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This is a Bill, not an Act. For current law, see the Acts databases.
WORKERS COMPENSATION AMENDMENT BILL 2003 (NO 2)
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers
Compensation Amendment Bill 2003 (No 2)
Contents
Page
Part
2.1 Workers Compensation Act
1951 40
Part 2.2 Workers
Compensation Regulations 2002 56
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers Compensation
Amendment Bill 2003 (No 2)
A Bill for
An Act to amend the Workers Compensation Act 1951, and for
other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Workers Compensation Amendment Act 2003 (No
2).
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Workers Compensation Act 1951.
Note This Act also amends the following legislation:
• the Limitation Act 1985 (see s 34)
• the Workers Compensation Supplementation Fund Act 1980 (see
s 35)
• the Workers Compensation Regulations 2002 (see sch
2.2).
4 Who
is a worker?Section 8 (3) (a) to
(d)
substitute
(a) section 156 (6), definition of employer’s
estimate, paragraphs (a) and (b) (Information for insurers on
application for issue or renewal of policies);
(b) section 160 (1) (a) and (b) (Six-monthly information for
insurers);
(c) section 190 (1) (b) (Provision of information to
inspectors).
5 TraineesNew
section 14 (3A)
insert
(3A) An individual is also taken not to be a worker employed
by the principal if—
(a) the individual is an adult with a disability; and
(b) the engagement of the individual by the principal is arranged by a
specialist disability employment service provider; and
(c) the engagement is part of a work experience program (however
described) organised by the provider to help adults with disabilities to
work.
Example of work experience
program
work placement program
omit
(4) In subsection (3):
substitute
(4) In this section:
7 Section
14 (4), new definitions
insert
adult with a disability means a person who—
(a) is 16 years old or older; and
(b) has a physical, intellectual or psychiatric disability; and
(c) is likely to suffer from the disability permanently or for an extended
period.
specialist disability employment service provider means an
organisation (whether or not the organisation is incorporated)
that—
(a) provides employment services for people with disabilities;
and
(b) is not carried on for the financial benefit of the
organisation’s members.
renumber subsections when Act next republished under Legislation
Act
insert
17A Volunteers
To remove any doubt, an individual who is engaged to perform work for
someone else, and who receives no payment for the work (apart from any payment
for expenses), is taken not to be a worker unless the individual
is taken to be a worker under any of the following sections:
• section 14 (Trainees)
• section 17 (Religious workers)
• section 18 (Commercial voluntary workers)
• section 19 (Public interest voluntary workers).
10 Commercial
voluntary workersSection 18
(1)
substitute
(1) This section applies if—
(a) an individual (a commercial volunteer) is engaged under
an arrangement by which the commercial volunteer performs work that is for (or
incidental to) an enterprise, trade or business carried on by someone else (the
principal); and
(b) the principal carries on the enterprise, trade or business
for—
(i) if the principal is an individual—the financial benefit of the
principal; or
(ii) if the principal is a corporation—the financial benefit of the
corporation’s members; and
(c) the commercial volunteer receives no payment for the work (apart from
any payment for expenses).
Examples
1 The Very Big Motocross Event Company (a corporation incorporated under
the Corporations Act) promotes an event known as the ‘Mega
Motocross’. The corporation engages a number of motocross enthusiasts as
marshals for the event, but the marshals are volunteers (they are not paid).
The Mega Motocross is an ‘enterprise, trade or business’ carried on
for the financial benefit of the corporation’s members. The marshals are
therefore commercial volunteers to whom this section applies.
2 The Motorboat and Jet-ski Club of Canberra Inc. (a not-for-profit body
incorporated under the Associations Incorporation Act 1991) promotes an
annual event known as the ‘Big Splash’. The club engages a number
of enthusiasts as marshals for the event, but the marshals are volunteers (they
are not paid). The Big Splash is not an ‘enterprise, trade or
business’ carried on for the financial benefit of the club’s
members. The marshals are therefore not commercial volunteers to whom this
section applies.
3 The Homeless Trust is an organisation incorporated under statute whose
only object is to assist the homeless in Canberra. The trust runs an
opportunity shop in Tuggeranong, which earns a small profit. The shop is
staffed by unpaid volunteers. The shop’s profits are used to assist the
homeless. The shop is an ‘enterprise, trade or business’, but it is
not carried on for the financial benefit of the trust’s members. The
volunteer staff of the shop are therefore not commercial volunteers to whom this
section applies.
4 If the Homeless Trust described in example 3 were an unincorporated group
of individuals (or a single individual), but carried on the same activities for
the same single purpose, the shop concerned would be an ‘enterprise, trade
or business’, but would not be carried on for the financial benefit of the
individuals (or individual) by whom the trust is constituted (who would be the
principals, or principal). The volunteer staff of
the shop would therefore also not be commercial volunteers to whom this section
applies.
11 Public
interest voluntary workersSection 19
(1)
substitute
(1) The Minister may make a declaration for this section in relation to
work (public interest voluntary work) undertaken for a stated
entity if the Minister considers that making the declaration is necessary or
desirable in the public interest.
Example
As noted in section 18 (1), example 2, the volunteer marshals for the
annual Big Splash event described in that example would not be ‘commercial
volunteers’ to whom section 18 applies. Therefore, apart from section 19,
they would not be taken to be workers for this Act (see s 17A (Volunteers)).
The club promoting the event would therefore not normally be required to take
out compulsory workers compensation insurance under this Act to cover the work
of the marshals.
However, the Big Splash is potentially very dangerous for the volunteer
marshals, as they must be present in their own boats on Lake Burley Griffin
while the participants perform difficult stunts in motorboats and jet skis at
high speed nearby. In previous years, volunteer marshals have been seriously
injured at the event, and the Minister considers that the club did not take out
adequate insurance cover for the work of the marshals.
Taking these matters into account, the Minister may consider that it is
necessary or desirable in the public interest that the work of the volunteer
marshals be declared to be public interest voluntary work for this
section.
substitute
96 Obligations of insurer on being notified of
injury
(1) Within 3 business days after the day an insurer receives an injury
notice, the insurer must take action under the insurer’s injury management
program.
Maximum penalty: 10 penalty units.
(2) Within 3 business days after the day an insurer receives an injury
notice, if there are reasonable grounds for the insurer to believe that the
injury is a significant injury, the insurer must make contact under the
insurer’s injury management program with each of the following
people:
(a) the injured worker;
(b) the employer (unless the employer is a self-insurer);
(c) the worker’s nominated treating doctor (if appropriate and
practical).
Maximum penalty: 30 penalty units.
(3) If a workplace injury results in the worker being incapacitated for
work for a continuous period of longer than 7 days, within 3 business days after
the day the 1st continuous period of 7 days incapacity ends, the insurer must
make contact under the insurer’s injury management program with each of
the following people:
(a) the injured worker;
(b) the employer (unless the employer is a self-insurer);
(c) the worker’s nominated treating doctor (if appropriate and
practical).
Maximum penalty: 30 penalty units.
(4) An offence against this section is a strict liability
offence.
(5) In this section:
continuous period, in relation to a worker’s
incapacity—a period is a continuous period—
(a) whether or not any of the days in the period are business days;
and
(b) whether or not the incapacity is total or partial or a combination of
both.
significant injury means a workplace injury that is likely to
result in the worker being incapacitated for work for a continuous period of
longer than 7 days.
13 Medical
certificates and claims for
compensationSection 118
(2)
substitute
(2) A medical certificate required to accompany a claim for weekly
compensation must—
(a) comply with the requirements for medical assessments prescribed under
the regulations; and
(b) include a statement of the doctor’s assessment of whether the
worker’s condition is consistent with the worker’s employment being
a substantial contributing factor to the injury.
14 Time
for taking proceedings generallySection
120
omit
A proceeding
substitute
(1) A proceeding
insert
(2) However, a proceeding for the recovery of compensation for an injury
may also continue if—
(a) the Magistrates Court allows the proceeding to be maintained under
section 120A (Proceedings on late claims); or
(b) the proceeding may be maintained under section 124 (No notice or
defective or inaccurate notice).
16 Section
120, notes 1 and 2
substitute
Note An injured worker may give notice of an injury by making an
entry in a register of injuries (see s 92).
insert
120A Proceedings on late claims
(1) A person may apply to the Magistrates Court to allow a proceeding for
the recovery of compensation to be maintained.
Note Section 120 (2) allows the proceeding to be continued even if
the claim was made after the end of the time periods set out in s 120 (1), if
the Magistrates Court allows it to be maintained under this section.
(2) The Magistrates Court may allow the application if the court considers
that it is just and reasonable to allow the proceeding to be
maintained.
(3) Before making a decision about whether to allow the application, the
Magistrates Court may hear anyone likely to be affected by the proceeding if the
court considers it appropriate.
(4) In considering whether to allow the application, the Magistrates Court
must have regard to all the circumstances of the case, including the
following:
(a) the length of and reasons for the delay in making the claim;
(b) the extent to which, having regard to the delay, there is or is likely
to be prejudice to the employer;
(c) the conduct of the employer and the employer’s insurer after the
cause of action accrued to the claimant, including any steps taken by the
employer or the employer’s insurer to make available to the claimant ways
of working out facts that were or might have been relevant to the cause of
action;
(d) the duration of any disability of the worker arising at the time of or
after the injury giving rise to the claim;
(e) the extent to which the claimant acted promptly and reasonably once
the claimant knew that the injury to, or death of, the worker could be capable
at that time of giving rise to a claim for compensation;
(f) any steps taken by the claimant to obtain medical, legal or other
expert advice and the nature of any advice received.
(5) In this section:
claimant, if the claim is made by a person other than the
worker, includes the worker.
in part 6.1, insert
126A Lump sum claims—notice by insurers about
double compensation etc
(1) This section applies if an insurer is given notice by an employer of a
lump sum claim, and the insurer is liable to indemnify the employer for the
claim.
(2) After the insurer is given notice of the claim, the insurer must give
the claimant information explaining the requirements of the following sections
for the repayment of compensation together with the employer’s legal costs
as between party and party:
• section 36F (No ACT compensation if external compensation
received)
• section 183 (Remedies against employer and stranger)
• section 184 (No compensation if damages received)
• section 185 (Dependants recovering damages and not claiming
compensation).
Maximum penalty: 50 penalty units.
Note If a form is approved under s 222 for information to be given
by an insurer under this provision, the form must be used.
(3) An offence against this section is a strict liability
offence.
substitute
156 Information for insurers on application for issue
or renewal of policies
(1) This section applies if an employer applies to an insurer for the
issue or renewal of a compulsory insurance policy for a particular period (the
proposed insurance period).
(2) The employer must give the insurer, with the application, a statutory
declaration in relation to the proposed insurance period stating the
employer’s estimate for the period.
Maximum penalty: 250 penalty units, imprisonment for 2 years or
both.
Note One or more fault elements apply to this offence (see Criminal
Code, s 22).
(3) The employer must give the insurer, with the application, a statutory
declaration in relation to the proposed insurance period stating the
employer’s estimate for the period.
Maximum penalty: 50 penalty units.
(4) An offence against subsection (3) is a strict liability
offence.
(5) This section does not apply to a non-business employer.
(6) In this section:
employer’s estimate, for a proposed insurance period,
means the employer’s estimate of the following:
(a) the number of Territory workers in each determined category to be
employed by the employer in the period;
(b) the total wages to be paid to Territory workers in each determined
category in the period;
(c) the number of paid and unpaid workers who will work for the employer
in the period;
(d) the approximate amount of time each paid and unpaid worker will work
for the employer in the period.
Note An employer who makes a statement in a statutory declaration
that is false, misleading or incomplete may commit an offence (see s 161 and
s 213).
157 Information for insurers after renewal of
policies
(1) This section applies if an insurance policy taken out by an employer
is renewed.
(2) Within 30 days after the day the policy is renewed, the employer must
give the insurer a certificate from a recognised auditor stating the total wages
paid by the employer to Territory workers in the period from the day the policy
was issued or (if it had already been renewed) last renewed to the day before
the latest renewal.
Maximum penalty: 250 penalty units, imprisonment for 2 years or
both.
Note One or more fault elements apply to this offence (see Criminal
Code, s 22).
(3) Within 30 days after the day the policy is renewed, the employer must
give the insurer a certificate from a recognised auditor stating the total wages
paid by the employer to Territory workers in the period from the day the policy
was issued or (if it had already been renewed) last renewed to the day before
the latest renewal.
Maximum penalty: 50 penalty units.
Note A recognised auditor who makes a statement in an
auditor’s certificate that is false, misleading or incomplete may commit
an offence (see s 213).
(4) An offence against subsection (3) is a strict liability
offence.
(5) This section does not apply to a non-business employer.
158 Information for insurers after end or
cancellation of policies
(1) This section applies if a compulsory insurance policy taken out by an
employer ends or is cancelled, and the policy is not renewed.
(2) Within 30 days after the day the policy ends or is cancelled, the
employer must give the insurer a certificate from a recognised auditor stating
the total wages paid by the employer to Territory workers in the period during
which the policy was in force from the day it was issued or (if it had been
renewed) last renewed.
Maximum penalty: 50 penalty units.
Note A recognised auditor who makes a statement in an
auditor’s certificate that is false, misleading or incomplete may commit
an offence (see s 213).
(3) An offence against this section is a strict liability
offence.
(4) This section does not apply to a non-business employer.
159 Information for new insurers after change of
insurers
(1) This section applies if—
(a) an insurer (the current insurer) issues a compulsory
insurance policy (the current policy) to an employer;
and
(b) immediately before the issue of the current policy, the employer was
covered by a compulsory insurance policy (the previous policy)
issued by a different insurer.
(2) Within 30 days after the day the current policy is issued, the
employer must give the current insurer a copy of the certificate mentioned in
section 158 (2) in relation to the period from the day the previous policy was
issued or (if it had been renewed) last renewed to the day before the current
policy was issued.
Maximum penalty: 250 penalty units, imprisonment for 2 years or
both.
Note One or more fault elements apply to this offence (see Criminal
Code, s 22).
(3) Within 30 days after the day the current policy is issued, the
employer must give the current insurer a copy of the certificate mentioned in
section 158 (2) in relation to the period from the day the previous policy was
issued or (if it had been renewed) last renewed, to the day before the current
policy was issued.
Maximum penalty: 50 penalty units.
(4) An offence against subsection (3) is a strict liability
offence.
(5) This section does not apply to a non-business employer.
160 Six-monthly information for
insurers
(1) If an employer has a compulsory insurance policy for a period of
longer than 6 months, the employer must, within 30 days after the end of each
reporting period, give the insurer a statutory declaration setting
out—
(a) the number of Territory workers in each determined category employed
by the employer in the reporting period;
(b) the total wages paid to Territory workers in each determined category
in the reporting period; and
(c) the number of paid and unpaid workers working for the employer in the
reporting period; and
(d) the approximate amount of time each paid and unpaid worker worked for
the employer in the reporting period.
Maximum penalty: 50 penalty units.
Note An employer who makes a statement in a statutory declaration
that is false, misleading or incomplete may commit an offence (see s 161 and
s 213).
(2) An offence against this section is a strict liability
offence.
(3) This section does not apply to a non-business employer.
(4) In this section:
reporting period, in relation to a compulsory insurance
policy, means each of the following:
(a) the period (the 1st period) of 6 months beginning on the
1st day of the policy;
(b) each successive period (a successive period) of 6 months
following the 1st period during which the policy is in force, other than a
successive period that ends when the policy ends.
161 Statutory declarations—false information
etc
(1) A person commits an offence if—
(a) the person makes a statement in a relevant statutory declaration;
and
(b) the person does so knowing that the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading.
Maximum penalty:
(a) for a 1st offence—1 250 penalty units; or
(b) for a 2nd or subsequent offence—10 000 penalty units,
imprisonment for 10 years or both.
(2) A person commits an offence if—
(a) the person makes a statement in a relevant statutory declaration;
and
(b) the person does so reckless of whether the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading.
Maximum penalty: 50 penalty units, 6 months imprisonment or
both.
(3) Subsections (1) (b) (i) and (2) (b) (i) do not apply if the statement
is not false or misleading in a material particular.
(4) Subsections (1) (b) (ii) and (2) (b) (ii) do not apply if the omission
does not make the statement misleading in a material particular.
(5) In this section:
relevant statutory declaration means a statutory declaration
provided by an employer for either of the following provisions:
• section 156 (2) (Information for insurers on application for issue
or renewal of policies)
• section 160 (1) (Six-monthly information for insurers).
162 Employment after 2nd
offence
(1) For this section, an employer has been convicted of an offence
if the employer has been convicted of a 2nd or subsequent offence
against any of the following sections:
• section 147 (Compulsory insurance—employers)
• section 156 (Information for insurers on application for issue or
renewal of policies)
• section 157 (Information for insurers after renewal of
policies)
• section 158 (Information for insurers after end or cancellation of
policies)
• section 159 (Information for new insurers after change of
insurers)
• section 160 (Six-monthly information for insurers)
• section 214 (Criminal liability of executive officers).
(2) Subsection (1) only applies to an offence against section 214 if the
offence relates to the contravention by a corporation of another section
mentioned in subsection (1).
(3) An employer who has been convicted of an offence within the last
5 years must not employ a Territory worker.
Maximum penalty: imprisonment for 5 years.
before section 183, insert
182F Lump sum claims—notice by lawyers to
clients about repayment requirements
(1) This section applies if a person proposes to engage a lawyer to act
for the person in a claim for damages in relation to an injury for which a claim
for compensation has been made, or may be made, under this Act or under the
statutory workers compensation scheme of a place outside the ACT.
(2) Before accepting the engagement, the lawyer must give the person
information explaining the requirements of the following sections for the
repayment of compensation together with the employer’s legal costs as
between party and party:
• section 36F (No ACT compensation if external compensation
received)
• section 183 (Remedies against employer and stranger)
• section 184 (No compensation if damages received)
• section 185 (Dependants recovering damages and not claiming
compensation).
Maximum penalty: 50 penalty units.
Note If a form is approved under s 222 for information to be given
by a lawyer under this provision, the form must be used.
(3) Before accepting the engagement, the lawyer must tell the person the
likely costs and consequences in relation to the payment of costs if the person
pursues the claim for damages.
Maximum penalty: 50 penalty units.
(4) An offence against this section is a strict liability
offence.
substitute
183 Remedies against employer and
stranger
omit
If an injury
substitute
(1) If an injury
insert
(2) If an amount of compensation is paid in relation to a lump sum claim,
this section applies as if a reference to amounts paid under this
Act by an employer to a worker included a reference to any legal costs as
between party and party that the employer is liable to pay in relation to the
claim.
substitute
184 No compensation if damages
received
(1) Compensation under this Act (ACT compensation) is not
payable in relation to a worker’s injury to the extent that, independently
of this Act, a judgment or agreement for damages (independent
damages) has been obtained in relation to the same injury.
(2) If a person receives ACT compensation from an employer in relation to
a worker’s injury and later receives independent damages in relation to
the same injury, the employer is entitled to recover from the person the
recoverable amount.
(3) For subsection (2), the lesser of the following amounts is the
recoverable amount:
(a) the amount of ACT compensation;
(b) the amount of the independent damages.
(4) If an amount of ACT compensation is paid in relation to a lump sum
claim, subsection (3) (a) applies as if the reference to the amount of ACT
compensation paid by the employer included a reference to any legal
costs as between party and party that the employer is liable to pay in relation
to the claim.
(5) An employer cannot recover an amount under this section in relation to
an injury if the employer has recovered an amount under section 36F (No ACT
compensation if external compensation received) in relation to the same
injury.
25 Dependants
recovering damages and not claiming
compensationSection 185 (2)
(b)
substitute
(b) in any other case—the total amount of compensation paid to the
dependants of the worker in relation to the worker’s injury.
26 Section
185 (3), definition of C
substitute
C means the total amount of compensation paid to the
dependants of the worker in relation to the worker’s injury.
insert
(5) If an amount of compensation was paid (or is payable) to the worker in
relation to a lump sum claim, subsections (2) and (3) apply as if a reference to
the total amount of compensation paid by the employer included a
reference to any legal costs as between party and party that the employer is
liable to pay in relation to the claim.
28 Provision
of information to inspectorsSection 190 (1)
(b)
substitute
(b) a statutory declaration setting out—
(i) the number of Territory workers in each determined category employed
by the employer in the period; and
(ii) the total wages paid to Territory workers in each determined category
in the reporting period.
29 Time
for beginning prosecutionsSection 212
(1)
substitute
(1) A prosecution for an offence against any of the following sections may
be begun within 5 years after the day, or the last day, the offence is
committed:
• section 147 (Compulsory insurance—employers)
• section 156 (Information for insurers on application for issue or
renewal of policies)
• section 157 (Information for insurers after renewal of
policies)
• section 158 (Information for insurers after end or cancellation of
policies)
• section 159 (Information for new insurers after change of
insurers)
• section 160 (Six-monthly information for insurers)
• section 214 (Criminal liability of executive officers).
(1A) Subsection (1) only applies to an offence against section 214 if the
offence relates to the contravention by a corporation of another section
mentioned in subsection (1).
renumber subsections when Act next renumbered under Legislation
Act
31 Dictionary,
new definition of lump sum claim
insert
lump sum claim means a claim for compensation under this Act
in relation to a loss to which part 4.4 (Compensation for permanent injuries) or
4.6 (Compensation for death) applies.
32 Dictionary,
definition of recognised auditor, paragraph (c)
substitute
(c) a member of CPA Australia;
33 Limitation
Act 1985, section 35
after
section 16,
insert
16A,
34 Workers
Compensation Supplementation Fund Act 1980, section 7 (3)
omit
1 October 2004
substitute
1 October 2006
Schedule
1 Cross-border
amendments
substitute
(a) part 4.2A (Employment connection with ACT or State);
omit
insert
Part 4.2A Employment connection with ACT or
State
36A Meaning of Territory or State of
connection etc
(1) In this Act:
Territory or State of connection, in relation to the
employment of a worker, means—
(a) the Territory or State with which the employment of the worker is
connected, as determined under this part; and
(b) if this Act mentions the Territory or State of connection
determined under the law of a State for that employment—the State
of connection for that employment, or the Territory or State of connection for
that employment, within the meaning of the law of the State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(2) In this part:
employer, in relation to a Territory or State,
includes an employer within the meaning of the workers compensation law
of the Territory or State.
employment, in relation to a Territory or State,
includes employment within the meaning of the workers compensation law
of the Territory or State.
worker, in relation to a Territory or State, includes a
worker within the meaning of the workers compensation law of the Territory or
State.
36B Employment connection test
(1) Compensation under this Act is only payable if the ACT is the
Territory or State of connection.
(2) The fact that a worker is outside the ACT when injured does not
prevent compensation being payable under this Act if the ACT is the Territory or
State of connection.
(3) A worker’s employment is connected with—
(a) the Territory or State where the worker usually works in the
employment; or
(b) if no Territory or State, or no single Territory or State, is
identified by paragraph (a)—the Territory or State where the worker is
usually based for the purposes of the employment; or
(c) if no Territory or State, or no single Territory or State, is
identified by paragraph (a) or (b)—the Territory or State where the
employer’s principal place of business in Australia is located.
(4) For a worker working on a ship, if no Territory or State, or no single
Territory or State, is identified by subsection (3), the worker’s
employment is, while working on the ship, connected with—
(a) the Territory or State where the ship is registered; or
(b) if the ship is registered in more than 1 Territory or State—the
Territory or State where the ship most recently became registered.
(5) If no Territory or State is identified for a worker by
subsection (3) or (4), the worker’s employment is connected
with the ACT if—
(a) the worker is in the ACT when injured; and
(b) the worker is not entitled to compensation in relation to the injury
under the workers compensation law of an external Territory, or a place outside
Australia.
(6) In deciding whether a worker usually works in a Territory or
State—
(a) regard must be had to the following:
(i) the worker’s work history with the employer over the preceding
12 months;
(ii) the worker’s proposed future working arrangements;
(iii) the intentions of the worker and employer;
(iv) any period during which the worker worked in a Territory or State (a
relevant place) or was in a relevant place for the purposes of
employment, whether or not the worker is regarded as working or employed in the
relevant place under the workers compensation law of the relevant place;
but
(b) regard must not be had to any temporary arrangement under which the
worker works in a Territory or State for a period of not longer than 6
months.
(7) Compensation under this Act is not payable in relation to the
employment of a worker on a ship if the Seafarers Rehabilitation and
Compensation Act 1992 (Cwlth) applies to the worker’s
employment.
(8) In this section:
ship means any kind of vessel used in navigation by water,
however propelled or moved, and includes all of the following if used wholly or
primarily in navigation by water:
(a) a barge, lighter or other floating vessel;
(b) an air-cushioned vehicle, or other similar craft.
Territory or State, in a geographical sense, includes a
Territory’s or State’s relevant adjacent area as described in
schedule 2.
36C Determination of Territory or State of connection
in workers compensation proceedings
(1) If the question of whether the ACT is the Territory or State of
connection arises in a proceeding in a court in relation to a claim for
compensation under this Act, the court must determine the Territory or State of
connection in accordance with section 36B (Employment connection
test).
(2) Subsection (1) does not apply if there is a determination of the
Territory or State of connection that is to be recognised under section 36E
(Recognition of previous determinations of Territory or State of
connection).
36D Determination of Territory or State of connection
by Magistrates Court
(1) If a claim for compensation under this Act has been made, a party to
the claim may apply to the Magistrates Court for a determination of the question
of which Territory or State is the Territory or State of connection.
(2) The Magistrates Court must determine the Territory or State of
connection in accordance with section 36B (Employment connection
test).
(3) However, an application may not be made or heard if there is a
determination of the Territory or State of connection that is to be recognised
under section 36E.
36E Recognition of previous determinations of
Territory or State of connection
(1) This section applies if a determination of the Territory or State of
connection has been made by any of the following courts or tribunals:
(a) an ACT court under section 36C or 36D;
(b) a court or tribunal of a State under a provision of a law of the State
corresponding to section 36C or 36D;
(c) an ACT court or a court of a State in a proceeding on a damages claim
to which part 9.2 (Choice of law) applies, or to which provisions of a law of a
State corresponding to part 9.2 apply.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(2) The Territory or State determined as mentioned in subsection (1) is to
be recognised for this Act as the Territory or State of connection.
(3) This section does not prevent any appeal relating to a determination
of a court.
(4) If a determination is changed on appeal to a court, the changed
determination is to be recognised under this section.
36F No ACT compensation if external compensation
received
(1) Compensation under this Act (ACT compensation) is not
payable in relation to a worker’s injury to the extent that compensation
(external compensation) under the workers compensation law of an
external Territory or a place outside Australia has been received in relation to
the same injury.
(2) If a person receives ACT compensation from an employer in relation to
a worker’s injury and later receives external compensation in relation to
the same injury, the employer is entitled to recover from the person the
recoverable amount.
(3) For subsection (2), the lesser of the following amounts is the
recoverable amount:
(a) the amount of ACT compensation;
(b) the amount of external compensation.
(4) If an amount of ACT compensation is paid in relation to a lump sum
claim, subsection (3) (a) applies as if the reference to the amount of ACT
compensation paid by the employer included a reference to any legal
costs as between party and party that the employer is liable to pay in relation
to the claim.
(5) An employer cannot recover an amount under this section in relation to
an injury if the employer has recovered an amount under section 184 (No
compensation if damages received) in relation to the same injury.
omit
section 147 (2)
substitute
section 147 (7)
substitute
147 Compulsory
insurance—employers
(1) An employer commits an offence if the employer fails to maintain a
compulsory insurance policy with an approved insurer.
Maximum penalty: 250 penalty units, imprisonment for 2 years or
both.
Note One or more fault elements apply to this offence (see Criminal
Code, s 22).
(2) Subsection (1) does not apply to a non-business employer.
(3) An employer commits an offence if the employer fails to maintain a
compulsory insurance policy with an approved insurer.
Maximum penalty: 50 penalty units.
(4) An offence against subsection (3) is a strict liability
offence.
(5) This section does not apply to an employer if—
(a) the employer is a self-insurer; or
(b) the employer and another employer or other employers could become
liable to pay compensation for the same worker, and any of the other employers
maintains a joint compulsory insurance policy for the joint liability of all the
employers.
(6) It is a defence to a prosecution for an offence against this section
in relation to an employer’s liability in relation to a worker if the
employer proves that at the time of the offence—
(a) the employer believed on reasonable grounds that a State was the
Territory or State of connection for the employment under the law of a State
corresponding to part 4.2A (Employment connection with ACT or State);
and
(b) the employer had insurance, or was registered, as required under the
law of the State in relation to liability for workers compensation under the law
of the State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(7) A cover note may be a compulsory insurance policy only if it is in
force for not longer than 30 days and—
(a) the employer maintained a compulsory insurance policy (other than a
cover note) immediately before maintaining the cover note; or
(b) the employer was not an employer immediately before beginning to
maintain the cover note; or
(c) the employer was a self-insurer immediately before beginning to
maintain the cover note.
omit
If an employer
substitute
(1) If an employer
[1.7] New
section 150 (2)
insert
(2) However, the employer is not liable under subsection (1) for a failure
to maintain a compulsory insurance policy in relation to a worker
if—
(a) the employer believed on reasonable grounds that a State was the
Territory or State of connection for the employment under the law of a State
corresponding to part 4.2A (Employment connection with ACT or State);
and
(b) the employer had insurance, or was registered, as required under a law
of the State in relation to liability for workers compensation under the law of
the State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
substitute
Chapter 9 Common law
damages
Part 9.1 Interpretation and
application
after section 182, insert
Part 9.2 Choice of law
182A Definitions for pt 9.2
(1) In this part:
damages claim—see section 182C.
employer, in relation to a Territory or State,
includes an employer within the meaning of the workers compensation law
of the Territory or State.
substantive law—see section 182B.
worker, in relation to a Territory or State, includes a
worker within the meaning of the workers compensation law of the Territory or
State.
(2) For this part, a work-related injury is an injury to a
worker for which compensation is payable (whether or not it has been paid) under
the workers compensation law of a Territory or State.
(3) Also, a work-related injury includes an injury to a
worker for which compensation under a workers compensation law of a Territory or
State—
(a) would have been payable apart from a provision of the law that
excludes the worker’s right to compensation because the injury is
attributable to any conduct or failure of the worker stated in the provision;
or
(b) would have been payable if a claim for the compensation had been
properly made, and (if applicable) an election to claim compensation (instead of
damages) had been properly made.
182B Meaning of substantive
law
(1) For this part, substantive law includes each of the
following, whether or not it would otherwise be regarded as procedural in
nature:
(a) a law that establishes, modifies or extinguishes a cause of action or
a defence to a cause of action;
(b) a law prescribing the time within which an action must be brought
(including a law providing for the extension or shortening of that
time);
(c) a law that provides for the limitation or exclusion of liability or
the barring of a right of action if a proceeding on, or arbitration of, a claim
is not begun within a stated time;
(d) a law that limits the kinds of injury, loss or damage for which
damages or workers compensation may be recovered;
(e) a law that prevents the recovery of damages or compensation or limits
the amount of damages or compensation that can be recovered;
(f) a law expressed as a presumption, or rule of evidence, that affects
substantive rights;
(g) a provision of this chapter, and any other provision of this Act for
the interpretation of this chapter;
(h) a provision of the law of another Territory or a State about damages
for work-related injuries that is prescribed for this section under the
regulations.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(2) However, substantive law does not include a law
prescribing rules for choice of law.
182C Meaning of damages
claim
(1) For this part, damages claim means a claim for damages
in relation to a work-related injury to a worker caused, or claimed to have been
caused by—
(a) the negligence or other tort of the employer or a person for whose
acts the employer is vicariously liable; or
(b) a breach of contract by the employer.
(2) Also, damages claim includes a claim for damages in
relation to an injury caused, or claimed to have been caused, by negligence or
another tort even if the damages are claimed in an action for breach of contract
or other action.
182D Applicable substantive law for damages
claims
The substantive law of the Territory or State of connection
governs—
(a) whether or not a damages claim can be made in relation to a
work-related injury to a worker; and
(b) if a damages claim can be made—the determination of the damages
claim.
182E Claims to which pt 9.2
applies
This part applies only to a damages claim against 1 or more of the
following people:
(a) the employer;
(b) a person who is vicariously liable for the acts of the
employer;
(c) a person for whose acts the employer is vicariously liable.
Part 9.3 Compensation and common law
damages
[1.10] Chapter
16 heading
substitute
Chapter 16 Transitional—Workers
Compensation Amendment Act 2001
insert
Chapter 17 Transitional—Workers
Compensation Amendment Act 2003 (No 2)
247 Definitions for ch 17
In this chapter:
cross-border scheme commencement day means the day the
cross-border scheme provisions are inserted or substituted by the Workers
Compensation Amendment Act 2003 (No 2).
cross-border scheme provisions means the following provisions
of this Act:
• part 4.2A (Employment connection with ACT or State)
• part 9.2 (Choice of law)
• schedule 2 (Adjacent areas).
248 Application of cross-border scheme
provisions
(1) The cross-border scheme provisions do not apply in relation to an
injury (an earlier injury) received before the cross-border scheme
commencement day.
(2) This Act applies in relation to the earlier injury as if the
cross-border provisions had not been inserted by the Workers Compensation
Amendment Act 2003 (No 2).
(3) If the death of a worker results from both an earlier injury and an
injury (a later injury) received on or after the cross-border
scheme commencement day, the worker is, for the application of the provisions in
relation to the death of the worker, to be treated as having died as a result of
the later injury.
(4) If a period of incapacity for work resulted both from an earlier and a
later injury, the incapacity is, for the application of the cross-border scheme
provisions in relation to the incapacity, to be treated as having resulted from
the later injury.
(5) The cross-border scheme provisions, and this section, do not affect
the following:
(a) the liability of an employer or an insurer in relation to an earlier
injury, including a liability to make a contribution under section 27
(Compensation for death or incapacity through disease) in relation to
compensation payable for a later injury;
(b) the apportionment of liability under this Act if there are 1 or more
earlier injuries and 1 or more later injuries.
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, s 104).
(6) A compulsory insurance policy in force on the cross-border scheme
commencement day covers the employer, for as long as the policy remains in
force, for the employer’s liability under this Act as affected by the
cross-border scheme provisions.
249 Expiry of ch 17
(1) This chapter expires 2 years after the day it commences.
(2) This chapter is a law to which the Legislation Act, section 88 (Repeal
does not end the effect of transitional laws etc) applies.
insert
Schedule 2 Adjacent
areas
(see s 36B (8), def Territory or
State)
1 Definitions for sch 2
In this schedule:
continental shelf—see the Seas and Submerged Lands Act,
section 3 (1).
Petroleum (Submerged Lands) Act means the Petroleum
(Submerged Lands) Act 1967 (Cwlth).
Seas and Submerged Lands Act means the Seas and Submerged
Lands Act 1973 (Cwlth).
territorial sea—see the Seas and Submerged Lands Act,
section 3 (1).
2 Adjacent areas for States and the Northern
Territory
(1) The adjacent area for New South Wales, Victoria, South
Australia or Tasmania is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act,
schedule 2 for the State that is within the outer limits of the continental
shelf; and
(b) the space above and below that area.
(2) The adjacent area for Queensland is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act,
schedule 2 for Queensland that is within the outer limits of the continental
shelf; and
(b) the Coral Sea area within the meaning of the Petroleum (Submerged
Lands) Act, section 5A (7), other than the territorial area within the Coral Sea
area; and
(c) the areas within the outer limits of the territorial sea adjacent to
certain islands of Queensland as determined by proclamation on 9 February 1983
under the Seas and Submerged Lands Act, section 7; and
(d) the space above and below the areas described in paragraphs (a),
(b) and (c).
(3) The adjacent area for Western Australia is the part of
the area described in the Petroleum (Submerged Lands) Act, schedule 2 for
Western Australia that—
(a) is within the outer limits of the continental shelf, including the
space above and below the area; and
(b) is not within Area A of the Zone of Cooperation.
(4) The adjacent area for the Northern Territory
is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act,
schedule 2 for the Northern Territory that—
(i) is within the outer limits of the continental shelf; and
(ii) is not within Area A of the Zone of Cooperation; and
(b) the adjacent area for the Territory of Ashmore and Cartier Islands
(within the meaning of the Petroleum Submerged Lands Act, section 5A (3)) other
than the territorial sea within that area; and
(c) the space above and below the areas described in paragraph (a) and
(b).
(5) However, the adjacent area for a State or the Northern
Territory does not include any area inside the limits of a State or
Territory.
[1.13] Dictionary,
new definitions
insert
damages, for chapter 9 (Common law damages)—see section
180.
damages claim, for part 9.2 (Choice of law)—see section
182C.
[1.14] Dictionary,
definition of employer, paragraph (b)
substitute
(b) for part 4.2A (Employment connection with ACT or State)—see
section 36A (2) (Meaning of Territory or State of connection etc);
and
(c) for chapter 5 (Injury management process)—see section 87
(Meaning of employer and insurer if more than 1); and
(d) for part 9.2 (Choice of law)—see section 182A (1).
[1.15] Dictionary,
new definition
insert
employment, for part 4.2A (Employment connection with ACT or
State)—see section 36A (2) (Meaning of Territory or State of connection
etc).
[1.16] Dictionary,
definition of injury, new note
insert
Note For an extended meaning of injury for ch 9
(Common law damages), see s 180.
[1.17] Dictionary,
definition of Territory worker
substitute
substantive law, for part 9.2 (Choice of law)—see
section 182B.
Territory or State of connection—see section 36A.
Territory worker means a worker for whom the ACT is the
Territory or State of connection.
[1.18] Dictionary,
definition of worker
substitute
worker—
(a) see chapter 3 (Meaning of worker); and
(b) for part 4.2A (Employment connection with ACT or State)—see
section 36A (2) (Meaning of Territory or State of connection etc);
and
(c) for part 9.2 (Choice of law)—see section 182A (1).
workers compensation law means a law of a place that sets up
a statutory scheme for the compensation of injuries arising out of or in the
course of employment.
work-related injury, for part 9.2 (Choice of law)—see
section 182A (2) and (3).
Schedule
2 Criminal Code
harmonisation
Part
2.1 Workers Compensation Act
1951
insert
3A Offences against Act—application of Criminal
Code etc
(1) The Criminal Code applies to offences against this Act.
(2) Other legislation applies in relation to offences against this
Act.
(3) Subsection (1), this subsection and note 3 expire on
31 December 2005.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Note 3 Default application date of Code
The Criminal Code will apply to all ACT legislation from 1 January 2006,
making subsection (1) redundant from that date (see the Criminal Code, pt
2.1).
substitute
90 Insurer’s obligation of prompt
payment
(1) An insurer commits an offence if—
(a) the insurer is required under this Act to pay an amount for a service;
and
(b) the insurer does not pay the amount to the person who provided the
service (the service provider) within 30 days after the day the
service is provided.
Maximum penalty: 10 penalty units.
(2) Subsection (1) does not apply if—
(a) the insurer does not pay for the service because the insurer has
reasonable grounds to believe that the service has not been provided, or has not
been properly provided; and
(b) the insurer has told the service provider, in writing, why the insurer
has not paid for the service.
(3) An offence against this section is a strict liability
offence.
omit
An employer (other than a non-business employer)
substitute
(1) An employer
[2.4] New
section 91 (2) and (3)
insert
(2) This section does not apply to a non-business employer.
(3) An offence against this section is a strict liability
offence.
omit
, without lawful authority or excuse,
[2.6] New
section 92 (7) and (8)
insert
(7) An offence against this section is a strict liability
offence.
(8) This section does not prevent the alteration of the register to
correct an error of fact.
[2.7] New
section 100 (4)
insert
(4) An offence against this section is a strict liability
offence.
[2.8] Section
105 (1) to (3)
substitute
(1) This section applies if—
(a) a full-time, part-time or casual worker has been totally or partially
incapacitated for work because of an injury; and
(b) the worker can return to work, whether on a full-time or part-time
basis, and whether or not to the worker’s previous employment;
and
(c) within 6 months after the day the worker became entitled to weekly
compensation, the worker asks the employer liable to pay the compensation to
provide employment for the worker.
(2) The employer must provide employment to the worker that
is—
(a) so far as reasonably practical, the same as, or equivalent to, the
employment in which the worker was employed at the time of the injury;
and
(b) otherwise suitable employment for the worker.
Maximum penalty: 10 penalty units.
(3) An offence against this section is a strict liability
offence.
[2.9] Section
106 (1) to (3)
substitute
(1) This section applies if—
(a) a contract worker has been totally or partially incapacitated for work
because of an injury; and
(b) the worker can return to work, whether on a full-time or part-time
basis, and whether or not to the worker’s previous employment;
and
(c) within the defined period, the worker asks the employer liable to pay
the compensation to provide employment for the worker.
(2) The employer must provide employment to the worker that
is—
(a) so far as reasonably practical, the same as, or equivalent to, the
employment in which the worker was employed at the time of the injury;
and
(b) otherwise suitable employment for the worker.
Maximum penalty: 10 penalty units.
(3) An offence against this section is a strict liability
offence.
[2.10] New
section 106 (5)
insert
(5) In this section:
contract period includes the period of any reasonably
expected extension or renewal of the contract.
defined period, for a contract worker who is entitled to
weekly compensation, means the period beginning on the day the worker becomes
entitled to weekly compensation and ending—
(a) if the contract period ends, or would end, before the end of
6 months after the day the worker becomes entitled to weekly
compensation—at the end of the contract period; or
(b) in any other case—6 months after the day the worker becomes
entitled to weekly compensation.
substitute
109 Workplace rehabilitation
(1) An employer must establish and maintain a return-to-work program that
complies with subsection (3).
Maximum penalty: 10 penalty units.
(2) An employer must display or notify a return-to-work program that
complies with subsection (3) at each place of work of the workers to whom
the program relates or may relate.
Maximum penalty: 10 penalty units.
(3) A return-to-work program must—
(a) provide policies and procedures for the rehabilitation (including, if
necessary, vocational rehabilitation) of injured workers of the employer;
and
(b) be consistent with the injury management program of the
employer’s insurer; and
(c) be established in accordance with any guidelines issued by the
Minister under section 110; and
(d) be developed in consultation with—
(i) the workers to whom it relates, or may relate; and
(ii) any industrial union of workers representing the workers;
and
(iii) an approved rehabilitation provider.
(4) Subsection (1) does not apply if—
(a) the employer is part of a group of employers that has jointly
established a single return-to-work program for each member of the group;
and
(c) the employers are authorised in writing to do this by the Minister;
and
(b) the return-to-work program complies with subsection (3).
(5) This section does not apply to a non-business employer.
(6) An offence against this section is a strict liability
offence.
substitute
(4) The insurer must not contravene a direction under this
section.
Maximum penalty: 10 penalty units.
(5) An offence against this section is a strict liability
offence.
[2.13] Section
126 (1) and (2)
substitute
(1) If an employer receives a claim for compensation or another document
in relation to a claim, the employer must, within 7 days after the day the
employer receives the claim or document, forward it to the insurer liable to
indemnify the employer for the claim (the liable
insurer).
Maximum penalty: 50 penalty units.
(2) If the employer receives a written request from the liable insurer for
further stated information in relation to the claim or document, the employer
must, within 7 days after the day the employer receives the
request—
(a) give the insurer the requested information; or
(b) if the information is not in the employer’s possession and is
not reasonably obtainable by the employer—tell the insurer that in
writing.
Maximum penalty: 50 penalty units.
substitute
(5) An offence against this section is a strict liability
offence.
omit
chapter
substitute
Act
[2.16] New
section 142 (5)
insert
(5) An offence against this section is a strict liability
offence.
omit
substitute
(3) Subsection (1) does not apply in relation to a compulsory insurance
policy if—
(a) the employer has not paid for the policy; or
(b) the employer has not given the insurer information reasonably
requested by the insurer in relation to the policy.
(4) An offence against this section is a strict liability
offence.
substitute
154 Cancellation
(1) An approved insurer must not cancel a compulsory insurance policy
otherwise than in accordance with a protocol about cancellation.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
[2.20] New
section 155 (1A)
insert
(1A) An offence against this section is a strict liability
offence.
renumber subsections when Act next republished under Legislation
Act
[2.22] Section
163 (1) (c)
substitute
(c) if an approved insurer or a self-insurer is a corporation—an
executive officer of the corporation.
substitute
(3) The notice must set out details of the applicable offences and
penalties for the offences.
omit
an offence against subsection (6)
substitute
an applicable offence.
substitute
(6) A person to whom a notice is given must comply with the
notice.
Maximum penalty: 50 penalty units.
(7) An offence against this section is a strict liability
offence.
(8) In this section:
applicable offence means—
(a) an offence against this section; or
(b) an offence against section 213 (False information etc) in relation to
a notice.
[2.26] New
section 169 (8A)
insert
(8A) An offence against this section is a strict liability
offence.
renumber subsections when Act next republished under Legislation
Act
substitute
(3) The alleged employer must not make an agreement or admission in
relation to the claim.
Maximum penalty: 20 penalty units.
(3A) Subsection (3) does not apply to an admission or agreement if the
nominal insurer consents to the admission or agreement.
(3B) An offence against this section is a strict liability
offence.
renumber subsections when Act next republished under Legislation
Act
[2.30] Section
174 (2), penalty
substitute
Maximum penalty: 50 penalty units.
[2.31] New
section 174 (3)
insert
(3) An offence against this section is a strict liability
offence.
omit
An insurer
substitute
(1) An insurer
[2.33] New
section 176 (2)
insert
(2) An offence against this section is a strict liability
offence.
[2.34] New
section 178 (5)
(5) An offence against this section is a strict liability
offence.
[2.35] Section
189 (2), penalty
substitute
Maximum penalty: 1 penalty unit.
[2.36] New
section 189 (3)
insert
(3) An offence against this section is a strict liability
offence.
[2.37] Section
190 (3) and (4)
substitute
(3) An employer must comply with a notice given to the employer under
subsection (1) or (2).
Maximum penalty: 50 penalty units.
Note Under s 213 (False information etc), it is an offence for an
auditor to supply false, misleading or incomplete information in an
auditor’s certificate.
(4) An offence against this section is a strict liability
offence.
substitute
(5) A person must not contravene a requirement under this
section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(5A) An offence against this section is a strict liability
offence.
renumber subsections when Act next republished under Legislation
Act
substitute
194 Obstruction or hindrance of
inspector
A person must not obstruct or hinder an inspector in the exercise of the
inspector’s functions under this Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
substitute
210 Confidentiality
(1) If a person acquires information or a document under this Act, the
person must not—
(a) make a record of the information or document; or
(b) give anyone else the information or document, or divulge or
communicate the information or anything contained in the document in any other
way.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) Subsection (1) does not apply to conduct if the conduct is carried out
for this Act or as required by law.
(3) An offence against this section is a strict liability
offence.
[2.42] Sections
213 and 214
substitute
213 False information etc
(1) This section applies to each of the following statements (a
relevant statement):
(a) a statement in a notice under this Act;
(b) a statement by a recognised auditor in a certificate given for this
Act;
(c) a statement in a claim for compensation;
(d) a statement in a medical certificate or other document that relates to
a claim for compensation;
(e) a statement giving information to someone about a claim for
compensation (whether the information is given by the person who made the claim
or not).
(2) This section applies to a relevant statement even if it has been
verified by a statutory declaration.
(3) However, this section does not apply to the following
statements:
(a) a statement made in a document filed, or information given, in a court
proceeding;
(b) a statement 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.
(4) A person commits an offence if—
(a) the person makes a relevant statement; and
(b) the person does so knowing that the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(5) A person commits an offence if—
(a) the person makes a relevant statement; and
(b) the person is reckless about whether the statement—
(i) is false or misleading; or
(ii) omits anything without which the statement is misleading.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(6) Subsections (4) (b) (i) and (5) (b) (i) do not apply if the statement
is not false or misleading in a material particular.
(7) Subsections (4) (b) (ii) and (5) (b) (ii) do not apply if the omission
does not make the statement misleading in a material particular.
214 Criminal liability of executive
officers
(1) An executive officer of a corporation commits an offence
if—
(a) the corporation contravenes a defined provision of this Act;
and
Note Subsection (6) lists the defined provisions to
which this paragraph applies.
(b) the contravention constitutes an offence against this Act (a
relevant offence); and
(c) the officer was reckless about whether the contravention would happen;
and
(d) the officer was in a position to influence the conduct of the
corporation in relation to the contravention; and
(e) the officer failed to take all reasonable steps to prevent the
contravention.
Maximum penalty: The maximum penalty that may be imposed for the
commission of the relevant offence by an individual.
(2) This section applies whether or not the corporation is prosecuted for,
or convicted of, the relevant offence.
(3) In deciding whether the executive officer took (or failed to take)
reasonable steps to prevent the contravention, a court must have regard to the
following:
(a) any action the officer took directed towards ensuring the following
(to the extent that the action is relevant to the act or omission):
(i) that the corporation arranges regular professional assessments of the
corporation’s compliance with the defined provision;
(ii) that the corporation implements any appropriate recommendation
arising from such an assessment;
(iii) that the corporation’s employees, agents and contractors have
a reasonable knowledge and understanding of the requirement to comply with the
defined provision;
(b) any action the officer took when the officer became aware that the
contravention was, or might be, about to happen.
(4) Subsection (3) does not limit the matters to which the court may have
regard.
(5) This section does not apply if the corporation would have a defence to
a prosecution for the relevant offence.
(6) In this section:
defined provision, of this Act, means any of the following
provisions of this Act:
(a) section 92 (3) (Register of injuries);
(b) section 126 (Action by employer in relation to claims);
(c) section 142 (1) (Vocational rehabilitation);
(d) section 147 (Compulsory insurance—employers);
(e) section 153 (Compulsory insurance—insurers);
(f) section 156 (Information for insurers on application for issue or
renewal of policies);
(g) section 157 (Information for insurers after renewal of
policies);
(h) section 158 (2) (Information for insurers after end or cancellation of
policies);
(i) section 159 (Information for new insurers after change of
insurers);
(j) section 160 (1) (Six-monthly information for insurers);
(k) section 161 (Statutory declarations—false information
etc);
(l) section 162 (3) (Employment after 2nd offence);
(m) section 163 (6) (Provision of information to Minister);
(n) section 176 (1) (Premiums—maximum rates);
(o) section 190 (3) (Provision of information to inspectors);
(p) section 191 (5) (Entry and inspection of premises);
(q) section 194 (1) (Obstruction or hindrance of inspector);
(r) section 210 (Confidentiality);
(s) section 213 (False information etc).
[2.43] Dictionary,
definition of approved rehabilitation provider
substitute
approved rehabilitation provider—see section 139
(1).
Part
2.2 Workers Compensation Regulations
2002
insert
2 Offences against regulations—application of
Criminal Code etc
Other legislation applies in relation to offences against these
regulations.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to offences against these regulations (see
Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
substitute
(3) The insurer must give a copy of a notice under subregulation (2) to
the nominal insurer as soon as practicable.
Maximum penalty: 5 penalty units.
(3A) An offence against this regulation is a strict liability
offence.
renumber subregulations when regulations next republished under
Legislation Act
Endnotes
Republications of amended laws
1 For the latest republication of amended laws, see
www.legislation.act.gov.au.
Penalty units
2 The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
© Australian Capital Territory
2003
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