A Bill for an Act to amend the Safety, Rehabilitation and Compensation Act 1988, and for other purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Schedule 1 | The day after this Act receives the Royal Assent. | |
| 3. Schedule 2, Part 1 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 4. Schedule 2, Part 2 | The later of: (a) immediately after the commencement of the provisions covered by table item 3; and (b) immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015. | |
| 5. Schedule 2, Part 3 | The later of: (a) immediately after the commencement of the provisions covered by table item 3; and (b) immediately after the commencement of Part 1 of Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Act 2015. | |
| 6. Schedule 2, Part 4 | At the same time as the provisions covered by table item 3. | |
| 7. Schedule 3, Part 1 | The day after this Act receives the Royal Assent | |
| 8. Schedule 3, Part 2 | The later of: (a) immediately after the commencement of the provisions covered by table item 7; and (b) immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015. | |
| 9. Schedule 3, Part 3 | At the same time as the provisions covered by table item 7. | |
| 10. Schedule 4 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 11. Schedule 5, Part 1 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 12. Schedule 5, Part 2, Division 1 | The day after this Act receives the Royal Assent. | |
| 13. Schedule 5, Part 2, Division 2 | At the same time as the provisions covered by table item 11. | |
| 14. Schedule 6, Part 1 | The day after this Act receives the Royal Assent. | |
| 15. Schedule 6, Part 2 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 16. Schedule 7 | Immediately after the commencement of the provisions covered by table item 26. | |
| 17. Schedule 8 | The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) the commencement of item 5 of Schedule 1 to the Fair Work Amendment Act 2015. | |
| 18. Schedule 9 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 19. Schedule 10 | The day after this Act receives the Royal Assent. | |
| 20. Schedule 11 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 21. Schedule 12 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 22. Schedule 13 | The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015. | |
| 23. Schedule 14, Part 1 | The day after this Act receives the Royal Assent. | |
| 24. Schedule 14, Part 2 | The later of: (a) immediately after the commencement of the provisions covered by table item 23; and (b) immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015. | |
| 25. Schedule 14, Part 3 | At the same time as the provisions covered by table item 23. | |
| 26. Schedule 15, Part 1 | The day after this Act receives the Royal Assent. | |
| 27. Schedule 15, Part 2 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
| 28. Schedule 16 | The day after this Act receives the Royal Assent. | |
| 29. Schedule 17, Part 1 | The day after this Act receives the Royal Assent. | |
| 30. Schedule 17, Part 2 | The later of: (a) immediately after the commencement of the provisions covered by table item 29; and (b) immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Eligibility for compensation and rehabilitation
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
designated injury has the meaning given by section 5C.
relevant pre‑existing ailment, in relation to a designated injury or an aggravation of a designated injury, has the meaning given by section 5C.
2 Subsection 4(1) (definition of significant degree)
Repeal the definition, substitute:
significant degree means a degree that is substantially more than material.
3 Subsection 4(10)
After “than in”, insert “section 7A or”.
4 Subsection 4(10A)
After “except in”, insert “section 7A or”.
5 Subsection 5A(1) (paragraphs (b) and (c) of the definition of injury)
After “disease”, insert “or a designated injury”.
6 Subsection 5A(1) (at the end of paragraph (c) of the definition of injury)
Add “or”.
7 Subsection 5A(1) (after paragraph (c) of the definition of injury)
Insert:
(d) a designated injury suffered by an employee, where the designated injury was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee; or
(e) a designated injury suffered by an employee, where:
(i) the relevant pre‑existing ailment is a disease; and
(ii) the designated injury was contributed to, to a significant degree, by the relevant pre‑existing ailment; or
(f) an aggravation of a designated injury suffered by an employee, where the aggravation was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee; or
(g) an aggravation of a designated injury suffered by an employee, where:
(i) the relevant pre‑existing ailment is a disease; and
(ii) the aggravation was contributed to, to a significant degree, by the relevant pre‑existing ailment;
8 Subsection 5A(1) (definition of injury)
Omit all the words after “suffered as a result”, substitute:
of:
(h) reasonable management action taken in a reasonable manner; or
(i) the employee’s anticipation or expectation of reasonable management action being taken.
9 Subsection 5A(2)
Repeal the subsection, substitute:
Management action
(2) For the purposes of subsection (1), management action includes (but is not limited to) the following:
(a) an appraisal of the employee’s performance;
(b) a counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a suspension action in respect of the employee’s employment;
(d) a disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment;
(g) an organisational or corporate restructure;
(h) a direction given for an operational purpose or purposes;
(i) anything done in connection with an action mentioned in paragraph (g) or (h).
Designated injury—significant degree test
(3) For the purposes of paragraphs (1)(d) and (f), in determining whether:
(a) a designated injury; or
(b) an aggravation of a designated injury;
was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(c) the duration of the employment;
(d) the nature of, and particular tasks involved in, the employment;
(e) the state of the employee’s physical and psychological health before the designated injury or aggravation;
(f) any predisposition of the employee to the designated injury or aggravation;
(g) the probability that, if the employee had not been employed in the employment:
(i) the designated injury or aggravation; or
(ii) a similar designated injury or similar aggravation;
would have been suffered by the employee:
(iii) at or about the same time in the employee’s life; or
(iv) at the same stage of the employee’s life;
(h) any activities of the employee not related to the employment;
(i) if the designated injury or aggravation is, to a significant degree, attributable to the employee’s:
(i) belief about; or
(ii) interpretation of;
an incident or state of affairs—whether the employee had reasonable grounds for the belief or interpretation, as the case may be;
(j) any other matters affecting the employee’s physical or psychological health;
(k) any other relevant matters.
This subsection does not limit the matters that may be taken into account.
10 After paragraph 5B(2)(b)
Insert:
(ba) the state of the employee’s physical and psychological health before the ailment or aggravation;
11 After paragraph 5B(2)(c)
Insert:
(ca) the probability that, if the employee had not been employed in the employment:
(i) the ailment or aggravation; or
(ii) a similar ailment or similar aggravation;
would have been suffered by the employee:
(iii) at or about the same time in the employee’s life; or
(iv) at the same stage of the employee’s life;
12 After paragraph 5B(2)(d)
Insert:
(da) if the ailment or aggravation is, to a significant degree, attributable to the employee’s:
(i) belief about; or
(ii) interpretation of;
an incident or state of affairs—whether the employee had reasonable grounds for the belief or interpretation, as the case may be;
13 Paragraph 5B(2)(e)
Repeal the paragraph, substitute:
(e) any other matters affecting the employee’s physical or psychological health;
(f) any other relevant matters.
14 Subsection 5B(3)
Repeal the subsection, substitute:
(3) If:
(a) a Compensation Standard is in force under section 7A in relation to an ailment; and
(b) the Compensation Standard sets out matters that must be taken into account for the purposes of the application of this subsection to the ailment;
those matters must be taken into account in determining whether the ailment was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(4) If:
(a) a Compensation Standard is in force under section 7A in relation to an ailment; and
(b) the Compensation Standard sets out matters that must be taken into account for the purposes of the application of this subsection to an aggravation of the ailment;
those matters must be taken into account in determining whether an aggravation of the ailment was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(5) Subsections (3) and (4) have effect in addition to subsection (2).
15 After section 5B
Insert:
5C Definition of designated injury
(1) For the purposes of this Act, designated injury means:
(a) an injury to the heart; or
(b) an injury to a blood vessel that is associated with the heart; or
(c) an injury to the brain; or
(d) an injury to a blood vessel that is associated with the brain; or
(e) an injury to an intervertebral disc; or
(f) an injury that is associated with an intervertebral disc; or
(g) an injury prescribed by the regulations;
where:
(h) the injury is not a disease (within the meaning of section 5B); and
(i) the injury consists of, is caused by, results from, or is associated with, a pre‑existing ailment.
(2) For the purposes of this Act, the relevant pre‑existing ailment in relation to:
(a) a designated injury; or
(b) an aggravation of a designated injury;
is the pre‑existing ailment mentioned in paragraph (1)(i).
(3) For the purposes of subsection (1), injury has its ordinary meaning.
16 After section 7
Insert:
7A Compensation Standards relating to ailments
(1) Comcare may, by legislative instrument, determine a Compensation Standard that:
(a) relates to a specified ailment; and
(b) sets out the factors that must, as a minimum, exist before it can be said that an employee is suffering from the ailment.
(2) If a Compensation Standard is in force in relation to an ailment, then, for the purposes of this Act, an employee is taken not to have suffered, or be suffering, from the ailment unless the factors set out in the Compensation Standard existed, or exist, as the case requires, for the employee.
(3) A Compensation Standard relating to an ailment may set out matters that must be taken into account for the purposes of the application of subsection 5B(3) to the ailment.
(4) A Compensation Standard relating to an ailment may set out matters that must be taken into account for the purposes of the application of subsection 5B(4) to an aggravation of the ailment.
Part 2—Application provisions
17 Application of amendments
The amendments made by this Schedule apply in relation to an injury sustained by an employee after the commencement of this item.
Schedule 2—Rehabilitation
Part 1—General amendments
Military Rehabilitation and Compensation Act 2004
1 Subsection 41(1) (paragraph (a) of the definition of approved program provider)
Omit “approved program provider”, substitute “approved workplace rehabilitation provider”.
Safety, Rehabilitation and Compensation Act 1988
2 Subsection 4(1) (definition of approved program provider)
Repeal the definition.
3 Subsection 4(1)
Insert:
approved workplace rehabilitation provider means a person or body approved under section 34F or 34H as a workplace rehabilitation provider, and includes a person or body so approved whose approval is renewed under section 34L.
4 Subsection 4(1)
Insert:
current employer of an employee means:
(a) if the employee is employed in an Entity—the principal officer of the Entity; or
(b) if the employee is employed in a Commonwealth authority—the principal officer of the Commonwealth authority; or
(c) if the employee is employed by a licensed corporation—the principal officer of the corporation; or
(d) if the employee is employed by a corporation (within the meaning of Part VIII) that is not a licensed corporation—the principal executive officer of the corporation.
employee’s responsibilities under a workplace rehabilitation plan has the meaning given by section 36A.
5 Subsection 4(1) (definition of exempt authority)
Omit “35”, substitute “38A”.
6 Subsection 4(1)
Insert:
formally notified of an injury has the meaning given by subsection 36C(1).
liable employer has the meaning given by Division 2A of Part III.
7 Subsection 4(1) (definition of rehabilitation authority)
Repeal the definition.
8 Subsection 4(1) (definition of rehabilitation program)
Repeal the definition.
9 Subsection 4(1) (definition of suitable employment)
Repeal the definition, substitute:
suitable employment, in relation to an employee, means any employment (including self‑employment) for which the employee is suited, having regard to:
(a) the employee’s age, experience, training, language and other skills; and
(b) the employee’s suitability for rehabilitation or vocational retraining; and
(c) if employment is available at a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(d) any other relevant matters.
10 Subsection 4(1)
Insert:
workplace rehabilitation plan has the meaning given by section 36.
work readiness assessment has the meaning given by section 38B.
11 Subparagraph 6(1)(f)(iii)
Repeal the subparagraph, substitute:
(iii) fulfilling the employee’s responsibilities under a workplace rehabilitation plan; or
12 Subparagraph 6(1)(f)(v)
Omit “or rehabilitation assessment”.
13 At the end of paragraph 6(1)(f)
Add:
(vii) undergoing a work readiness assessment; or
14 Subparagraph 6(1)(g)(iii)
Repeal the subparagraph, substitute:
(iii) fulfilling the employee’s responsibilities under a workplace rehabilitation plan; or
15 Subparagraph 6(1)(g)(iv)
Omit “or rehabilitation assessment”.
16 At the end of paragraph 6(1)(g)
Add:
(v) undergoing a work readiness assessment; or
17 Paragraph 19(4)(d)
Omit “completed a reasonable rehabilitation or vocational retraining program”, substitute “fulfil the employee’s responsibilities under a workplace rehabilitation plan”.
18 Paragraph 19(4)(f)
Omit “undertake, or to complete, a rehabilitation or vocational retraining program”, substitute “fulfil the employee’s responsibilities under a workplace rehabilitation plan”.
19 Section 34 (definition of principal)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
20 Division 2 of Part III (heading)
Repeal the heading, substitute:
Division 2—Workplace rehabilitation providers
21 Subsection 34A(1)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
22 Paragraph 34A(2)(b)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
23 Subsections 34A(3) to (6)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
24 Paragraph 34A(7)(a)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
25 Paragraph 34A(7)(b)
Repeal the paragraph, substitute:
(b) as an approved workplace rehabilitation provider.
26 Section 34B (heading)
Repeal the heading, substitute:
34B Persons may seek approval as workplace rehabilitation providers
27 Section 34B
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
28 Subsection 34C(1)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
29 Section 34D (heading)
Repeal the heading, substitute:
34D Comcare to establish criteria for approval, or renewal of approval, of persons as workplace rehabilitation providers
30 Paragraph 34D(1)(a)
Omit “rehabilitation program providers”, substitute “workplace rehabilitation providers”.
31 Section 34E (heading)
Repeal the heading, substitute:
34E Comcare to establish operational standards for workplace rehabilitation providers
32 Subsection 34E(1)
Omit “rehabilitation program providers”, substitute “workplace rehabilitation providers”.
33 Paragraphs 34E(2)(a) and (b)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
34 Subsection 34F(1)
Omit “rehabilitation program provider” (wherever occurring), substitute “workplace rehabilitation provider”.
35 Paragraph 34F(2)(a)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
36 Section 34G
Omit “rehabilitation program provider” (wherever occurring), substitute “workplace rehabilitation provider”.
37 Section 34H (heading)
Repeal the heading, substitute:
34H Comcare may also approve persons as workplace rehabilitation providers on its own initiative
38 Subsection 34H(1)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
39 Paragraphs 34H(2)(a) and (b)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
40 Subsection 34H(5)
Omit “rehabilitation program provider” (wherever occurring), substitute “workplace rehabilitation provider”.
41 Section 34J (heading)
Repeal the heading, substitute:
34J Persons may seek renewal of approval as workplace rehabilitation providers in certain circumstances
42 Subsection 34J(1)
Omit “rehabilitation program provider” (wherever occurring), substitute “workplace rehabilitation provider”.
43 Subsection 34K(1)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
44 Paragraph 34L(1)(d)
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
45 Section 34M
Omit “an approved rehabilitation program provider”, substitute “a workplace rehabilitation provider”.
46 Section 34P
Omit “rehabilitation program provider” (first occurring), substitute “workplace rehabilitation provider”.
47 Subparagraph 34P(b)(ii)
Omit “an approved rehabilitation program provider”, substitute “a workplace rehabilitation provider”.
48 Section 34Q
Omit “rehabilitation program provider”, substitute “workplace rehabilitation provider”.
49 Subsection 34R(1)
Omit “rehabilitation program provider” (wherever occurring), substitute “workplace rehabilitation provider”.
50 After Division 2 of Part III
Insert:
Division 2A—Liable employers
35 Liable employer—basic rule
Liable employer for an injury (other than a disease, a designated injury or an aggravation of a designated injury)
(1) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is not a disease, a designated injury or an aggravation of a designated injury;
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the employee was employed by an Entity or a Commonwealth authority when the injury occurred; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the employee was employed by an exempt authority when the injury occurred—Comcare; or
(e) if the employee was employed by a licensed authority when the injury occurred—the principal officer of the authority; or
(f) if the employee was employed by a licensed corporation when the injury occurred—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
Liable employer for a disease
(2) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is a disease;
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the disease was contributed to, to a significant degree, by the employee’s employment by an Entity or Commonwealth Authority; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the disease was contributed to, to a significant degree, by the employee’s employment by an exempt authority—Comcare; or
(e) if the disease was contributed to, to a significant degree, by the employee’s employment by a licensed authority—the principal officer of the authority; or
(f) if the disease was contributed to, to a significant degree, by the employee’s employment by a licensed corporation—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
Liable employer for a designated injury
(3) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is a designated injury covered by paragraph 5A(1)(d);
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the designated injury was contributed to, to a significant degree, by the employee’s employment by an Entity or Commonwealth Authority; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the designated injury was contributed to, to a significant degree, by the employee’s employment by an exempt authority—Comcare; or
(e) if the designated injury was contributed to, to a significant degree, by the employee’s employment by a licensed authority—the principal officer of the authority; or
(f) if the designated injury was contributed to, to a significant degree, by the employee’s employment by a licensed corporation—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
(4) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is a designated injury covered by paragraph 5A(1)(e);
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by an Entity or Commonwealth Authority; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by an exempt authority—Comcare; or
(e) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by a licensed authority—the principal officer of the authority; or
(f) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by a licensed corporation—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
Liable employer for an aggravation of a designated injury
(5) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is an aggravation of a designated injury covered by paragraph 5A(1)(f);
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the aggravation of the designated injury was contributed to, to a significant degree, by the employee’s employment by an Entity or Commonwealth Authority; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the aggravation of the designated injury was contributed to, to a significant degree, by the employee’s employment by an exempt authority—Comcare; or
(e) if the aggravation of the designated injury was contributed to, to a significant degree, by the employee’s employment by a licensed authority—the principal officer of the authority; or
(f) if the aggravation of the designated injury was contributed to, to a significant degree, by the employee’s employment by a licensed corporation—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
(6) For the purposes of this Act, if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) the injury is an aggravation of a designated injury covered by paragraph 5A(1)(g);
the liable employer of the employee in relation to the injury means:
(c) if:
(i) the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by an Entity or Commonwealth Authority; and
(ii) the Entity or Commonwealth authority is not an exempt authority;
the principal officer of the Entity or the principal officer of the Commonwealth authority, as the case may be; or
(d) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by an exempt authority—Comcare; or
(e) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by a licensed authority—the principal officer of the authority; or
(f) if the relevant pre‑existing ailment was contributed to, to a significant degree, by the employee’s employment by a licensed corporation—the principal officer of the corporation.
Note: The liable employer has responsibility under this Part for the rehabilitation of the employee.
Two or more contributory employments
(7) For the purposes of subsections (2), (3), (4), (5) and (6), if:
(a) apart from this subsection, there are 2 or more contributory employments for whichever of the following is applicable:
(i) the disease;
(ii) the designated injury;
(iii) the aggravation of the designated injury;
(iv) the relevant pre‑existing ailment; and
(b) one of those contributory employments occurred more recently than the remaining contributory employment or contributory employments;
disregard the remaining contributory employment or contributory employments.
(8) For the purposes of subsection (7), if:
(a) the disease; or
(b) the designated injury; or
(c) the aggravation of the designated injury; or
(d) the relevant pre‑existing ailment;
was contributed to, to a significant degree, by:
(e) the employee’s employment by an Entity; or
(f) the employee’s employment by a Commonwealth authority; or
(g) the employee’s employment by a licensed authority; or
(h) the employee’s employment by a licensed corporation;
the employment is a contributory employment.
Other matters
(8) Subsections (1) to (6) have effect subject to sections 35A, 35B and 35C.
35A Liable employer ceases to exist
If:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) apart from this section, the liable employer of the employee in relation to the injury is the principal officer of a particular Entity or Commonwealth authority; and
(c) the Entity or Commonwealth authority is not an exempt authority; and
(d) the Entity or Commonwealth authority ceases to exist;
then:
(e) the liable employer of the employee in relation to the injury is:
(i) Comcare; or
(ii) if another Entity or Commonwealth authority is ascertained in accordance with the regulations—the principal officer of that other Entity or Commonwealth authority; and
(f) no other body or person is the liable employer of the employee in relation to the injury.
Note: A body or person who becomes the liable employer under this section assumes responsibility under this Part for the rehabilitation of the employee.
35B Liable employer ceases to perform a function
If:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) when the injury was sustained, the employee was employed by an Entity or a Commonwealth authority for purposes relating to the performance of a particular function by the Entity or Commonwealth authority; and
(c) the Entity or Commonwealth authority is not an exempt authority; and
(d) the Entity or Commonwealth authority ceases to perform that function;
then:
(e) the liable employer of the employee in relation to the injury is:
(i) Comcare; or
(ii) if another Entity or Commonwealth authority is ascertained in accordance with the regulations—the principal officer of that other Entity or Commonwealth authority; and
(f) no other body or person is the liable employer of the employee in relation to the injury.
Note: A body or person who becomes the liable employer under this section assumes responsibility under this Part for the rehabilitation of the employee.
35C Deemed liable employer
(1) If an employee has suffered an injury resulting in an incapacity for work or an impairment, Comcare may, by writing, determine that:
(a) the liable employer of the employee in relation to the injury is the principal officer of a specified Entity or Commonwealth authority; and
(b) no other body or person is the liable employer of the employee in relation to the injury.
Note: A body or person who becomes the liable employer under this section assumes responsibility under this Part for the rehabilitation of the employee.
(2) If Comcare makes a determination under subsection (1) that relates to an employee, Comcare must give a copy of the determination to the employee.
(3) A determination under subsection (1) is not a legislative instrument.
Revocation of determination
(4) If:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) a determination is in force under subsection (1) in relation to the injury;
Comcare may, by writing, revoke the determination.
(5) If, under subsection (4), Comcare revokes a determination that relates to an employee, Comcare must give a copy of the revocation to:
(a) the employee; and
(b) the person who, after the revocation, is the liable employer of the employee in relation to the injury concerned.
35D Transitional—change of liable employer
(1) The regulations may make provision in relation to transitional matters arising out of a change from a former liable employer to a new liable employer that results from the operation of:
(a) section 35A; or
(b) section 35B; or
(c) section 35C.
(2) Regulations made for the purposes of subsection (1) may:
(a) provide that a specified thing done by, or in relation to, the former liable employer before the change has effect, after the change, as if it had been done by, or in relation to, the new liable employer; or
(b) provide for the new liable employer to be substituted for the former liable employer as a party in a specified proceeding before a court or tribunal; or
(c) provide for specified records or documents to be transferred to the new liable employer; or
(d) provide that a reference in a specified instrument to the former liable employer has effect after the change as if the reference were a reference to the new liable employer.
(3) Subsection (2) does not limit subsection (1).
(4) For the purposes of subsection (2), instrument includes:
(a) a contract, deed, undertaking or agreement; and
(b) a notice, authority, order or instruction; and
(c) an instrument made under an Act or under regulations.
35E Delegation by liable employer
(1) A liable employer who is:
(a) the principal officer of an Entity; or
(b) the principal officer of a Commonwealth authority in respect of which a licence is not in force under Part VIII; or
(c) the principal officer of a licensee;
may, by writing, delegate to an officer of, or a person employed by, that Entity, authority or licensee any or all of the powers and functions of the liable employer under:
(d) this Part; or
(e) a workplace rehabilitation plan.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the liable employer.
35F Deemed delegation by liable employer
Scope
(1) This section applies if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) Comcare is satisfied that the liable employer of the employee in relation to the injury:
(i) has failed to fulfil the liable employer’s obligations under this Part in relation to the employee in an adequate or timely manner; or
(ii) has, to any extent, contravened the liable employer’s obligations under this Part in relation to the employee; and
(c) Comcare is not the liable employer.
Delegation
(2) Comcare may, by writing, determine that the liable employer is taken to have delegated to a specified member of the staff of Comcare all of the functions and powers of the liable employer under:
(a) sections 36D, 36E, 36F, 36G, 36H and 36J, so far as those functions and powers relate to the employee; and
(b) a workplace rehabilitation plan for the employee.
(3) Comcare may, by writing, determine that the liable employer is taken to have delegated to a specified member of the staff of Comcare specified functions or powers, or both, of the liable employer under either or both of the following:
(a) sections 36D, 36E, 36F, 36G, 36H and 36J, so far as those functions and powers relate to the employee;
(b) a workplace rehabilitation plan for the employee.
35G Arrangements for the provision of rehabilitation services
A liable employer may enter into an arrangement with an approved workplace rehabilitation provider for either or both of the following:
(a) the provision of rehabilitation services;
(b) the carrying out of other activities to assist the liable employer in performing the functions, or exercising the powers, conferred on the liable employer by:
(i) this Part; or
(ii) a workplace rehabilitation plan.
35H Compensation for acquisition of property
(1) If the operation of:
(a) this Division; or
(b) regulations made for the purposes of this Division;
would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines
Division 2B—Duties of liable employers
35J Liable employer’s duty to take all reasonably practicable steps to ensure rehabilitation of employee
(1) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury;
the liable employer must take all reasonably practicable steps to ensure the rehabilitation of the employee.
Note: For an employee who does not have the potential to be in suitable employment, the rehabilitation of the employee should be directed towards maximising the employee’s independent functioning.
(2) If the liable employer incurs reasonable costs in complying with subsection (1) in relation to the employee, the costs may be reimbursed by the relevant authority.
35K Liable employer’s duty to provide suitable employment etc.
(1) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury; and
(c) the employee is not in suitable employment; and
(d) the employee has the potential to be in suitable employment;
the liable employer must take all reasonably practicable steps to:
(e) provide the employee with suitable employment; or
(f) assist the employee to find such employment.
(2) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury; and
(c) the employee is in suitable employment;
the liable employer must take all reasonably practicable steps to maintain the employee in suitable employment.
(3) In performing a duty imposed by subsection (1) or (2), the liable employer must, as far as reasonably practicable, consult:
(a) the employee concerned; and
(b) if the liable employer is aware that the employee is receiving medical treatment for the injury from, or under the supervision of, a legally qualified medical practitioner—that practitioner.
(4) If the liable employer consults a medical practitioner under paragraph (3)(b), an amount may be paid to the practitioner, in relation to the consultation, by the relevant authority.
(5) If the liable employer consults a medical practitioner under paragraph (3)(b), the medical practitioner may give the liable employer information about the employee that is relevant to the consultation.
Potential to be in suitable employment
(6) For the purposes of subsection (1), the potential of an employee to be in suitable employment is to be ascertained having regard to:
(a) the potential of the employee to be rehabilitated; and
(b) the potential of the employee to benefit from medical treatment; and
(c) any other relevant matters.
51 Division 3 of Part III (heading)
Repeal the heading, substitute:
Division 3—Workplace rehabilitation plans
52 Sections 35, 36 and 37
Repeal the sections, substitute:
36 Workplace rehabilitation plan
(1) For the purposes of this Act, a workplace rehabilitation plan for an employee in relation to an injury means a plan that:
(a) concerns the rehabilitation of the employee; and
(b) if:
(i) the employee is not in suitable employment; and
(ii) the employee has the potential to be in suitable employment;
is directed towards returning the employee to suitable employment as soon as practicable; and
(c) if the employee is in suitable employment—is directed towards maintaining the employee in suitable employment; and
(d) if the employee does not have the potential to be in suitable employment—is directed towards maximising the employee’s independent functioning.
Note: Workplace rehabilitation plans are formulated by a liable employer under section 36F.
(2) A workplace rehabilitation plan may make provision for any or all of the following:
(a) initial rehabilitation assessment;
(b) functional assessment;
(c) workplace assessment;
(d) job analysis;
(e) advice about job modification;
(f) occupational rehabilitation counselling;
(g) vocational assessment;
(h) job seeking;
(i) training in relation to job seeking;
(j) advice or assistance about job seeking;
(k) vocational education or training;
(l) advice or assistance about arranging vocational education or training;
(m) participation in interviews (whether face‑to‑face or by telephone);
(n) advice or assistance about planning for:
(i) the return to work of the employee; or
(ii) maintaining the employee in work;
(o) the provision of aids, appliances, apparatus or other material that is necessary to facilitate:
(i) the return to work of the employee; or
(ii) maintaining the employee in work;
(p) modification of:
(i) a work station; or
(ii) equipment used by the employee;
where the modification is necessary to facilitate:
(iii) the return to work of the employee; or
(iv) maintaining the employee in work;
(q) a service prescribed by the regulations.
(3) Subsection (2) does not limit subsection (1).
(4) For the purposes of subsection (1), the potential of the employee to be in suitable employment is to be ascertained having regard to:
(a) the potential of the employee to be rehabilitated; and
(b) the potential of the employee to benefit from medical treatment; and
(c) any other relevant matters.
Plan is not a legislative instrument
(5) A workplace rehabilitation plan is not a legislative instrument.
36A Employee’s responsibilities under a workplace rehabilitation plan
(1) A workplace rehabilitation plan for an employee may provide that one or more specified activities are to be carried out by the employee under the plan.
(2) The obligations imposed on the employee by the plan are to be known as the employee’s responsibilities under the plan.
36B Obligations of liable employer under a workplace rehabilitation plan
(1) A workplace rehabilitation plan for an employee may provide that one or more specified activities are to be carried out by the liable employer under the plan.
(2) If a workplace rehabilitation plan is in force, a liable employer must comply with the plan, to the extent that the plan imposes obligations on the employer.
36C When liable employer is formally notified of an injury etc.
(1) For the purposes of this Act, if an employee suffers an injury resulting in an incapacity for work or an impairment, the liable employer is formally notified of the injury if, and only if:
(a) a notice of the injury, or a copy of such a notice, is given to the liable employer under section 53; or
(b) a copy of a provisional medical expense payment request relating to the injury is given to the liable employer under section 52C; or
(c) a claim for compensation in respect of the injury, or a copy of such a claim, is given to the liable employer under section 54.
Note: Formal notification of the injury will result in the liable employer assuming responsibility under this Part for the rehabilitation of the employee.
(2) For the purposes of this Part, if:
(a) an employee believes on reasonable grounds that he or she has suffered an injury (the alleged injury); and
(b) the alleged injury is not an injury; and
(c) the employee purports to give notice of the alleged injury under section 53; and
(d) the relevant authority has not determined a claim for compensation in respect of the alleged injury;
then:
(e) until the relevant authority determines such a claim, the alleged injury is taken to be an injury; and
(f) the notice is taken:
(i) to be a notice of the injury; and
(ii) to have been given under section 53.
36D Liable employer must consider the need for a workplace rehabilitation plan
If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) there is no workplace rehabilitation plan for the employee in relation to the injury; and
(c) the liable employer has been formally notified of the injury;
the liable employer must consider:
(d) whether there should be a workplace rehabilitation plan for the employee in relation to the injury; and
(e) if so, the content of the plan.
36E Employee may request workplace rehabilitation plan
(1) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) there is no workplace rehabilitation plan for the employee in relation to the injury; and
(c) the liable employer has been formally notified of the injury;
the employee may, by written notice given to the liable employer, request the liable employer to formulate a workplace rehabilitation plan for the employee in relation to the injury.
(2) The liable employer must consider a request made to the liable employer under subsection (1).
(3) The liable employer must take reasonable steps to ensure that a decision on the request is made within 7 working days after the request was made.
36F Formulation of workplace rehabilitation plan
(1) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury;
the liable employer may, by writing, formulate a workplace rehabilitation plan for the employee in relation to the injury.
(2) The liable employer may formulate a workplace rehabilitation plan for an employee even if the employee has not made a request under section 36E.
(3) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury;
the liable employer may decide not to formulate a workplace rehabilitation plan for the employee in relation to the injury.
(4) If the liable employer decides not to formulate a workplace rehabilitation plan for the employee in relation to the injury, the liable employer must notify the employee in writing of that decision.
36G Variation or revocation of workplace rehabilitation plan
If there is a workplace rehabilitation plan for an employee, the liable employer may, by writing, vary or revoke the plan.
36H Consultation about workplace rehabilitation plan
(1) Before a liable employer formulates, varies or revokes a workplace rehabilitation plan for an employee in relation to an injury, the liable employer must, as far as reasonably practicable, consult:
(a) the employee; and
(b) if the liable employer or provider is aware that the employee is receiving medical treatment for the injury from, or under the supervision of, a legally qualified medical practitioner—that practitioner; and
(c) if the liable employer is not the current employer of the employee—the current employer.
(2) The employee must participate in the consultation under paragraph (1)(a).
(3) A failure to comply with subsection (2) does not affect the validity of the formulation, variation or revocation, as the case may be, of the workplace rehabilitation plan.
(4) If the liable employer consults a medical practitioner under paragraph (1)(b), an amount may be paid to the practitioner, in relation to the consultation, by the relevant authority.
(5) If the liable employer consults a medical practitioner under paragraph (1)(b), the medical practitioner may give the liable employer information about the employee that is relevant to the consultation.
(6) If the liable employer consults the current employer under paragraph (1)(c), the current employer may give the liable employer information about the employee that is relevant to the consultation.
36J Notification of workplace rehabilitation plan etc.
(1) If a liable employer formulates a workplace rehabilitation plan for an employee, the liable employer must:
(a) give a copy of the plan to the employee; and
(b) if the employee has responsibilities under the plan—inform the employee that the employee has responsibilities under the plan.
(2) If:
(a) a liable employer formulates a workplace rehabilitation plan for an employee; and
(b) the liable employer is not the current employer of the employee;
the liable employer must give a copy of the plan to the current employer.
(3) If:
(a) a liable employer formulates a workplace rehabilitation plan for an employee; and
(b) the liable employer is not the relevant authority;
the liable employer must give a copy of the plan to the relevant authority.
Variation or revocation
(4) If a liable employer varies or revokes a workplace rehabilitation plan for an employee, the liable employer must give a copy of the variation or revocation to the employee.
(5) If:
(a) a liable employer varies or revokes a workplace rehabilitation plan for an employee; and
(b) the liable employer is not the current employer of the employee;
the liable employer must give a copy of the variation or revocation to the current employer.
(6) If:
(a) a liable employer varies or revokes a workplace rehabilitation plan for an employee; and
(b) the liable employer is not the relevant authority;
the liable employer must give a copy of the variation or revocation to the relevant authority.
36K Costs associated with workplace rehabilitation plan
(1) If there is a workplace rehabilitation plan for an employee in relation to an injury, the cost of carrying out the plan must be paid by the relevant authority.
(2) If:
(a) an employee suffers an injury resulting in an incapacity for work or an impairment; and
(b) the liable employer has been formally notified of the injury; and
(c) the liable employer incurs reasonable costs in performing the functions, or exercising the powers, conferred on the liable employer by section 36D, 36E, 36F, 36G, 36H or 36J in relation to the employee;
the costs may be reimbursed by the relevant authority.
36L Current employer must facilitate workplace rehabilitation plan
If:
(a) there is a workplace rehabilitation plan for an employee in relation to an injury; and
(b) the liable employer is not the current employer of the employee;
then:
(c) the current employer must, as far as reasonably practicable, cooperate with the liable employer in relation to the plan; and
(d) the current employer must, as far as reasonably practicable, take all reasonable steps to allow the employee to fulfil the employee’s responsibilities under the plan.
36M Notification of circumstances that affect employee’s ability to carry out a job‑seeking activity under a workplace rehabilitation plan
If:
(a) there is a workplace rehabilitation plan for an employee; and
(b) the plan provides that one or more job‑seeking activities are to be carried out by the employee under the plan;
the employee must:
(c) notify the liable employer, in writing, of any change to the employee’s circumstances that affects the employee’s ability to carry out those activities; and
(d) do so as soon as practicable, and in any event within 3 working days, after the employee becomes aware of the change.
53 Section 38 (heading)
Repeal the heading, substitute:
38 Review of certain determinations
54 Before subsection 38(1)
Insert:
Review by Comcare
55 Subsection 38(1)
Omit “rehabilitation authority”, substitute “liable employer”.
56 Subsection 38(1)
After “relevant authority”, insert “or the principal officer of a licensed corporation”.
57 Subsection 38(1)
Omit “36 or 37”, substitute “36F or 36G”.
58 Subsection 38(1)
Omit “authority shall”, substitute “liable employer must”.
59 Subsection 38(2)
Omit “36 or 37”, substitute “36F or 36G”.
60 Subsection 38(2)
Omit “rehabilitation authority”, substitute “liable employer”.
61 Subsection 38(2)
After “relevant authority”, insert “or the principal officer of a licensed corporation”.
62 At the end of section 38
Add:
Review by relevant authority
(5) If:
(a) the liable employer of an employee in relation to an injury is the principal officer of a licensed corporation; and
(b) the liable employer makes a determination under section 36F in relation to the employee;
the liable employer must:
(c) give the employee a written notice setting out:
(i) the terms of the determination; and
(ii) the reasons for the determination; and
(iii) a statement to the effect that the employee may, if dissatisfied with the determination, request the relevant authority for a review of the determination under this section; and
(d) do so as soon as practicable after the liable employer makes the determination.
(6) If:
(a) the liable employer of an employee in relation to an injury is the principal officer of a licensed corporation; and
(b) the liable employer makes a determination under section 36F in relation to the employee; and
(c) the employee has made a claim for compensation in relation to the injury;
the employee may, by written notice given to the relevant authority, request the relevant authority to review the determination.
(7) A request must:
(a) set out the reasons for the request; and
(b) be given to the relevant authority:
(i) within 30 days after the day on which the determination first came to the notice of the employee; or
(ii) within such further period (if any) as the relevant authority, either before or after the expiration of that period, allows.
(8) After whichever is the later of the following:
(a) the receipt of a request to review a section 36F determination in relation to the employee;
(b) the determination of the employee’s claim for compensation in relation to the injury;
the relevant authority:
(c) must review the section 36F determination; and
(d) may make a decision affirming or revoking the section 36F determination or varying the section 36F determination in such manner as the relevant authority thinks fit.
Definitions
(9) In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
determination means a determination, decision or requirement.
63 After section 38
Insert:
38A Exempt authorities
(1) The Minister may, by writing, declare that a specified Entity or a specified Commonwealth authority is an exempt authority for the purposes of this Act.
(2) A declaration under subsection (1) is not a legislative instrument.
64 Before section 39
Insert:
Division 4—Work readiness assessment
38B Assessment of capacity to undertake suitable employment
(1) If an employee suffers an injury resulting in an incapacity for work, the relevant authority may require the employee to undergo an assessment of the employee’s capacity to undertake suitable employment.
(2) An assessment under subsection (1) is to be known as a work readiness assessment.
(3) A work readiness assessment must be made by:
(a) a legally qualified medical practitioner nominated by the relevant authority; or
(b) a suitably qualified person (other than a legally qualified medical practitioner) nominated by the relevant authority; or
(c) a panel comprising of such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the relevant authority.
(4) The relevant authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(5) The examination is taken to be part of the assessment.
38C Report of work readiness assessment
(1) If an employee undergoes a work readiness assessment, the person or persons who conducted the assessment must give a report of the assessment to the relevant authority.
(2) A report of the work readiness assessment must be in accordance with any rules in force under subsection (3).
(3) Comcare may, by legislative instrument, make rules for the purposes of subsection (2).
(4) If:
(a) an employee undergoes a work readiness assessment in compliance with a requirement of the relevant authority; and
(b) the relevant authority is not the liable employer;
the relevant authority may give a copy of a report of the assessment to the liable employer.
(5) If the liable employer receives a copy of the report of the assessment, the liable employer may use the report for the purposes of the exercise of the powers, or the performance of the functions, of the liable employer under this Part.
38D Cost of carrying out work readiness assessment
(1) If a relevant authority requires an employee to undergo a work readiness assessment, the relevant authority is liable to pay:
(a) the costs of conducting the assessment; and
(b) an amount equal to the amount of the expenditure reasonably incurred by the employee:
(i) in making a necessary journey in connection with the assessment; or
(ii) in remaining, for the purpose of the assessment, at a place to which the employee has made a journey for that purpose.
(2) The matters to which the relevant authority is to have regard in deciding questions arising under paragraph (1)(b) include:
(a) the means of transport available to the employee for the journey; and
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
38E Relevant authority to comply with rules
(1) Comcare may, by legislative instrument, make rules to be complied with by relevant authorities in relation to the performance of their functions, or the exercise of their powers, under this Division.
(2) A relevant authority must comply with any rules in force under subsection (1).
Division 5—Miscellaneous
65 Paragraph 39(1)(b)
Repeal the paragraph, substitute:
(b) either:
(i) the employee is fulfilling, or has fulfilled, the employee’s responsibilities under a workplace rehabilitation plan for the employee in relation to the injury; or
(ii) the liable employer has refused to formulate a workplace rehabilitation plan for the employee in relation to the injury;
66 Subsection 39(1)
Omit “of the rehabilitation program”, substitute “of the workplace rehabilitation plan”.
67 Sections 40, 41 and 41A
Repeal the sections.
68 At the end of Division 3 of Part III
Add:
41E Liable employers to comply with rules
(1) Comcare may, by legislative instrument, make rules to be complied with by liable employers in relation to the performance of their functions, or the exercise of their powers, under this Part.
(2) A liable employer must comply with any rules in force under subsection (1).
69 Part V (heading)
Repeal the heading, substitute:
Part V—Claims for compensation etc.
70 Subsection 53(1)
After “relevant authority”, insert “or the liable employer”.
71 After subsection 53(2)
Insert:
(2A) If:
(a) notice under subsection (1) is given to a relevant authority in relation to an employee; and
(b) the relevant authority is not the liable employer;
the relevant authority:
(c) must:
(i) inform the liable employer of the contents of the notice; and
(ii) do so within 3 working days after receiving the notice; and
(d) may give the liable employer information about the employee that is relevant to the injury.
(2B) If:
(a) notice under subsection (1) is given to the liable employer in relation to an employee; and
(b) the liable employer is not the relevant authority;
the liable employer:
(c) must:
(i) inform the relevant authority of the contents of the notice; and
(ii) do so within 3 working days after receiving the notice; and
(d) may give the relevant authority information about the employee that is relevant to the injury.
(2C) If a provisional medical expense payment request is given to a relevant authority by or on behalf of an employee, in relation to an injury suffered by the employee, this Act has effect as if the request were a notice of the injury given to the relevant authority by the employee under subsection (1).
72 At the end of paragraph 53(3)(a)
Add “and”.
73 At the end of section 53
Add:
(4) If:
(a) a notice purporting to be a notice referred to in subsection (1) has been given to the liable employer; and
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) either:
(i) the liable employer would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice; or
(ii) the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice is to be taken to have been given under subsection (1).
74 After subsection 54(4)
Insert:
(4A) If:
(a) a claim is given to a relevant authority in relation to an employee; and
(b) the relevant authority is not the liable employer;
the relevant authority:
(c) must give a copy of the claim to the liable employer; and
(d) may give the liable employer information about the employee that is relevant to the claim.
75 Subsection 57(1)
Repeal the subsection, substitute:
(1) If:
(a) a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b) an employee has made a claim for compensation under section 54; or
(c) one or more payments of compensation are being made to an employee under this Act by a relevant authority;
the relevant authority may require the employee to undergo an examination by:
(d) a legally qualified medical practitioner nominated by the relevant authority; or
(e) a suitably qualified person (other than a medical practitioner) nominated by the relevant authority; or
(f) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the relevant authority.
76 At the end of section 57
Add:
(7) The relevant authority may require an employee to undergo an examination under this section in order to assist the liable employer to make a decision about the formulation, variation or revocation of a workplace rehabilitation plan for the employee.
(8) Subsection (7) does not limit the circumstances in which the relevant authority may require an examination.
77 After section 57
Insert:
57A Report of medical examination etc.
(1) If an employee undergoes a medical examination under section 57 in compliance with a requirement by a relevant authority, the person or persons who conducted the examination must give a report of the examination to the relevant authority.
(2) If:
(a) an employee undergoes an examination under section 57 in compliance with a requirement of a relevant authority; and
(b) the relevant authority is not the liable employer;
the relevant authority may give a copy of a report of the examination to the liable employer.
(3) If the liable employer receives a copy of the report of the examination, the liable employer may use the report for the purposes of the exercise of the powers, or the performance of the functions, of the liable employer under Part III.
78 Subsection 60(1) (definition of determination)
After “means”, insert “(subject to subsections (5), (6) and (7))”.
79 Subsection 60(1) (definition of determination)
Omit “36, 37”, substitute “36F, 36G”.
80 Subsection 60(1) (definition of reviewable decision)
After “38(4)”, insert “or (8)”.
81 At the end of section 60
Add:
(5) If a liable employer makes a decision under section 36F to formulate a workplace rehabilitation plan for an employee, that decision is taken not to be a determination for the purposes of this Part to the extent to which the provisions of the plan are authorised by section 36A or 36B.
(6) If:
(a) a liable employer makes a decision under section 36G to vary a provision of a workplace rehabilitation plan for an employee; and
(b) the varied provision is authorised by section 36A or 36B;
that decision is taken not to be a determination for the purposes of this Part.
(7) If:
(a) a liable employer makes a decision under section 36G to vary a workplace rehabilitation plan for an employee; and
(b) the employee has consented to the variation;
that decision is taken not to be a determination for the purposes of this Part.
82 Paragraph 69(b)
Repeal the paragraph.
83 Paragraph 69(f)
Repeal the paragraph, substitute:
(f) to take steps directed towards ensuring that each liable employer is complying with the liable employer’s obligations under Part III;
84 Before section 71
Insert:
70D Comcare Incentive Scheme for Employers
(1) Comcare may, by legislative instrument, formulate a scheme that authorises Comcare to make payments to employers as an incentive to provide suitable employment for employees who:
(a) have suffered an injury; and
(b) are unemployed; and
(c) are seeking paid work.
(2) The scheme is to be known as the Comcare Incentive Scheme for Employers.
(3) An employer covered by the scheme may be:
(a) a Commonwealth authority; or
(b) an Entity; or
(c) a licensed corporation; or
(d) any other employer.
(4) For the purposes of paragraph 69(ef), a function conferred on Comcare by the scheme is taken to be a function under this Act.
85 Before section 122
Insert:
121C Variation or revocation of instruments
A provision of this Act that deals with the variation or revocation of an instrument does not, by implication, prevent the application of subsection 33(3) of the Acts Interpretation Act 1901 to another instrument under this Act.
Seafarers Rehabilitation and Compensation Act 1992
86 Section 48 (definition of approved program provider)
Repeal the definition, substitute:
approved program provider means an approved workplace rehabilitation provider within the meaning of the Safety, Rehabilitation and Compensation Act 1988.
Part 2—Amendments contingent on the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015
Safety, Rehabilitation and Compensation Act 1988
87 After subsection 35E(1)
Insert:
(1A) If:
(a) a liable employer is the principal officer of a licensed corporation; and
(b) the corporation is covered by a group employer licence;
the liable employer may, in writing, delegate to an officer of, or a person employed by, any other corporation covered by the licence all or any of the powers and functions of the liable employer under:
(c) this Part; or
(d) a workplace rehabilitation plan.
Part 3—Amendments contingent on the commencement of Part 1 of Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Act 2015
Safety, Rehabilitation and Compensation Act 1988
88 Subsection 4(1) (at the end of the definition of liable employer)
Add “and sections 41B, 41C and 41D”.
89 At the end of paragraph 35A(d)
Add “and”.
90 After paragraph 35A(d)
Insert:
(da) section 41C does not apply to the cessation;
91 After paragraph 35H(1)(a)
Insert:
(aa) section 41B; or
(ab) section 41C; or
(ac) section 41D; or
92 Section 41B
Before “If:” insert “(1)”.
93 Section 41B
Omit “then:”, substitute “the following provisions have effect:”.
94 Paragraphs 41B(d) and (e)
Repeal the paragraphs, substitute:
(d) if the cessation time occurred at or after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015—after the cessation time, the principal officer of the body corporate is the liable employer of the employee in relation to the injury;
(e) if the cessation time occurred:
(i) after the commencement of this section; and
(ii) before the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015;
after the commencement of that Part, the principal officer of the body corporate is the liable employer of the employee in relation to the injury.
95 At the end of section 41B
Add:
(2) For the purposes of this section, the principal officer of a body corporate is the principal executive officer of the body corporate.
96 Subsection 41C(1)
Omit “then:”, substitute “the following provisions have effect:”.
97 Paragraphs 41C(1)(e) and (f)
Repeal the paragraphs, substitute:
(e) if the cessation time occurred at or after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015—after the cessation time, the principal officer of the successor is the liable employer of the employee in relation to the injury;
(f) if the cessation time occurred:
(i) after the commencement of this section; and
(ii) before the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015;
after the commencement of that Part, the principal officer of the successor is the liable employer of the employee in relation to the injury.
98 Subsection 41C(2)
Omit “then:”, substitute “the following provisions have effect:”.
99 Paragraphs 41C(2)(f) and (g)
Repeal the paragraphs, substitute:
(f) if the cessation time occurred at or after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015—after the cessation time, the principal officer of the successor is the liable employer of the employee in relation to the injury;
(g) if the cessation time occurred:
(i) after the commencement of this section; and
(ii) before the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015;
after the commencement of that Part, the principal officer of the successor is the liable employer of the employee in relation to the injury.
100 At the end of section 41C
Add:
(3) For the purposes of this section, the principal officer of a body corporate (other than a Commonwealth authority or a licensed corporation) is the principal executive officer of the body corporate.
101 Section 41D
Omit “then:”, substitute “the following provisions have effect:”.
102 Paragraphs 41D(c) and (d)
Repeal the paragraphs, substitute:
(c) if the cessation time occurred at or after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015—after the cessation time, the principal officer of the Australian Capital Territory is the liable employer of the employee in relation to the injury;
(d) if the cessation time occurred:
(i) after the commencement of this section; and
(ii) before the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015;
after the commencement of that Part, the principal officer of the Australian Capital Territory is the liable employer of the employee in relation to the injury.
Part 4—Application and transitional provisions
103 Application of amendments
The amendments made by Part 1 of this Schedule, so far as they relate to an injury sustained by an employee, apply in relation to an injury sustained before, at or after the commencement of this item.
104 Transitional—formal notification of an injury
If notice of an injury was given, or purportedly given, under section 53 of the Safety, Rehabilitation and Compensation Act 1988 before the commencement of this item, section 36C of that Act (as amended by this Schedule) has effect as if a copy of the notice had been given, or purportedly given, to the liable employer under section 53 of that Act immediately after the commencement of this item.
105 Transitional—rehabilitation programs
(1) This item applies if:
(a) an employee has suffered an injury resulting in an incapacity for work or an impairment; and
(b) before the commencement of this item:
(i) a rehabilitation authority made a determination under subsection 37(1) of the Safety, Rehabilitation and Compensation Act 1988 that the employee should undertake a rehabilitation program; and
(ii) a rehabilitation program began to be provided for the employee; and
(c) the rehabilitation program was in force immediately before the commencement of this item.
(2) The rehabilitation program does not lapse because of the repeal of section 37 of that Act by this Schedule, but continues in force after the commencement of this item, as if:
(a) it were a workplace rehabilitation plan; and
(b) that workplace rehabilitation plan had been formulated under section 36F of that Act (as amended by this Schedule); and
(c) the requirements of section 36H and subsections 36J(1) and (2) of that Act (as amended by this Schedule) had been met in relation to that workplace rehabilitation plan.
(3) That workplace rehabilitation plan may be varied or revoked under section 36G of that Act (as amended by this Schedule).
106 Transitional—approval of a person or body as a workplace rehabilitation provider
(1) This item applies to an approval of a person or body as a rehabilitation program provider if the approval was in force under section 34F or 34H of the Safety, Rehabilitation and Compensation Act 1988 immediately before the commencement of this item.
(2) The approval has effect, after the commencement of this item, as if it were an approval of the person or body as a workplace rehabilitation provider under section 34F or 34H, as the case may be, of the Safety, Rehabilitation and Compensation Act 1988 as amended by this Schedule.
107 Transitional—renewal of approval of a person or body as a workplace rehabilitation provider
(1) This item applies to the renewal of the approval of a person or body as a rehabilitation program provider if the renewal was in force under section 34L of the Safety, Rehabilitation and Compensation Act 1988 immediately before the commencement of this item.
(2) The renewal has effect, after the commencement of this item, as if it were the renewal of the approval of the person or body as a workplace rehabilitation provider under section 34L of the Safety, Rehabilitation and Compensation Act 1988 as amended by this Schedule.
108 Transitional—exempt authority
(1) This item applies to a declaration of an Entity or a Commonwealth authority as an exempt authority if the declaration was in force under section 35 of the Safety, Rehabilitation and Compensation Act 1988 immediately before the commencement of this item.
(2) The declaration has effect, after the commencement of this item, as if it were a declaration of the Entity or Commonwealth authority as an exempt authority under section 38A of the Safety, Rehabilitation and Compensation Act 1988 as amended by this Schedule.
109 Transitional—medical examination
Despite the repeal of subsection 57(1) of the Safety, Rehabilitation and Compensation Act 1988 by this Schedule, that subsection continues to apply, in relation to a requirement given before the commencement of this item, as if the repeal had not happened.
110 Transitional rules
(1) The Minister may, by legislative instrument, make rules (transitional rules) prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.
(2) To avoid doubt, the transitional rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) amend this Act.
Schedule 3—Scheme integrity
Part 1—General amendments
Administrative Decisions (Judicial Review) Act 1977
1 After paragraph (hf) of Schedule 1
Insert:
(hg) decisions under section 70C of the Safety, Rehabilitation and Compensation Act 1988;
Safety, Rehabilitation and Compensation Act 1988
2 Subsections 4(10) and (10A)
After “VIII”, insert “or section 114”.
3 After section 50
Insert:
50A Indemnification by third parties
Scope
(1) This section applies if:
(a) compensation is payable under this Act in respect of:
(i) an injury to an employee; or
(ii) the loss of, or damage to, property used by an employee; and
(b) the injury, loss or damage occurred in circumstances that create a legal liability in a person (the third party), or in 2 or more persons (the third parties), to pay:
(i) damages; or
(ii) State compensation;
to the employee, or a dependant of the employee, in respect of the injury, loss or damage; and
(c) the liability has not been discharged; and
(d) in the case of a third party—the third party is not:
(i) the Commonwealth; or
(ii) a Commonwealth authority; or
(iii) a licensed corporation; or
(iv) another employee; and
(e) in the case of third parties—none of the third parties is:
(i) the Commonwealth; or
(ii) a Commonwealth authority; or
(iii) a licensed corporation; or
(iv) another employee.
Indemnity
(2) If the relevant authority has paid compensation under this Act in respect of the injury, loss or damage:
(a) the relevant authority is entitled to be indemnified by the third party or third parties; and
(b) if subparagraph (1)(b)(i) applies—that indemnity is limited to the lesser of:
(i) those damages; or
(ii) the amount that would be payable by the employee or the dependant, as the case may be, under section 48 or 49 if the damages had been paid to the employee or the dependant, as the case may be; and
(c) if subparagraph (1)(b)(ii) applies—that indemnity is limited to the lesser of:
(i) the State compensation; or
(ii) the amount that would be payable by the employee or the dependant, as the case may be, under section 119 if the State compensation had been paid to the employee or the dependant, as the case may be; and
(d) an amount payable under the indemnity may be recovered by the relevant authority, as a debt due to the relevant authority, by action in a court of competent jurisdiction.
(3) If:
(a) a payment is made under the indemnity; and
(b) at the time of the payment, the employee or the dependant, as the case may be, has not obtained judgment or an award for:
(i) damages; or
(ii) State compensation;
as the case may be, against the third party or third parties;
the payment is, to the extent of the amount of the payment, a discharge of the liability of the third party or third parties to pay:
(c) damages; or
(d) State compensation;
as the case may be, to the employee or the dependant, as the case may be, in respect of the injury, loss or damage.
(4) If:
(a) a payment is made under the indemnity; and
(b) at the time of the payment, the employee or the dependant, as the case may be, has obtained judgment or an award for:
(i) damages; or
(ii) State compensation;
as the case may be, against the third party or third parties; and
(c) at the time of the payment, the judgment or award has not been satisfied;
the payment, to the extent of the amount of the payment, satisfies the judgment or award.
(5) If:
(a) a payment is made under the indemnity; and
(b) at the time of the payment, the employee or the dependant, as the case may be, had a liability to Comcare under section 48, 49 or 119 in respect of the injury, loss or damage;
the payment, to the extent of the amount of the payment, satisfies that liability.
Recovery provisions
(6) This section has effect subject to sections 48, 49 and 119.
Constitutional limits
(7) This section has no effect to the extent (if any) to which it imposes taxation.
(8) This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
Definitions
(9) In this section:
award means an award, determination, order or agreement by which provision is made for, or in relation to, the grant of any benefits to, or in relation to, persons or their dependants in respect of:
(a) injury; or
(b) the loss of, or damage to, property;
where the award, determination or order was made, or the agreement was entered into, under a specified law (within the meaning of section 119).
State compensation has the same meaning as in section 119.
4 Section 51
Repeal the section.
5 At the end of section 54
Add:
(6) If:
(a) an employee gives a claim to the Entity or Commonwealth authority (other than a licensed authority) in which the employee was employed at the time when the relevant injury or accident occurred; and
(b) the employee does so on the understanding that the Entity or authority will, on behalf of the employee, give the claim to the relevant authority;
the principal officer of the Entity or authority must ensure that the claim is given to the relevant authority within 3 working days after the day on which the claim was received.
6 Section 58
Repeal the section, substitute:
58 Relevant authority may obtain information or documents from claimant
(1) If:
(a) a relevant authority has received a claim; and
(b) the relevant authority is satisfied that the claimant:
(i) has information or a document that is relevant to the claim; or
(ii) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by written notice given to the claimant, require the claimant to:
(c) give that information or a copy of that document to the relevant authority; and
(d) do so within:
(i) the period specified in the notice; or
(ii) such further period (if any) as the relevant authority, at the request of the claimant, allows.
(2) A period specified under subsection (1) must not be shorter than 14 days after the notice is given.
Refusal or failure to comply with notice
(3) If a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.
58A Relevant authority may obtain information or documents from third party
(1) If:
(a) a relevant authority has received a claim; and
(b) the relevant authority is satisfied that a person (other than the claimant):
(i) has information or a document that is relevant to the claim; or
(ii) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by written notice given to the person, request the person to:
(c) give that information or a copy of that document to the relevant authority; and
(d) do so within:
(i) the period specified in the notice; or
(ii) such further period (if any) as the relevant authority, at the request of the person, allows.
(2) A period specified under subsection (1) must not be shorter than 14 days after the notice is given.
(3) A person may comply with a notice under subsection (1).
(4) If a person complies with a notice given by a relevant authority under subsection (1), an amount may be paid to the person, in relation to compliance with the notice, by the relevant authority.
7 Subsection 60(1) (at the end of the definition of reviewable decision)
Add:
Note: See also subsection 64(2).
8 Subsection 61(1A)
Repeal the subsection, substitute:
(1A) If a claim for compensation under this Act relates to an injury that is not:
(a) a disease; or
(b) a designated injury; or
(c) an aggravation of a designated injury;
the determining authority must consider and determine the claim, to the extent that the claim relates to liability under section 14, within the 30‑day period that began when the claim was received.
(1B) If:
(a) a determining authority receives a claim for compensation under this Act; and
(b) the claim relates to an injury that is not:
(i) a disease; or
(ii) a designated injury; or
(iii) an aggravation of a designated injury; and
(c) the determining authority has not determined the claim, to the extent that the claim relates to liability under section 14, within the 30‑day period that began when the claim was received;
the determining authority is taken:
(d) to have made a determination that compensation is not payable under section 14; and
(e) to have done so at the end of that 30‑day period.
(1C) If a claim for compensation under this Act relates to an injury that is:
(a) a disease; or
(b) a designated injury; or
(c) an aggravation of a designated injury;
the determining authority must consider and determine the claim, to the extent that the claim relates to liability under section 14, within the 70‑day period that began when the claim was received.
(1D) If:
(a) a determining authority receives a claim for compensation under this Act; and
(b) the claim relates to an injury that is:
(i) a disease; or
(ii) a designated injury; or
(iii) an aggravation of a designated injury; and
(c) the determining authority has not determined the claim, to the extent that the claim relates to liability under section 14, within the 70‑day period that began when the claim was received;
the determining authority is taken:
(d) to have made a determination that compensation is not payable under section 14; and
(e) to have done so at the end of that 70‑day period.
9 Subsection 61(2)
Omit “if that amount of compensation is payable to a person other than the employee”.
10 Subsection 62(6)
Repeal the subsection, substitute:
(6) If the determining authority receives a request for the reconsideration of a determination, the determining authority or a delegate of the determining authority must decide the request within the 60‑day period that began when the request was received.
(6A) If:
(a) the determining authority receives a request for the reconsideration of a determination; and
(b) neither the determining authority, nor a delegate of the determining authority, has decided the request within the 60‑day period that began when the request was received;
the determining authority is taken:
(c) to have made a decision affirming the determination; and
(d) to have done so at the end of that 60‑day period.
11 After subsection 64(1)
Insert:
(2) If:
(a) an application has been made to the Administrative Appeals Tribunal for review of a decision that was made under section 62; and
(b) the parties to the review agree, in writing, that a specified determination should be treated as a reviewable decision; and
(c) the agreement has been lodged with the Administrative Appeals Tribunal; and
(d) the determination and the decision relate to the same employee; and
(e) the determination and the decision are directly or indirectly related to:
(i) the same issue: or
(ii) the same incident or state of affairs;
then:
(f) the determination is taken to be a reviewable decision for the purposes of this Part; and
(g) an application to the Administrative Appeals Tribunal for review of the reviewable decision is taken to have been made, on the day on which the agreement was lodged with the Administrative Appeals Tribunal, by the person who made the application mentioned in paragraph (a); and
(h) the Administrative Appeals Tribunal may deal with those applications together.
12 After section 70B
Insert:
70C Compensation for detriment caused by defective administration
(1) Comcare may make payments to persons who:
(a) are or were entitled to compensation under this Act; and
(b) have suffered a loss as a result of an act or omission of Comcare that:
(i) relates to that compensation; and
(ii) concerns Comcare’s claims management functions or powers.
(2) For the purposes of subsection (1), it is immaterial whether the act or omission occurred before, at or after the commencement of this section.
Principles
(3) The Minister may, by legislative instrument, determine principles to be complied with by Comcare in making payments under subsection (1).
(4) In making a payment under subsection (1), Comcare must comply with any principles determined under subsection (3).
Annual report
(5) The annual report prepared by the Chief Executive Officer and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include particulars of each payment under subsection (1) of this section during the period.
Interest
(6) Section 26 does not, by implication, limit subsection (1) of this section.
13 Section 71 (heading)
Repeal the heading, substitute:
71 Power to obtain information from Entities, authorities and corporations
14 Subsection 71(1)
Omit “or authority” (wherever occurring), substitute “, authority or corporation”.
15 Section 99
Insert:
worker has the same meaning as in the Work Health and Safety Act 2011.
16 Paragraph 104(2)(d)
Repeal the paragraph, substitute:
(d) the applicant has the capacity to meet the standards set by the Commission for the rehabilitation of its employees; and
(e) the applicant has the capacity to meet the standards set by the Commission for the work health and safety of workers who carry out work in any capacity for, or for a business or undertaking conducted by, the applicant.
17 Paragraph 104(2A)(a)
Omit “occupational” (wherever occurring), substitute “work”.
18 Paragraph 104(2A)(a)
Omit “the applicant’s employees”, substitute “workers who carry out work in any capacity for, or for a business or undertaking conducted by, the applicant”.
19 At the end of section 104
Add:
(5) For the purposes of this section, the question of whether a worker carries out work in any capacity for, or for a business or undertaking conducted by, a person is to be determined in the same manner as under the Work Health and Safety Act 2011.
20 After subsection 108C(8)
Insert:
(8A) If:
(a) a licensee is authorised to manage claims; and
(b) the licensee institutes proceedings in a court or tribunal; and
(c) those proceedings relate to:
(i) a determination made, or taken to have been made, by the licensee in managing such a claim; or
(ii) anything done, or taken to have been done, by the licensee in managing such a claim;
then:
(d) the licensee must, as soon as practicable:
(i) inform Comcare that the proceedings have been instituted; and
(ii) inform Comcare of the details of the proceedings; and
(e) the court or tribunal in which the proceedings have been instituted must, on application by Comcare, join Comcare as a party to the proceedings.
21 Subsection 108C(9)
Omit “or (8)”, substitute “, (8) or (8A)”.
22 At the end of section 108C
Add:
(11) If:
(a) either:
(i) proceedings have been brought against a licensee in accordance with subsection (7); or
(ii) proceedings have been instituted by a licensee as mentioned in subsection (8A); and
(b) the licensee has a document that is relevant to those proceedings; and
(c) Comcare gives the licensee a written notice requiring the licensee to:
(i) make a copy of the document and give the copy to Comcare; and
(ii) do so within the period specified in the notice;
the licensee must comply with the notice.
23 Paragraph 108D(1)(e)
Omit “employees”, substitute “workers”.
24 At the end of section 114
Add:
(3) If:
(a) an amount has been paid by Comcare to an employer under section 23A, 112A or 112B in consequence of:
(i) a false or misleading statement or representation; or
(ii) a failure or omission to comply with a provision of this Act; or
(b) an amount that has been paid by Comcare to an employer under section 23A, 112A or 112B should not have been paid;
then:
(c) the employer must repay the amount to Comcare; and
(d) the amount repayable by the employer is recoverable by Comcare from the employer in a court of competent jurisdiction as a debt due to Comcare.
(4) If:
(a) an employer repays an amount to Comcare under subsection (3); and
(b) the employer had previously paid an employee a corresponding equal amount in accordance with subsection 112A(4) or 112B(4);
then:
(c) the employee must repay the corresponding equal amount to the employer; and
(d) the amount repayable by the employee is recoverable by the employer from the employee in a court of competent jurisdiction as a debt due to the employer.
25 After section 119
Insert:
119A Notification of change of circumstances
(1) If payments of compensation are being made to an employee under this Act by a relevant authority, the employee must:
(a) notify the relevant authority, in writing, of any change to the employee’s circumstances that affects:
(i) the entitlement to that compensation; or
(ii) the amount of that compensation; and
(b) do so within 14 days after the employee became aware of the change.
(2) Subsection (1) does not apply to a change of circumstances if, under another provision of this Act, the employee is required to notify the relevant authority of that change.
26 Before section 121A
Insert:
120A Relevant authority may obtain information or documents from employee
(1) If:
(a) one or more payments of compensation have been, or are being, made to, or for the benefit of, an employee under this Act by a relevant authority; and
(b) the relevant authority is satisfied that the employee:
(i) has information or a document that is relevant to the compensation; or
(ii) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by written notice given to the employee, require the employee to:
(c) give that information or a copy of that document to the relevant authority; and
(d) do so within:
(i) the period specified in the notice; or
(ii) such further period (if any) as the relevant authority, at the request of the employee, allows.
(2) A period specified under subsection (1) must not be shorter than 14 days after the notice is given.
120B Relevant authority may obtain information or documents from third party
(1) If:
(a) one or more payments of compensation have been, or are being, made to, or for the benefit of, an employee by a relevant authority; and
(b) the relevant authority is satisfied that a person (other than the employee):
(i) has information or a document that is relevant to the compensation; or
(ii) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by written notice given to the person, request the person to:
(c) give that information or a copy of that document to the relevant authority; and
(d) do so within:
(i) the period specified in the notice; or
(ii) such further period (if any) as the relevant authority, at the request of the person, allows.
(2) A period specified under subsection (1) must not be shorter than 14 days after the notice is given.
(3) A person may comply with a notice under subsection (1).
(4) If the person complies with a notice given by a relevant authority under subsection (1), an amount may be paid to the person, in relation to compliance with the notice, by the relevant authority.
Part 2—Amendments contingent on the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015
Safety, Rehabilitation and Compensation Act 1988
27 Paragraph 107D(4)(e)
Omit “occupational”, substitute “work”.
28 Paragraph 107D(4)(e)
Omit “the corporation’s employees”, substitute “workers who carry out work in any capacity for, or for a business or undertaking conducted by, the corporation”.
29 Subsection 107D(7)
Omit “occupational” (wherever occurring), substitute “work”.
30 Subsection 107D(7)
Omit “the corporation’s employees”, substitute “workers who carry out work in any capacity for, or for a business or undertaking conducted by, the corporation”.
31 At the end of section 107D
Add:
Workers
(11) For the purposes of this section, the question of whether a worker carries out work in any capacity for, or for a business or undertaking conducted by, a person is to be determined in the same manner as under the Work Health and Safety Act 2011.
32 Paragraph 108C(8A)(a)
Omit “a licensee”, substitute “the licence holder of a single employer licence”.
33 Paragraphs 108C(8A)(b), (c) and (d)
Omit “the licensee” (wherever occurring), substitute “the licence holder”.
34 Subparagraphs 108C(11)(a)(i) and (ii)
Omit “a licensee”, substitute “the licence holder of a single employer licence”.
35 Paragraphs 108C(11)(b) and (c)
Omit “the licensee” (wherever occurring), substitute “the licence holder”.
36 Subsection 108C(11)
Omit “the licensee must”, substitute “the licence holder must”.
37 After subsection 108CB(4)
Insert:
(4A) If:
(a) a relevant authority for a group employer licence is authorised to manage claims; and
(b) the relevant authority institutes proceedings in a court or tribunal; and
(c) those proceedings relate to:
(i) a determination made, or taken to have been made, by the relevant authority in managing such a claim; or
(ii) anything done, or taken to have been done, by the relevant authority in managing such a claim;
then:
(d) the relevant authority must, as soon as practicable:
(i) inform Comcare that the proceedings have been instituted; and
(ii) inform Comcare of the details of the proceedings; and
(e) the court or tribunal in which the proceedings have been instituted must, on application by Comcare, join Comcare as a party to the proceedings.
38 Subsection 108CB(5)
After “(4)”, insert “or (4A)”.
39 At the end of section 108CB
Add:
(7) If:
(a) either:
(i) proceedings have been brought against a relevant authority for a group employer licence in accordance with subsection (3); or
(ii) proceedings have been instituted by a relevant authority for a group employer licence as mentioned in subsection (4A); and
(b) the relevant authority has a document that is relevant to those proceedings; and
(c) Comcare gives the relevant authority a written notice requiring the relevant authority to:
(i) make a copy of the document and give the copy to Comcare; and
(ii) do so within the period specified in the notice;
the relevant authority must comply with the notice.
40 Paragraph 108DA(2)(e)
Omit “employees”, substitute “workers”.
41 Transitional—licences
(1) The amendments of the Safety, Rehabilitation and Compensation Act 1988 made by this Part, so far as they concern a decision to:
(a) issue a licence under section 107D of that Act; or
(b) refuse to issue such a licence;
apply in relation to such a decision if the application for the licence concerned was made after the commencement of this item.
(2) The amendment of paragraph 108DA(2)(e) of the Safety, Rehabilitation and Compensation Act 1988 made by this Part does not affect the continuity of a condition that was covered by that paragraph immediately before the commencement of this item.
(3) The Commission may vary a licence condition under subsection 108DA(4) of the Safety, Rehabilitation and Compensation Act 1988 in order to ensure that the condition complies with paragraph 108DA(2)(e) of that Act as amended by this Part.
Part 3—General application and transitional provisions
42 Application of amendments
(1) Section 50A of the Safety, Rehabilitation and Compensation Act 1988 (as amended by Part 1 of this Schedule), so far as it concerns an injury, applies in relation to an injury sustained after the commencement of this item.
(2) Section 50A of the Safety, Rehabilitation and Compensation Act 1988 (as amended by Part 1 of this Schedule), so far as it concerns the loss of, or damage to, property, applies in relation to loss or damage that occurred after the commencement of this item.
(3) The amendments made by items 5, 6 and 8 apply in relation to a claim made after the commencement of this item.
(4) The amendment made by item 9 applies in relation to a determination made after the commencement of this item.
(5) The amendment made by item 10 applies to a request that was received after the commencement of this item.
(6) The amendments of the Safety, Rehabilitation and Compensation Act 1988 made by Part 1 of this Schedule, so far as they concern a decision to:
(a) grant a licence under section 103 of that Act; or
(b) refuse to grant such a licence;
apply in relation to such a decision if the application for the licence concerned was made after the commencement of this item.
(7) Subsection 114(3) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by Part 1 of this Schedule) applies in relation to an amount paid by Comcare to an employer after the commencement of this item.
43 Transitional—damages
Despite the repeal of section 51 of the Safety, Rehabilitation and Compensation Act 1988 by Part 1 of this Schedule, that section continues to apply, in relation to a notice given before the commencement of this item, as if the repeal had not happened.
44 Transitional—provision of information
Despite the repeal of section 58 of the Safety, Rehabilitation and Compensation Act 1988 by Part 1 of this Schedule, that section continues to apply, in relation to a notice given before the commencement of this item, as if the repeal had not happened.
45 Transitional—licence condition
(1) The amendment of paragraph 108D(1)(e) of the Safety, Rehabilitation and Compensation Act 1988 made by Part 1 of this Schedule does not affect the continuity of a condition that was covered by that paragraph immediately before the commencement of this item.
(2) The Commission may vary a licence condition under subsection 108D(2) of the Safety, Rehabilitation and Compensation Act 1988 in order to ensure that the condition complies with paragraph 108D(1)(e) of that Act as amended by Part 1 of this Schedule.
Schedule 4—Provisional medical expense payments
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
alleged injury in relation to a provisional medical expense payment request under section 52C, has the meaning given by that section.
provisional medical expense payment means a payment under section 52D.
provisional medical expense payment request has the meaning given by section 52C.
2 Subsections 4(10) and (10A)
After “Part III,”, insert “IVA,”.
3 Subsection 13(1) (definition of relevant amount)
After “30(1)”, insert “, 52D(4)”.
4 Before Part V
Insert:
Part IVA—Provisional medical expense payments
52B Simplified outline of this Part
• An employee who believes on reasonable grounds that he or she has suffered an injury may request the relevant authority to make a provisional medical expense payment to cover the cost of one or more items of medical treatment obtained in relation to the injury.
• A request for a provisional medical expense payment may also be made:
(a) by another person on behalf of an employee who is physically or mentally incapable of giving the request himself or herself; or
(b) by the legal personal representative of a deceased employee.
• A request for a provisional medical expense payment must be made within 40 working days after the injury.
• There is an indexed cap for a provisional medical expense payment. The initial cap is $5,000.
52C Provisional medical expense payment request
(1) Any of the following persons:
(a) an employee;
(b) a person acting on behalf of an employee;
(c) the legal personal representative of a deceased employee;
may give the relevant authority a written notice that:
(d) states that:
(i) if the notice is given by an employee—the employee believes on reasonable grounds; or
(ii) if the notice is given by a person acting on behalf of an employee—the person believes on reasonable grounds; or
(iii) if the notice is given by the legal personal representative of a deceased employee—the legal personal representative believes on reasonable grounds;
that the employee has suffered an injury (the alleged injury); and
(e) requests the relevant authority to make a provisional medical expense payment in respect of the cost of those items of medical treatment; and
(f) states that the employee has consulted a legally qualified medical practitioner about the alleged injury.
(2) A notice under subsection (1) is to be known as a provisional medical expense payment request.
(3) A provisional medical expense payment request must:
(a) be in the form approved in writing by Comcare for the purposes of this paragraph; and
(b) be accompanied by a certificate by a legally qualified medical practitioner in the form approved in writing by Comcare for the purposes of this paragraph.
(4) A person is not entitled to give a provisional medical expense payment request on behalf of an employee unless the employee is physically or mentally incapable of giving the request himself or herself.
(5) If:
(a) an employee gives a provisional medical expense payment request to the Entity or Commonwealth authority (other than a licensed authority) in which the employee was employed at the time when the alleged injury was sustained; and
(b) the employee does so on the understanding that the Entity or authority will, on behalf of the employee, give the provisional medical expense payment request to the relevant authority;
the principal officer of the Entity or authority must ensure that the request is given to the relevant authority within 2 working days after the day on which the request was received.
(6) If a provisional medical expense payment request is given to Comcare after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, Comcare must cause a copy of the provisional medical expense payment request to be given to the liable employer of the employee in relation to the alleged injury.
(7) A provisional medical expense payment request is taken to have been made when it is received by the relevant authority.
Deemed provisional medical expense payment request
(8) If:
(a) any of the following persons:
(i) an employee;
(ii) a person acting on behalf of an employee;
(iii) the legal personal representative of a deceased employee;
has given the relevant authority a provisional medical expense payment request (the original provisional medical expense payment request) in respect of one or more items of medical treatment obtained in relation to an alleged injury suffered by the employee; and
(b) the person subsequently gives the relevant authority a written notice requesting the relevant authority to make a provisional medical expense payment in respect of the cost of those other items of medical treatment on the same basis as the original provisional medical expense payment request;
this Act (other than this subsection) and the Criminal Code have effect as if:
(c) the notice were another provisional medical expense payment request given by the person to the relevant authority in respect of those other items of medical treatment; and
(d) the other provisional medical expense payment request had complied with the requirements of subsections (1) and (3); and
(e) the person had stated to the relevant authority that those other items of medical treatment were obtained in relation to the alleged injury; and
(f) an amount paid as a result of the other provisional medical expense payment request were an amount paid in relation to the alleged injury.
52D Provisional medical expense payment
(1) If:
(a) a provisional medical expense payment request is made in respect of the cost of one or more items of medical treatment obtained by an employee in relation to an alleged injury; and
(b) the provisional medical expense payment request was made within 40 working days after the alleged injury was sustained;
the relevant authority is liable to pay, in respect of the cost of those items of medical treatment, an amount of provisional medical expense payment worked out under subsection (2).
(2) Subject to subsection (3), the amount is equal to the total amount of compensation that would have been payable under section 16 for the cost of those items of medical treatment if it were assumed that the alleged injury was an injury.
(3) If the sum of:
(a) the cost of those items of medical treatment obtained in relation to the alleged injury; and
(b) any amounts that have previously been paid under this section in relation to:
(i) the alleged injury; or
(ii) an associated injury;
exceeds the cap set out in subsection (4), the amount payable under subsection (1) in respect of the cost of those items of medical treatment is to be reduced by the amount of the excess.
Note: For associated injury, see section 6B.
(4) The cap is $5,000.
Note: For indexation, see section 13.
(5) An amount of provisional medical expense payment payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b) if:
(i) the employee dies before the amount is paid and without having paid the cost referred to in subsection (1); and
(ii) another person (not being the legal personal representative of the employee) has paid that cost:
to that other person; or
(c) in any other case—to the person to whom the cost is payable.
Exception—reasonable grounds
(6) Subsection (1) does not apply if:
(a) the relevant authority decides to refuse to make a provisional medical expense payment on the grounds that the relevant authority has reasonable grounds for not making the provisional medical expense payment; and
(b) that decision is made within 7 working days after the day on which the provisional medical expense payment request is made.
(7) The relevant authority has reasonable grounds for not making the provisional medical expense payment if, and only if:
(a) the relevant authority is satisfied that the alleged injury was not sustained by the employee; or
(b) the relevant authority is satisfied that the cost of those items of medical treatment is not a cost in respect of which compensation is payable under section 16; or
(c) both:
(i) the relevant authority, by written notice given to the employee, requested the employee to make a claim for compensation in respect of the alleged injury; and
(ii) the employee refused or failed to make such a claim within 7 working days after the day on which the request is made by the relevant authority; or
(d) under the regulations, the relevant authority is taken to have reasonable grounds for not making the provisional medical expense payment.
(8) If the relevant authority decides to refuse to make a provisional medical expense payment on the grounds that the relevant authority has reasonable grounds for not making the payment, the relevant authority must give the employee, or the legal personal representative of the deceased employee, as the case may be, a written notice that:
(a) sets out that decision; and
(b) specifies the reasonable excuse; and
(c) states that a claim for compensation under section 16 may be made in respect of the cost of those items of medical treatment if the requirements of that section are met.
Exception—claim determined
(9) Subsection (1) does not apply if:
(a) a claim for compensation under section 16 in respect of the cost of those items of medical treatment has been made by or on behalf of the employee; and
(b) the claim is determined within 7 working days after the day on which the provisional medical expense payment request is made.
52E Notice of provisional medical expense payment
If a provisional medical expense payment is payable in respect of the cost of one or more items of medical treatment obtained by an employee, the relevant authority must give the employee, or the legal personal representative of the deceased employee, as the case may be, a written notice that:
(a) explains the effect of subsection 52D(5); and
(b) explains the effect of sections 52F, 52H and 54.
52F Provisional medical expense payment discharges liability to pay compensation
If:
(a) a provisional medical expense payment is made in respect of the cost of one or more items of medical treatment obtained by an employee; and
(b) compensation is payable under section 16 in respect of the cost of those items of medical treatment;
then:
(c) the making of the provisional medical expense payment is taken to have discharged so much of the relevant authority’s liability to pay the total amount of that compensation as equals the amount of the provisional medical expense payment; and
(d) the provisional medical expense payment is not recoverable from the employee or the legal personal representative of the deceased employee, as the case may be.
52G Cost of medical treatment
Subsections 16(2), (3), (3A), (3B) and (3C) apply for the purposes of this Part in the same way as they apply for the purposes of subsection 16(1).
52H Making a provisional medical expense payment does not constitute an acceptance of a claim
The making of a provisional medical expense payment does not constitute an acceptance of a claim.
52J Certain documents to be supplied on request
(1) If:
(a) a provisional medical expense payment request is made in respect of the cost of one or more items of medical treatment obtained by an employee; and
(b) the employee asks the relevant authority to give the employee a document held by the authority that relates to the request;
the relevant authority must give the document to the employee.
(2) If:
(a) a provisional medical expense payment request is made in respect of the cost of one or more items of medical treatment obtained by an employee who has died; and
(b) the legal personal representative of the deceased employee asks the relevant authority to give the legal personal representative a document held by the authority that relates to the request;
the relevant authority must give the document to the legal personal representative.
(3) If:
(a) a provisional medical expense payment request is made in respect of the cost of one or more items of medical treatment obtained by an employee; and
(b) the request affects the Commonwealth or a Commonwealth authority; and
(c) the Commonwealth or Commonwealth authority, as the case may be, asks the relevant authority to give the Commonwealth or Commonwealth authority, as the case may be, a document held by the relevant authority that relates to the request;
the relevant authority must give the document to the Commonwealth or Commonwealth authority, as the case may be.
(4) If:
(a) a provisional medical expense payment request is made in respect of the cost of one or more items of medical treatment obtained by an employee; and
(b) the request affects a licensed corporation; and
(c) the licensed corporation asks the relevant authority to give the licensed corporation a document held by the authority that relates to the request;
the relevant authority must give the document to the licensed corporation.
52K Provisional medical expense payment to be treated as compensation for certain purposes
A provisional medical expense payment is taken to be compensation for the purposes of sections 48, 50, 50A, 90C, 118 and 119.
5 Subsection 97A(2) (at the end of the definition of bonus amount)
Add:
; and (c) the number of provisional medical expense payment requests made by, or in relation to, employees of the Entity or authority in each previous financial year; and
(d) the amount of provisional medical expense payments paid to such employees under this Act.
6 Subsection 97A(2) (at the end of the definition of penalty amount)
Add:
; and (c) the number of provisional medical expense payment requests made by, or in relation to, employees of the Entity or authority in each previous financial year; and
(d) the amount of provisional medical expense payments paid to such employees under this Act.
7 Subsection 97A(3) (at the end of the definition of estimated liability component)
Add “For the purposes of this definition, a liability to make a provisional medical expense payment in respect of an alleged injury suffered by an employee is taken to be a liability under this Act in respect of an injury suffered by the employee.”.
8 Subsection 97A(3) (at the end of the definition of estimated management component)
Add “For the purposes of this definition, claims management includes provisional medical expense payments management.”.
9 At the end of paragraph 114(1)(a)
Add “or”.
10 After paragraph 114(1)(a)
Insert:
(aa) an amount of a provisional medical expense payment has been paid to a person in consequence of a false or misleading statement; or
Part 2—Application and transitional provisions
11 Application of amendments
Part IVA of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) applies to an alleged injury sustained by an employee after the commencement of this item.
12 Transitional—indexation
Section 13 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) applies in relation to the amount specified in subsection 52D(4) of that Act as if the reference in the definition of relevant year in subsection 13(1) of that Act to 1 July 1988 were a reference to 1 July next following the 6‑month period that began at the commencement of this item.
Schedule 5—Medical expenses
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
accredited healthcare practitioner has the meaning given by section 71B.
designated medical clinic has the meaning given by section 54A.
designated medical practitioner has the meaning given by section 54A.
medical clinic means a group of 2 or more legally qualified medical practitioners providing services:
(a) in the same location or locations; and
(b) as, or as part of, the same business or undertaking.
Medical Examination Rates Determination means the Medical Examination Rates Determination made under section 57B.
medical services table means the table prescribed under section 16B.
2 Subsection 4(1) (paragraph (b) of the definition of medical treatment)
Repeal the paragraph.
3 Subsection 4(1) (paragraph (d) of the definition of medical treatment)
Repeal the paragraph, substitute:
(d) therapeutic treatment by, or under the supervision of, a registered health practitioner; or
(da) therapeutic treatment by, or under the supervision of, an accredited healthcare practitioner; or
4 Subsection 4(1) (paragraph (h) of the definition of medical treatment)
Repeal the paragraph, substitute:
(h) nursing care, whether in a hospital or otherwise; or
(ha) treatment and maintenance as a resident in a nursing home; or
(hb) the provision of a medicine (other than a schedule 8 medicine) that is prescribed by a registered health practitioner, and that is:
(i) dispensed by a registered pharmacist; or
(ii) provided to an employee while the employee is an in‑patient in a hospital; or
(iii) provided to an employee while the employee is a resident in a nursing home; or
(hc) if an employee has a designated medical practitioner—the provision of a schedule 8 medicine that is prescribed by the practitioner, and that is:
(i) dispensed by a registered pharmacist; or
(ii) provided to the employee while the employee is an in‑patient in a hospital; or
(iii) provided to the employee while the employee is a resident in a nursing home; or
(hd) if:
(i) an employee has a designated medical clinic; and
(ii) a legally qualified medical practitioner practices in the clinic;
the provision of a schedule 8 medicine that is prescribed by the practitioner, and that is:
(iii) dispensed by a registered pharmacist; or
(iv) provided to the employee while the employee is an in‑patient in a hospital; or
(v) provided to the employee while the employee is a resident in a nursing home; or
(he) the provision of a medicine that:
(i) an employee is directed to take or use by a legally qualified medical practitioner or legally qualified dentist; and
(ii) is covered by the definition of registered goods in the Therapeutic Goods Act 1989; and
(iii) is provided by a registered pharmacist; or
(hf) the provision of medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(hg) anything that:
(i) is provided to an employee outside Australia; and
(ii) approved for the employee under section 115B; or
5 Subsection 4(1)
Insert:
nursing care means care provided by a registered nurse.
registered health practitioner means a person registered under a Health Practitioner Regulation National Law in any of the following health professions (other than as a student):
(a) Aboriginal and Torres Strait Islander health practice;
(b) Chinese medicine;
(c) chiropractic;
(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);
(e) medical;
(f) medical radiation practice;
(g) nursing and midwifery;
(h) occupational therapy;
(i) optometry;
(j) osteopathy;
(k) pharmacy;
(l) physiotherapy;
(m) podiatry;
(n) psychology.
registered nurse means a person registered under a Health Practitioner Regulation National Law in the nursing and midwifery profession as a nurse (other than as a student).
registered pharmacist means a person registered under a Health Practitioner Regulation National Law in the pharmacy profession (other than as a student).
schedule 8 medicine means a medicine that includes any ingredient, compound, material or preparation referred to in Schedule 8 to the current Poisons Standard (within the meaning of the Therapeutic Goods Act 1989).
6 Subsections 4(10) and (10A)
Before “section 28”, insert “section 16A or section 16B or”.
7 After subsection 16(3)
Insert:
(3A) In determining whether it was reasonable for the employee to obtain medical treatment, Comcare must have regard to the following:
(a) any relevant Clinical Framework Principles in force under section 16A;
(b) such other matters (if any) as Comcare considers relevant.
(3B) In determining the amount of compensation appropriate to the medical treatment in the circumstances, Comcare must have regard to the following:
(a) the nature of the medical treatment;
(b) the necessity for the medical treatment in the circumstances;
(c) such other matters (if any) as Comcare considers relevant.
(3C) If the medical treatment is covered by an item of the medical services table, the amount of compensation payable by Comcare under subsection (1) in respect of the medical treatment must not exceed the rate specified for the item in the table.
8 At the end of Division 1 of Part II
Add:
16A Clinical Framework Principles
Comcare may, by legislative instrument, formulate Clinical Framework Principles that are to be taken into account under subsection 16(3A).
16B Medical services table
(1) Comcare may, by legislative instrument, prescribe a table of medical treatments that sets out the following:
(a) items of medical treatment;
(b) the rate applicable in respect of each item;
(c) rules for interpretation of the table.
(2) The table is to be known as the medical services table.
9 After section 54
Insert:
54A Designated medical practitioner
(1) A claim made by or on behalf of an employee under section 54 may:
(a) designate a legally qualified medical practitioner to be the employee’s designated medical practitioner for the purposes of this Act; or
(b) designate a medical clinic as the employee’s designated medical clinic for the purposes of this Act.
Note: For the provision of a schedule 8 medicine to fall within the definition of medical treatment, the medicine must be prescribed by a designated medical practitioner or a medical practitioner who practises in a designated medical clinic. See paragraphs (hc) and (hd) of the definition of medical treatment in subsection 4(1).
(2) If an employee does not have a designated medical practitioner or a designated medical clinic, the employee may, by written notice given to the relevant authority:
(a) designate a legally qualified medical practitioner to be the employee’s designated medical practitioner for the purposes of this Act; or
(b) designate a medical clinic to be the employee’s designated medical clinic for the purposes of this Act.
(3) If an employee (or a person acting on behalf of the employee) has previously designated a legally qualified medical practitioner to be the employee’s designated medical practitioner, the employee (or a person acting on behalf of the employee) may, by written notice given to the relevant authority:
(a) revoke that previous designation; and
(b) either:
(i) designate another legally qualified medical practitioner to be the employee’s designated medical practitioner for the purposes of this Act; or
(ii) designate a medical clinic to be the employee’s designated medical clinic for the purposes of this Act.
(4) If an employee (or a person acting on behalf of the employee) has previously designated a medical clinic to be the employee’s designated medical clinic, the employee (or a person acting on behalf of the employee) may, by written notice given to the relevant authority:
(a) revoke that previous designation; and
(b) either:
(i) designate another medical clinic to be the employee’s designated medical clinic for the purposes of this Act; or
(ii) designate a legally qualified medical practitioner to be the employee’s designated medical practitioner for the purposes of this Act.
(5) A previous designation mentioned in subsection (3) or (4) may be a designation made under subsection (1), (2), (3) or (4).
(6) If a medical clinic has a business name, a designation of a medical clinic may be made using the business name of the clinic.
10 Before subsection 57(6)
Insert:
(5A) For the purposes of this section, if:
(a) an examination is conducted under this section; and
(b) apart from this subsection, the cost of conducting the examination exceeds the rate applicable to the examination under the Medical Examination Rates Determination;
the cost of conducting the examination is taken to be equal to that rate.
11 Before section 58
Insert:
57B Medical Examination Rates Determination
Comcare may, by legislative instrument, make a Medical Examination Rates Determination that sets out:
(a) one or more kinds of medical examinations; and
(b) the rate applicable in respect of each kind of medical examination.
12 Subsection 60(1) (definition of determination)
After “114B(5)(a)”, insert “, under section 115B”.
13 After section 71
Insert:
71A Disclosure of information to disciplinary bodies
Scope
(1) This section applies if Comcare has information relating to medical treatment obtained in relation to an injury suffered by an employee.
Disclosure
(2) Comcare may disclose the information to a professional disciplinary authority if Comcare is satisfied that the information will enable or assist the professional disciplinary authority to perform or exercise any of the functions or powers of the authority.
(3) Comcare may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (2).
(4) An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument.
(5) Otherwise, an instrument made under subsection (3) is a legislative instrument.
(6) For the purposes of this section, professional disciplinary authority means:
(a) the Australian Health Practitioner Regulation Agency; or
(b) the Health Care Complaints Commission established by the Health Care Complaints Act 1993 (NSW); or
(c) the Health Ombudsman appointed under the Health Ombudsman Act 2013 (Qld); or
(d) an authority that is prescribed by the regulations.
(7) An authority must not be prescribed by regulations made for the purposes of paragraph (6)(d) unless the authority is responsible for investigating complaints about the professional conduct of:
(a) registered health practitioners; or
(b) accredited healthcare practitioners; or
(c) one or more kinds of registered health practitioner; or
(d) one or more kinds of accredited healthcare practitioner.
71B Accredited healthcare practitioners
(1) Comcare may, by legislative instrument, declare that each person in a specified class of persons is an accredited healthcare practitioner for the purposes of this Act.
(2) Subsection (1) of this section does not, by implication, limit the application of subsection 13(3) of the Legislative Instruments Act 2003 to another instrument under this Act.
14 Before section 116
Insert:
115A Relevant authority may request medical report
(1) If:
(a) an employee has suffered an injury; and
(b) medical treatment has been obtained in relation to the injury;
the relevant authority may, by written notice given to the provider of the medical treatment, request the provider to give the relevant authority a written report.
(2) The relevant authority must pay the cost of a report requested under subsection (1).
Medical Treatment Reports Determination
(3) Comcare may, by legislative instrument, make a Medical Treatment Reports Determination that sets out:
(a) one or more kinds of reports; and
(b) the rate applicable in respect of each kind of report.
(4) For the purposes of subsection (2), if:
(a) a report is given to the relevant authority in response to a request under this section; and
(b) apart from this subsection, the cost of the report exceeds the rate applicable to the report under the Medical Treatment Reports Determination;
the cost of the report is taken to be equal to that rate.
115B Approval of treatment obtained outside Australia
(1) The relevant authority may approve any of the following things obtained by an employee outside Australia:
(a) medical or surgical treatment by, or under the supervision of, a medical practitioner;
(b) dental treatment by, or under the supervision of, a dentist;
(c) therapeutic treatment by, or under the supervision of, a health practitioner;
(d) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
(e) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance;
(f) treatment and maintenance as a patient at a hospital;
(g) nursing care, whether in a hospital or otherwise;
(h) treatment and maintenance as a resident in a nursing home;
(i) the provision of a medicine;
(j) the provision of medical and surgical supplies and curative apparatus, whether in a hospital or otherwise;
(k) any other form of treatment that is prescribed by the regulations.
(2) The definition of nursing care in subsection 4(1) does not apply to this section.
Part 2—Application and transitional provisions
Division 1—Transitional provisions commencing on the day after Royal Assent
15 Pre‑commencement designations
(1) The powers conferred by subsections 54A(2), (3) and (4) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) may be exercised before the commencement of Part 1 of this Schedule, as if that Part had commenced.
(2) A designation made in accordance with subitem (1) takes effect at the commencement of Part 1 of this Schedule.
Division 2—Application provisions commencing on Proclamation
16 Application of amendments
The amendments made by items 1 to 9 apply in relation to medical treatment obtained after the commencement of this item.
Schedule 6—Household services and attendant care services
Part 1—Amendments commencing on the day after Royal Assent
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
accredited provider of attendant care services means a person accredited under regulations made for the purposes of section 29D.
approved provider of attendant care services means a person approved under regulations made for the purposes of section 29F.
registered provider of attendant care services means an individual registered by an accredited provider of attendant care services under regulations made for the purposes of section 29E.
2 Subsections 4(10) and (10A)
After “28”, insert “or section 29D”.
3 At the end of Division 5 of Part II
Add:
29D Accredited providers of attendant care services
(1) The regulations may empower Comcare to:
(a) accredit persons as accredited providers of attendant care services; and
(b) revoke such an accreditation.
(2) The regulations may deal with matters that are ancillary or incidental to the matters mentioned in subsection (1).
29E Registered providers of attendant care services
(1) The regulations may empower an accredited provider of attendant care services to:
(a) register individuals as registered providers of attendant care services; and
(b) revoke such a registration.
(2) The regulations may deal with matters that are ancillary or incidental to the matters mentioned in subsection (1).
29F Approved attendant care services providers
(1) The regulations may empower a relevant authority to:
(a) approve a person as an approved provider of attendant care services; and
(b) revoke such an approval.
(2) The regulations may deal with matters that are ancillary or incidental to the matters mentioned in subsection (1).
4 Subsection 60(1) (at the end of the definition of determination)
Add “, and includes a decision made under regulations made for the purposes of section 29D, 29E or 29F”.
Part 2—Amendments commencing on Proclamation
Division 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
5 Subsection 4(1)
Insert:
catastrophic injury has the meaning given by the regulations.
registered occupational therapist means a person registered under a Health Practitioner Regulation National Law in the occupational therapy profession (other than as a student).
registered physiotherapist means a person registered under a Health Practitioner Regulation National Law in the physiotherapy profession (other than as a student).
6 Subsection 29 (heading)
Repeal the heading, substitute:
29 Compensation for household services and attendant care services obtained as a result of a non‑catastrophic injury
7 Subsection 29(1)
Omit “subsection (5)”, substitute “subsections (5) and (5A)”.
8 Subsection 29(1)
After “an employee”, insert “(other than a catastrophic injury)”.
9 Subsections 29(1) and (2)
Omit “Comcare” (wherever occurring), substitute “the relevant authority”.
10 After paragraph 29(2)(a)
Insert:
(aa) any section 29B assessment relating to the employee’s need for household services as the result of the employee’s injury;
11 Subsection 29(3)
Repeal the subsection, substitute:
(3) Subject to subsections (5) and (5A), if:
(a) an employee obtains attendant care services as a result of an injury to the employee (other than a catastrophic injury); and
(b) the attendant care services are provided by:
(i) an accredited provider of attendant care services; or
(ii) a registered provider of attendant care services; or
(iii) an approved provider of attendant care services; or
(iv) an individual authorised by the relevant authority in relation to the employee; and
(c) the attendant care services obtained are reasonably required by the employee;
the relevant authority is liable to pay compensation of:
(d) $442.20 per week; or
(e) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is the less.
(3A) The relevant authority must not authorise an individual under subparagraph (3)(b)(iv) unless the relevant authority is satisfied that there are special circumstances.
12 Subsection 29(4)
Omit “Comcare” (wherever occurring), substitute “the relevant authority”.
13 After paragraph 29(4)(e)
Insert:
(ea) any section 29B assessment relating to the employee’s need for attendant care services as the result of the employee’s injury;
14 Subsection 29(5)
Repeal the subsection, substitute:
(5) If the injury was sustained at or after the commencement of this subsection, the relevant authority is not liable to pay compensation under subsection (1) or (3) in respect of a week unless the week occurs:
(a) during the 3‑year period beginning on the date of the injury; or
(b) if:
(i) the employee is admitted to hospital as an in‑patient for treatment in relation to the injury; and
(ii) the employee is discharged from hospital after the 30‑month period beginning on the date of the injury;
during the 6‑month period beginning on the day the employee is discharged from hospital.
(5A) If the injury was sustained before the commencement of this subsection, the relevant authority is not liable to pay compensation under subsection (1) or (3) in respect of a week unless the week occurs:
(a) during the 3‑year period beginning at the commencement of this subsection; or
(b) if:
(i) the employee is admitted to hospital as an in‑patient for treatment in relation to the injury; and
(ii) the employee is discharged from hospital after the 30‑month period beginning at the commencement of this subsection;
during the 6‑month period beginning on the day the employee is discharged from hospital.
15 Subsections 29(6) and (7)
Omit “Comcare”, substitute “the relevant authority”.
16 After section 29
Insert:
29A Compensation for household services and attendant care services obtained as a result of a catastrophic injury
Household services
(1) If:
(a) an employee obtains household services as a result of a catastrophic injury to the employee; and
(b) the household services are reasonably required by the employee; and
(c) the employee has undergone a section 29B assessment relating to the employee’s need for household services as the result of the employee’s catastrophic injury;
the relevant authority is liable to pay compensation of such amount per week as the relevant authority considers reasonable in the circumstances.
(2) Without limiting the matters that the relevant authority may take into account in determining the household services that are reasonably required in a particular case, the relevant authority must, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the catastrophic injury and the extent to which he or she is able to provide those services after that date;
(b) any section 29B assessment relating to the employee’s need for household services as the result of the employee’s catastrophic injury;
(c) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(d) the extent to which household services were provided by the persons referred to in paragraph (c) before the catastrophic injury;
(e) the extent to which the persons referred to in paragraph (c), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the catastrophic injury;
(f) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (c).
Note: In relation to paragraph (e), see also subsection 4(2).
Attendant care services
(3) If:
(a) an employee obtains attendant care services as a result of a catastrophic injury to the employee; and
(b) the attendant care services are provided by:
(i) an accredited provider of attendant care services; or
(ii) a registered provider of attendant care services; or
(iii) an approved provider of attendant care services; or
(iv) an individual authorised by the relevant authority in relation to the employee; and
(c) the attendant care services obtained are reasonably required by the employee; and
(d) the employee has undergone a section 29B assessment relating to the employee’s need for attendant care services as the result of the employee’s catastrophic injury;
the relevant authority is liable to pay compensation of such amount per week as the relevant authority considers reasonable in the circumstances.
(4) The relevant authority must not authorise an individual under subparagraph (3)(b)(iv) unless the relevant authority is satisfied that there are special circumstances.
(5) Without limiting the matters that the relevant authority may take into account in determining the attendant care services that are reasonably required in a particular case, the relevant authority must, in making such a determination, have regard to the following matters:
(a) the nature of the employee’s catastrophic injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services;
(g) any section 29B assessment relating to the employee’s need for attendant care services as the result of the employee’s catastrophic injury.
Note: In relation to paragraph (f), see also subsection 4(2).
(6) An amount of compensation payable by the relevant authority under subsection (1) or (3) is payable:
(a) if the employee has paid for the household services or attendant care services, as the case may be—to the employee; or
(b) in any other case—to the person who provided those services.
(7) If the relevant authority pays an amount under subsection (1) or (3) to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.
29B Assessment of need for household services and attendant care services
(1) The relevant authority may require an injured employee to undergo an assessment by:
(a) a registered occupational therapist nominated by the relevant authority; or
(b) a registered physiotherapist nominated by the relevant authority;
of the employee’s need for either or both of the following:
(c) household services;
(d) attendant care services.
(2) The relevant authority is liable to pay:
(a) the costs of conducting an assessment under subsection (1); and
(b) an amount equal to the amount of the expenditure reasonably incurred by the employee:
(i) in making a necessary journey in connection with the assessment; or
(ii) in remaining, for the purpose of the assessment, at a place to which the person has made a journey for that purpose.
(3) The matters to which the relevant authority is to have regard in deciding questions arising under paragraph (2)(b) include:
(a) the means of transport available to the person for the journey; and
(b) the route or routes by which the person could have travelled; and
(c) the accommodation available to the person.
29C Reimbursement of costs incurred in relation to accompanying an employee
(1) If:
(a) during a particular week, an employee obtains attendant care services as a result of a catastrophic injury to the employee; and
(b) compensation is payable under section 29A for those attendant care services; and
(c) the attendant care services are provided by an individual; and
(d) during the week, the individual accompanies the employee to enable the employee to undertake an activity outside the employee’s place of residence; and
(e) having regard to:
(i) the well‑being of the employee; and
(ii) the independent functioning of the employee; and
(iii) the rehabilitation of the employee; and
(iv) any other relevant matters;
it is reasonable and appropriate for the employee to undertake the activity; and
(f) the employee or individual incurs reasonable costs in relation to the individual so accompanying the employee;
the costs may be reimbursed by the relevant authority.
(2) The following are examples of costs covered by paragraph (1)(f):
(a) the cost of travel;
(b) the cost of accommodation;
(c) the cost of meals;
(d) the cost of tickets;
(e) incidental costs.
17 Subsection 60(1) (definition of determination)
After “29,” insert “29A,”.
Division 2—Application and transitional provisions
18 Application of amendments
(1) The amendments made by items 6, 8, 9, 10, 11, 12, 13, 14 and 15 apply in relation to compensation in respect of a week beginning after the commencement of this item.
(2) Section 29A of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) applies in relation to compensation in respect of a week that begins after the commencement of this item.
19 Transitional—indexation
Section 13 of the Safety, Rehabilitation and Compensation Act 1988 applies in relation to the amount specified in subsection 29(3) of that Act (as amended by this Schedule) as if the reference in the definition of relevant year in subsection 13(1) of that Act to 1 July 1988 were a reference to 1 July next following the 6‑month period that began at the commencement of this item.
Schedule 7—Absences from Australia
Note: This Schedule amends Division 5A of Part II of the Safety, Rehabilitation and Compensation Act 1988. That Division is inserted by Part 1 of Schedule 15 to this Act.
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 At the end of Division 5A of Part II
Add:
29K Extended absences from Australia
Basic rule
(1) If:
(a) an employee leaves Australia; and
(b) the employee is absent from Australia for private purposes for a period of more than 6 weeks beginning when the employee leaves Australia;
the employee’s compensation rights are suspended during the period that:
(c) begins at:
(i) if the employee was in Australia for a period of at least 6 weeks ending when the employee leaves Australia—the end of the first 6 weeks of the period mentioned in paragraph (b); or
(ii) if the employee was in Australia for a period of less than 6 weeks ending when the employee leaves Australia—the time when the employee leaves Australia; or
(iii) if, under subsection (9) or (10), the relevant authority has approved the extension of the employee’s absence to a later time—that later time; and
(d) ends when:
(i) the employee returns to Australia; or
(ii) the employee’s absence for private purposes becomes an absence for work purposes;
whichever first happens.
(2) However, subsection (1) does not apply if:
(a) the employee returns to Australia for a period of less than 6 weeks; and
(b) when the employee began to be absent from Australia at the end of that period, that absence was for work purposes.
Change of purpose
(3) If:
(a) an employee was absent from Australia for work purposes; and
(b) at a particular time, the employee’s absence becomes an absence for private purposes; and
(c) the employee is absent from Australia for private purposes for a period of more than 6 weeks beginning at that time;
the employee’s compensation rights are suspended during the period that:
(d) begins at:
(i) the end of the first 6 weeks of the period mentioned in paragraph (c); or
(ii) if, under subsection (9) or (10), the relevant authority has approved the extension of the employee’s absence to a later time—that later time; and
(e) ends when:
(i) the employee returns to Australia; or
(ii) the employee’s absence for private purposes becomes an absence for work purposes;
whichever first happens.
(4) However, subsection (3) does not apply if:
(a) the employee returns to Australia for a period of less than 6 weeks; and
(b) when the employee began to be absent from Australia at the end of that period, that absence was for work purposes.
Transitional
(5) If:
(a) at the commencement of this section, an employee was absent from Australia for private purposes; and
(b) the employee is absent from Australia for private purposes for a period of more than 6 weeks beginning at the commencement of this section;
the employee’s compensation rights are suspended during the period that:
(c) begins at:
(i) the end of the first 6 weeks of the period mentioned in paragraph (b); or
(ii) if, under subsection (9) or (10), the relevant authority has approved the extension of the employee’s absence to a later time—that later time; and
(d) ends when:
(i) the employee returns to Australia; or
(ii) the employee’s absence for private purposes becomes an absence for work purposes;
whichever first happens.
(6) However, subsection (5) does not apply if:
(a) the employee returns to Australia for a period of less than 6 weeks; and
(b) when the employee began to be absent from Australia at the end of that period, that absence was for work purposes.
Absence for work purposes
(7) For the purposes of this section, an employee is absent from Australia for work purposes if, and only if:
(a) the employee is absent from Australia; and
(b) the employee is in suitable employment; and
(c) the suitable employment is the sole or dominant purpose of that absence from Australia.
Absence for private purposes
(8) For the purposes of this section, an employee is absent from Australia for private purposes if, and only if:
(a) the employee is absent from Australia; and
(b) that absence is not for work purposes.
Extension of absence
(9) If an employee is absent from Australia for private purposes, the relevant authority may, by writing, approve the extension of that absence to a specified time, if:
(a) the relevant authority is satisfied that the employee is unable to return to Australia because of any of the following events:
(i) a serious accident involving the employee or a family member of the employee;
(ii) a serious illness of the employee or a family member of the employee;
(iii) the hospitalisation of the employee or a family member of the employee;
(iv) the death of a family member of the employee;
(v) the employee’s involvement in custody proceedings in the country in which the employee is located;
(vi) a legal requirement for the employee to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the employee);
(vii) robbery or serious crime committed against the employee or a family member of the employee;
(viii) a natural disaster in the country in which the employee is located;
(ix) political or social unrest in the country in which the employee is located;
(x) industrial action in the country in which the employee is located;
(xi) a war in the country in which the employee is located; and
(b) the event occurred or began when the employee was absent from Australia; and
(c) if the event is political or social unrest, industrial action or war—the employee is not willingly involved in, or willingly participating in, the event.
(10) If an employee is absent from Australia for private purposes, the relevant authority may, by writing, approve the extension of that absence to a specified time, if the relevant authority is satisfied that there are special circumstances that warrant giving that approval.
Compensation rights
(11) For the purposes of this section, an employee’s compensation rights means the employee’s rights:
(a) to compensation under section 19, 20, 21, 21A, 22 or 31; and
(b) to institute or continue any proceedings under this Act in relation to compensation.
(12) If an employee’s right to compensation is suspended under this section, compensation is not payable in respect of the period of the suspension.
Conditional weekly compensation payments
(13) If:
(a) an employee’s compensation rights have been suspended under this section; and
(b) the suspension ends when the employee returns to Australia;
any compensation paid to the employee under section 19, 20, 21A, 22 or 31 in respect of the first 6 weeks following the return to Australia is subject to the condition that, throughout that 6‑week period, the employee will remain in Australia unless:
(c) the employee is absent from Australia for work purposes; or
(d) both:
(i) the employee is absent from Australia; and
(ii) the relevant authority has, by writing, approved the employee’s absence from Australia.
(14) The relevant authority must not give an approval under paragraph (13)(d) unless the relevant authority is satisfied that there are special circumstances that warrant giving that approval.
(15) If the condition mentioned in subsection (13) is contravened in relation to an amount of compensation that has been paid, paragraph 114(1)(b) has effect as if that amount should not have been paid.
Exemption
(16) The relevant authority may, by writing, exempt an employee from this section if the relevant authority is satisfied that there are special circumstances that warrant giving that exemption.
2 Subsection 60(1) (definition of determination)
After “25,”, insert “29K,”.
3 Subsection 120 (heading)
Repeal the heading, substitute:
120 Notice of departure from and return to Australia etc.
4 Subsection 120(1)
Omit “19 are being made, and have been made for a period of 3 months or longer,”, substitute “19, 20, 21, 21A, 22 or 31 are being made”.
5 At the end of subsection 120(2)
Add:
; and (c) if the person proposes to return to Australia—specifying the day on which the person proposes to return to Australia.
6 At the end of subsection 120(3)
Add:
; and (c) if the person proposes to return to Australia—specifying the day on which the person proposes to return to Australia.
7 Subsections 120(4) and (5)
Repeal the subsections, substitute:
(4) If:
(a) the person gave a notice under subsection (2) in relation to a proposal to leave Australia; and
(b) the person left Australia more than 7 days after the day specified in the notice as the day on which the person proposed to leave Australia;
the person must:
(c) notify the relevant authority, in writing, of the day on which the person left Australia; and
(d) do so within 7 days after the person left Australia.
(5) If:
(a) the person has left Australia in accordance with a notice given under subsection (2); and
(b) the person has returned to Australia; and
(c) either:
(i) the notice did not specify the day on which the person proposed to return to Australia; or
(ii) the person returned to Australia on a day other than the day specified in the notice as the day on which the person proposed to return to Australia;
the person must:
(d) notify the relevant authority, in writing, of the day the person returned to Australia; and
(e) do so within 7 days after the person returned to Australia.
(6) If:
(a) the person gave a notice under subsection (3) in relation to the person leaving Australia; and
(b) the person has returned to Australia; and
(c) either:
(i) the notice did not specify the day on which the person proposed to return to Australia; or
(ii) the person returned to Australia on a day other than the day specified in the notice as the day on which the person proposed to return to Australia;
the person must:
(d) notify the relevant authority, in writing, of the day the person returned to Australia; and
(e) do so within 7 days after the person returned to Australia.
(7) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3), (4), (5) or (6); and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty: 10 penalty units.
(8) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) Subsection (7) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
Part 2—Application and transitional provisions
8 Application of amendments
The amendments of section 120 of the Safety, Rehabilitation and Compensation Act 1988 made by this Schedule apply in relation to a person who leaves Australia after the commencement of this item.
9 Transitional—notification of absence from Australia
Scope
(1) This item applies to a person to whom payments of compensation under section 19, 20, 21, 21A, 22 or 31 of the Safety, Rehabilitation and Compensation Act 1988 are being made by a relevant authority.
Notification
(2) If the person is absent from Australia at the commencement of this item, the person must:
(a) notify the relevant authority, in writing, of the person’s absence from Australia; and
(b) do so within 7 days after the commencement of this item.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subitem (2); and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty: 10 penalty units.
(4) Subitem (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Subitem (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subitem (5) (see subsection 13.3(3) of the Criminal Code).
Schedule 8—Accrual of leave while receiving compensation
Safety, Rehabilitation and Compensation Act 1988
1 After subsection 116(1)
Insert:
(1A) Subsection (1) has no effect to the extent to which it is inconsistent with section 130 of the Fair Work Act 2009.
Schedule 9—Calculation of compensation
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
average weekly remuneration means the average weekly remuneration of an employee calculated under section 8.
eligible allowance means any of the following allowances payable to an employee:
(a) an allowance payable in respect of a specific qualification held by the employee;
(b) an allowance payable in respect of specific duties performed by the employee;
(c) an allowance that is:
(i) payable because of specific circumstances in which the employee performs the duties of his or her employment; and
(ii) not intended to cover specific expenses incurred by the employee;
(d) a location allowance that is:
(i) payable because the employee performs the duties of his or her employment at a particular location; and
(ii) payable when the employee’s primary place of residence is at the location;
(e) a higher duties allowance;
(f) a shift allowance;
(g) an allowance prescribed by the regulations.
2 Subsection 4(1) (definition of employee)
Omit “, and also applies to persons 65 years of age or older”.
3 Subsection 4(1)
Insert:
fringe benefit has the same meaning as in the Fringe Benefits Tax Assessment Act 1986 (as it applies of its own force or because of the Fringe Benefits Tax (Application to the Commonwealth) Act 1986).
monetary remuneration means:
(a) salary or wages attributable to an employee’s employment; or
(b) piece rates attributable to an employee’s employment; or
(c) commissions attributable to an employee’s employment; or
(d) eligible allowances attributable to an employee’s employment; or
(e) pay for overtime worked by an employee.
4 Subsection 4(1) (definition of normal weekly earnings)
Repeal the definition.
5 Subsection 4(1) (definition of normal weekly hours)
Repeal the definition.
6 Subsection 4(1)
Insert:
pension age has the meaning given by subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991.
total remuneration of an employee has the meaning given by section 8A.
7 Section 8 (heading)
Repeal the heading, substitute:
8 Average weekly remuneration
8 Subsections 8(1), (2) and (3)
Repeal the subsections, substitute:
(1) For the purposes of this Act, the average weekly remuneration of an employee before an injury is calculated in relation to the relevant period using the formula:
Other employment
(2) For the purposes of subsection (1), if:
(a) at the date of the injury, the employee was employed by the Commonwealth or a licensed corporation in paid or unpaid employment; and
(b) throughout the 6‑week period ending at the date of the injury, the employee was engaged in other employment; and
(c) in engaging in the other employment, the employee complied with the terms and conditions of his or her employment by the Commonwealth or the licensed corporation; and
(d) assuming section 8A applied to the other employment during the relevant period in a corresponding way to the way in which that section applies to employment by the Commonwealth or the licensed corporation, any part of the total remuneration of the employee for the relevant period is attributable to the employee’s other employment during the relevant period;
that part is to be treated as a part of the total remuneration of the employee for the relevant period.
9 Subsection 8(4)
Omit “normal weekly earnings” (first occurring), substitute “average weekly remuneration”.
10 Subsection 8(4)
Omit “or (2)” (first occurring).
11 Subsection 8(4)
Omit “normal weekly earnings” (second, third and fourth occurring), substitute “average weekly remuneration”.
12 Subsection 8(4)
Omit “or (2), as the case requires”.
13 Subsection 8(5)
Repeal the subsection.
14 Before subsection 8(6)
Insert:
Remuneration—increases and decreases
15 Subsections 8(6) and (7)
Omit “normal weekly earnings”, substitute “average weekly remuneration”.
16 Paragraph 8(8)(a)
Repeal the paragraph, substitute:
(a) the employment of an employee is unpaid employment of a kind referred to in paragraph (2)(a) of this section; and
17 Paragraph 8(8)(b)
Omit “earnings”, substitute “remuneration”.
18 Subsection 8(8)
Omit “normal weekly earnings”, substitute “average weekly remuneration”.
19 Subsection 8(8)
Omit “been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis)”, substitute “received as remuneration at the date of the injury”.
20 Subsections 8(9), (9B) and (9E)
Omit “normal weekly earnings”, substitute “average weekly remuneration”.
21 Paragraphs 8(9E)(a) and (b)
Omit “those earnings”, substitute “the average weekly remuneration”.
22 Subsection 8(9F)
Omit “normal weekly earnings”, substitute “average weekly remuneration”.
23 Subsection 8(9F)
Omit “they are”, substitute “it is”.
24 After subsection 8(9G)
Insert:
(9H) If:
(a) apart from this subsection, the amount of the average weekly remuneration of an employee before an injury is worked out on the basis that the total remuneration of the employee for the relevant period includes a location allowance that was payable because the employee’s primary place of residence was at a particular location; and
(b) the employee’s current primary place of residence is not at that location;
the amount of the average weekly remuneration of the employee before the injury is to be calculated as if the total remuneration of the employee for the relevant period did not include the location allowance.
25 Subsection 8(10)
Repeal the subsection, substitute:
(10) If the amount of the average weekly remuneration of an employee before an injury, as calculated under the preceding subsections, would exceed the amount per week of the remuneration that the employee would receive if he or she were not incapacitated for work, the amount so calculated is to be reduced by the amount of the excess.
26 At the end of section 8
Add:
(11) For the purposes of subsection (10), if an employee is suspended from his or her employment, he or she is taken to be employed during the suspension.
(12) Subsections (6), (7), (9), (9H) and (10) operate from time to time for the purposes of working out compensation payable under this Act to an employee for a particular week.
27 After section 8
Insert:
8A Total remuneration
(1) For the purposes of calculating the average weekly remuneration of an employee before an injury, the total remuneration of the employee for the relevant period is the sum of the following:
(a) salary or wages attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(b) piece rates attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(c) commissions attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(d) the value of the fringe benefits that are attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(e) reportable employer superannuation contributions attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(f) if the average weekly remuneration is to be used for working out compensation payable under this Act to the employee in respect of the injury for a week included in the first 104 weeks during which the employee is incapacitated—eligible allowances attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period;
(g) if:
(i) the average weekly remuneration is to be used for working out compensation payable under this Act to the employee in respect of the injury for a week included in the first 104 weeks during which the employee is incapacitated; and
(ii) the employee worked overtime in connection with the employee’s employment with the Commonwealth or a licensed corporation during the relevant period; and
(iii) it is likely that, if the employee had not suffered the injury, the employee would have worked overtime in connection with the employee’s employment with the Commonwealth or a licensed corporation during the first 104 weeks during which the employee is incapacitated;
the pay for overtime worked by the employee as mentioned in subparagraph (ii) during the relevant period.
Value of fringe benefits
(2) For the purposes of paragraph (1)(d), the value of the fringe benefits that are attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period is:
(a) if the relevant period is included in a particular FBT year—the amount that would be the employee’s reportable fringe benefits total for the income year in which that FBT year ended if the modifications set out in subsection (3) were made; or
(b) if a part of the relevant period is included in a particular FBT year (the first FBT year) and the remainder of the relevant period is included in the next FBT year—the sum of:
(i) the amount that would be the employee’s reportable fringe benefits total for the income year in which the first FBT year ended if the modifications set out in subsection (3) were made; and
(ii) the amount that would be the employee’s reportable fringe benefits total for the income year in which the next FBT year ended if the modifications set out in subsection (3) were made.
(3) For the purposes of subsection (2), the modifications are as follows:
(a) disregard any fringe benefit provided in respect of employment that is not the employee’s employment with the Commonwealth or the licensed corporation;
(b) disregard any fringe benefit provided outside the relevant period;
(c) disregard any fringe benefit if it is of a kind that continues to be provided to the employee when the employee is incapacitated for work.
Reportable employer superannuation contributions
(4) For the purposes of paragraph (1)(e), the reportable employer superannuation contributions that are attributable to the employee’s employment with the Commonwealth or a licensed corporation during the relevant period means:
(a) if the relevant period is included in a particular income year—the amount that would be the employee’s reportable employer superannuation contributions for the income year if the modifications set out in subsection (5) were made; or
(b) if a part of the relevant period is included in a particular income year (the first income year) and the remainder of the relevant period is included in the next income year—the sum of:
(i) the amount that would be the employee’s reportable employer superannuation contributions for the first income year if the modifications set out in subsection (5) were made; and
(ii) the amount that would be the employee’s reportable employer superannuation contributions for the next income year if the modifications set out in subsection (5) were made.
(5) For the purposes of subsection (4), the modifications are as follows:
(a) disregard any reportable employer superannuation contribution that is not attributable to the employee’s employment with the Commonwealth or the licensed corporation; and
(b) disregard any reportable employer superannuation contribution to the extent that it is not attributable to the relevant period.
Definitions
(6) In this section:
FBT year has the same meaning as in the Fringe Benefits Tax Assessment Act 1986 (as it applies of its own force or because of the Fringe Benefits Tax (Application to the Commonwealth) Act 1986).
income year has the same meaning as in the Income Tax Assessment Act 1997.
reportable employer superannuation contributions has the same meaning as in the Income Tax Assessment Act 1997.
reportable fringe benefits total has the same meaning as in the Fringe Benefits Tax Assessment Act 1986 (as it applies of its own force or because of the Fringe Benefits Tax (Application to the Commonwealth) Act 1986).
28 Subsection 9(1)
Repeal the subsection, substitute:
Basic rule
(1) For the purposes of calculating the average weekly remuneration of an employee before an injury, the relevant period is, subject to this section, the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
29 Subsection 9(3)
Omit “normal weekly earnings” (wherever occurring), substitute “average weekly remuneration”.
30 At the end of section 9
Insert:
Alternative relevant period
(5) The relevant authority may determine that, for the purposes of calculating the average weekly remuneration of an employee before an injury, the relevant period is the period specified in the determination, instead of the period calculated under the preceding subsections.
(6) The relevant authority must not determine a period for an employee under subsection (5) unless the relevant authority is satisfied that the remuneration attributable to the employee’s employment during the period is a fair representation of the remuneration that was attributable to the employee’s employment before the date of the injury concerned.
(7) A period determined by the relevant authority under subsection (5) must consist of:
(a) a single week; or
(b) 2 or more weeks (whether consecutive or otherwise).
(8) If the relevant authority determines a period for an employee under subsection (5), the relevant authority must notify the employee, in writing, of the determination.
31 Subsections 19(2) to (3)
Repeal the subsections, substitute:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week during which the employee is incapacitated for work as a result of the injury, an amount of compensation worked out using the formula:
where:
adjustment percentage means:
(a) if the employee is incapacitated for work as a result of the injury for 13 weeks or less—100%; or
(b) if the employee is incapacitated for work as a result of the injury for more than 13 weeks—90%.
applicable earnings is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
average weekly remuneration is the amount of the employee’s average weekly remuneration before the injury.
(2A) If the employee is incapacitated for work as a result of the injury for at least 27 weeks but less than 53 weeks, the amount of compensation payable to the employee in respect of a week under subsection (2) must not exceed 80% of the employee’s average weekly remuneration before the injury.
(2B) If the employee is incapacitated for work as a result of the injury for 53 weeks or more, the amount of compensation payable to the employee in respect of a week under subsection (2) must not exceed 70% of the employee’s average weekly remuneration before the injury.
(2C) For the purposes of subsections (2), (2A) and (2B), it is immaterial whether the weeks mentioned in those subsections are consecutive.
32 Before subsection 19(3A)
Insert:
Pension payable under superannuation scheme
33 Subsection 19(3A)
Omit “subsection (3)”, substitute “subsection (2)”.
34 Before subsection 19(4)
Insert:
Amount per week employee is able to earn in suitable employment
35 Subsection 19(4)
Omit “subsections (2) and (3)”, substitute “subsection (2)”.
36 Subsections 19(5), (6) and (7)
Repeal the subsections, substitute:
(5) If:
(a) the employee is incapacitated for work as a result of the injury for more than 13 weeks (whether consecutive or not); and
(b) an amount of compensation calculated under subsection (2) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician;
the amount of compensation calculated under subsection (2) is to be reduced by an amount equal to the excess.
Minimum earnings protection
(6) If:
(a) the employee is incapacitated for work as a result of the injury for more than 13 weeks (whether consecutive or not); and
(b) the minimum earnings of the employee exceeds 90% of the employee’s average weekly remuneration before the injury;
subsections (2A) and (2B) do not apply to the calculation of the amount of compensation under subsection (2).
(7) For the purposes of subsection (6), the minimum earnings of an employee are taken to be:
(a) $446.84; or
(b) if subsection (8) or (9) applies in relation to the employee—the sum of:
(i) $446.84; and
(ii) the amount or amounts required to be added under whichever of those subsections applies.
37 Subsections 19(8) and (9)
Omit “$202 specified in paragraph (7)(a) ”, substitute “$446.84 specified in subsection (7)”.
38 Subsection 20(3) (formula)
Repeal the formula, substitute:
39 Subsection 20(3) (definition of amount of compensation)
Repeal the definition, substitute:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if section 19 had applied to the employee.
40 Subsection 20(4)
Repeal the subsection.
41 Subsection 21(3) (formula)
Repeal the formula, substitute:
42 Subsection 21(3) (definition of amount of compensation)
Repeal the definition, substitute:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if section 19 had applied to the employee.
43 Subsection 21(4)
Repeal the subsection.
44 Subsection 21A(3) (formula)
Repeal the formula, substitute:
45 Subsection 21A(3) (definition of amount of compensation)
Repeal the definition, substitute:
amount of compensation means the amount of compensation that would have been payable to the employee for the relevant week if section 19 had applied to the employee.
46 Subsection 21A(4)
Repeal the subsection.
47 Subsection 23(1)
Omit “65”, substitute “pension age”.
48 Subsections 23(1A) and (1B)
Omit “63 suffers an injury (whether before or after the commencement of this subsection)”, substitute “the age that is 2 years before pension age suffers an injury”.
49 Section 23A (heading)
Repeal the heading, substitute:
23A Repayment of monetary remuneration if compensation claim successful
50 Paragraph 23A(1)(b)
Omit “Commonwealth salary etc. payment”, substitute “Commonwealth monetary payment”.
51 Paragraph 23A(1)(b)
Omit “salary, wages or pay”, substitute “monetary remuneration”.
52 Subsection 23A(2)
Omit “salary etc.”, substitute “monetary”.
53 Subsection 23A(3) (note)
Omit “salary etc.”, substitute “monetary”.
54 Paragraph 23A(6)(a)
Omit “salary etc.”, substitute “monetary”.
55 Subsection 23A(6)
Omit “of the Commonwealth salary etc.”, substitute “of the Commonwealth monetary”.
56 Subsection 23A(9)
Omit “salary etc.”, substitute “monetary”.
57 Subsection 30(3) (paragraph (a) of the definition of number of days)
Repeal the paragraph, substitute:
(a) if the employee is injured before reaching the age that is 2 years before pension age—on the day immediately before the day on which the employee reaches pension age; and
58 Subsection 30(3) (paragraph (b) of the definition of number of days)
Omit “63 years of age”, substitute “the age that is 2 years before pension age”.
59 Subsection 33(1)
Omit “salary, wages or pay”, substitute “monetary remuneration”.
60 Paragraph 33(2)(e)
Omit “salary etc.”, substitute “monetary”.
61 Subsection 60(1) (definition of determination)
Before “14,”, insert “9,”.
62 Subsection 97F(1)
Omit “salary, wages or pay”, substitute “monetary remuneration”.
63 Subsection 112A(4) (note)
Omit “salary etc.”, substitute “monetary remuneration”.
64 Subsection 112B(4) (note)
Omit “salary etc.”, substitute “monetary remuneration”.
65 Subsection 131(2)
Omit “his or her normal weekly earnings”, substitute “his or her average weekly remuneration”.
66 Subsection 131(2)
Omit “those normal weekly earnings”, substitute “that average weekly remuneration”.
67 Subsection 131(2A)
Omit “employee’s normal weekly earnings”, substitute “employee’s average weekly remuneration”.
68 Subsection 131(2A)
Omit “those increased normal weekly earnings” (wherever occurring), substitute “that increased average weekly remuneration”.
69 Subsection 131(3)
Omit “his or her normal weekly earnings”, substitute “his or her average weekly remuneration”.
70 Subsection 131(3A)
Omit “employee’s normal weekly earnings”, substitute “employee’s average weekly remuneration”.
71 Subsection 131(3A)
Omit “those increased normal weekly earnings” (wherever occurring), substitute “that increased average weekly remuneration”.
72 Subsection 131(4)
Omit “his or her normal weekly earnings” (wherever occurring), substitute “his or her average weekly remuneration”.
73 Paragraph 131(5)(b)
Omit “employee’s normal weekly earnings”, substitute “employee’s average weekly remuneration”.
74 Subsection 131(6)
Omit “employee’s normal weekly earnings”, substitute “employee’s average weekly remuneration”.
75 Subsection 132(2)
Omit “his or her normal weekly earnings”, substitute “his or her average weekly remuneration”.
76 Subsection 132(2)
Omit “those normal weekly earnings”, substitute “that average weekly remuneration”.
77 Subsections 132(3) and (4)
Omit “his or her normal weekly earnings”, substitute “his or her average weekly remuneration”.
78 Subsection 132(4)
Omit “those normal weekly earnings”, substitute “that average weekly remuneration”.
79 Subsection 132(5)
Omit “employee’s normal weekly earnings”, substitute “employee’s average weekly remuneration”.
80 Subsection 132(5)
Omit “those increased normal weekly earnings” (wherever occurring), substitute “that increased average weekly remuneration”.
81 Paragraph 132A(3)(b)
Omit “his or her normal weekly earnings”, substitute “his or her average weekly remuneration”.
82 Subsection 137(5) (definition of number of days)
Omit “65 years of age”, substitute “pension age”.
Part 2—Application and transitional provisions
83 Application of amendments
(1) The amendments made by this Schedule (other than the amendments of sections 23A and 30, paragraph 33(2)(e) and sections 97F, 112A, 112B and 137 of the Safety, Rehabilitation and Compensation Act 1988) apply in relation to a payment of compensation in respect of a week that began after the commencement of this item.
(2) The amendments of section 23A, paragraph 33(2)(e) and sections 112A and 112B of the Safety, Rehabilitation and Compensation Act 1988 made by this Schedule apply in relation to a payment made by the Commonwealth after the commencement of this item.
(3) The amendment of section 97F of the Safety, Rehabilitation and Compensation Act 1988 made by this Schedule applies in relation to an estimate given after the commencement of this item.
(4) The amendment of section 137 of the Safety, Rehabilitation and Compensation Act 1988 made by this Schedule applies in relation to a determination made by the relevant authority after the commencement of this item.
84 Transitional—weekly compensation payments
(1) In this item:
post‑commencement week means a week that began after the commencement of this item.
(2) If, as at the commencement of this item, an employee has been incapacitated for work as a result of an injury for a number of weeks that is 13 or less:
(a) for each of the first 13 post‑commencement weeks for which the employee is incapacitated for work as a result of the injury, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 100%; and
(ii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(b) if the employee is incapacitated for work as a result of the injury for at least 14 post‑commencement weeks but less than 27 post‑commencement weeks, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 90%; and
(ii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(c) if the employee is incapacitated for work as a result of the injury for at least 27 post‑commencement weeks but less than 53 post‑commencement weeks, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 90%; and
(ii) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 80% of the employee’s average weekly remuneration before the injury; and
(iii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(d) if the employee is incapacitated for work as a result of the injury for 53 post‑commencement weeks or more, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 90%; and
(ii) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 70% of the employee’s average weekly remuneration before the injury; and
(iii) subsections 19(2A) and (2B) of that Act had not been enacted.
(3) If, as at the commencement of this item, an employee has been incapacitated for work as a result of an injury for a number of weeks that is at least 14 but less than 27:
(a) for each of the first 13 post‑commencement weeks for which the employee is incapacitated for work as a result of the injury, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 100%; and
(ii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(b) if the employee is incapacitated for work as a result of the injury for at least 14 post‑commencement weeks but less than 27 post‑commencement weeks, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 90%; and
(ii) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 80% of the employee’s average weekly remuneration before the injury; and
(iii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(c) if the employee is incapacitated for work as a result of the injury for 27 post‑commencement weeks or more, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee for a week as if:
(i) the adjustment percentage were 90%; and
(ii) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 70% of the employee’s average weekly remuneration before the injury; and
(iii) subsections 19(2A) and (2B) of that Act had not been enacted.
(4) If as at the commencement of this item, an employee has been incapacitated for work as a result of an injury for a number of weeks that is at least 27 but less than 46:
(a) for the purposes of this item, N is whichever is the lesser of:
(i) the difference between 45 and that number; and
(ii) 13; and
(b) for each of the first N post‑commencement weeks for which the employee is incapacitated for work as a result of the injury, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 100%; and
(ii) subsections 19(2A) and (2B) of that Act had not been enacted; and
(c) for each later post‑commencement week for which the employee is incapacitated for work as a result of the injury, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(i) the adjustment percentage were 90%; and
(ii) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 70% of the employee’s average weekly remuneration before the injury; and
(iii) subsections 19(2A) and (2B) of that Act had not been enacted.
(5) If, as at the commencement of this item, an employee has been incapacitated for work as a result of an injury for 46 weeks or more, then, for each post‑commencement week for which the employee is incapacitated for work as a result of the injury, section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has effect in relation to the employee as if:
(a) the adjustment percentage were 90%; and
(b) the amount of compensation payable to the employee in respect of the week under subsection 19(2) of that Act must not exceed 70% of the employee’s average weekly remuneration before the injury; and
(c) subsections 19(2A) and (2B) of that Act had not been enacted.
(6) For the purposes of subitems (2), (3), (4) and (5), it is immaterial whether the weeks mentioned in those subsections are consecutive.
(7) To avoid doubt, the effect that section 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has in relation to the employee:
(a) may be a direct result of compensation being payable under that section to the employee; or
(b) may be an indirect result of working out the compensation payable under section 20, 21, 21A, 22 or 31 to the employee.
85 Transitional—average weekly remuneration
Subsection 8(9E) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) has no effect in relation to 1 July in a year unless that 1 July occurs after the 6‑month period that began at the commencement of this item.
86 Transitional—indexation
Section 13 of the Safety, Rehabilitation and Compensation Act 1988 applies in relation to an amount specified in subsection 19(7), (8) or (9) of that Act (as amended by this Schedule) as if the reference in the definition of relevant year in subsection 13(1) of that Act to 1 July 1988 were a reference to 1 July next following the 6‑month period that began at the commencement of this item.
87 Transitional—certain former employees
The amendments of sections 131, 132 and 132A of the Safety, Rehabilitation and Compensation Act 1988 made by this Schedule do not apply in relation to a former employee (within the meaning of Part X of that Act) if it is not practicable to calculate the former employee’s average weekly remuneration.
Schedule 10—Redemption of compensation
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Paragraph 30(1)(b)
Omit “$50”, substitute “$208.91”.
2 Paragraph 137(1)(b)
Omit “$62.99”, substitute “$208.91”.
Part 2—Transitional provisions
3 Transitional—indexation
Section 13 of the Safety, Rehabilitation and Compensation Act 1988 applies in relation to the amount specified in subsection 30(1) or 137(1) of that Act (as amended by this Schedule) as if the reference in the definition of relevant year in subsection 13(1) of that Act to 1 July 1988 were a reference to 1 July next following the 6‑month period that began at the commencement of this item.
Schedule 11—Legal costs
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
Schedule of Legal Costs means the schedule prescribed under section 67A.
2 After section 62
Insert:
62A Reimbursement of costs incurred by a claimant in connection with reconsideration of a determination
(1) If:
(a) a decision has been made, following a reconsideration under subsection 62(4):
(i) to vary a determination in a way that results in a more favourable outcome for the claimant; or
(ii) to revoke a determination; and
(b) the claimant gives the determining authority a written undertaking not to make an application to the Administrative Appeals Tribunal for review of the decision;
the determining authority may reimburse the claimant for the whole or a part of the costs reasonably incurred by the claimant in connection with the reconsideration.
(2) In exercising the power conferred by subsection (1), the determining authority must comply with the Schedule of Legal Costs.
(3) If:
(a) a claimant has given an undertaking to the determining authority under paragraph (1)(b) not to apply to the Administrative Appeals Tribunal for review of a decision made following a reconsideration under subsection 62(4); and
(b) the determining authority has paid the claimant an amount under subsection (1) by way of reimbursement of the whole or a part of the costs reasonably incurred by the claimant in connection with the reconsideration;
the claimant is not entitled to make an application to the Administrative Appeals Tribunal for review of the decision unless:
(c) the claimant has, by written notice given to the determining authority, withdrawn the undertaking; and
(d) the claimant has repaid the amount to the determining authority.
3 After subsection 66(1)
Insert:
(1A) If:
(a) proceedings have been instituted under this Part; and
(b) a party to the proceedings (other than the claimant) seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(c) the party had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
4 Subsection 67(8A)
After “instituted by the Commonwealth”, insert “, or a part of those costs,”.
5 Subsections 67(8B) and (9)
After “incurred by the claimant”, insert “, or a part of those costs,”.
6 Subsection 67(10)
After “pay”, insert “the whole or a part of”.
7 After subsection 67(10)
Insert:
(10A) In exercising a power conferred by subsection (8), (8A), (8B) or (9), the Administrative Appeals Tribunal must comply with the Schedule of Legal Costs.
(10B) If:
(a) a proceeding is instituted under this Part by the claimant; and
(b) the proceeding is dismissed under section 42B of the Administrative Appeals Tribunal Act 1975;
the Administrative Appeals Tribunal may, on the application of another party to the proceedings, order that the costs of the proceeding incurred by the other party must be paid by the claimant.
8 At the end of Part VI
Add:
67A Schedule of Legal Costs
(1) Comcare may, by legislative instrument, prescribe a Schedule of Legal Costs that:
(a) provides that the amount paid under subsection 67(8) in relation to a proceeding must not exceed the amount specified in, or ascertained in accordance with, the Schedule of Legal Costs; and
(b) provides that the amount paid under subsection 67(8A) in relation to a proceeding must not exceed the amount specified in, or ascertained in accordance with, the Schedule of Legal Costs; and
(c) provides that the amount paid under subsection 67(8B) in relation to a proceeding must not exceed the amount specified in, or ascertained in accordance with, the Schedule of Legal Costs; and
(d) provides that the amount paid under subsection 67(9) in relation to a proceeding must not exceed the amount specified in, or ascertained in accordance with, the Schedule of Legal Costs.
(2) The Schedule of Legal Costs may provide that the amount paid under section 62A in relation to a reconsideration of a determination must not exceed the amount specified in, or ascertained in accordance with, the Schedule of Legal Costs.
(3) In exercising the power conferred by this section, Comcare must comply with the regulations.
(4) Different amounts may be specified in, or ascertained in accordance with, the Schedule of Legal Costs in different circumstances.
(5) Those circumstances include the circumstance that:
(a) an agreement is reached between the parties to a proceeding, or their representatives, as to the terms of the decision of the Administrative Appeals Tribunal; and
(b) section 42C of the Administrative Appeals Tribunal Act 1975 applies to the agreement; and
(c) the agreement was reached as the result of a process set out in the Schedule of Legal Costs.
(6) Subsection (5) does not limit subsection (4).
(7) Subsections (4), (5) and (6) do not limit subsection 33(3A) of the Acts Interpretation Act 1901.
(8) Comcare must take all reasonable steps to ensure that a Schedule of Legal Costs is in force at all times after the commencement of this section.
Part 2—Application provisions
9 Application of amendments
(1) The amendment made by item 2 applies in relation to a decision made after the commencement of this item.
(2) The amendments made by items 3, 4, 5, 6, 7 and 8 apply in relation to proceedings instituted after the commencement of this item.
Schedule 12—Permanent impairment
Part 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1) (definition of non‑economic loss)
Repeal the definition.
2 Subsection 13(1) (definition of relevant amount)
Omit “27(2),”.
3 At the end of subsection 24(1)
Add:
Note: See also sections 28A, 28B and 28C.
4 Subsection 24(3)
After “(4)”, insert “or (4A)”.
5 Subsection 24(4)
Repeal the subsection, substitute:
(4) If the percentage determined by Comcare under subsection (5) is 75% or more, the amount assessed by Comcare is to be the maximum amount.
(4A) If the percentage determined by Comcare under subsection (5) is 74% or less, the amount assessed by Comcare is to be the amount worked out using the formula:
where:
multiplying factor is the multiplying factor specified in an item of the table in clause 1 of Schedule 1 for the percentage determined by Comcare under subsection (5).
6 After subsection 24(8)
Insert:
(8A) If, under section 28B, 2 or more injuries (the individual injuries) to an employee are treated as a single injury, subsections (7), (7A) and (8) do not apply to:
(a) any of those individual injuries; or
(b) the single injury.
(8B) Subject to section 25, if:
(a) under section 28B, 2 or more injuries to an employee are treated as a single injury; and
(b) Comcare determines that the degree of permanent impairment resulting from the single injury is less than 10%;
an amount of compensation is not payable to the employee under this section.
7 Subsection 24(9)
Omit “$80,000”, substitute “$350,000”.
8 After subsection 25(3)
Insert:
(3A) Subsection (3) has effect subject to section 25A.
9 At the end of section 25
Add:
(6) If, under section 28B, 2 or more injuries (the individual injuries) to an employee are treated as a single injury, subsections (4) and (5) do not apply to:
(a) any of those individual injuries; or
(b) the single injury.
(7) If:
(a) under section 28B, 2 or more injuries to an employee are treated as a single injury; and
(b) Comcare has made a final assessment of the degree of permanent impairment of the employee resulting from the single injury;
no further amounts of compensation are payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
10 After section 25
Insert:
25A Reduction of compensation
(1) If:
(a) Comcare has made a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b) an amount of compensation has been paid to the employee following the making of the determination; and
(c) the employee subsequently makes a claim for compensation under this Division in relation to the injury;
the amount of compensation payable to the employee under this Division on the determination of the claim is to be reduced (but not below zero) by the total amount of compensation previously paid to the employee under this Division in respect of the injury.
(2) For the purposes of this section, if, under section 28B, 2 or more injuries (the individual injuries) are treated as a single injury:
(a) a determination in relation to any of the individual injuries is taken to be, and to have been, a determination in relation to that single injury; and
(b) a claim for compensation in relation to any of the individual injuries is taken to be, and to have been, a claim for compensation in relation to that single injury; and
(c) compensation paid in respect of any of the individual injuries is taken to be, and to have been, compensation paid in respect of that single injury.
11 Section 27
Repeal the section.
12 At the end of paragraph 28(1)(a)
Add “and”.
13 Paragraph 28(1)(b)
Repeal the paragraph.
14 Paragraph 28(1)(c)
Omit “and the degree of non‑economic loss”.
15 After subsection 28(1)
Insert:
(1A) A Guide prepared under subsection (1) may set out methods by which the degree of permanent impairment resulting from an injury (expressed as a percentage) is to be reduced on account of an employee having a degree (the pre‑existing degree) of permanent impairment immediately before the injury.
(1B) If:
(a) there is a pre‑existing degree of permanent impairment; and
(b) the pre‑existing degree of permanent impairment cannot be determined under the provisions of the Guide;
the degree of permanent impairment resulting from the injury is to be reduced by 10%.
(1C) A Guide prepared under subsection (1) may set out:
(a) criteria by which a pre‑existing degree of permanent impairment is to be determined; and
(b) methods by which the pre‑existing degree of permanent impairment is to be expressed as a percentage.
(1D) A reduction mentioned in subsection (1A) may be a reduction to 0%.
(1E) For the purposes of subsection (1A), it is immaterial whether the permanent impairment immediately before the injury is permanent impairment for which compensation has been paid, or is payable, under this Division.
16 Subsection 28(4)
Omit “or the degree of non‑economic loss suffered by an employee,”.
17 Subsection 28(5)
Omit “or non‑economic loss”.
18 Subsection 28(6)
Omit “paragraphs (1)(a) and (b)”, substitute “paragraph (1)(a)”.
19 Subsection 28(6)
Omit “, or non‑economic loss resulting from the injury or impairment,”.
20 At the end of Division 4 of Part II
Add:
28A Combined values—single injury
If a single injury to an employee results in 2 or more permanent impairments, this Division has effect subject to the following modifications:
(a) first, work out the degree of permanent impairment for each of those permanent impairments as if paragraph (b) had not been enacted;
(b) second, the degree of the permanent impairment of the employee resulting from that injury (expressed as a percentage) is to be ascertained in accordance with the combined values chart set out in the approved Guide by applying the chart to the degrees worked out under paragraph (a).
28B Combined values—multiple injuries
If the following conditions are satisfied in relation to 2 or more injuries to an employee:
(a) each of those injuries is an associated injury in relation to each other of those injuries;
(b) each of those injuries results in one or more permanent impairments:
this Division has effect subject to the following modifications:
(c) first, work out the degree of permanent impairment for each of those permanent impairments as if paragraph (d) had not been enacted;
(d) second:
(i) those injuries are to be treated as a single injury; and
(ii) that single injury is taken to have resulted in each of those permanent impairments; and
(iii) the degree of permanent impairment of the employee resulting from that single injury (expressed as a percentage) is to be ascertained in accordance with the combined values chart set out in the approved Guide by applying the chart to the degrees worked out under paragraph (c).
Note: For associated injury, see section 6B.
28C Psychological or psychiatric ailments etc. that are secondary injuries
For the purposes of this Division, if:
(a) an employee suffers an injury (the primary injury); and
(b) the primary injury results in another injury (the secondary injury) to the employee; and
(c) the secondary injury is:
(i) a psychological or psychiatric ailment; or
(ii) an aggravation of a psychological or psychiatric ailment; or
(iii) a psychological or psychiatric injury; or
(iv) an aggravation of a psychological or psychiatric injury;
then:
(d) this Division does not apply to the secondary injury; and
(e) for the purposes of this Division, disregard the secondary injury in determining the degree of the permanent impairment of the employee.
21 Paragraph 45(1)(a)
Omit “24, 25 or 27”, substitute “24 or 25”.
22 Subsection 45(1)
Omit “24, 25 or 27” (last occurring), substitute “24 or 25”.
23 Paragraph 45(2)(b)
Omit “24, 25 or 27”, substitute “24 or 25”.
24 Subsection 55(4)
Repeal the subsection.
25 Subsection 60(1) (definition of determination)
Omit “27,”.
26 At the end of the Act
Add:
Schedule 1—Multiplying factors for calculating compensation for injuries resulting in permanent impairment
Note: See subsection 24(4A).
1 Multiplying factors
For the purposes of subsection 24(4A), the following table is to be used to work out the multiplying factor for a percentage determined by Comcare under subsection 24(5):
| Multiplying factors |
| Item | Percentage | Multiplying factor |
| 1 | 1% | 0.16 |
| 2 | 2% | 0.17 |
| 3 | 3% | 0.18 |
| 4 | 4% | 0.19 |
| 5 | 5% | 0.2 |
| 6 | 6% | 0.21 |
| 7 | 7% | 0.22 |
| 8 | 8% | 0.23 |
| 9 | 9% | 0.24 |
| 10 | 10% | 0.25 |
| 11 | 11% | 0.26 |
| 12 | 12% | 0.27 |
| 13 | 13% | 0.28 |
| 14 | 14% | 0.29 |
| 15 | 15% | 0.3 |
| 16 | 16% | 0.31 |
| 17 | 17% | 0.32 |
| 18 | 18% | 0.33 |
| 19 | 19% | 0.34 |
| 20 | 20% | 0.35 |
| 21 | 21% | 0.365 |
| 22 | 22% | 0.38 |
| 23 | 23% | 0.395 |
| 24 | 24% | 0.41 |
| 25 | 25% | 0.425 |
| 26 | 26% | 0.44 |
| 27 | 27% | 0.455 |
| 28 | 28% | 0.47 |
| 29 | 29% | 0.485 |
| 30 | 30% | 0.5 |
| 31 | 31% | 0.52 |
| 32 | 32% | 0.54 |
| 33 | 33% | 0.56 |
| 34 | 34% | 0.58 |
| 35 | 35% | 0.6 |
| 36 | 36% | 0.62 |
| 37 | 37% | 0.64 |
| 38 | 38% | 0.66 |
| 39 | 39% | 0.68 |
| 40 | 40% | 0.7 |
| 41 | 41% | 0.73 |
| 42 | 42% | 0.76 |
| 43 | 43% | 0.79 |
| 44 | 44% | 0.82 |
| 45 | 45% | 0.85 |
| 46 | 46% | 0.88 |
| 47 | 47% | 0.91 |
| 48 | 48% | 0.94 |
| 49 | 49% | 0.97 |
| 50 | 50% | 1 |
| 51 | 51% | 1.014 |
| 52 | 52% | 1.028 |
| 53 | 53% | 1.042 |
| 54 | 54% | 1.056 |
| 55 | 55% | 1.07 |
| 56 | 56% | 1.084 |
| 57 | 57% | 1.098 |
| 58 | 58% | 1.112 |
| 59 | 59% | 1.126 |
| 60 | 60% | 1.14 |
| 61 | 61% | 1.154 |
| 62 | 62% | 1.168 |
| 63 | 63% | 1.182 |
| 64 | 64% | 1.196 |
| 65 | 65% | 1.21 |
| 66 | 66% | 1.224 |
| 67 | 67% | 1.238 |
| 68 | 68% | 1.252 |
| 69 | 69% | 1.266 |
| 70 | 70% | 1.28 |
| 71 | 71% | 1.294 |
| 72 | 72% | 1.308 |
| 73 | 73% | 1.322 |
| 74 | 74% | 1.336 |
Part 2—Application and transitional provisions
27 Application of amendments
The amendments made by this Schedule apply in relation to the determination of a claim for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 if the claim was made after the commencement of this item.
28 Transitional—claims
Scope
(1) This item applies if, before the commencement of this item, an employee made a claim (the old claim) for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 in relation to an injury.
New claim
(2) After the commencement of this item, the employee is not entitled to make a claim for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) in relation to the injury unless:
(a) the old claim has been finally determined; and
(b) the employee gives the relevant authority a written undertaking:
(i) not to make a request under section 62 of that Act to reconsider the determination of the old claim; and
(ii) not to apply to the Administrative Appeal Tribunal for review of a decision made under section 62 of that Act as the result of a reconsideration of the determination of the old claim; and
(iii) not to institute any proceedings in a court (other than the High Court) in relation to the determination of the old claim.
(3) The employee must comply with an undertaking given by the employee under subitem (2).
(4) If:
(a) the employee gives an undertaking under subitem (2); and
(b) at or after the time when the undertaking was given, the employee makes a claim (the new claim) for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) in relation to the injury mentioned in subitem (2); and
(c) the employee institutes proceedings in the High Court in relation to the determination of the old claim mentioned in subitem (2);
then:
(d) the relevant authority may defer considering and determining the new claim until those proceedings have been finally determined; and
(e) subsections 61(1A) to (1D) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Act) do not apply to the new claim.
(5) If:
(a) compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 was paid to the employee as a result of the determination of the old claim; and
(b) after the commencement of this item, the employee makes a claim (the new claim) for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) in relation to the injury; and
(c) the degree of permanent impairment is less than 10%;
compensation is not payable to the employee under that Division on the determination of the new claim.
(6) If, after the commencement of this item, the employee makes a claim for compensation under Division 4 of Part II of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) in relation to the injury, the amount of compensation payable to the employee under that Division on the determination of the claim is to be reduced (but not below zero) by the total amount of compensation previously paid to the employee under that Division (whether before or after the commencement of this item) in respect of the injury.
Other matters
(7) Sections 28A, 28B and 28C of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule) have effect as if this item were a provision of Division 4 of Part II of that Act (as amended by this Schedule).
(8) For the purposes of this item, if, under section 28B of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Schedule), 2 or more injuries (the individual injuries) are treated as a single injury:
(a) a determination in relation to any of the individual injuries is taken to be, and to have been, a determination in relation to that single injury; and
(b) a claim for compensation in relation to any of the individual injuries is taken to be, and to have been, a claim for compensation in relation to that single injury; and
(c) compensation paid in respect of any of the individual injuries is taken to be, and to have been, compensation paid in respect of that single injury.
29 Transitional—indexation
Section 13 of the Safety, Rehabilitation and Compensation Act 1988 applies in relation to the amount specified in subsection 24(9) of that Act (as amended by this Schedule) as if the reference in the definition of relevant year in subsection 13(1) of that Act to 1 July 1988 were a reference to 1 July next following the 6‑month period that began at the commencement of this item.
Schedule 13—Licences
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(10A)
Omit “a reference to that corporation”, substitute:
a reference to:
(a) if that corporation is the licence holder of a single employer licence—that corporation; or
(b) if that corporation is covered by a group employer licence—a corporation that is designated by the licence as a relevant authority for the licence.
2 At the end of subsection 4(10A)
Add:
Note: See also subsection 108AA(2) (liability accepted by a relevant authority on behalf of the corporations covered by a group employer licence).
3 After section 104A
Add:
104B Single employer licence granted to a corporation must authorise acceptance of liability and management of claims
A single employer licence granted to a corporation must:
(a) authorise the licence holder, under section 108, to accept liability to pay compensation and other amounts under this Act in respect of:
(i) particular injury, loss or damage suffered by; or
(ii) the death of;
some or all of its employees; and
(b) authorise the licence holder (or a person acting on the licence holder’s behalf), under section 108B, to manage some or all of the claims made by employees of the licence holder under this Act.
104C Single employer licence granted to a Commonwealth authority must authorise acceptance of liability or management of claims, or both
A single employer licence granted to a Commonwealth authority must:
(a) authorise the licence holder, under section 108, to accept liability to pay compensation and other amounts under this Act in respect of:
(i) particular injury, loss or damage suffered by; or
(ii) the death of;
some or all of its employees; or
(b) authorise the licence holder (or a person acting on the licence holder’s behalf), under section 108B, to manage some or all of the claims made by employees of the licence holder under this Act;
or both.
104D Group employer licence must authorise acceptance of liability and management of claims
A group employer licence must:
(a) authorise each relevant authority, under section 108AA, to accept liability to pay compensation and other amounts under this Act in respect of:
(i) particular injury, loss or damage suffered by; or
(ii) the death of;
some or all of the employees of the corporations that were covered by the licence when the injury, loss, damage or death occurred; and
(b) authorise each relevant authority (or a person acting on the relevant authority’s behalf), under section 108CA, to manage some or all of the claims that the relevant authority is authorised by the licence to accept.
4 At the end of section 108D
Add:
Application of this Act
(3) If a single employer licence is granted, the application of this Act is subject to the conditions to which the licence is subject.
5 At the end of section 108DA
Add:
Application of this Act
(6) If a group employer licence is issued, the application of this Act is subject to the conditions to which the licence is subject.
Schedule 14—Gradual onset injuries
Part 1—General amendments
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
contributory employment, in relation to a gradual onset injury, has the meaning given by section 7B.
financial authority responsible for a contributory employment, when used in relation to a gradual onset injury, has the meaning given by section 7B.
gradual onset injury has the meaning given by section 7B.
2 Before section 8
Insert:
7B Gradual onset injury
(1) For the purposes of this Act, a gradual onset injury is an injury suffered by an employee, where:
(a) the injury is:
(i) a disease of gradual development; or
(ii) the result of a disease of gradual development; or
(b) the injury:
(i) results in a permanent impairment that is a hearing loss; and
(ii) is caused by a gradual process.
Contributory employment and financial authority
(2) For the purposes of the application of this Act to a gradual onset injury suffered by an employee, if the injury was contributed to, to a significant degree, by:
(a) the employee’s employment by an Entity; or
(b) the employee’s employment by a Commonwealth authority (other than a licensed authority); or
(c) the employee’s employment by a licensee;
then:
(d) the employment is a contributory employment; and
(e) if paragraph (a) or (b) applies—Comcare is the financial authority responsible for the contributory employment; and
(f) if paragraph (c) applies—the licensee is the financial authority responsible for the contributory employment.
(3) Subsection (2) of this section does not apply to section 35.
3 After subsection 97A(1)
Insert:
(1A) In determining the amount of the premium payable by an Entity or Commonwealth authority in respect of a financial year under section 97, Comcare may have regard to the principle that, in the case of a gradual onset injury that has 2 or more contributory employments, the premium burden attributable to that injury should be shared among Entities and Commonwealth authorities according to the proportion of the contribution to the gradual onset injury made by those contributory employments.
4 After Division 5 of Part VIII
Insert:
Division 5A—Gradual onset injuries
108DB Application of this Division
Scope
(1) This Division applies to:
(a) a gradual onset injury suffered by an employee; or
(b) an associated injury;
if:
(c) there are 2 or more contributory employments; and
(d) at least one of those contributory employments is employment by a licensed corporation.
Note 1: For associated injury, see section 6B.
Note 2: For contributory employment, see section 7B.
Most recent contributory employment
(2) For the purposes of the application of this Division to a gradual onset injury, the most recent contributory employment is to be ascertained as at the time when the gradual onset injury was notified under section 53.
108DC Liability of Comcare
(1) Comcare is not liable to pay compensation or other amounts under this Act in respect of a gradual onset injury or associated injury unless the most recent contributory employment was:
(a) employment by an Entity; or
(b) employment by a Commonwealth authority (other than a licensed authority).
(2) Subsection (1) does not apply to a liability under section 108DF.
108DD Liability of a licensee
(1) A licensee is not liable to pay compensation or other amounts under this Act in respect of a gradual onset injury or associated injury unless the most recent contributory employment was employment by the licensee.
(2) Subsection (1) does not apply to a liability under section 108DF.
108DF Shared liability
Scope
(1) This section applies if:
(a) there is a gradual onset injury or associated injury; and
(b) a financial authority (the first financial authority) responsible for a contributory employment has paid compensation or another amount under this Act (other than this section) in respect of the gradual onset injury or associated injury; and
(c) another financial authority is responsible for another contributory employment.
Recovery of part of compensation from the other financial authority
(2) The first financial authority and the other financial authority may enter into an agreement under which the other financial authority reimburses a part of the compensation or other amount paid by the first financial authority.
(3) If the first financial authority and the other financial authority do not enter into an agreement under subsection (2):
(a) the other financial authority is liable to pay to the first financial authority an amount equal to the compensation or other amount paid by the first financial authority multiplied by the proportion of the contribution to the gradual onset injury made by the other contributory employment; and
(b) an amount payable under paragraph (a) may be recovered by the first financial authority by action in a court of competent jurisdiction.
Payments to the other financial authority
(4) If the first financial authority has received an amount under section 48, 50, 50A, 113, 114, 118 or 119 in relation to the gradual onset injury or associated injury:
(a) the first financial authority must:
(i) pay to the other financial authority an amount equal to the amount received multiplied by the proportion of the contribution to the gradual onset injury made by the other contributory employment; and
(ii) do so within 30 days after receiving the amount; and
(b) an amount payable under paragraph (a) may be recovered by the other financial authority by action in a court of competent jurisdiction.
(5) If an amount payable by the first financial authority under subsection (4) remains unpaid after the end of that 30‑day period:
(a) the first financial authority is liable to pay to the other financial authority, by way of penalty, an amount calculated, at the percentage rate specified in the regulations, on the amount unpaid, computed from the end of that 30‑day period; and
(b) an amount payable under paragraph (a) may be recovered by the other financial authority by action in a court of competent jurisdiction.
(6) An amount payable by the other financial authority under subsection (3) is to be reduced by an amount paid to the other financial authority under subsection (4).
108DG Constitutional limits
(1) This Division has no effect to the extent (if any) to which it imposes taxation.
(2) This Division has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
Part 2—Amendments contingent on the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015
Safety, Rehabilitation and Compensation Act 1988
5 Paragraph 7B(2)(c)
Omit “a licensee;”, substitute “the licence holder of a single employer licence; or”.
6 After paragraph 7B(2)(c)
Insert:
(ca) the employee’s employment by a corporation covered by a group employer licence;
7 Paragraph 7B(2)(f)
Omit “licensee”, substitute “licence holder”.
8 At the end of subsection 7B(2)
Add:
; and (g) if paragraph (ca) applies—the corporations covered by the licence are the financial authority responsible for the contributory employment.
9 At the end of section 7B
Add:
(4) For the purposes of subsection (2), corporation has the same meaning as in Part VIII.
10 Paragraph 108DB(1)(d)
Repeal the paragraph, substitute:
(d) at least one of those contributory employments is:
(i) employment by the licence holder of a single employer licence; or
(ii) employment by a corporation covered by a group employer licence.
11 Section 108DD (heading)
Repeal the heading, substitute:
108DD Liability of the licence holder of a single employer licence
12 Subsection 108DD(1)
Omit “A licensee”, substitute “The licence holder of a single employer licence”.
13 Subsection 108DD(1)
Omit “by the licensee”, substitute “by the licence holder”.
14 After section 108DD
Insert:
108DE Liability of the corporations covered by a group employer licence
(1) The corporations covered by a group employer licence are not liable to pay compensation or other amounts under this Act in respect of a gradual onset injury or related death unless the most recent contributory employment was employment by one of those corporations.
(2) Subsection (1) does not apply to a liability under section 108DF.
15 At the end of section 108DF
Add:
Group employer licence
(7) If the other financial authority consists of the corporations covered by a group employer licence, those corporations are jointly and severally liable to pay an amount payable by the other financial authority under subsection (3).
(8) If the first financial authority consists of the corporations covered by a group employer licence, those corporations are jointly and severally liable to pay an amount payable by the first financial authority under subsection (4).
Part 3—Application provisions
16 Application of amendments
The amendment made by item 4 applies in relation to an injury sustained by an employee after the commencement of this item.
Schedule 15—Sanctions
Part 1—Amendments commencing on the day after Royal Assent
Division 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
1 After Division 5 of Part II
Insert:
Division 5A—Suspension of rights to compensation
29G Requirement for the purposes of a common law claim against a third party
(1) If:
(a) a claim is made, or the conduct of a claim is taken over, under section 50; and
(b) an employee or dependant is subject to a requirement made under subsection 50(5) for the purposes of the claim; and
(c) the employee or dependant fails to comply with such a requirement;
the right of the employee or dependant to compensation under this Act in respect of the injury, loss, damage or death to which the claim relates is suspended until such time as the employee or dependant complies with the requirement.
(2) However, subsection (1) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(3) If a right to compensation is suspended under subsection (1), compensation is not payable in respect of the period of the suspension.
29J Requirement to give a statutory declaration
(1) If a claimant for compensation refuses or fails, without reasonable excuse, to give a statutory declaration under subsection 118(3), the claimant’s rights:
(a) to compensation under this Act in respect of the injury or loss of, or damage to, property to which the claim relates; and
(b) to institute or continue any proceedings under this Act in relation to that compensation;
are suspended until the statutory declaration is given.
(2) However, subsection (1) does not operate to suspend the claimant’s right to compensation for the cost of medical treatment that is payable under section 16.
(3) If a claimant’s right to compensation is suspended under subsection (1), compensation is not payable in respect of the period of the suspension.
2 Subsections 50(5), (5A) and (6)
Repeal the subsections, substitute:
(5) If Comcare makes or takes over the conduct of a claim under this section, the employee or dependant must comply with any reasonable requirement of Comcare for the purposes of the claim.
3 Subsections 118(4) and (5)
Repeal the subsections.
Division 2—Application and transitional provisions
4 Application of amendments
(1) Section 29G of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made under subsection 50(5) of that Act after the commencement of this item.
(2) Section 29J of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made by a relevant authority under subsection 118(3) of that Act after the commencement of this item.
5 Transitional provisions
(1) Despite the repeal of subsections 50(5), (5A) and (6) of the Safety, Rehabilitation and Compensation Act 1988 by this Part, those subsections continue to apply, in relation to a requirement made under subsection 50(5) of that Act before the commencement of this item, as if that repeal had not happened.
(2) Despite the repeal of subsections 118(4) and (5) of the Safety, Rehabilitation and Compensation Act 1988 by this Part, those subsections continue to apply, in relation to a requirement made by a relevant authority under subsection 118(3) of that Act before the commencement of this item, as if that repeal had not happened.
Part 2—Amendments commencing on Proclamation
Division 1—Amendments
Safety, Rehabilitation and Compensation Act 1988
6 Subsection 4(1)
Insert:
breach of an obligation of mutuality means an act or omission that is declared by this Act to be a breach of an obligation of mutuality.
cancellation regime: see section 29Z.
legally qualified psychologist means a person registered under a Health Practitioner Regulation National Law in the psychology profession (other than as a student).
level 1 sanctions regime: see section 29W.
level 2 sanctions regime: see section 29X.
qualifying occasion has the meaning given by section 29ZD.
7 Subsections 4(10) and (10A)
Before “Part III”, insert “section 29H or”.
8 Paragraph 29G(1)(b)
Omit “an employee or dependant”, substitute “a dependant”.
9 Subsection 29G(1)
Omit “the employee or dependant” (wherever occurring), substitute “the dependant”.
10 Subsection 29G(2)
Repeal the subsection.
11 After section 29G
Insert:
29H Confirmation diagnosis not obtained for a psychological or psychiatric ailment or injury
(1) If:
(a) an employee is incapacitated for work as a result of an injury that is:
(i) a psychological or psychiatric ailment; or
(ii) an aggravation of a psychological or psychiatric ailment; or
(iii) a psychological or psychiatric injury; or
(iv) an aggravation of a psychological or psychiatric injury; and
(b) the employee makes a claim for compensation in relation to the injury; and
(c) the employee’s claim is not accompanied by a certificate by a mental health practitioner;
the employee must:
(d) both:
(i) undergo an examination by a mental health practitioner; and
(ii) give the relevant authority a certificate by the mental health practitioner; and
(e) do so within 12 weeks after the employee makes the claim.
Suspension of compensation
(2) If an employee refuses or fails, without reasonable excuse, to comply with subsection (1), the employee’s rights:
(a) to compensation under section 19, 20, 21, 21A, 22 or 31 in relation to the injury; and
(b) to institute or continue any proceedings under this Act in relation to compensation under section 19, 20, 21, 21A, 22 or 31 in relation to the injury;
are suspended until the employee:
(c) undergoes an examination by a mental health practitioner; and
(d) gives the relevant authority a certificate by the mental health practitioner.
(3) If an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
Cost of examination etc.
(4) The relevant authority is liable to pay:
(a) the cost of conducting an examination mentioned in paragraph (1)(d) or (2)(c); and
(b) an amount equal to the amount of the expenditure reasonably incurred by the employee:
(i) in making a necessary journey in connection with the examination; or
(ii) in remaining, for the purposes of the examination, at a place to which the employee has made a journey for that purpose.
(5) The matters to which the relevant authority is to have regard in deciding questions arising under paragraph (4)(b) include:
(a) the means of transport available to the employee for the journey; and
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
Mental health practitioner
(6) For the purposes of this section, mental health practitioner means:
(a) a legally qualified medical practitioner who is registered under a Health Practitioner Regulation National Law in the speciality of psychiatry (other than as a student); or
(b) a legally qualified psychologist who is registered under a Health Practitioner Regulation National Law in the speciality of clinical psychology (other than as a student); or
(c) a legally qualified medical practitioner who has completed mental health training, where the training was covered by an approval under subsection (7).
(7) For the purposes of paragraph (6)(c), Comcare may, by writing, approve specified mental health training.
(8) An approval under subsection (7) is not a legislative instrument.
Other matters
(9) For the purposes of this section, certificate means a certificate in accordance with the form approved by Comcare for the purposes of paragraph 54(2)(b).
12 Subsection 29J(1)
After “claimant for compensation”, insert “(other than an employee)”.
13 Subsection 29J(2)
Repeal the subsection.
14 Before Division 6 of Part II
Insert:
Division 5B—Obligations of mutuality
Subdivision A—Breach of obligation of mutuality
29L Suitable employment
Failure to accept offer of suitable employment
(1) If:
(a) payments of compensation under section 19, 20, 21, 21A or 31 are being made to an employee because the employee is incapacitated for work because of an injury; and
(b) the employee has the potential to be in suitable employment; and
(c) the employee received an offer of suitable employment; and
(d) the employee failed to accept that offer; and
(e) the employee did not have a reasonable excuse for the failure to accept that offer;
then:
(f) the employee’s failure to accept that offer is a breach of an obligation of mutuality; and
(g) the breach is taken to be in connection with:
(i) the injury; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
(2) Subsection (1) does not apply in such circumstances as are set out in the regulations.
Failure to engage, or to continue to engage, in suitable employment
(3) If:
(a) payments of compensation under section 19, 20, 21, 21A or 31 are being made to an employee because the employee is incapacitated for work because of an injury; and
(b) the employee has the potential to be in suitable employment; and
(c) the employee received an offer of suitable employment; and
(d) having accepted that offer, the employee failed to engage, or to continue to engage, in that employment; and
(e) the employee did not have a reasonable excuse for the failure to engage, or to continue to engage, in that employment;
then:
(f) the employee’s failure to engage, or to continue to engage, in that employment is a breach of an obligation of mutuality; and
(g) the breach is taken to be in connection with:
(i) the injury; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
(4) Subsection (3) does not apply in such circumstances as are set out in the regulations.
Failure to seek suitable employment
(5) If:
(a) payments of compensation under section 19, 20, 21, 21A or 31 are being made to an employee because the employee is incapacitated for work because of an injury; and
(b) the employee has the potential to be in suitable employment; and
(c) the employee failed to seek suitable employment; and
(d) the employee did not have a reasonable excuse for the failure to seek suitable employment;
then:
(e) the employee’s failure to seek suitable employment is a breach of an obligation of mutuality; and
(f) the breach is taken to be in connection with:
(i) the injury; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
(6) Subsection (5) does not apply in such circumstances as are set out in the regulations.
Potential to be in suitable employment
(7) For the purposes of this section, the potential of an employee to be in suitable employment is to be ascertained having regard to:
(a) the potential of the employee to be rehabilitated; and
(b) the potential of the employee to benefit from medical treatment; and
(c) any other relevant matters.
29M Medical examination
If:
(a) an employee is required to undergo an examination under subsection 57(1); and
(b) the employee:
(i) refuses or fails, without reasonable excuse, to undergo the examination; or
(ii) in any way obstructs the examination;
then:
(c) the employee’s refusal or failure, or obstruction, as the case may be, is a breach of an obligation of mutuality; and
(d) the breach is taken to be in connection with:
(i) the injury to which the examination relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29N Employee absent from work without a medical certificate etc.
Scope
(1) This section applies to an employee if:
(a) payments of compensation under section 19, 20, 21, 21A, 22 or 31 are being made to the employee because the employee is incapacitated for work because of an injury; and
(b) the employee is in suitable employment; and
(c) under the terms and conditions of the suitable employment, the employee is required to produce a medical certificate that covers an absence of the employee from work; and
(d) the employee refuses or fails, without reasonable excuse, to produce the certificate:
(i) within the period allowed under the terms and conditions of the suitable employment; or
(ii) if the terms and conditions of the suitable employment do not specify a period within which the certificate must be produced—as soon as reasonably practicable.
Breach of obligation of mutuality
(2) The following provisions have effect:
(a) the employee’s refusal or failure to produce the certificate is a breach of an obligation of mutuality;
(b) the breach is taken to be in connection with:
(i) the injury mentioned in paragraph (1)(a); and
(ii) each associated injury.
Note: For associated injury, see section 6B.
Medical certificate
(3) For the purposes of this section, medical certificate means a certificate issued by a legally qualified medical practitioner or a legally qualified dentist.
29P Employee does not follow medical treatment advice
Scope
(1) This section applies if:
(a) payments of compensation under section 19, 20, 21, 21A, 22 or 31 are being made to an employee because the employee is incapacitated for work as a result of an injury; and
(b) the employee has received medical treatment advice from a legally qualified medical practitioner or a legally qualified dentist; and
(c) the medical treatment advice is reasonable; and
(d) the employee refuses or fails, without reasonable excuse, to follow the medical treatment advice:
(i) if the advice specifies a period within which the advice should be followed—within that period; or
(ii) otherwise—as soon as reasonably practicable.
Breach of obligation of mutuality
(2) The following provisions have effect:
(a) the employee’s refusal or failure to follow the medical treatment advice is a breach of an obligation of mutuality;
(b) the breach is taken to be in connection with:
(i) the injury mentioned in paragraph (1)(a); and
(ii) each associated injury.
Note: For associated injury, see section 6B.
Reasonable excuse
(3) For the purposes of this section, it is a reasonable excuse if:
(a) the employee defers following the medical treatment advice mentioned in paragraph (1)(b) for a reasonable period; and
(b) the employee does so in order to obtain a second opinion from another legally qualified medical practitioner or another legally qualified dentist.
(4) For the purposes of this section, it is a reasonable excuse if the employee:
(a) receives medical treatment advice from another legally qualified medical practitioner or another legally qualified dentist; and
(b) follows the medical treatment advice given by the other legally qualified medical practitioner or the other legally qualified dentist, as the case may be; and
(c) disregards the medical treatment advice mentioned in paragraph (1)(b).
(5) For the purposes of this section, it is a reasonable excuse if:
(a) the employee refuses to undergo surgery; or
(b) the employee refuses to take or use a medicine.
Medical treatment advice
(6) For the purposes of this section, medical treatment advice means advice to do either or both of the following:
(a) to obtain one or more items of medical treatment in relation to the injury mentioned in paragraph (1)(a);
(b) to engage in conduct that is incidental to obtaining any or all of those items of medical treatment.
Incidental conduct
(7) For the purposes of this section, if a person engages in conduct that is:
(a) preparatory to an item of medical treatment; or
(b) ancillary to an item of medical treatment; or
(c) otherwise directed towards ensuring that the person derives the full benefit of an item of medical treatment;
the conduct is taken to be incidental to obtaining the item of medical treatment.
Engage in conduct
(8) For the purposes of this section, engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
29Q Assessment of need for household services and attendant care services
If an employee:
(a) refuses or fails, without reasonable excuse, to undergo an assessment in accordance with a requirement under subsection 29B(1); or
(b) in any way obstructs such an assessment;
then:
(c) the employee’s refusal or failure, or obstruction, as the case may be, is a breach of an obligation of mutuality; and
(d) the breach is taken to be in connection with:
(i) the injury to which the assessment relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29R Workplace rehabilitation plan
If an employee refuses or fails, without reasonable excuse, to fulfil the employee’s responsibilities under a workplace rehabilitation plan for the employee in relation to an injury, then:
(a) the employee’s refusal or failure to fulfil those responsibilities is a breach of an obligation of mutuality; and
(b) the breach is taken to be in connection with:
(i) the injury; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29S Work readiness assessment
If:
(a) an employee is required under section 38B to undergo a work readiness assessment because the employee has suffered an injury resulting in an incapacity for work; and
(b) the employee:
(i) refuses or fails, without reasonable excuse, to undergo the assessment; or
(ii) in any way obstructs the assessment;
then:
(c) the employee’s refusal or failure, or obstruction, as the case may be, is a breach of an obligation of mutuality; and
(d) the breach is taken to be in connection with:
(i) the injury; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29T Information notices
(1) If an employee refuses or fails, without reasonable excuse, to comply with a notice under subsection 58(1) that relates to a claim made by the employee:
(a) the employee ’s refusal or failure to comply with the notice is a breach of an obligation of mutuality; and
(b) the breach is taken to be in connection with:
(i) the injury to which the claim relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
(2) If an employee refuses or fails, without reasonable excuse, to comply with a notice under subsection 120A(1), then:
(a) the employee’s refusal or failure to comply with the notice is a breach of an obligation of mutuality; and
(b) the breach is taken to be in connection with:
(i) the injury to which the notice relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29U Requirement for the purposes of a common law claim against a third party
If:
(a) a claim is made, or the conduct of a claim is taken over, under section 50; and
(b) an employee is subject to a requirement under subsection 50(5) for the purposes of the claim; and
(c) the employee refuses or fails, without reasonable excuse, to comply with such a requirement;
then:
(d) the employee’s refusal or failure to comply with the requirement is a breach of an obligation of mutuality; and
(e) the breach is taken to be in connection with:
(i) the injury to which the claim relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
29V Requirement to give a statutory declaration
If:
(a) an employee is subject to a requirement under subsection 118(3) to give a statutory declaration in relation to a claim; and
(b) the employee refuses or fails, without reasonable excuse, to comply with such a requirement;
then:
(c) the employee’s refusal or failure to comply with the requirement is a breach of an obligation of mutuality; and
(d) the breach is taken to be in connection with:
(i) the injury to which the claim relates; and
(ii) each associated injury.
Note: For associated injury, see section 6B.
Subdivision B—Sanctions
29W Level 1 sanctions regime
(1) If:
(a) at a particular time, the relevant authority is satisfied that, during the 12‑month period ending at that time, there was a qualifying occasion on which an employee breached an obligation of mutuality in relation to an injury; and
(b) the employee is not subject to the level 2 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury; and
(c) the employee is not subject to the cancellation regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury; and
(d) the employee is not already subject to the level 1 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury;
the relevant authority must, by written notice given to the employee:
(e) determine that the employee is subject to the level 1 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); and
(ii) each associated injury; and
(f) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has not stopped;
determine that, if the breach continues for longer than the specified number of days after the notice was given, the time immediately after the end of that specified number of days will be treated as a separate qualifying occasion on which the employee breaches an obligation of mutuality in relation to the injury mentioned in paragraph (a).
Note 1: For associated injury, see section 6B.
Note 2: For qualifying occasion, see section 29ZD.
(2) For the purposes of subparagraph (1)(e)(ii), it is immaterial whether an associated injury is sustained after the determination was made.
(3) The number of days specified under paragraph (1)(f) must be 30 or more.
(4) A determination under subsection (1) must be accompanied by a statement that:
(a) sets out the nature, and brief details, of the breach; and
(b) explains the consequences of the determination; and
(c) sets out the effect of sections 29X, 29Y, 29Z and 29ZA; and
(d) if the breach is covered by section 29L—sets out the effect of subsections 19(2), (2A), (2B) and (4); and
(e) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has not stopped;
sets out the action that the employee should take in order to stop the breach; and
(f) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has stopped;
sets out the date when the breach stopped; and
(g) sets out such other matters (if any) as are specified in the regulations.
(5) A determination under subsection (1):
(a) comes into force at a time specified in the determination; and
(b) remains in force until the employee becomes subject to the level 2 sanctions regime.
(6) The time specified under paragraph (5)(a):
(a) must not be earlier than immediately after the occasion mentioned in paragraph (1)(a); and
(b) must not be later than the day on which the determination is given to the employee.
29X Level 2 sanctions regime
(1) If:
(a) at a particular time, the relevant authority is satisfied that, during the 12‑month period ending at that time, there was a qualifying occasion on which an employee breached an obligation of mutuality in relation to an injury; and
(b) the qualifying occasion occurred when the employee was subject to the level 1 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury; and
(c) the employee is not subject to the cancellation regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury; and
(d) the employee is not already subject to the level 2 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury;
the relevant authority must, by written notice given to the employee:
(e) determine that the employee is subject to the level 2 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); and
(ii) each associated injury; and
(f) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has not stopped;
determine that, if the breach continues for longer than the specified number of days after the notice was given, the time immediately after the end of that specified number of days will be treated as a separate qualifying occasion on which the employee breaches an obligation of mutuality in relation to the injury mentioned in paragraph (a).
Note 1: For associated injury, see section 6B.
Note 2: For qualifying occasion, see section 29ZD.
(2) For the purposes of subparagraph (1)(e)(ii), it is immaterial whether an associated injury is sustained after the determination was made.
(3) The number of days specified under paragraph (1)(d) must be 30 or more.
(4) A determination under subsection (1) must be accompanied by a statement that:
(a) sets out the nature, and brief details, of the breach; and
(b) explains the consequences of the determination; and
(c) sets out the effect of sections 29Y, 29Z and 29ZA; and
(d) if the breach is covered by section 29L—sets out the effect of subsections 19(2), (2A), (2B) and (4); and
(e) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has not stopped;
sets out the action that the employee should take in order to stop the breach; and
(f) if:
(i) the breach is not covered by section 29L; and
(ii) the breach has stopped;
sets out the date when the breach stopped; and
(g) sets out such other matters (if any) as are specified in the regulations.
(5) A determination under subsection (1):
(a) comes into force at a time specified in the determination; and
(b) remains in force until the employee becomes subject to the cancellation regime.
(6) The time specified under paragraph (5)(a):
(a) must not be earlier than immediately after the occasion mentioned in paragraph (1)(a); and
(b) must not be later than the day on which the determination is given to the employee.
29Y Suspension of compensation—employee subject to the level 1 sanctions regime or the level 2 sanctions regime
(1) If:
(a) an employee is subject to the level 1 sanctions regime, or the level 2 sanctions regime, in relation to an injury; and
(b) the employee is in breach of an obligation of mutuality in relation to the injury; and
(c) the breach is not covered by section 29L;
the employee’s rights:
(d) to compensation under this Act; and
(e) to institute or continue any proceedings under this Act in relation to compensation;
are suspended so far as those rights relate to the injury.
(2) However, subsection (1) does not operate to suspend:
(a) the employee’s right to compensation for the cost of medical treatment that is payable under section 16; or
(b) the employee’s right to institute or continue proceedings by way of an application to the Administrative Appeals Tribunal for review of a reviewable decision that was made as the result of a reconsideration of a decision under this Division.
(3) If an employee’s right to compensation is suspended under subsection (1), compensation in relation to the injury is not payable in respect of the period of the suspension.
29Z Cancellation regime
(1) If:
(a) at a particular time, the relevant authority is satisfied that, during the 12‑month period ending at that time, there was a qualifying occasion on which an employee breached an obligation of mutuality in relation to an injury; and
(b) the qualifying occasion occurred when the employee was subject to the level 2 sanctions regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury; and
(c) the employee is not already subject to the cancellation regime in relation to:
(i) the injury mentioned in paragraph (a); or
(ii) an associated injury;
the relevant authority must, by written notice given to the employee, determine that the employee is subject to the cancellation regime in relation to:
(d) the injury mentioned in paragraph (a); and
(e) each associated injury.
Note 1: For associated injury, see section 6B.
Note 2: For qualifying occasion, see section 29ZD.
(2) For the purposes of paragraph (1)(e), it is immaterial whether an associated injury is sustained after the determination was made.
(3) A determination under subsection (1) comes into force at a time specified in the determination.
(4) The specified time:
(a) must not be earlier than the qualifying occasion mentioned in paragraph (1)(a); and
(b) must not be later than the day on which the determination is given to the employee.
(5) A determination under subsection (1) is irrevocable.
(6) Subsection (5) does not apply to a revocation under subsection 62(5).
29ZA Cancellation of compensation—employee subject to cancellation regime
(1) If an employee is subject to the cancellation regime in relation to an injury, the employee’s rights:
(a) to compensation under this Act; and
(b) to institute or continue any proceedings under this Act in relation to compensation;
are cancelled so far as those rights relate to the injury.
(2) However, subsection (1) does not operate to cancel the employee’s right to institute or continue proceedings by way of an application to the Administrative Appeals Tribunal for review of a reviewable decision that was made as the result of a reconsideration of a decision under this Division.
(3) To avoid doubt, this section does not affect compensation under section 17 or 18.
(4) For the purposes of section 44, disregard this section.
29ZB Liable employer to inform relevant authority of breach of obligation of mutuality
If:
(a) an employee is incapacitated for work because of an injury; and
(b) the liable employer of the employee in relation to the injury is not the relevant authority; and
(c) after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, the liable employer becomes aware of a breach by the employee of an obligation of mutuality;
the liable employer must:
(d) inform the relevant authority of the breach; and
(e) do so as soon as practicable after becoming aware of the breach.
29ZC Recovery of overpayments
For the purposes of paragraph 114(1)(b), if:
(a) a determination was made under subsection 29W(1), 29X(1) or 29Z(1); and
(b) the determination came into force before it was made;
then, in determining whether an amount of compensation that has been paid to a person under this Act should not have been paid, assume that the determination had been made when it came into force.
29ZD Qualifying occasion on which employee breaches an obligation of mutuality
For the purposes of this Act, a qualifying occasion on which an employee breaches an obligation of mutuality in relation to an injury means:
(a) if the breach is covered by section 29L—the occasion when the breach occurred; or
(b) if the breach is not covered by section 29L—the occasion when the breach first occurred; or
(c) an occasion that, in accordance with a determination under section 29W or 29X, is treated as a qualifying occasion on which the employee breaches an obligation of mutuality;
so long as the occasion occurred after the commencement of this section.
15 Subsections 57(2) and (5)
Repeal the subsections.
16 Subsection 60(1) (definition of determination)
Before “30”, insert “29W, 29X, 29Z,”.
Division 2—Application provisions
17 Application of amendments
(1) The amendments of section 29G of the Safety, Rehabilitation and Compensation Act 1988 made by this Part apply in relation to a requirement made under subsection 50(5) of that Act after the commencement of this item.
(2) The amendments of section 29J of the Safety, Rehabilitation and Compensation Act 1988 made by this Part apply in relation to a requirement made under subsection 118(3) of that Act after the commencement of this item.
(3) Section 29H of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to an injury sustained by an employee after the commencement of this item.
(4) Subsections 29L(1) and (3) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) apply in relation to an offer of suitable employment if the offer was received after the commencement of this item.
(5) Subsection 29L(5) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a failure to seek suitable employment, to the extent to which the failure occurred after the commencement of this item.
(6) Section 29M of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made by a relevant authority under subsection 57(1) of that Act after the commencement of this item.
(7) Section 29N of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to an absence that began after the commencement of this item.
(8) Section 29P of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to advice given after the commencement of this item.
(9) Section 29Q of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made after the commencement of this item.
(10) Section 29R of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a refusal or failure to fulfil responsibilities under a workplace rehabilitation plan, to the extent to which the refusal or failure occurred after the commencement of this item.
(11) Section 29S of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made after the commencement of this item.
(12) Subsections 29T(1) and (2) of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) apply in relation to a requirement made after the commencement of this item.
(13) Section 29U of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made after the commencement of this item.
(14) Section 29V of the Safety, Rehabilitation and Compensation Act 1988 (as amended by this Part) applies in relation to a requirement made after the commencement of this item.
18 Transitional—subsections 57(2) and (5) of the Safety, Rehabilitation and Compensation Act 1988
Despite the repeal of subsections 57(2) and (5) of the Safety, Rehabilitation and Compensation Act 1988 by this Part, those subsections continue to apply, in relation to a requirement made by a relevant authority under subsection 57(1) of that Act before the commencement of this item, as if that repeal had not happened.
Schedule 16—Defence‑related claims
Safety, Rehabilitation and Compensation Act 1988
1 At the end of section 147
Add:
(3) In addition, this Act applies to defence‑related claims and matters arising out of those claims as if:
(a) the amendments of this Act made by Schedules 1 to 15 and 17 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015 had not been enacted; and
(b) after the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, each reference in this Act to an approved program provider were a reference to an approved workplace rehabilitation provider.
(4) After the commencement of Part 1 of Schedule 2 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, each of the following amendments made by that Schedule is excluded from paragraph (3)(a):
(a) the amendment that repealed the definition of approved program provider in subsection 4(1);
(b) the amendment that inserted the definition of approved workplace rehabilitation provider in subsection 4(1);
(c) the amendment of section 34;
(d) the amendments of Division 2 of Part III.
(5) After the commencement of Part 1 of Schedule 12 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, each of the following amendments made by that Act is excluded from paragraph (3)(a):
(a) the amendment made by item 20 of Schedule 12 to that Act, to the extent that that item inserted sections 28A and 28B;
(b) the amendment made by item 1 of Schedule 17 to that Act, to the extent that that item inserted the definition of associated injury in subsection 4(1);
(c) the amendment made by item 2 of Schedule 17 to that Act (associated injury).
(6) For the purposes of paragraph (5)(a), assume that:
(a) the amendment mentioned in that paragraph applied in relation to an injury sustained by an employee after the commencement of Part 1 of Schedule 12 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, unless the injury is the result of an injury sustained by the employee before the commencement of Part 1of that Schedule; and
(b) Part 2 of that Schedule had not been enacted.
(7) If a defence‑related claim relates to an injury that results in a permanent impairment, Division 4 of Part II has effect, after the commencement of Part 1 of Schedule 12 to the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Act 2015, subject to the following modifications:
(a) first, work out the amount of compensation that would be payable under that Division in respect of the injury if this subsection had not been enacted;
(b) second, work out the amount of compensation that would be payable under that Division in respect of the injury if it were assumed that:
(i) the amendments of this Act made by that Schedule had applied in relation to the injury; and
(ii) item 15 of that Schedule had not been enacted; and
(iii) item 20 of that Schedule, to the extent that that item inserted section 28C, had not been enacted; and
(iv) Part 2 of that Schedule had not been enacted; and
(v) the amendments of this Act made by that Schedule applied in relation to an injury sustained by an employee after the commencement of Part 1 of that Schedule, unless the injury is the result of an injury sustained by the employee before the commencement of Part 1 of that Schedule; and
(vi) paragraph (3)(a) of this section did not apply to the amendments of this Act made by that Schedule;
(c) third, if the amount of compensation worked out in accordance with paragraph (b) exceeds the amount of compensation worked out in accordance with paragraph (a)—the amount of compensation payable under that Division in respect of the injury is the amount of compensation worked out in accordance with paragraph (b);
(d) fourth, if the amount of compensation worked out in accordance with paragraph (b) does not exceed the amount of compensation worked out in accordance with paragraph (a)—the amount of compensation payable under that Division in respect of the injury is the amount of compensation worked out in accordance with paragraph (a).
Schedule 17—Interpretation
Part 1—Amendments commencing on the day after Royal Assent
Safety, Rehabilitation and Compensation Act 1988
1 Subsection 4(1)
Insert:
associated injury has the meaning given by section 6B.
Health Practitioner Regulation National Law means a State or Territory law that provides for the registration or licensing of individuals who practise in any or all of the following professions or occupations:
(a) Aboriginal and Torres Strait Islander health practice;
(b) Chinese medicine;
(c) chiropractic;
(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);
(e) medical;
(f) medical radiation practice;
(g) nursing and midwifery;
(h) occupational therapy;
(i) optometry;
(j) osteopathy;
(k) pharmacy;
(l) physiotherapy;
(m) podiatry;
(n) psychology;
(o) a profession or occupation specified in the regulations.
legally qualified dentist means a person registered under a Health Practitioner Regulation National Law in the dental profession as a dentist (other than as a student).
legally qualified medical practitioner means a person registered under a Health Practitioner Regulation National Law in the medical profession (other than as a student).
working day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in any State or Territory.
2 After section 6A
Insert:
6B Associated injury
Injuries other than diseases
(1) For the purposes of this Act, if the following conditions are satisfied in relation to 2 or more injuries to an employee:
(a) those injuries are not diseases;
(b) those injuries arise out of, or in the course of:
(i) the same incident; or
(ii) the same state of affairs;
each of those injuries is an associated injury in relation to each other of those injuries.
(2) For the purposes of subsection (1), if:
(a) one or more injuries (the primary injuries) to an employee arise out of, or in the course of, a particular:
(i) incident; or
(ii) state of affairs; and
(b) any of the primary injuries results in one or more other injuries (the secondary injuries) to the employee;
each of the secondary injuries is taken to have arisen out of, or in the course of, that incident, or that state of affairs, as the case may be.
Injuries that are diseases
(3) For the purposes of this Act, if the following conditions are satisfied in relation to 2 or more injuries to an employee:
(a) those injuries are diseases;
(b) those injuries were contributed to, to a significant degree, by:
(i) the same incident; or
(ii) the same state of affairs;
each of those injuries is an associated injury in relation to each other of those injuries.
(4) For the purposes of subsection (3), if:
(a) one or more injuries (the primary injuries) to an employee were contributed to, to a significant degree, by a particular:
(i) incident; or
(ii) state of affairs; and
(b) any of the primary injuries results in one or more other injuries (the secondary injuries) to the employee;
each of the secondary injuries is taken to have been contributed to, to a significant degree, by that incident, or that state of affairs, as the case may be.
Injuries covered by subsection 4(3)
(5) This section does not apply to an injury covered by subsection 4(3).
Part 2—Amendments contingent on commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015
Safety, Rehabilitation and Compensation Act 1988
3 Subsection 4(1) (definition of working day) (the definition that was inserted by item 20 of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015)
Repeal the definition.