsection (2) in relation to an application only if satisfied that, having regard to the special circumstances surrounding the making of the agreement to which the application relates, it is desirable that the direction.

(1) This section applies if—

(a) an agreement is set aside under section 139 (Power of Supreme Court to set aside certain judgments); and

(b) apart from this section, an action by a party to the agreement to recover damages in relation to a liability to which the agreement related would be barred by a Territory law (the limitation law) about the limitation of the time within which proceedings in a court may be begun—

(i) at the time the agreement is set aside; or

(ii) within 3 months after the agreement is set aside.

(2) The action may be begun at any time within 3 months after the day the agreement was set aside, regardless of the limitation law.

(1) This section applies if—

(a) an agreement is set aside under section 139 (Power of Supreme Court to set aside certain judgments); and

(b) an action by a party to the agreement (the plaintiff) to recover damages in relation to a liability to which the agreement related is begun in a Territory court.

(2) Within 7 days after the day the action was begun, the plaintiff must give the nominal insurer written notice of the action.

Maximum penalty: 5 penalty units.

(3) If notice is given to the nominal insurer under subsection (2), the nominal insurer—

(a) may, on behalf of the business operator sued in the action, conduct the defence of the action in the name of the business operator and in the way the nominal insurer considers appropriate; and

(b) must indemnify the business operator against all costs and expenses of and incidental to the action.

The nominal insurer must not, without the consent of the defendant—

(a) consent to the entry of judgment in an action against the defendant in the action; or

(b) compromise the action.

(1) This section applies to a person (the alleged business operator)—

(a) against whom a claim (the claim) for compensation has been made; and

(b) who is not a self-insurer; and

(c) who is not a party to a compulsory insurance policy that applies to the claim.

(2) The alleged business operator must give the nominal insurer a copy of the claim not later than 48 hours after the claim is made.

Maximum penalty: 10 penalty units.

(3) The alleged business operator must not make an agreement or admission in relation to the claim unless the nominal insurer consents.

Maximum penalty: 20 penalty units.

(4) The nominal insurer is entitled to intervene in an arbitration proceeding on the claim as a party.

(5) The nominal insurer has the same right of objection to arbitration by a committee as the business operator has under the regulations.

The nominal insurer may treat a claim for compensation as having been made against the nominal insurer under this part if the nominal insurer—

(a) receives a copy of the claim under section 144; or

(b) is otherwise satisfied that it is reasonably likely that there is no compulsory insurance policy in force that applies to the claim.

If the nominal insurer pays an amount under this Act in relation to a liability of a business operator—

(a) the payment operates, to the extent of the payment, to discharge the liability of the business operator; and

(b) an amount equal to 3 times the amount of the payment is a debt payable by the business operator to the nominal insurer, and may be sued for and recovered in a court of competent jurisdiction; and

(c) the nominal insurer has the right of subrogation in relation to any right the business operator has against anyone in relation to the injury that caused the liability of the business operator.

(1) An amount payable to a person by the nominal insurer may be sued for and recovered by the person by action in a court of competent jurisdiction, but the nominal insurer is not liable to satisfy a judgment in such an action except out of money mentioned in subsection (2).

(2) The nominal insurer must pay amounts payable under this Act out of money provided under this section by approved insurers and self-insurers and any other money received under this Act.

(3) For subsection (2), amounts payable under this Act include the following:

(a) the amount of any costs and expenses incurred;

(b) administrative costs of the nominal insurer.

(1) Liability to provide an amount mentioned in section 147 (2) must be apportioned by the nominal insurer among those who were approved insurers or self-insurers at the time of the injury that gave rise to the right to compensation in relation to which the amount is payable.

(2) In making an apportionment under subsection (1), the nominal insurer must have regard as far as practicable to—

(a) the premium income received by each approved insurer in relation to compulsory insurance policies in the financial year before the injury; and

(b) the premium that would have been payable by each self-insurer if the self-insurer had obtained a compulsory insurance policy for the financial year (or the part of the financial year for which the self-insurer was a self-insurer).

(3) If the nominal insurer makes an apportionment under this section, the nominal insurer must give each approved insurer and self-insurer concerned written details of the apportionment and require the insurer or self-insurer to pay the nominal insurer the apportioned amount, within the time stated in the notice.

(4) An amount mentioned in a notice to a person under subsection (3) and unpaid at the end of the time stated in the notice is a debt owing to the nominal insurer by the approved insurer or self-insurer.

(5) If an amount has been given by approved insurers and self-insurers under this section in relation to a payment by the nominal insurer, the nominal insurer must use any amount received in relation to the payment from the defaulting business operator to proportionately reimburse the approved insurers and self-insurers.

(1) For the exercise of his or her functions under this Act, the nominal insurer may, by written notice, require a business operator—

(a) to give the nominal insurer the information and assistance that the nominal insurer considers necessary; and

(b) to give the nominal insurer the documents in the business operator’s possession that the nominal insurer considers necessary; and

(c) to sign the documents that the nominal insurer considers necessary for the business operator to sign to allow the nominal insurer to exercise the nominal defendant’s functions; and

(d) to allow the nominal insurer at all reasonable times to inspect the person’s business premises.

(2) A business operator must comply with a requirement of the nominal insurer under subsection (1).

Maximum penalty: 50 penalty units.

For this Act, a proceeding by or against the nominal insurer may be taken in the name of ‘the Nominal Insurer’.

In this part:

damages includes an amount paid under a compromise or settlement of a claim for damages, whether a legal proceeding had been begun or not, but does not include an amount paid for costs incurred in relation to a proceeding in a court.

injury, in relation to a injured person, includes damage to the injured person’s contact lenses, crutches, prosthesis, spectacles or other artificial aid.

(1) If damages are recovered by a person on someone else’s behalf, a reference in this part to a person who recovers damages is a reference to the person on whose behalf damages are recovered.

(2) If compensation is paid or payable to a person for the benefit of someone else, a reference in this part to a person to whom compensation is paid or payable is a reference to the person for whose benefit the compensation is paid or payable.

(1) If the nominal insurer pays compensation in relation to an injury to a injured person, this part applies as if a reference to the business operator were a reference to the nominal insurer.

(2) If the nominal insurer and a business operator both pay compensation in relation to an injury suffered by an injured person, the rights of the nominal insurer under this part in relation to the payment have priority over the rights of the business operator.

(1) If an injury in relation to which compensation is payable under this Act is caused under circumstances that appear to create a legal liability in someone (the other person) other than the business operator to pay damages in relation to the injury—

(a) the injured person may take action against the other person to recover damages and also make a claim against the business operator under this Act; and

(b) if the injured person receives amounts under this Act and damages from the other person—the injured person must repay to the business operator so much of the amounts as does not exceed the amount of the damages received from the other person; and

(c) on notice to the other person, the business operator has a first charge on amounts payable by the other person to the injured person to the extent of any amounts the business operator has paid to the injured person under this Act; and

(d) if the injured person has received amounts under this Act, but no damages or less than the full amount of the damages to which the injured person is entitled—the other person must indemnify the business operator against so much of the amounts paid to the injured person as does not exceed the damages for which the other person is liable; and

(e) payment of an amount by the other person to the business operator under paragraph (c) or (d) are, to the extent of the amount, a satisfaction of the liability of the other person to the injured person.

(1) Compensation is not payable under this Act in relation to a compensable injury to a injured person to the extent to which—

(a) compensation for the injury has been paid under the law of a place outside the ACT; or

(b) a judgment or agreement for damages has been obtained in relation to the injury from the business operator independently of this Act.

(2) If an injured person or a dependant of a injured person obtains compensation under this Act in relation to an injury to the injured person, and, subsequently in relation to the injury, the person to whom the compensation was paid obtains compensation under a law of a place outside the ACT, or obtains from the business operator a judgment or agreement for damages independently of this Act, the business operator is entitled to recover from the person an amount equal to the least of the following amounts:

(a) the amount of the compensation obtained under this Act;

(b) if the person has obtained compensation under a law of a place outside the ACT in relation to the injury—the amount of the compensation, unless paragraph (d) applies;

(c) if the person has obtained a judgment or agreement for damages independently of this Act in relation to the injury—the amount of the judgment or agreement, unless paragraph (d) applies;

(d) if the person has obtained both compensation under a law of a place outside the ACT, and a judgment or agreement for damages independently of this Act, in relation to the injury—the net amount to which the person is entitled under that law in relation to the compensation and the damages.

(1) This section applies if—

(a) a business operator pays compensation to a dependant of a deceased injured person in relation to an injury that caused the death of a injured person; and

(b) damages in relation to the injury have been recovered from the business operator or any other person by another dependant (a non-claiming dependant) of the deceased injured person; and

(c) no claim for compensation in relation to the injury has been made by or on behalf of the non-claiming dependant.

(2) If there is only 1 non-claiming dependant, he or she is liable to pay to the business operator—

(a) if the amount of the damages recovered by the non-claiming dependant is less than the total amount of compensation paid to the dependants of the injured person in relation to the injured person’s injury—the amount of the damages; or

(b) in any other case—the amount of the compensation.

(3) If there is more than 1 non-claiming dependant, each non-claiming dependant is liable to pay to the business operator—

(a) an amount calculated in accordance with the formula—

; or

(b) if the amount of the damages recovered by the non-claiming dependant is less than the amount calculated in accordance with the formula in paragraph (a)—the amount of the damages.

(4) In subsection (3):

C means the total amount of the compensation paid in relation to the injured person’s injury to dependants of the injured person.

D means the amount of damages recovered by the non-claiming dependant in relation to the injury to the injured person.

TD means the total of the amounts of damages recovered by all the non-claiming dependants.

(5) For subsections (2) and (3), the amount of the compensation paid by the business operator in relation to the injured person’s injury does not include—

(a) any amount paid to a dependant of the injured person who is not entitled to recover damages in relation to the injured person’s injury; or

(b) any amount paid under this Act, because of the injured person’s death, for the benefit of a child who was a dependant of the injured person.

(1) This section applies if an injured person or a dependant of a deceased injured person is liable under section 154 (Remedies both against the business operator and stranger) or section 156 (Dependants recovering damages and not claiming compensation) to pay an amount to the business operator and the Magistrates Court or any person appointed by the Magistrates Court for the purpose holds on behalf of the injured person or the dependant—

(a) compensation payable for the benefit of, or damages awarded to, the injured person or the dependant; or

(b) investments acquired out of the compensation or damages.

(2) The Magistrates Court or person must deduct from the amount held by the court, or realise any or all of the investments and deduct from the proceeds of the realisation, an amount that is not more than the amount the injured person or dependant is liable to pay the business operator, and pay the amount deducted to the business operator.

The payment of an amount to a business operator under subsection (2) is a discharge of the liability, to the extent of the amount paid—

(a) of the injured person or dependant to the business operator; and

(b) of the Magistrates Court or other person to the injured person or dependant.

All matters and questions (other than prosecutions for offences) arising under this Act must, if no other provision is made in this Act, in the absence of agreement, be settled by conciliation or arbitration in accordance with the regulations.

A written statement in relation to an injured person’s injury that is given by the injured person to the business operator or to the business operator’s insurer must not be admitted in evidence on behalf of the business operator or insurer in any proceeding under this Act unless the business operator or insurer has, not later than 2 weeks before the proceeding is heard, given to the injured person, or his or her lawyer or agent, a copy of the statement.

(1) If a committee or the Magistrates Court gives a decision or makes an order or award in relation to any matter that may be or is required to be settled by arbitration under this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.

(2) The Magistrates Court (Civil Jurisdiction) Act 1982, part 21 applies in relation to an appeal under subsection (1)—

(a) as if it were an appeal from a judgment or order of a kind mentioned in that Act, section 387 (2); and

(b) for an appeal from a decision, order or award by a committee—as if the decision, order or award were a decision, order or award of the Magistrates Court.

(1) In this part:

reviewable decision means a decision made by the Minister that is prescribed under the regulations.

(2) If the Minister makes a reviewable decision, the Minister must give written notice of the decision to each person affected by the decision.

(3) The notice must be in accordance with the requirements of the code of practice in force under of the Administrative Appeals Tribunal Act 1989, section 25B (1).

A person may apply in writing to the administrative appeals tribunal for review of a reviewable decision within 28 days after receiving notice of the decision.

(1) This part applies to an insurer if—

(a) the insurer has acted honestly and taken all proper and business-like steps to obtain reinsurance for the insurer’s liability to pay compensation for injuries or deaths (or both) caused by acts of terrorism; and

(b) an act of terrorism happens before 1 April 2004; and

(c) the insurer accepts liability for claims for compensation for injuries or deaths (or both) caused by the act of terrorism; and

(d) the insurer has acted honestly and taken all proper and business-like steps to demand the maximum amounts the insurer may demand under the reinsurance contracts held by the insurer that apply in relation to the claims; and

(e) the total amount paid by the insurer for the claims, after the deduction of the maximum amounts the insurer may receive under the reinsurance contracts, is more than the temporary fund threshold amount that applies to the insurer.

(2) For this part, the temporary fund threshold amount that applies to an insurer is the amount worked out using the following formula:

(3) In this section:

insurer’s market share means the proportion (expressed as a percentage) of the administrative costs of the Act apportioned by the Minister to the insurer under section 182 (2) (Funds for administration of Act) in relation to the financial year before the act of terror happens.

premium pool means the total amount of—

(a) the premium income received by each approved insurer in relation to compulsory insurance policies in the financial year before the act of terror happens; and

(b) the premium that would have been payable by each self-insurer if the self-insurer had obtained a compulsory insurance policy for the financial year (or the part of the financial year for which the self-insurer was a self-insurer).

relevant premium pool amount means 5% of the premium pool.

In this part:

act of terrorism—see section 165.

insurer means an approved insurer or a self-insurer.

temporary fund—see section 166 (1).

temporary fund threshold amount—see section 163 (2).

(1) In this part:

act of terrorism means the use or threat of action if—

(a) the action falls within subsection (2); and

(b) the use or threat is designed to influence a government or to intimidate the public or a section of the public; and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person; or

(b) involves serious damage to property; or

(c) endangers a person’s life, other than that of the person committing the action; or

(d) creates a serious risk to the health or safety of the public or a section of the public; or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) that involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied.

(4) In this section:

action includes action outside the ACT or Australia.

government includes the government of another Australian jurisdiction or a foreign country.

person means a person anywhere, whether in or outside the ACT or Australia.

property means property located anywhere, whether in or outside the ACT or Australia.

public includes the public of a place outside the ACT or Australia.

(1) If this part applies to an insurer, the terrorism cover temporary reinsurance fund (the temporary fund) is established.

(2) The temporary fund consists of—

(a) the amounts of levies paid by insurers under this part; and

(b) amounts borrowed by the Territory for the fund; and

(c) any contributions made by the Territory to the fund; and

(d) income from the investment of amounts in the fund; and

(e) any other amounts that may lawfully be paid into the fund.

(3) The temporary fund is to be managed by the Territory and money paid into it is taken to be trust money under the Financial Management Act 1996.

(1) If this part applies to an insurer because of an act of terrorism, the insurer is entitled to be reimbursed from the temporary fund the insurer’s uninsured liability for the act of terrorism less the temporary fund threshold amount that applies to the insurer in relation to the act of terrorism.

(2) However, the insurer is entitled to be fully reimbursed from the temporary fund the insurer’s uninsured liability for another act of terrorism that happens—

(a) before 1 April 2004; and

(b) not later than 1 year after the day the act of terrorism mentioned in subsection (1) happens.

(3) Subsection (2) applies only if the insurer has acted honestly and taken all proper and business-like steps to—

(a) obtain reinsurance for the insurer’s liability to pay compensation for injuries or deaths (or both) caused by the later act of terrorism; and

(b) demand the maximum amounts the insurer may demand under the reinsurance contracts held by the insurer that apply in relation to the later act of terrorism.

(4) In this section:

insurer’s uninsured liability, for an act of terrorism, means the total of the amounts paid by the insurer for claims for compensation for injuries or deaths (or both) caused by the act of terrorism less all amounts that are recoverable (or to the extent that they are recoverable) by the insurer under the reinsurance contracts held by the insurer that apply in relation to the claims.

The temporary fund may be used to—

(a) pay any amount required under this part to be paid from the fund; and

(b) repay any amount borrowed for, or contributed by the Territory to, the fund; and

(c) pay interest on an amount mentioned in paragraph (b).

(1) The regulations may make provision in relation to the temporary fund, including—

(a) the imposition of levies on insurers for the fund; and

(b) payments from the fund.

(2) In particular, the regulations may make provision in relation to—

(a) levies for the fund, including their rate; and

(b) payments to the fund, including contributions by the Territory to the fund; and

(c) payments from the fund, including the information insurers claiming an entitlement to reimbursement from the fund must give to the fund’s manager.

(3) However, the regulations must not impose a levy for a period that is—

(a) for an approved insurer—more than 10% of the premiums received by the insurer in relation to compulsory insurance policies issued by the insurer that begin during the period; and

(b) for a self-insurer—more than 10% of the estimated premium that would have been payable by the self-insurer for a compulsory insurance policy obtained by the self-insurer that began at the beginning of the period.

(1) The temporary fund is declared to be an excluded matter for the purposes of the Corporations Act, section 5F in relation to the whole of the Corporations legislation to which the Corporations Act, part 1.1A (Interaction between Corporations Legislation and State and Territory laws) applies.

Note The Corporations Act, s 5F provides that if a State or Territory law declares a matter to be an excluded matter for the purposes of that section in relation to all or part of the Corporations legislation to which the Corporations Act, pt 1.1A applies (see s 5D), the provisions that are the subject of the declaration will not apply in relation to that matter in the State or Territory that made the declaration.

(2) Without limiting subsection (1) and to remove any doubt, an act or omission by an entity in relation to the fund is declared to be an excluded matter for the purposes of the Corporations Act, section 5F in relation to the whole of the Corporations legislation to which the Corporations Act, part 1.1A applies.

This part expires on 1 October 2004.

An insurer must not charge, or accept, a premium for a compulsory insurance policy that is greater than the premium worked out in accordance with the maximum rate of premium prescribed under the regulations.

Maximum penalty: 50 penalty units.

(1) If an inured person injured on a business operator’s business premises asks the business operator for the name and address of the person who was the business operator’s approved insurer on a stated date, the business operator must—

(a) if the business operator was not a self-insurer on the date—tell the injured person the name and address of the approved insurer, or each approved insurer, who issued a compulsory insurance policy to the business operator that was current on the date; or

(b) if the business operator was a self-insurer on the date—tell the injured person that.

Maximum penalty: 20 penalty units.

(2) A business operator must keep displayed, in accordance with subsection (3), a notice containing a summary of the requirements of this Act for making compensation claims that states—

(a) that claim forms for compensation are available from the business operator on request and free of charge; and

(b) if the business operator is a party to a compulsory insurance policy—the approved insurer’s name and address; and

(c) if the business operator is a self-insurer—that the business operator is exempt from the requirement to obtain insurance under this Act.

Maximum penalty: 10 penalty units.

Note If a form is approved under s 184 (Approved Forms) for a notice, the form must be used.

(3) The business operator must display the notice in a conspicuous place so that it can be conveniently read by members of the public.

(4) A business operator must ensure that claim forms are available during business hours to members of the public on the business premises on request and free of charge.

Maximum penalty: 10 penalty units.

Note If a form is approved under s 184 (Approved Forms) for a notice, the form must be used.

A person must not, other than for this Act or as required by law, make a record of or divulge or communicate to anyone else information or a document that the person acquired under this Act.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(1) The Minister may appoint, in writing, 1 or more doctors to be medical referees for this Act.

(2) The Minister may appoint a doctor to be a medical referee only if satisfied that the doctor has the experience and expertise to adequately perform the duties of a medical referee.

(3) A medical referee must not act as medical referee in relation to an injury if the medical referee’s services have been used as a doctor in relation to the injury by, or on behalf of, the business operator, injured person or insurer.

(4) A person appointed to be a medical referee is to be paid the fees decided by the Minister for the exercise of the person’s functions as a medical referee.

(5) An appointment under subsection (1) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

A prosecution for an offence against section 15 (Compulsory insurance—business operators) may be begun within 5 years after the commission of the offence.

Note The Legislation Act 2001, s 192 deals with when prosecutions for other offences against the Act must be begun.

(1) A person must not make a statement knowing that it is false or misleading in a material particular—

(a) in a notice given by the person under this Act; or

(b) in a claim for compensation made by the person; or

(c) in a medical certificate or other document that relates to a claim for compensation; or

(d) when giving information to someone about a claim for compensation (whether the information is given by the person who made the claim or not).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) This section does not apply to statements—

(a) made in documents filed, or information given, in a court proceeding; or

(b) made in a document or information if the person who made the statement did not know that the document or information was to be given in relation to a claim for compensation.

(3) This section applies to a statement even if it has been verified by statutory declaration.

(1) In this section:

representative means—

(a) for a corporation—an executive officer, employee or agent of the corporation; or

(b) for an individual—an employee or agent of the individual.

state of mind, of a person, includes—

(a) the person’s knowledge, intention, opinion, belief or purpose; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

(2) This section applies to a prosecution for an offence against this Act.

Note A reference to an offence against a Territory law includes a reference to an offence against the Crimes Act 1900, pt 9 (Aiding and abetting, accessories, attempts, incitement and conspiracy) that relates to the law (see Legislation Act 2001, s 189).

(3) If it is relevant to prove a person’s state of mind about an act or omission, it is enough to show—

(a) the act was done or omission made by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b) the representative had the state of mind.

(4) An act done or omitted to be done on behalf of a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person establishes that reasonable precautions were taken and appropriate diligence was exercised to avoid the act or omission.

(5) An individual who is convicted of an offence cannot be punished by imprisonment for the offence if the individual would not have been convicted of the offence without subsection (3) or (4).

(1) If a corporation commits an offence against this Act (other than against section 15 (Compulsory insurance—business operators)), an executive officer of the corporation—

(a) commits the offence; and

(b) is liable, on conviction, to a penalty not exceeding the maximum penalty that may be imposed for the commission of the offence by an individual.

(2) It is a defence to a prosecution for an offence against subsection (1) that—

(a) the defendant exercised due diligence to prevent the corporation from doing the act or making the omission alleged to constitute the offence or an element of the offence committed by the corporation; or

(b) an officer or employee of the corporation in the defendant’s position could not reasonably have been expected to know of the contravention; or

(c) the corporation would not have been found guilty of the offence because it could have established a defence available to it for the offence.

(3) An executive officer may, under subsection (1), be prosecuted for and convicted of an offence whether or not the corporation has been prosecuted for or convicted of the offence.

The Executive may make rules in relation to the procedure of the Magistrates Court for this Act.

Note Rules must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.

(1) If the procedure for taking a step in a proceeding is not prescribed under this Act, the Chief Magistrate may, in writing, give directions about the procedure to be followed for the step.

(2) A direction is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

(3) If the procedure for taking a step in a proceeding is not prescribed under this Act (including under a direction mentioned under subsection (1)), the Magistrates Court may give directions about the procedure to be followed in relation to the step.

(1) The costs of administration of this Act must be paid out of amounts provided in accordance with this section by approved insurers and self-insurers and any other amounts received under this Act.

(2) Liability for the costs of administration of this Act in relation to a financial year must be apportioned by the Minister among those who were approved insurers or self-insurers during the year.

(3) In making an apportionment under subsection (2) for a financial year, the Minister must have regard as far as practicable to—

(a) the premium income received by each approved insurer in relation to compulsory insurance policies in the financial year; and

(b) the premium that would have been payable by each self-insurer if the self-insurer had obtained a compulsory insurance policy for the financial year (or the part of the financial year for which the self-insurer was a self-insurer).

(4) If the Minister makes an apportionment under this section, the Minister must give each approved insurer and self-insurer concerned written details of the apportionment and require the insurer or self-insurer to pay to the Territory the apportioned amount, within the time stated in the notice.

(5) An amount mentioned in a notice to a person under subsection (4) and unpaid at the end of the time stated in the notice is a debt owing to the Territory by the approved insurer or self-insurer.

(6) Money received under this section must be paid into a departmental bank account maintained by the chief executive under the Financial Management Act 1996, section 34 (2).

(1) The Minister may, in writing, determine fees for this Act.

Note  The Legislation Act 2001 contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

(2) A determination is a disallowable instrument.

Note  A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.

(1) The Minister may, in writing, approve forms for this Act.

(2) If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see Legislation Act 2001, s 255.

(3) An approved form is a notifiable instrument.

Note  A notifiable instrument must be notified under the Legislation Act 2001.

(1) The Executive may make regulations for this Act.

Note  Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.

(2) The regulations may make provision in relation to the following:

(a) medical assessments of injured people;

(b) the use of medical specialists in relation to compensable injuries;

(c) the functions of medical referees appointed under this Act;

(d) what compulsory insurance policies must, and must not, include;

(e) how the performance of brokers and agents in relation to compensation under this Act may be monitored;

(f) the maximum fees and expenses that may be required for matters dealt with under this Act in relation to the following:

(i) medical examinations or medical treatment;

(ii) legal services;

(iii) retraining services;

(iv) investigative services;

(g) fees and expenses that may not, or may not for a period, be claimed from a injured person for a service provided in relation to a compensable injury;

(h) the action that may be taken in relation to an approved insurer, self-insurer or approved rehabilitation provider in circumstances prescribed under the regulations, including an order that an insurer or provider pay to the Territory an amount of not more than $1 000;

(i) the accreditation of people to act as injury managers;

(j) arbitration of matters and questions arising under this Act, including provision for the exclusion or modification of the Commercial Arbitration Act 1986 in its application to such an arbitration;

(k) protocols that may be approved by the Minister for this Act and how they may be approved;

(l) the approval of brokers for this Act, including—

(i) the factors to be taken into account in deciding whether to approve brokers; and

(ii) the conditions that may be imposed on approvals; and

(iii) how approvals may be renewed, suspended and revoked.

(3) The regulations may also prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.

ABS means the Australian Bureau of Statistics established under the Australian Bureau of Statistics Act 1975 (Cwlth).

approved rehabilitation provider—see section 120.

at—a business is operated at premises if the business is operated on or from the premises.

AWE means the Average weekly earnings, States and Territories, seasonally adjusted for the ACT (all males total earnings) issued by the ABS.

AWE indexed—see section 11.

business operator—see section 9.

business operator’s injury notice, for part 11 (Injury management process)—see section 80 (2).

child, in relation to an injured person, means an unmarried child of the person who is—

(a) younger than 16; or

(b) a full-time student.

commercial premises—see section 8.

compensable injury means an injury to which compensation is payable under this Act.

compensation means an amount payable under this Act in relation to an injury to, or the death of, a person.

compulsory insurance policy—see section 14.

cpi indexed—see section 11.

damages, for part 16 (Compensation and common law remedies)—see section 151.

deductible proportion, for part 7 (Compensation for permanent injuries)—see section 56 (1) (Deduction for previous injury or pre-existing condition).

executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.

given, for div 12.2 (Time for accepting or rejecting claims)—see section 108.

incapacity date, for an injured person, means—

(a) the date of the beginning of the period of the person’s incapacity for work; or

(b) if the person has been incapacitated for work because of the same injury for a number of separate periods—the date of beginning of the last period of incapacity; or

(c) if the person is dead and the death was not immediately preceded by a period of incapacity for work in relation to which the person received compensation under this Act—the date of the worker’s death.

injured person—see section 20 (1).

injured person’s injury notice, for part 11 (Injury management process)—see section 80 (1).

injury—

(a) for part 11 (Injury management process)—see section 74; and

(b) for part 16 (Compensation and common law remedies)—see section 151; and

(c) see section 7.

injury management, for part 11 (Injury management process)—see section 74.

injury management program, for part 11 (Injury management process)—see section 74.

initial loss, for part 7 (Compensation for permanent injuries)—see section 56 (1).

insured person, for part 11 (Injury management process)—see section 74.

insurer—see section 10.

loss, for part 7 (Compensation for permanent injuries)—see section 44.

maximum loss amount, for part 7 (Compensation for permanent injuries)—see section 46.

nominated treating doctor, for part 11 (Injury management process)—see section 74.

partially incapacitated—see section 13.

personal injury plan, for part 11 (Injury management process)—see section 74.

protocol—

(a) for part 13 (Vocational rehabilitation)—see section 122; and

(b) means a protocol approved for this Act.

reviewable decision, for part 18 (Review of decisions by administrative appeals tribunal)—see section 161.

single loss amount, for part 7 (Compensation for permanent injuries)—see section 45.

statutory floor means the federal minimum wage decided from time to time by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cwlth).

totally incapacitated—see section 12.

vocational rehabilitation, for part 13 (Vocational rehabilitation)—see section 121.

The Legislation Act 2001, s 133 deals with the meaning of offence penalties that are expressed in penalty units.