NEW SOUTH WALES.

TABLE OF PROVISIONS.

PART I. - PRELIMINARY.

1. Short title.

2. Commencement.

3. Report to be an aid to interpretation

4. Interpretation.

5. Transport accidents.

6. Persons deemed to be employees.

7. Earners.

8. Non-earners.

9. Construction of certain references - earners referred to in s.7(l) (b) and (c).

10. Earnings.

11. Act to bind Crown.

PART II. - THE ACCIDENT COMPENSATION CORPORATION OF NEW SOUTH WALES.

12. Constitution of the Corporation.

13. Membership and procedure of the Corporation.

14. Functions of the Corporation.

15. Determination of average weekly earnings.

16. Functions of Chief Executive.

17. Appointment of officers and employees of the Corporation

18. Delegation.

19. Financial year.

20. Annual report

21. Shortened references to the Corporation

PART III - THE TRANSPORT ACCIDENTS COMPENSATION FUND.

DIVISION 1. - General.

22. Transport Accidents Compensation Fund.

23. Payments into the Fund.

24. Payments out of the Fund.

25. Investment

DIVISION 2. - Payment of contributions.

26. Contributions in respect of motor vehicles.

27. Payment of contributions in respect of motor vehicles, etc., to the Corporation.

28. Contributions from public authorities.

29. Other contributions.

PART IV. - ELIGIBILITY FOR BENEFITS.

DIVISION 1. - General.

30. Injured person’s benefits - generally.

31. Dependant’s benefits - generally.

32. Persons in respect of whom benefits are payable.

33. Exclusions from benefits.

34. Suspension of benefits - prisoners.

DIVISION 2. - Relationships to other benefits.

35. Abolition of certain rights to damages or compensation.

36. Election between alternative sources of compensation.

37. Forfeiture and assignment of certain rights.

38. Indemnification of certain owners and drivers.

39. Set-off in event of double compensation

40. Set-off of benefits in respect of sick leave and other leave.

41. Certain payments not to affect benefits under this Act.

PART V. - NATURE OF BENEFITS.

DIVISION 1. - Hospital, medical and associated services and pharmaceutical supplies.

42. Provision of hospital, medical and associated services.

43. Pharmaceutical supplies.

DIVISION 2. - Compensation for loss of earning capacity.

Subdivision 1. - Entitlement to compensation.

44. Entitlement to compensation for loss of earning capacity - earners.

45. Entitlement to compensation for loss of earning capacity - non- earners.

Subdivision 2. - Assessment of loss of earning capacity - earners.

46. Loss of earning capacity - employees.

47. Normal weekly earnings - employees.

48. Assumed weekly earnings - employees.

49. Loss of earning capacity - self-employed persons.

50. Normal weekly earnings - self-employed persons.

51. Assumed weekly earnings - self-employed persons.

52. Amount of earnings during period of incapacity.

53. Assumed earnings during period of incapacity.

54. Notice and effect of certain determinations under s. 53.

55. Loss of earning capacity- earnings derived as employee and self-employed person.

56. Long-term incapacity - earners.

57. Application for assessment of compensation on basis of potential for advancement.

58. Circumstances in which assessment may be made.

59. Basis of assessment

60. Making of assessment.

61. Effect of assessment.

Subdivision 3. - Assessment of loss of earning capacity - non-earners.

62. Loss of earning capacity - non- earners.

63. Notional earning capacity - non-earners.

64. Amount of earnings during period of incapacity.

65. Assumed earnings during period of incapacity.

66. Notice and effect of certain determinations under s. 65.

67. Further assessment of loss of earning capacity - non-earners.

68. Application for assessment of compensation on basis of potential for advancement

69. Circumstances in which assessment may be made.

70. Basis of assessment

71. Making of assessment.

72. Effect of assessment

73. Certain determinations expressed as percentage of average weekly earnings.

Subdivision 4. - Amount and Payment of compensation.

74. Amount of compensation - loss of earning capacity

75. Amount of compensation - replacement services.

76. Amount of compensation - equivalent earnings as an employee.

77. Maximum amount of compensation

78. Periods for which compensation is not payable.

79. Payment of compensation to persons under 16 years of age.

80. Payment of compensation - unconscious persons.

81. Termination of payments.

Subdivision 5. - Permanent incapacity.

82. Assessment of permanent incapacity. Subdivision 6. - Miscellaneous.

83. Postponement of assessment of certain claims.

84. Continuance of compensation after commencement of certain business undertakings.

DIVISION 3. - Rehabilitation.

85. Right to rehabilitation.

86. Rehabilitation services to be provided promptly.

87. Functions of the Corporation relating to rehabilitation - generally

88. Prosthetic, etc., devices and aids and appliances.

89. Vocational training and retraining.

90. Modifications to places of work.

91. Placement programmes.

92. Advice and assistance.

DIVISION 4. - Support services and independent living.

93. Corporation to promote support services, etc.

94. Provision of household services - generally.

95. Provision of household services after 4 weeks from date of accident

96. Provision of attendant care services.

97. Compensation for loss of earning capacity - emergency family support.

98. Travelling and accommodation expenses - emergency family support.

99. Acquisition of a home.

100. Modifications to the home.

101. Provision of public housing.

102. Institutional accommodation

103. Hostels.

104. Purchase of vehicle.

105. Modifications to vehicle.

106. Mobility allowance.

DIVISION 5. - Compensation for permanent disability.

107. Entitlement to compensation for permanent disability.

108. Duty to mitigate.

109. Amount of compensation.

110. Assessment of degree of permanent disability.

111. Minimum level of disability.

112. Total disability.

113. Time at which determination may be made.

114. Increase in degree of disability after assessment

115. Payment of compensation - deceased and unconscious persons.

DIVISION 6. - Compensation in respect of death.

Subdivision 1. - Preliminary.

116. Interpretation.

117. Presumption as to dependence of children.

Subdivision 2. - Earning capacity of surviving spouse.

118. Determination of earning capacity.

119. Actual earnings of surviving spouse.

120. Assumed earnings of surviving spouse.

121. Notice and effect of certain determinations under s.120.

Subdivision 3. - Amount and payment of compensation.

122. Lump sum payment

123. Periodic compensation for prescribed children.

124. Periodic compensation for spouses of earners - generally.

125. Periodic compensation for spouses of earners - long-term child-care.

126. Periodic compensation for spouses of earners - health, age, etc., factors.

127. Limitations on amount of compensation.

128. Replacement household services.

129. Limitation of benefits - time between accident and death.

130. Deaths in rapid succession.

131. Termination of payments.

132. Lump sum payment on remarriage, etc., of surviving spouse.

133. Funeral expenses.

DIVISION 7. - Miscellaneous.

134. Non-assignability of benefits.

135. Effect of pre-accident disability.

136. Effect of post-accident disability.

137. Effect of overseas residence - incapacitated persons.

138. Effect of overseas residence - dependents of deceased persons.

PART VI. - MAKING AND ASSESSMENT OF CLAIMS FOR BENEFITS AND ADMINISTRATION OF PROVISION OF BENEFITS.

139. Interpretation.

140. Making of claims - generally.

141. Time for making of claims.

142. Advice and assistance to claimants.

143. Investigation and assessment of claims.

144. Employment information.

145. Medical assessment.

146. Determination of claims.

147. Payment of periodic compensation

148. Payment of lump sums.

149. Payment or provision of other benefits.

150. Payment of benefits in respect of minors.

151. Effect of failure or refusal to make determination.

152. Notice of determinations.

153. Interim determinations.

154. Claims manual.

155. False application.

156. Periodic review of benefits.

157. Redemptions.

158. Notification of change in circumstances.

159. Termination of benefits.

PART VII. - APPEALS.

DIVISION 1. - Compensation Review Panels.

160. Interpretation.

161. Establishment of Compensation Review Panels.

162. Members.

163. Appeals.

164. Time for making appeals.

165. Hearing of appeals.

166. Determination of appeals.

167. Other powers of Panels.

168. Costs.

169. Determinations, etc., of Panels.

DIVISION 2. - The Accident Compensation Review Tribunal.

170. Interpretation.

171. The Accident Compensation Review Tribunal.

172. Appeals.

173. Time for making appeals.

174. Hearing of appeals.

175. Reference of questions of procedure and law to the Supreme Court, etc.

176. Determination of appeals.

177. Power to compel evidence.

178. Other powers of Tribunal

179. Costs.

180. Orders, etc., of the Tribunal

PART VIII. - ACCIDENT COMPENSATION POLICY REVIEW COMMITTEE.

181. Constitution of the Policy Review Committee.

182. Functions and powers of the Policy Review Committee.

183. Annual report of the Policy Review Committee.

PART IX. - MISCELLANEOUS.

184. Miscellaneous functions of the Corporation.

185. Provision of interpreters.

186. Driving of certain motor vehicles on public streets, etc., prohibited.

187. Disclosure of information.

188. Service of documents on the Corporation.

189. Service of documents on other persons.

190. Authentication of certain documents.

191. Proof of certain matters not required.

192. Offences and penalty.

193. Proceedings.

194. Offences by corporations.

195. Liability.

196. Regulations.

SCHEDULE 1. - PROVISIONS RELATING TO THE MEMBERS AND PROCEDURE OF THE CORPORATION.

SCHEDULE 2. - PROVISIONS RELATING TO THE MEMBERS OF A PANEL

SCHEDULE 3. - PROVISIONS RELATING TO THE MEMBERS OF THE TRIBUNAL

SCHEDULE 4. - PROVISIONS RELATING TO THE CONSTITUTION AND

PROCEDURE OF THE POLICY REVIEW COMMITTEE.

TRANSPORT ACCIDENTS COMPENSATION BILL, 1984

A BILL FOR

An Act to enable the provision of be nef its to a person who suffers bodily injury which is caused by or arises out of a transport accident and to the dependents of a person whose death is caused by or arises out of a transport accident.

BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-

PART I. - PRELIMINARY.

Short title.

1. This Act may be cited as the “Transport Accidents Compensation Act, 1984”.

Commencement.

2. (1) Sections I and 2 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence on such a day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

Report to be an aid to interpretation.

3. (1) It is the intention of Parliament that this Act and the regulations are to give effect to recommendations made in a report of the Law Reform Commission laid before each House of Parliament, being the report on a Transport Accidents Scheme for New South Wales, and accordingly, in the interpretation of this Act and the regulations, regard may be had to that report, including the draft legislation set out in that report.

(2) Subsection (1) does not prevent regard being had, in the interpretation of this Act and the regulations, to any matter to which regard might have been had if that subsection had not been enacted.

Interpretation.

4. (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires -

“appointed day” means the day appointed and notified under section 2(2);

“average weekly earnings” means -

(a) in respect of any day occurring on or after the appointed day and before the date of the first determination under section 15 is made by the Corporation - the amount prescribed to be the amount of average weekly earnings for the purposes of this definition; and

(b) in respect of any day occurring on or after the date of the making of a determination under section 15 by the Corporation - the amount determined under and applicable in accordance with that section in respect of that day;

“bodily injury” includes -

(a) pre-natal injury;

(b) injury resulting from nervous shock; and

(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses;

“Chief Executive” means the Chief Executive of the Corporation;

“claimant” means a person by or on whose behalf a claim for benefits under this act is made;

“Corporation” means the Accident Compensation Corporation of New South Wales constituted under this Act;

“de facto partner” means -

(a) in relation to a man -

(i) a woman who is living with the man as his wife on a bona fide domestic basis although not married to him; or

(ii) where the man’s death is caused by or arises out of a transport accident, a woman who, immediately before the date of the man’s death was living with the man as his wife on a bona fide domestic basis although not married to him; and

(b) in relation to a woman -

(i) a man who is living with the woman as her husband on a bona fide domestic basis although not married to her; or

(ii) where the woman’s death is caused by or arises out of a transport accident, a man who, immediately before the date of the woman’s death, was living with the woman as her husband on a bona fide domestic basis although not married to her;

“deceased person” means a person whose death is caused by or arises out of a transport accident;

“dependant”, in relation to a deceased person, means a person who, as at the date of death of the deceased person, was financially, or through the provision of household services, or in some other significant and continuing way, dependent upon, or interdependent with the deceased person in whole or in part;

“financial year” means year ending on 30th June;

“household family member”, in relation to an injured person or a deceased person, means a member of the family of the injured person or the deceased person who is a member of the same household as the injured person or was a member of the same household as the deceased person, as the case may require;

“incapacity” means incapacity for work;

“injured person” means a person who suffers a bodily injury which is caused by or arises out of a transport accident;

“long-term incapacity”, in relation to a person who is incapacitated as the result of a transport accident, means total or partial incapacity for the whole or any part of each of not less than 104 weeks, whether consecutive or not, after the date of the accident;

“member of the family”, in relation to an injured person or a deceased person means the spouse, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother or half-sister of the injured person or the deceased person;

“motor vehicle” means a motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam gas, oil or electricity, or by any means other than human or animal power, and includes -

(a) any such vehicle which is owned by the Commonwealth or by a person representing the Commonwealth; and

(b) a trailer,

but does not include a vehicle used on a railway or tramway;

“Panel” means a Compensation Review Panel established under section 161 and, in relation to an appeal under section 163, means the Panel hearing and determining the appeal;

“Permanent disability”, in relation to a person, means any reduction of the person’s unaided functional capability, considered as a whole, by reason of a medical condition, whether of a physical or psychological character and whether of traumatic origin or of gradual onset, being a reduction that is not likely to abate with the passage of time;

“Policy Review Committee” means the Accident Compensation Policy Review Committee constituted under this Act’

“potential for advancement”, in relation to a person who is incapacitated as the result of a transport accident, means the earnings the person could reasonably have expected to have earned over the period, or the likely period, of the person’s incapacity had the accident not occurred;

“public street” his the same meaning as in the Motor Traffic Act, 1909;

“regulations” means regulations made under this Act;

“rehabilitation”, in relation to in injured person, means the process of restoring or attempting to restore the person, through the combined and coordinated use of medical, social, educational and vocational measures, to the maximum level of function of which the person is capable or which the person wishes to achieve and includes placement in employment and all forms of social rehabilitation such as family counselling, leisure counselling and training for independent living;

“self-employed person” includes -

(a) a person -

(i) who practices a profession; or

(ii) who carries on or engages in a business or other remunerative activity,

whether alone or as a partner with another person and whether on a full-time, part-time or casual basis; and

(b) a person of a class or description of persons prescribed to be self-employed persons for the purposes of this definition;

“spouse” includes a de facto partner;

“State” means a State of the Commonwealth and includes a Territory of the Commonwealth;

“the Fund” means the Transport Accidents Compensation Fund established under section 22;

“Tribunal” means the Accident Compensation Review Tribunal constituted under this Act and, in relation to any proceedings of the Tribunal, means the Tribunal as constituted in accordance with this Act for the purposes of those proceedings;

“unaided functional capacity”, in relation to a person, includes so much of the unaided person’s functional capability as may have been gained by surgery or other medical treatment or by pharmaceutical treatment or other treatment which the person has undergone or is undergoing, but does not include any capability gained by the provision of a wheelchair or crutches or any prosthetic or other aid or appliance to the person or by modifications to the person’s environment or otherwise.

(2) A reference in this Act to loss of earning capacity includes a reference to impairment of earning capacity.

(3) A reference in this Act (Division 2 of Part V excepted) to compensation for loss of earning capacity includes a reference to compensation assessed on the basis of potential for advancement.

(4) In this Act -

(a) a reference to a function includes a reference to a power, authority and duty; and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Transport accidents

5. (1) In this Act, a reference to a transport accident is a reference to an accident caused by or arising out of the use of -

(a) a motor vehicle which is registered, or required to be registered, under the Motor Traffic Act, 1909, the Transport Act, 1930, or the Recreation Vehicles Act, 1983, not being a motor vehicle engaged, at the time of the accident, in a sporting activity conducted otherwise than on a public street on which, at the time of conduct of the activity, other motor vehicles, not so engaged, were being driven;

(b) a motor vehicle which is not registered as referred to in paragraph (a) (whether or not it is required to be so registered) on a public street in New South Wales, not being a motor vehicle engaged, at the time of the accident, in a sporting activity conducted otherwise than on a public street on which, at the time of conduct of the activity, other motor vehicles, not so engaged, were being driven;

(c) a motor vehicle on a public street in New South Wales the identity of which motor vehicle cannot, after due inquiry and search, be established;

(d) any form of transportation or conveyance operated by the Urban Transit Authority or the State Rail Authority; or

(e) a water ferry or water taxi or any form of public transport not including air transport;

and includes a reference to an accident of a class or description of accidents prescribed to be a transport accident for the purposes of this subsection, but does not include a reference to an accident of a class or description of accidents prescribed not to be a transport accident for the purposes of this subsection.

(2) The inquiry and search referred to in subsection (1) (c) may be proved orally or by the statutory declaration of the person who made the inquiry and search.

(3) In this Act, a reference to a transport accident, in relation to a person, is a reference to the transport accident which caused or out of which arose the bodily injury suffered by the person.

Persons deemed to be employees.

6. (1) For the purposes of this Act, “employee” includes -

(a) a Minister of State of the Commonwealth, of a State or of another country;

(b) a member of the Parliament of the Commonwealth or of a State or of the legislature of a Territory or of another country;

(c) a person holding office (including Judicial office) under, or employed by, the Commonwealth, a State, the administration of a Territory or the government of another country, not being an office declared by the regulations to be an office in relation to which this Act does not apply;

(d) a member of a police force;

(e) a member of the Defence Force; and

(f) director of a company.

(2) For the purposes of this Act, a person referred to in the definition of “employee” in subsection (1) shall -

(a) if he is a Minister of State of the Commonwealth;

(b) if he is a member of the Parliament of the Commonwealth;

(c) if he is a member of the Commonwealth Police Force or the Police Force of a

Territory;

(d) if he is a member of the Defence Force; or

(e) if he holds office under the Commonwealth, be deemed to be in the employment of the Commonwealth.

(3) For the purposes of this Act, a person referred to in the definition of “employee” in subsection (1) (not being a person referred to in subsection (2) or (4)) shall be deemed to be in the employment of, or of the government or administration of, the State, Territory or country concerned.

(4) For the purposes of this Act, a director of a company shall be deemed to be in the employment of the company.

(5) For the purposes of the definition of “employee” in subsection (1), a member of a Parliament or of a legislature shall be deemed not to have ceased to be such a member while the member continues to be entitled to any remuneration or allowance payable to the member as such a member.

Earners.

7. (1) Except as provided by subsection (2), a person is an earner for the purposes of this Act if the person is a person -

(a) who was in full-time employment or part-time employment (whether as an employee or a self-employed person);

(i) at any time during the period of 8 weeks immediately preceding the date of the transport accident;

(ii) for the whole or any part of any of not less than 13 weeks during the period of 52 weeks immediately preceding the date of the accident; or

(iii) for the whole or any part of any of not less than 26 weeks during the period of 104 weeks immediately preceding the date of the accident;

(b) who had, on or before the date of the accident, made firm arrangements (whether or not those arrangements comprised an enforceable contract) to enter into employment on or after the date of the accident as an employee with a particular employer or as a self- employed person in a profession business or other remunerative activity commencing at a particular time and place; or

(c) who -

(i) has been incapacitated as the result of the accident for the whole or any part of not less than 24 weeks, whether consecutive or not, after the date of the accident; and

(ii) would have been likely, but for the accident, to have entered into employment before the expiration of the period of 2 years after the date of the accident.

(2) A person is not an earner for the purposes of this Act if the person had, at the date of the transport accident, ceased permanently to be an employee or a self-employed person or both, as the case may require.

Non-earners.

8. A person is a non-earner for the purposes of this Act if -

(a) the person is a person to whom section 7(2) applies; or

(b) the person is otherwise not an earner for the purposes of this Act.

Construction of certain references - earners referred to in s.7 (1) (b) and (c).

9. A reference in this Act to the date of a transport accident as the result of which a person is incapacitated for work shall -

(a) in determining the earning capacity of an earner to whom section 7(l) (b) applies - be read and construed as a reference to the date upon which the earner would, but for the accidents have entered into employment in accordance with the firm arrangements referred to in that paragraph; and

(b) in determining the earning capacity of an earner to whom section 7(l)(c) applies - be read and construed as a reference to the date on which the earner would, but for the accident, have been likely to have entered into employment.

Earnings.

10. (1) In this Act, a reference to earnings in relation to -

(a) an employee, is a reference to income derived from personal exertion in the capacity of an employee, and includes a reference to an allowance received by the employee from his or her employer, except in so far as it is provided for the purpose of meeting expenses associated with employment, but does not include a reference to benefits not in the form of monetary payments, other than -

(i) the value to the employee of living accommodation provided by the employer without charge or at a reduced charge;

(ii) the value to the employee of food so provided; and

(iii) the value to the employee of a car, including running expenses, provided by the employer in so far as the car is used by the employee for private purposes; and

(b) a self-employed person. includes a reference to the net income derived from personal exertion by the person for his or her benefit after payment of expenses necessarily incurred in deriving that income.

(2) In subsection (1), a reference to income is a reference to income before payment of income tax.

Act to bind Crown.

11. This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

PART II - THE ACCIDENT COMPENSATION CORPORATION OF NEW SOUTH WALES.

Constitution of the Corporation.

12. (1) There is hereby constituted a corporation under the corporate name of the “Accident Compensation Corporation of New South Wales.

(2) In the exercise of its functions, the Corporation shall not be subject to the control or direction of the Minister.

(3) The Corporation shall for the purposes of any Act, be deemed to be a statutory body representing the Crown.

Membership and procedure of the Corporation.

13. (1) The Corporation shall consist of 5 members who shall be appointed by the Governor.

(2) Of the members of the Corporation -

(a) 1 shall, in and by the instrument by which the member is appointed, be appointed as Chief Executive of the Corporation; and

(b) 4 shall, in and by the instruments by which the members are appointed, be appointed as part-time members.

(3) Schedule 1 has effect with respect to the members and procedure of the Corporation.

Functions of the Corporation.

14. (1) The Corporation shall have and may exercise the functions conferred or imposed on it by or under this or any other Act.

(2) The Corporation shall -

(a) publicise, disseminate information concerning and otherwise promote the provisions of the scheme for transport accident compensation embodied in this Act;

(b) ensure that advice and assistance is given to persons claiming or entitled to benefits under this Act;

(c) formulate and review policies for the implementation and administration of this Act and the scheme referred to in paragraph (a);

(d) advise the Minister as to the administration, efficiency and effectiveness of the scheme referred to in paragraph (a);

(e) receive and assess claims for benefits under this Act;

(f) administer the provision of benefits under this Act;

(g) review the continuing entitlement of persons to benefits under this Act;

(h) where benefits under this Act are provided by persons other than the Corporation, liaise with those persons and co-ordinate the provision of those benefits by those persons;

(i) conduct and make arrangements for the conduct by other persons of research and the collection of statistics and other information of relevance to the administration of this Act and the scheme referred to in paragraph (a); and

(j) publicise, disseminate information concerning and otherwise promote matters relating to accident prevention and safety.

(3) The Corporation may do all such supplemental incidental and consequential acts as may be necessary or expedient for the exercise of its functions.

(4) A function of the Corporation relating to the provision to a person of a benefit under this Act (other than the payment of compensation) may be exercised by the Corporation in any of the following ways:-

(a) by the provision of the benefit by the Corporation;

(b) by the provision of the benefit partly by the Corporation and partly by another person or persons;

(c) by the provision of the benefit by another person or persons at the cost or partly at the cost of the Corporation or in accordance with other arrangements made between the other person or persons and the Corporation;

(d) by the payment of money to or on behalf of the person in order to enable the person to meet the cost of the provision of the benefit by another person or persons.

(5) In the exercise of a function referred to in subsection (4), the Corporation -

(a) may liaise and co-operate with and negotiate and enter into agreements with persons or bodies involved in the provision or financing, or both of benefits of the same or a similar nature to the benefits under this Act; and

(b) may specify the principles or standards, or both, in accordance with which any such benefit is to be provided.

(6) In the exercise of its functions, the Corporation shall have regard to the report referred to in section 3(1).

Determination of average weekly earnings.

15. (1) The Corporation shall make a determination of the amount of average weekly earnings for the purposes of this Act as at 30th April and 31st October in each year and may make such a determination as at any other date.

(2) In making a determination of the amount of average weekly earnings as at a particular date, the Corporation shall have regard to -

(a) the amount estimated not more than 3 months before that date by the Australian Statistician as the average weekly total earnings of full-time adult males in Australia; or

(b) where an amount has not been estimated as referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(3) A determination of the amount of average weekly earnings under this section shall apply in respect of each day within the period commencing on the day as at which the determination is made and ending on the day immediately preceding the day as at which the next subsequent determination is made.

Functions of Chief Executive.

16. The Chief Executive -

(a) is responsible for the management of the affairs of the Corporation subject to and in accordance with any directions of the Corporation; and

(b) shall have and may exercise such other functions as are conferred or imposed on the Chief Executive by or under this or any other Act.

Appointment of officers and employees of the Corporation.

17. (1) The Corporation may appoint and employ such officers and employees as are necessary to enable it to exercise its functions under this or any other Act.

(2) Every officer and employee of the Corporation shall subject to the terms of appointment of the officer or employee, continue in the service of the Corporation at the will of the Corporation only.

(3) All officers and employees of the Corporation shall be subject to the sole control and governance of the Corporation which may, where their remuneration or conditions of employment are not fixed in accordance with the provisions of any other Act or law, fix the salary or wages payable to those officers and employees and the conditions of their employment.

(4) Regulations may be made under section 196 for or with respect to the conditions of employment of persons in the service of the Corporation.

(5) The regulations made for the purposes of subsection (4) -

(a) shall have effect subject to any award by which the Corporation is bound made by a court of competent jurisdiction and to any industrial agreement to which the Corporation is a party; and

(b) shall have effect notwithstanding subsection (3).

(6) An officer or employee of the Corporation shall not, in respect of the same period of service, be entitled to claim, under this Act and under another Act, a benefit relating to a condition of employment.

(7) The Corporation may, with the approval of the Minister administering a government department or administrative office, arrange for the use of the services of any staff or facilities of the department or office.

(8) The Corporation may, for the purpose of exercising any of its functions, appoint, employ or engage any person considered by the Corporation capable of supplying or providing goods, services, information or advice.

Delegation.

18. (1) The Corporation may, by instrument in writing, delegate to -

(a) the Chief Executive;

(b) a committee comprised of members of the Corporation, including the Chief Executive ora member of the Corporation nominated by the Chief Executive;

(c) an officer or employee of the Corporation;

(d) a person for the time being holding or acting in a specified position in the staff establishment of the Corporation; or

(e) where the regulations so provide - any person of whose services the Corporation makes use pursuant to this or any other Act,

the exercise of such of the functions of the Corporation (other than this power of delegation) as are specified in the instrument.

(2) A function the exercise of which has been delegated under this section may, while the delegation remains unrevoked, be exercised from time to time by the delegate in accordance with the terms of the delegation.

(3) Without limiting the operation of subsection (2), a function the exercise of which has been delegated under this section to the Chief Executive may, while the delegation remains unrevoked, be exercised from time to time in accordance with the terms of the delegation by-

(a) an officer or employee of the Corporation;

(b) a person for the time being holding or acting in a specified position in the staff establishment of the Corporation; or

(c) where the regulations so provide - any person of whose services the Corporation makes use pursuant to this or any other Act;

as authorised by instrument in writing by the Chief Executive in that behalf either generally or in a particular case or class of cases.

(4) A delegation or authorisation under this section may be made subject to such conditions or limitations as to the exercise of any function the subject thereof, or as to time or circumstances, as may be specified in the instrument of delegation or authorisation.

(5) Notwithstanding any delegation under this section, the Corporation may continue to exercise any function delegated.

(6) Any act or thing done or suffered by a delegate acting in the exercise of a delegation under this section, or by a person duly authorised in that behalf by the Chief Executive under this section, has the same force and effect as it would have if it had been done or suffered by the Corporation and shall be deemed to have been done or suffered by the Corporation.

(7) The Corporation may, by instrument in writing, revoke wholly or in part any delegation under this section, and the Chief Executive may, by instrument in writing, revoke wholly or in part any authorisation under this section.

(8) An instrument purporting to have been signed by a person in his or her capacity as a delegate of the Corporation, or as a person authorised under this section, shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument duly executed by the Corporation and shall until the contrary is proved, be deemed to be an instrument signed by a delegate of the Corporation or by a person duly authorised under this section, as the case may be.

(9) In subsection (8), a reference to a delegate includes a reference to the chairperson of a committee to which the exercise of a function has been delegated under subsection (1).

Financial year.

19. The financial year of the Corporation shall be the year commencing on 1st July.

Annual report.

20. The Corporation shall prepare an annual report in accordance with the Annual Reports (Statutory Bodies) Act, 1984.

Shortened references to the Corporation.

21. In any other Act in any instrument made under any act or in any other instrument of any kind, except in so far as the context or subject-matter otherwise indicates or requires, a reference to the “Accident Compensation Corporation” shall be read and construed as a reference to the Accident Compensation Corporation of New South Wales constituted under this Act.

PART III - THE TRANSPORT ACCIDENTS COMPENSATION FUND.

DIVISION 1. - General.

Transport Accidents Compensation Fund.

22. The Corporation shall estiblish and subject to section 25, administer a fund, to be called the “Transport Accidents Compensation Fund”.

Payments into the Fund.

23. (1) There shall be paid into the Fund -

(a) amounts paid to the Corporation under section 27 or 28 or such regulations as may be made for the purposes of section 29;

(b) amounts paid to the Corporation by or on behalf of the Commonwealth;

(c) any money appropriated by Parliament for the purposes of the Fund;

(d) penalties recovered pursuant to this Act;

(e) the interest from time to time accruing from the investment of the Fund; and

(f) such other amounts, if any, as may be prescribed.

(2) There may be paid into the Fund money, other than money referred to in subsection (1), which may lawfully be paid into the Fund.

Payments out of the Fund.

24. There may be paid out of the Fund -

(a) benefits payable under this Act;

(b) all charges, costs and expenses incurred by the Corporation in the exercise of its functions under this Act;

(c) all charges, costs and expenses incurred by any person in providing, at the request of the Corporation, any benefit under this Act; and

(d) all other amounts required or authorised by this Act or the regulations to be paid out of the Fund.

Investment.

25. (1) The investment of money in the Fund shall be undertaken by -

(a) where no public authority is prescribed for the purposes of this subsection, the Government Insurance Office of New South Wales; or

(b) such public authority as many be prescribed for the purposes of this subsection.

(2) Any money in the Fund which is not immediately required for the purposes of the Fund may be invested -

(a) in any manner in which trustees are for the time being authorised to invest trust funds; or

(b) in any securities approved by the Treasurer on the recommendation of the Minister.

DIVISION 2. - Payment of contribution.

Contributions in respect of motor vehicles.

26. (1) A person who applies for the registration or the renewal of registration of a motor vehicle shall at the time at which the application is made, pav to the Commissioner for Motor Transport the prescribed amount by way of contribution to the Fund.

(2) A person who applies for the issue of a traders plate shall, at the time at which the application is made, pay to the Commissioner for Motor Transport the prescribed amount by way of contribution to the Fund.

(3) A person who applies for the issue, grant or renewal of a licence, permit or other authority which is prescribed for the purposes of this subsection shall, at the time at which the application is made, pay to the person so prescribed in relation to the licence, permit or other authority the prescribed amount by way of contribution to the Fund.

(4) The registration or the renewal of registration of a motor vehicle shall not be granted and a trader s plate shall not be issued by the Commissioner for Motor Transport until the prescribed amount under subsection (1) or (2), as the case may require, has been paid.

(5) A licence, permit or other authority which is prescribed for the purposes of subsection (3) shall not be issued, granted or renewed by the person so prescribed in relation to the licence, permit or other authority until the prescribed amount under subsection (3) has been paid.

(6) In this section -

“registration”, in relation to a motor vehicle, means registration under the Motor Traffic Act, 1909, the Transport Act, 1930, or the Recreation Vehicles Act, 1983,

“trader s plate” means a special number plate issued to a manufacturer or repairer of or dealer in motor vehicles in accordance with the regulations under the Motor Traffic Act 1909.

Payment of contributions in respect of motor vehicles, etc., to the Corporation.

27. (1) The Commissioner for Motor Transport shalt at such time or times as may be agreed upon by the Commissioner and the Corporation, pay to the Corporation amounts received by the Commissioner under section 26(l) or (2).

(2) A person prescribed for the purposes of section 26(3) shall, at such time or times as may be agreed upon by the person and the Corporation, pay to the Corporation amounts received by the person under that subsection.

Contributions from public authorities.

28. (1) A public authority shall, at such time or times as may be determined by the Governor, pay to the Corporation by way of contribution to the Fund such amounts as may be so determined.

(2) In subsection (1), “public authority” means -

(a) the State Rail Authority;

(b) the Urban Transit Authority; or

(c) a public or local authority constituted by or under any Act, a government department or a statutory body representing the Crown, or a person exercising functions on behalf of that authority, department or body, which is prescribed to be a public authority for the purposes of this section.

Other contributions.

29. The regulations -

(a) may require the payment of amounts by way of contribution to the Fund by persons and public authorities who own or operate, or register or license or otherwise control or regulate the use of, vehicles or other forms of transportation or conveyance, not being persons or public authorities referred to in section 26 or 28;

(b) may specify the circumstances in which those amounts shall be paid;

(c) may determine, by reference to such matters, if any, as may be prescribed, the amount of those contributions;

(d) may provide for the payment or remission of those amounts to the Corporation; and

(e) may provide for the granting of exemptions from the payment of those amounts.

PART IV - ELIGIBILITY FOR BENEFITS.

DIVISION 1. - General.

Injured person’s benefits - generally.

30. Subject to this Act, an injured person is entitled to benefits under this Act.

Dependant’s benefits - generally.

31. Subject to this Act the dependant of a person, being a person whose death is caused by or arises out of a transport accident, is entitled to benefits under this Act.

Persons in respect of whom benefits are payable.

32. (1) A benefit under this Act is payable only in respect of the death of or bodily injury to-

(a) a person resident in New South Wales whose death or injury was caused by or arose out of a transport accident in New South Wales;

(b) a person not resident in New South Wales whose death or injury was caused by or arose out of a transport accident in New South Wales, being a transport accident caused by or arising out of the use of a vehicle or other form of transportation or conveyance to which section 5(1) (a), (c), (d) or (e) applies;

(c) a person resident in New South Wales whose death or Injury was caused by or arose out of a transport accident occurring in Australia, but outside New South Wales, being a transport accident caused by or arising out of the use of a vehicle or other form of transportation or conveyance to which section 5(1) (a) or (d) applies; or

(d) person of a class of persons prescribed for the purposes of this subsection.

(2) For the purposes of subsection (1), a person whose death or bodily injury was caused by or arose out of a transport accident shall be treated as being resident in New South Wales if, as at the date of the accident, the person -

(a) had his or her principal place of residence in New South Wales; or

(b) hadintendedtoestablisKwithin6monthsafterthatdate,hisorherprincipal place of residence in New South Wales.

(3) For the purposes of subsection (1), an Australian citizen whose death or bodily injury was caused by or arose out of a transport accident and whose principal place of residence as at the date of the accident was outside Australia shall be treated as being resident -

(a) in the State in which he or she had his or her last principal place of residence; or

(b) if, in the case of a child, there is no State in which he or she had his or her last principal place of residence, in the State in which the parent or parents with whom the child ordinarily resided or resides had his, her or their last principal place of residence.

(4) Except as provided by subsections (2) and (3), a benefit under this Act, other than a benefit payable in respect of the death of a person which was caused by or arose out of a transport accident, shall not be payable to a person who was not resident in Australia as at the date of the accident.

Exclusions from benefits.

33. (1) A benefit under this Act shall not be payable in respect of -

(a) the suicide of a person;

(b) a bodily injury which is self inflicted; or

(c) the death of or bodily injury to a person which is sustained in the commission of a crime involving an intention to inflict serious violence or substantial damage to property and for which the person is convicted or against whom the offence is proven.

(2) A benefit under this Act shall not be payable to the dependent of a person whose death or bodily injury was caused by or arose out of a transport accident where the person’s death or bodily injury was wilfully caused by the dependent.

Suspension of benefits - prisoners.

34. A benefit under this Act to which a person would otherwise be entitled shall not be payable to or paid to a person during any period for which the person is imprisoned pursuant to a conviction or sentence for a crime.

DIVISION 2. - Relationships to other benefits.

Abolition of certain rights to damages or compensation.

35. (1) On and from the appointed day, no right to or claim for damages or compensation shall lie, otherwise than under this Act, against any person for or in respect of the death of or bodily injury to a person caused by or arising out of a transport accident.

(2) Nothing in subsection (1) applies to or in respect of a right to or claim for damages or compensation under -

(a) the Workers’ Compensation Act 1926;

(b) an award or industrial agreement within the meaning of the Industrial Arbitration Act, 1940;

(c) the common law or the Compensation to Relatives Act of 1897, in respect of the death of or bodily injury to a person caused by or arising out of a transport accident for which the employer of the person -

(i) is liable for failure to provide a safe vehicle or a safe system of work or for breach of a statutory duty; or

(ii) is vicariously liable for the negligence of a co-worker of the person; or

(d) a scheme which is, or the provisions of an instrument which are, prescribed to the purposes of the subsection.

Election between alternative sources of compensation.

36. (1) Subject to subsection (2), a person is not precluded from making a claim for benefits under this act by reason of the fact that the person is entitled to make, or has made, a claim for damages or compensation under any other Act or law (including a law of another State).

(2) Where a person is entitled to damages or compensation under any other Act or law (including a law of another State) in respect of the death of or bodily injury to a person caused by or arising out of a transport accident, the person shall not, except as provided by subsections (3) and (4), be entitled to make a claim for any benefits under this Act in respect of that death or bodily injury -

(a) after the recovery under any other such Act or law of a lump sum awarded by way of verdict, by way of redemption of entitlement to periodic payments or by way of final settlement of a claim (not including an amount under section 16 of the Workers’ Compensation Act, 1926, or a similar amount under any other such Act or law); or

(b) after the expiration of a period of 3 months from -

(i) the date of the accident; or

(ii) where the onset of symptoms relating to the bodily injury suffered by the deceased person or the injured person as a result of the accident is first observed by a medical practitioner after the date of the accident, the date of the first such observation of the symptoms,

whichever first occurs.

(3) A person who has not recovered a lump sum as referred to in subsection (2) (a) may apply to the Corporation at any time for an extension of the period referred to in subsection (2) (b).

(4) Where an application is made to the Corporation under subsection (3), the Corporation -

(a) shall grant the application if a competent tribunal has determined that the applicant is not entitled to a lump sum referred to in subsection (2) (a) and no such lump sum has been awarded to the applicant, and

(b) may grant the application if, in the opinion of the Corporation, refusal to grant the application would cause the applicant undue hardship.

Forfeiture and assignment of certain rights.

37. (1) A person who has made a claim for benefits under this Act in respect of the death of or bodily injury to a person caused by or arising out of a transport accident -

(a) shall not enforce or attempt to enforce any other right or entitlement to, or accept any payment of, damages or compensation in respect of that death or bodily injury;

(b) shall be deemed to have assigned to the Corporation a right or entitlement referred to in paragraph (a); and

(c) shall, in the event that the first mentioned person enforces or attempts to enforce a right or entitlement referred to in paragraph (a) or accepts any payment of damages or compensation so referred to, be disqualified from any right or entitlement or further right or entitlement to those benefits.

(2) The Corporation may do all such things as may be necessary to enforce or attempt to enforce a right or entitlement which is deemed to have been assigned to the Corporation as referred to in subsection (1) (b).

Indemnification of certain owners and drivers.

38. The Corporation shall indemnify the owner or driver, or both, as the case may require, of -

(a) a motor vehicle to which section 5(i) (a) applies;

(b) a form of transportation or conveyance to which section 5(l) (d) applies; or

(c) a vehicle of a class or description of vehicles, transportation of a class or description of transportation or a conveyance of a class or description of conveyances, prescribed for the purposes of this section,

against any liability arising under the law of another State in respect of the death of or bodily injury to any other person caused by or arising out of the use of the motor vehicle, vehicle or form of transportation or conveyance.

Set-off in event of double compensation.

39. (1) Where a person who is entitled to benefits under this Act in respect of the death of or bodily injury to a person caused by or arising out of a transport accident has recovered or has been paid damages or compensation under any other Act or law (including a law of another State) in respect of that death or bodily injury, the amount of those damages or of that compensation shall be set off against the amount of those benefits.

(2) Where an amount of damages or compensation to be set off under subsection (1) in relation to a person is greater than the amount of benefits under this Act to which the person is entitled as at the date on which the application for those benefits was made, the Corporation shall set off the amount of the damages or compensation in such a way as to avoid unnecessary hardship to the person.

(3) An amount of damages or compensation to be set off under subsection (1) shall not include damages or compensation for loss of earnings in respect of -

(a) any period for which compensation for loss of earning capacity is not payable under this Act; or

(b) any other period, to the extent to which those damages exceed or that compensation exceeds compensation for loss of earning capacity payable under this Act for the same period.

Set-off of benefits in respect of sick leave and other leave.

40. (1) Where a person who is entitled to compensation for loss of earning capacity under this Act elects to take sick leave or other leave during the whole or any part of the period of incapacity, any amount received in respect of that leave shall be set off against the amount of that compensation.

(2) An amount received in respect of sick leave or other leave to be set off under subsection (1) shall not include an amount in respect of -

(a) any period for which compensation for loss of earning capacity is not payable under this Act, or

(b) any other period, to the extent to which the amount exceeds compensation for loss of earning capacity payable under this Act for the same period.

Certain payments not to affect benefits under this Act.

41. The benefits under this Act to which a person may be entitled shall not be reduced or otherwise affected by any entitlement to or payment of -

(a) an ex gratia payment;

(b) an accident insurance payment;

(c) a retirement benefit or superannuation or similar benefit;

(d) a pension or benefit payable under an Act of the Commonwealth; or

(e) an amount, payment or benefit of a class or description of amounts, payments or benefits prescribed for the purposes of this section.

PART V - NATURE OF BENEFITS.

DIVISION 1. - Hospital, medical and associated services and pharmaceutical supplies.

Provision of hospital, medical and associated services.

42. (1) The Corporation shall do all such things as may be necessary to ensure the proper provision of hospital medical and associated services to injured persons.

(2) Without limiting the generality of subsection (1), the Corporation -

(a) may negotiate and enter into agreements with the Health Insurance Commission established under the Health Insurance Commission Act 1973 of the Commonwealth and other persons or bodies involved in the provision or financing, or both, of hospital medical and associated services; and

(b) may make payments from the Fund to the Health Insurance Commission or those other persons or bodies pursuant to any such agreement.

(3) In this section, “associated services” includes physiotherapy, occupational therapy, home nursing, chiropractic services and speech therapy.

Pharmaceutical supplies.

43. An injured person is entitled to be provided by the Corporation with, or paid by the Corporation the cost of, any necessary pharmaceutical supplies required by the person as a result of the transport accident.

DIVISION 2. - Compensation for loss of earning capacity.

Subdivision 1. - Entitlement to compensation.

Entitlement to compensation for loss of earning capacity - earners.

44. Subject to this Act, an earner who is incapacitated as the result of a transport accident is entitled to compensation determined in accordance with this Act- for loss of earning capacity.

Entitlement to compensation for loss of earning capacity - non-earners.

45. Subject to this Act, a non-earner -

(a) who is incapacitated as the result of a transport accident; and

(b) whose incapacity is long-term incapacity,

is entitled to compensation, determined in accordance with this Act, for loss of earning capacity for such period of incapacity as occurs after the person’s incapacity becomes long-term incapacity and is not otherwise entitled to compensation for loss of earning capacity.

Subdivision 2. - Assessment of loss of earning capacity - earners.

Loss of earning capacity - employees.

46. The Corporation shall determine the loss of earning capacity of an employee who is incapacitated as the result of a transport accident by determining the difference between the employee’s earning capacity as at the date of the accident and the employee’s earning capacity after the date of the accident and during the period of incapacity.

Normal weekly earnings - employees.

47. (1) Except as provided by section 48, the earning capacity of an employee as at the date of a transport accident is the amount which fairly and reasonably represents the employee’s normal weekly earnings as at the date of the accident.

(2) In determining the amount referred to in subsection (1), the Corporation shall take into consideration -

(a) having regard to the period of employment of the employee before the date of the accident -

(i) the earnings of the employee for the week preceding that date;

(ii) the weekly earnings of the employee during the period of 8 weeks preceding that date;

(iii) the weekly earnings of the employee during the period of 52 weeks preceding that date; or

(iv) the weekly earnings of the employee during the period of 104 weeks preceding that date;

as the case may require,

(b) the employee’s work history; and

(c) such other matters as the Corporation considers relevant.

Assumed weekly earnings - employees.

48. Where, in relation to an employee who is incapacitated as the result of a transport accident, it is apparent, having regard to any one or more of the following, namely:-

(a) the seasonal nature of the employee’s employment;

(b) the making, on or before the date, of firm arrangements (whether or not those arrangements comprised an enforceable contract) to enter into employment, to leave employment, to undertake new or different employment or to vary the hours of employment;

(c) a contractual entitlement, as at the date of the accident, of the employee to significant wage or salary variations (other than normal variations designed to take account of wage or salary movements or changes in the cost of living) payable on or after the date of the accident in respect of his or her employment,

that the amount which in accordance with section 47, would fairly and reasonably represent the employee’s normal weekly earnings as at the date of the accident is substantially more or substantially less than the employee’s earning capacity would have been during the period of incapacity but for the accident, the earning capacity of the employee as at the date of the accident shall be the amount which fairly and reasonably represents what the employee’s weekly earnings would have been during the period of incapacity but for the accident.

Loss of earning capacity - self-employed persons.

49. (1) Subject to subsection (2), the Corporation shall determine the loss of earning capacity of a self- employed person who is incapacitated as the result of a transport accident in accordance with such one or more of the following bases as is appropriate in the circumstances, namely:-

(a) the difference between the self-employed person’s earning capacity as at the date of the accident and the self-employed person’s earning capacity after the date of the accident and during the period of incapacity for work;

(b) the weekly cost of providing services to replace the self-employed person in his or her employment during the period of incapacity;

(c) the weekly earnings that the self-employed person could, but for the accident, have derived if, during the period of incapacity, the person exercised similar skills and responsibilities, as an employee, to those which he or she exercised as a self-employed person.

(2) Where the self-employed person is incapacitated for a period which does not exceed 13 weeks or, at the date on which the Corporation makes its determination under subsection (1), is not likely to exceed 13 weeks, the Corporation shall make its determination in accordance with the basis set out in paragraph (b) of that subsection unless there are good reasons for making its determination on another basis set out in that subsection.

Normal weekly earnings - self-employed persons.

50. (1) Except as provided by section 5 1, the earning capacity of a self-employed person as at the date of a transport accident is the amount which fairly and reasonably represents the self-employed person’s normal weekly earnings as at the date of the accident.

(2) In determining the amount referred to in subsection (1), the Corporation shall take into consideration -

(a) having regard to the period of self-employment of the person before the date of the accident -

(i) the weekly earnings of the self-employed person during the period of 52 weeks preceding the accident or, where that period of self-employment is less than 52 weeks, the lesser period; or

(ii) the weeklv earnings of the self-employed person during any one or more of the 4 financial years completed before the date of the accident;

as the case may require,

(b) the self-employed person’s work history, and

(c) such other matters as the Corporation considers relevant.

Assumed weekly earnings - self-employed persons.

51. Where, in relation to a self-employed person who is incapacitated as the result of a transport accident, it is apparent, having regard to any one or more of the following, namely.-

(a) the seasonal nature of the self-employed person’s employment;

(b) the making, on or before the date of the accident, of firm arrangements (whether or not those arrangements comprised an enforceable contract) to enter into employment, to leave employment, to undertake new or different employment or to vary the hours of employment; and

(c) a contractual arrangement, in force as at the date of the accident, which, but for the accident, would have resulted in significant variations in earnings on or after the date of the accident;

that the amount which in accordance with section 50, would fairly and reasonably represent the self-employed person’s normal weekly earnings as at the date of the accident is significantly more or significantly less than the self-employed person’s earning capacity would have been during the period of incapacity but for the accident, the earning capacity of the self-employed person as at the date of the accident shall be the amount which fairly and reasonably represents what the self-employed person’s weekly earnings would have been during the period of incapacity but for the accident.

Amount of earnings during period of incapacity.

52. Except as provided by section 50, the earning capacity of an earner during the period of incapacity is -

(a) where, during that period, the earner is not in receipt of earnings -nil; or

(b) where, during that period, the earner is in receipt of earnings - the actual earnings of the earner assessed from time to time during that period on a weekly basis.

Assumed earnings during period of incapacity.

53. Where -

(a) an earner who is incapacitated as the result of a transport accident -

(i) is capable of undertaking employment of a kind for which the earner could reasonably be expected to apply and which is reasonably available to the earner having regard to the nature and extent of the disability caused by the accident, the earner’s level of education, training and language skills, the earner’s place of residence and any other relevant matters; and

(ii) is capable of competing. at no significant disadvantage by reason of the disability, for employment of such a kind with people who do not have a disability, or

(b) an earner, without sufficient reason -

(i) has declined to undertake vocational training or rehabilitation or to enable an assessment to be made of his or her employment prospects;

(ii) has failed to take reasonable measures to obtain employment of a kind which is reasonably available to the earner having regard to the matters referred to in paragraph (a)(i); or

(iii) has refused an offer of Suitable employment;

the earning capacity of the earner during the period of incapacity shall be the amount which fairly represents the earnings which could be derived by the earner, assessed from time to time during that period on a weekly basis.

Notice and effect of certain determinations under s. 5 3.

54. (1) Where an amount determined under section 53 in relation to an earner is greater than the amount determined under section 52 in relation to the earner, the Corporation shall give notice to the earner of the amount determined under section 53.

(2) Any amount determined under section 53 in relation to an earner of which notice has been given to the earner under subsection (1) shall except as provided by subsection (3), be used, after the expiration of 8 weeks from the date of the notice, to the exclusion of any other amount in determining the loss of earning capacity of the earner.

(3) The Corporation may specify, in a notice to an earner under subsection (1), that an amount determined under section 53 in relation to the earner shall be used -

(a) where the earner has furnished information to the Corporation knowing it to be false in any material particular or has acted fraudulently- immediately, or

(b) where there are other special circumstances - after the expiration of 1 week from the date of the notice;

to the exclusion of any other amount, in determining the loss of earning capacity of the earner, and the amount so determined shall be used accordingly.

(4) A notice to which subsection (3) applies shall include the reasons which Justify the use of the amount determined under section 53 before the expiration of 8 weeks from the date of the notice.

Loss of earning capacity - earnings derived as employee and self-employed person.

55. The Corporation, in relation to an earner who is incapacitated as the result of a transport accident, being an earner who, at any time within the period of 2 years preceding the date of the accident, derived earnings as an employee and as a self-employed person, shall determine the earner’s; loss of earning capacity in accordance with such of the provisions of this Division as may be appropriate.

Long-term incapacity - earners.

56. (1) The Corporation, as soon as practicable after the date on which an earner s incapacity becomes long-term incapacity, shall -

(a) where, before that date, the earner had not suffered a loss of earning capacity as a result of the transport accident determine the earner s loss of earning capacity; or

(b) where, before that date, the earner had suffered a loss of earning capacity as a result of the transport accident redetermine the earner’s loss of earning capacity,

as at that date.

(2) For the purpose of determining or redetermining an earner’s loss of earning capacity under subsection (1) as at the date on which the earner’s incapacity becomes long-term incapacity -

(a) the earning capacity of the earner shall be not less than where, as at that date, the earner is aged -

(i) 16-17 years - 30 percent;

(ii) 18, 19 or 20 years - 40 per cent; or

(iii) 21 years or more - 50 per cent,

of average weekly earnings as at that date; and

(b) the earning capacity of the earner after that date and during the period of incapacity for work shall be determined in accordance with section 52 or 53 as if the references in those sections to the date of the transport accident were references to the date on which the earner’s incapacity becomes long-term incapacity.

(3) Without limiting section 156, where, as at the date at which an earner’s incapacity becomes long-term incapacity, the earner has not attained the age of 21 years, the corporation shall during the continued incapacity of the earner, make a determination or re-determination, as the case may require, of the earner’s loss of earning capacity on each anniversary of that date until the earner attains the age of 21 years.

(4) Compensation in respect of a determination or re-determination of an earner’s loss of earning capacity under this section shall not be payable in respect of any period occurring before the date to which the determination or re-determination applies.

Application for assessment of compensation on basis of potential for advancement.

57. (1) An earner -

(a) who has sustained long-term incapacity as the result of a transport accident;

(b) who has a disability, arising from the accident, which has, or is likely to have, a continuing effect on his or her earning capacity; and

(c) who has, so far as is reasonably practicable, participated in vocational training or rehabilitation programmes provided by or through the Corporation;

may, before the expiration of 3 years after the date of the accident or before the expiration of 1 year after the date on which the earner’s incapacity becomes long-term incapacity, whichever is the later, make an application to the Corporation for an assessment of compensation on the basis of potential for advancement.

(2) An earner to whom subsection (1) applies may make an application to the Corporation for an assessment of compensation on the basis of potential for advancement after the expiration of the period referred to in that subsection where there are special circumstances relating to the earner which justify the making of the application.

Circumstances in which assessment may be made.

58. The Corporation shall not make an assessment of compensation on the basis of potential for advancement in respect of an application made to it under section 57 by an earner unless the compensation so assessed is likely to be significantly greater for any one or more of the years of the earner s likely incapacity than that assessed for loss of the earners earning capacity.

Basis of assessment.

59. (1) In making an assessment of compensation on the basis of potential for advancement in respect of an earner who is incapacitated as the result of a transport accident, the Corporation shall take into consideration -

(a) the earner’s age, education training, skills and abilities as at the date of the accident;

(b) the earner’s work history as at that date;

(c) the likelihood that, had the accident not occurred, the earner would have undertaken training or education which would have increased his or her earning capacity;

(d) the earner’s prospects for promotion or other forms of career, business or professional advancement, whether in the same employment as, or different employment from, that engaged in by the earner as at that date;

(e) the likelihood that, had the accident not occurred, the earner would have varied the nature of his or her employment or the extent of his or her involvement in the workforce, whether temporarily or permanently, and other matters indicating or tending to indicate that, had the accident not occurred, the earner s earnings or earning capacity would have increased or decreased materially, whether temporarily or permanently.

(2) The Corporation shall take the matters referred to in subsection (1) (c), (d), (e) and into consideration only if they are likely to have an effect or to occur within the period of 10 years after the date of the accident.

Making of assessment.

60. Where the Corporation assesses an amount by way of compensation on the basis of potential for advancement in respect of an earner, the Corporation shall specify, in its assessment, the likely earnings of the earner as from the date of the application for -

(a) the balance of the calendar year in which the application is made; and

(b) each succeeding calendar year during the likely period of incapacity.

Effect of assessment.

61. Where the Corporation assesses an amount by way of compensation on the basis of potential for advancement in respect of an earner, the amount so assessed shall be used on and from the date of the assessment in place of any other basis provided for by this Division for determining the earner’s loss of earning capacity and compensation for loss of earning capacity shall be payable to the earner accordingly.

Subdivision 3. - Assessment of loss of earning capacity - non-earners.

Loss of earning capacity - non-earners.

62. The Corporation in relation to a non-earner-

(a) who is incapacitated as the result of a transport accident; and

(b) whose incapacity is long-term incapacity;

shall determine the non-earner’s loss of earning capacity by determining the difference between the non-earner’s notional earning capacity as at the date in relation to which an assessment of compensation for loss of earning capacity is made and the non-earners earning capacity after that date and during the period of incapacity.

Notional earning capacity - non-earners.

63. The notional earning capacity of a non-earner is, where, as at the date in relation to which an assessment of compensation for loss of earning capacity is made, the non- earner is aged-

(a) 16 or 17 years - 30 per cent;

(b) 18, 19 or 20 years - 40 per cent; or

(c) 21 years or more - 50 per cent of average weekly earnings as at that date.

Amount of earnings during period of incapacity.

64. Except as provided by section 65, the earning capacity of a non-earner during the period of incapacity is -

(a) where, during that period, the non-earner is not in receipt of earnings-nil; or

(b) where, during that period, the non-earner is in receipt of earnings- the actual earnings of the non-earner assessed from time to time during that period on a weekly basis.

Assumed earnings during period of incapacity.

65. Where -

(a) a non- earner who is incapacitated as the result of a transport accident -

(i) is capable of undertaking employment of a kind for which the non-earner could reasonably be expected to apply and which is reasonably available to the non- earner having regard to the nature and extent of the disability caused by the accident, the non-earner’s level of education training and language skills, the non-earner’s place of residence and any other matters which the Corporation considers relevant, and

(ii) is capable of competing, at no significant disadvantage by reason of the disability, for employment of such a kind with people who do not have a disability, or

(b) a non-earner, without sufficient reason -

(i) has declined to undertake vocational training or rehabilitation or to enable an assessment to be made of his or her employment prospects;

(ii) has failed to take reasonable measures to obtain employment of a kind which is reasonably available to the non-earner having regard to the matters referred to in paragraph (a)(i); or

(iii) has refused an offer of suitable employment;

the earning capacity of the non-earner during the period of incapacity shall be the amount which fairly represents the earnings which could be derived by the non- earner, assessed from time to time during that period on a weekly basis.

Notice and effect of certain determinations under s. 65.

66. (1) Where an amount determined under section 65 in relation to a non-earner is greater than the amount determined under section 64 in relation to the non-earner, the Corporation shall give notice to the non-earner of the amount determined under section 65.

(2) An amount determined under section 65 in relation to a non-earner of which notice has been given to the non-earner under subsection (1) shall, except as provided by subsection (1), be used, after the expiration of 8 weeks from the date of the notice, to the exclusion of any other amount in determining the loss of earning capacity of the non-earner.

(3) The Corporation may specify, in a notice to a non-earner under subsection (1), that an amount determined under section 65 in relation to the non-earner shall be used -

(a) where the non-earner has furnished information to the Corporation knowing it to be false in any material particular or has acted fraudulently immediately; or

(b) where there are other special circumstances - after the expiration of 1 week from the date of the notice;

to the exclusion of any other amount in determining the loss of earning capacity of the non-earner, and the amount so determined shall be used accordingly.

(4) A notice to which subsection (3) applies shall include the reasons which justify the use of the amount determined under section 65 before the expiration of 8 weeks from the date of the notice.

Further assessment of loss of earning capacity - non- earners.

67. (1) Without limiting section 156, where, as at the date at which a non- earner’s incapacity becomes long-term incapacity, the non-earner has not attained the age of 21 years, the Corporation shall during the continued incapacity of the non- earner, make a determination or redetermination, as the case may require, of the non-earner’s loss of earning capacity on each anniversary of that date until the non-earner attains the age of 21 years.

(2) Compensation in respect of a determination or redetermination of a non-earner’s loss of earning capacity under this section shall not be payable in respect of any period occurring before the date to which the determination or redetermination applies.

Application for assessment of compensation on basis of potential for advancement.

68. (1) A non-earner-

(a) who has sustained long-term incapacity as the result of a transport accident;

(b) who has a disability, arising from the accident, which has, or is likely to have, a continuing effect on his or her earning capacity; and

(c) who has, so far-as is reasonably practicable, participated in vocational training or rehabilitation programmes provided by or through the Corporation;

may, before the expiration of 3 years after the date of the accident or before the expiration of I year after the date on which the non-earner s incapacity becomes long-term incapacity, make an application to the Corporation for an assessment of compensation on the basis of potential for advancement.

(2) A non-earner to whom subsection (1) applies may make an application to the Corporation for an assessment of compensation on the basis of potential for advancement after the expiration of the time prescribed by that subsection where there are special circumstances relating to the non-earner which justify the making of the application.

Circumstances in which assessment may be made.

69. The Corporation shall not make an assessment of compensation on the basis of potential for advancement in respect of an application made to it under section 68 by a non-earner unless the compensation so assessed is likely to be significantly greater for any one or more of the years of the non- earner s likely incapacity than that assessed for loss of the non-earner’s earning capacity.

Basis of assessment.

70. (1) In making an assessment of compensation on the basis of potential for advancement in respect of a non-earner who is incapacitated as the result of a transport accident, the Corporation shall take into consideration -

(a) the non-earner’s age, education training, skills and abilities as at the date of the accident;

(b) the non-earner’s work history, if any, as at that date;

(c) the likelihood that, had the accident not occurred, the non-earner would have undertaken training or education which would have increased his or her earning capacity;

(d) the non-earner’s prospects for promotion or other forms of career, business or professional advancement; and

(e) other matters indicating or tending to indicate that, had the accident not occurred, the non-earner’s earning capacity would have increased or decreased materially, whether temporarily or permanently.

(2) The Corporation shall take the matters referred to in subsection (1) (c), (d) and (e) consideration only if they would have been likely to have had an effect or have occurred within the period of 10 years after the date of the accident.

Making of assessment.

71. Where the Corporation assesses an amount by way of compensation on the basis of potential for advancement in respect of a non-earner, the Corporation shall specify, in its assessment, the likely earnings of the non- earner as from the date of the application for -

(a) the balance of the calendar year in which the application is made; and

(b) each succeeding calendar year during the likely period of incapacity.

Effect of assessment.

72. Where the Corporation assesses an amount by way of compensation on the basis of potential for advancement in respect of a non-earner, the amount so assessed shall be used on and from the date of the assessment in place of any other basis provided for by this Division for determining the non-earner’s loss of earning capacity and compensation for loss of earning capacity shall be payable to the non-earner accordingly.

Certain determinations expressed as percentage of average weekly earnings.

73. (1) The Corporation shall express its determination of the earning capacity of an earner as at the date of a transport accident as a percentage of the amount of average weekly earnings applicable as at that date.

(2) The Corporation shall express its determination of the loss of earning capacity of an earner or a non-earner as a percentage of the amount of average weekly earnings applicable as at the day to which the determination relates.

Subdivision 4. - Amount and payment of compensation.

Amount of compensation - loss of earning capacity.

74. Except as provided by sections 75 and 76, the amount of compensation to which a person who is incapacitated as the result of a transport accident is entitled during the period of incapacity is an amount equal to 80 per cent of the person’s loss of earning capacity, as determined from time to time.

Amount of compensation - replacement services.

75. Where, in respect of a self-employed person who is incapacitated as the result of a transport accident, the Corporation has determined the person’s loss of earning capacity in accordance with the basis set out in section 49(1) (b), the amount of compensation to which the person is entitled during the period of incapacity is an amount equal to 80 per cent of the weekly cost (including incidental costs) of providing services to replace the self-employed person in his or her employment, as determined from time to time.

Amount of compensation - equivalent earnings as an employee.

76. Where, in respect of a self-employed person who is incapacitated as the result of a transport accident, the Corporation has determined the person’s loss of earning capacity in accordance with the basis set out in section 49 (1) (c), the amount of compensation to which the person is entitled during the period of incapacity is an amount equal to 80 per cent of the weekly earnings that the self-employed person could, but for the accident, have derived if, during the period of incapacity, the person exercised similar skills and responsibilities, as an employee, to those which he or she exercised as a self-employed person, as determined from time to time.

Maximum amount of compensation.

77. Notwithstanding sections 74, 75 and /-6, the maximum loss of earning incapacity for which compensation is payable is a loss equivalent to 150 per cent of average weekly earnings per week during the period of incapacity.

Periods for which compensation is not payable.

78. (1) Compensation for loss of earning capacity of an earner who is incapacitated as the result of a transport accident and who was, at any time during the period of 8 weeks preceding the date of the accident, engaged in employment shall not be paid or payable to the earner in respect of -

(a) where there is only one period of incapacity-the first 5 working days of that period; or

(b) where there is more than one period of incapacity - the first 5 working days of the first such period.

(2) Compensation for loss of earning capacity of an earner who is incapacitated as the result of a transport accident and who was not at any time during the period of 8 weeks preceding the date of the accident, engaged in employment shall not be paid or payable to the earner in respect of -

(a) where there is only one period of incapacity-the first 4 weeks of that period; or

(b) where there is more than one period of incapacity-the first 4 weeks of the first Such period.

(3) Notwithstanding subsections (1) and (2), where -

(a) an earner who is incapacitated as the result of a transport accident is an earner to whom section 7(l) (b) or (c) applies; and

(b) the earner would have entered into employment after the date on which compensation for loss of earning capacity would, but for this subsection, be payable;

that compensation shall not be paid or payable to the earner before the first 5 working days after the day on which the earner would have entered, or would have been likely to have entered, into employment.

Payment of compensation to persons under 16 years of age.

79. (1) Compensation for loss of earning capacity of a person who has not attained the age of 16 years as at the date of a transport accident shall not be payable until the person attains the age of 16 years.

(2) Nothing in subsection (1) prevents the payment of compensation to a person referred to in that subsection where, as at the date of the transport accident as a result of which the person was incapacitated, the person was engaged in full-time employment.

Payment of compensation - unconscious persons.

80. (1) Where an injured person -

(a) is permanently unconscious or otherwise totally and permanently unaware of the bodily injury suffered as a result of the transport accident; and

(b) does not have a dependent spouse or a dependent child or children;

compensation for loss of earning capacity shall not be paid or payable to the person or any other person on behalf of the person.

(2) Where an injured person -

(a) is permanently unconscious or otherwise totally and permanently unaware of the bodily injury suffered as a result of the transport accident; and

(b) has a dependent spouse or a dependent child or children, or both,

compensation payable for loss of earning capacity shall be paid to a per ‘ son as trustee for the injured person and may, at the sole discretion of the trustee, having regard to any possibility that the injured person will recover consciousness or develop awareness, be applied to the support and maintenance of the spouse, child or children, as the case may be.

Termination of payments.

81. (1) Payments by way of compensation for loss of earning capacity shall cease to be paid by the Corporation to a person -

(a) on the termination of the person’s incapacity;

(b) on the death of the person;

(c) in the case of a non-earner- upon the non-earner’s attaining the age of 65 years; or

(d) in the case of an earner -

(i) who had not attained the age of 61 years when the incapacity in respect of which the compensation is payable commenced - upon the earner’s attaining the age of 65 years;

(ii) who had attained the age of 61 years but who had not attained the age of 68 years when the incapacity in respect of which the compensation is payable commenced - on the expiration of a period of 4 years after the commencement of the Incapacity;

(iii) who had attained the age of 68 years but who had not attained the age of 70 years when the incapacity in respect of which the compensation is payable commenced - upon the earner’s attaining the age of 72 years; or

(iv) who had attained the age of 70 years when the incapacity in respect of which the compensation is payable commenced - on the expiration of a period of 2 years after the commencement of the incapacity,

whichever first occurs.

(2) Where, in relation to an earner to whom subsection (1) (d) (ii) or (iii) applies, there is evidence to establish that the earner would, but for the transport accident have left the workforce permanently at an earlier time than that determined in accordance with subsection (1), nothing in that subsection prevents the Corporation from ceasing to make payments by way of compensation for loss of earning capacity to the earner at that earlier time.

Subdivision 5. - Permanent incapacity.

Assessment of permanent incapacity.

82. (1) Where -

(a) a person has sustained a permanent disability as the result of a transport accident; (b) the person’s medical condition in relation to the disability has stabilised;

(c) all practicable steps have been taken towards the person’s rehabilitation;

(d) the person has suffered a loss of earning capacity which is likely to continue indefinitely; and

(e) the extent of the loss of earning capacity is unlikely to vary substantially having regard to such changes in economic conditions and employment opportunities as are reasonably foreseeable,

the Corporation may, at the request or with the consent of the person, make an assessment, in accordance with this Division, of the person’s permanent loss of earning capacity and compensation in respect of the loss so assessed shall be payable to the person accordingly.

(2) Except as provided by subsections (3) and (4), an assessment under subsection (1) is final and may not be varied.

(3) Where, at any time after an assessment of a person’s permanent loss of earning capacity has been made under subsection (1) -

(a) the person’s earning capacity is significantly reduced by reason of -

(i) a deterioration in the person’s physical condition; or

(ii) the loss of or a change in the person’s employment; and

(b) the substantial reduction in earning capacity occurs as the consequence of a disability caused by or arising out of the transport accident as a result of which the person was incapacitated,

the Corporation shall set aside the assessment and make a further assessment- in accordance with this Division, of the person’s loss of earning capacity.

(4) Where the Corporation has, under subsection (3), set aside an assessment in respect of a person, it may, at anytime, make a further assessment under subsection (1) of the person’s permanent loss of earning capacity.

Subdivision 6. - Miscellaneous.

Postponement of assessment of certain claims.

83. (1) Where, with the approval of the Corporation, a person in respect of whom a claim for compensation for loss of earning capacity has been made enters into or resumes employment, the Corporation may postpone assessment of the claim.

(2) Where the period of employment of a person referred to in subsection (1) does not exceed the period prescribed for the purposes of this subsection, the Corporation shall on the termination of the person’s employment, assess and determine the claim referred to in that subsection.

Continuance of compensation after commencement of certain business undertakings.

84. Where a person to whom compensation for loss of earning capacity is payable commences and conducts, with the approval of the Corporation, a business undertaking, that compensation shall continue to be payable after the date on which the person commences the business undertaking for the period prescribed for the purposes of this section.

DIVISION 3. - Rehabilitation.

Right to rehabilitation.

85. The Corporation shall do all such things as may be necessary to provide for and to meet the cost of providing for the rehabilitation of injured persons, including the necessary and reasonable costs and expenses of travel and accommodation incurred by those persons in order to obtain rehabilitation services.

Rehabilitation services to be provided promptly.

86. The Corporation shall so far as is practicable, ensure that rehabilitation services are provided to an injured person as soon as possible after the date of the transport accident.

Functions of the Corporation relating to rehabilitation - generally.

87. (1) The Corporation may employ or provide funds for the employment of rehabilitation counsellors.

(2) The Corporation may distribute information to and provide courses of instruction and training for medical practitioners and other persons associated with the rehabilitation of injured persons.

(3) The Corporation may give assistance or make grants to persons or bodies to undertake research into or promote training in rehabilitation and to enable the provision of rehabilitation services.

(4) The Corporation shall develop and implement policies and practices that will enable the decentralisation of rehabilitation services.

Prosthetic, etc., devices and aids and appliances.

88. (1) The Corporation shall provide such prosthetic or other devices and such crutches, wheelchairs or other aids or appliances as may be necessary to an injured person and shall service and otherwise maintain, and from time to time replace, any such device, aid or appliance to such extent as may be necessary and reasonable in the circumstances.

(2) The Corporation may approve the provision servicing, maintenance or replacement, by a person other than the Corporation, of a device, aid or appliance referred to in subsection (1) to or in respect of an injured person.

Vocational training and retraining.

89. The Corporation shall so far as it is practicable to do so, provide a course of vocational training or instruction to an injured person, or to a spouse who was substantially dependent upon a person whose death has been caused by or has arisen out of a transport accident, for the purpose of enabling the person for whom the course is provided to undertake employment whether as an employee or as a self-employed person.

Modifications to places of work.

90. (1) Where an injured person is employed after the date of the transport accident or continues in, or resumes, employment after that date, the Corporation shall, having regard to the resources available to the Corporation approve of reasonable modifications to the person’s place of work for the purpose of enabling the person to gain access to the place of work or facilitating the performance by the person of work or for other purposes.

(2) In determining what modifications are reasonable for the purposes of subsection (1), the Corporation shall have regard to -

(a) the cost of the modifications;

(b) the benefit of the modifications to the employer and other persons employed by the employer;

(c) the likely duration of the employment by the employer of the injured person;

(d) any modifications the employer is prepared to make at the employees own cost; and

(e) any other matters it considers relevant.

(3) The Corporation may, on such terms and conditions as may be agreed between the Corporation and the employer, meet the whole or part of the cost of any modifications approved under subsection (1).

Placement programmes.

91. (1) The Corporation shall develop programmes and practices to encourage the employment, resumption of employment or continued employment of injured persons.

(2) Without limiting the generality of subsection (1), the Corporation may -

(a) provide financial and other incentives to encourage the employment, resumption of employment or continued employment of injured persons;

(b) indemnify an employer in respect of the whole or part of the premiums payable under any contract of insurance undertaken by the employer in pursuance of the Workers’ Compensation Act, 1926; or

(c) where an employer is a self-insurer within the meaning of that act, make such undertakings in relation to any liability or any contingent liability of the employer under that Act as the Corporation thinks fit.

Advice and assistance.

92. (1) The Corporation shall at the request of a person who has received benefits under this Act, provide the person or arrange for the person to be provided with advice, including financial advice, and assistance in order to facilitate the persot@ s rehabilitation.

(2) Where an injured person has, as a consequence of the transport accident, no reasonable expectation of being able to obtain finance, or to make satisfactory financial arrangements, for the conduct or proposed conduct of a business undertaking, the Corporation may, on such terms and conditions as it thinks fit, lend money for, or guarantee any loan for, the conduct or proposed conduct of the business.

DIVISION 4. - Support services and independent living.

Corporation to promote support services, etc.

93. Subject to this Division, the Corporation shall do all such things as may be necessary to provide and to meet the cost of providing household services, attendant care and other benefits to which this Division applies to injured persons and to the household family members of those persons.

Provision of household services - generally.

94. (1) Where -

(a) an injured person performed, before the date of the transport accident, substantial household services -

(i) for himself or herself; or

(ii) for his or her household family members, or both; and

(b) the capacity of the person to perform after the date of the accident, any such household services has been significantly impaired by reason of the accident,

the Corporation shall where the performance of any such household services by another person is necessary for the maintenance and preservation of the household, approve of the performance of those services by another person.

(2) In determining, for the purposes of subsection (1), the extent to which the provision of household services is necessary for the maintenance and preservation of the household of an injured person, the Corporation shall have regard to -

(a) the extent to which household services were provided by the person before the date of the transport accident and the extent to which the person is able to provide those services after that date;

(b) the number of household family members, their ages and their need for household services;

(c) the extent to which household services were provided by other household family members before the date of the accident;

(d) the extent to which other household family members or other family members might reasonably be expected to provide household services for themselves and for the person after the date of the accident;

(e) the need to avoid substantial disruption to the employment or other activities of the household family members; and

(f) such other matters as the Corporation considers relevant.

(3) Nothing in subsection (2) shall be construed as preventing the Corporation from approving, under subsection (1), of the performance of household services by a household family member of the injured person or the making of such payments in relation to the performance of those services as may be appropriate.

(4) Where any household services have been performed on a voluntary basis and the performance of those services has, after the date on which those services have been performed, been approved under subsection (1), the Corporation shall pay to the person who performed those services such amount as may be determined by the Corporation in respect thereof.

Provision of household services after 4 weeks from date of accident.

95. The Corporation shall after the expiration of a period of 4 weeks from the date of a transport accident review an approval given under section 94 in respect of the injured person and any payments made by the Corporation in consequence of the approval having regard to-

(a) the nature and extent of any benefit provided under this Act or any other act or law to the injured person or to any other person by reason of the accident;

(b) where the injured person’s spouse is a member of that person’s household, the earnings and any other income of the spouse;

(c) the financial and other resources available to household family members to meet their need for household services; and

(d) such other matters as the Corporation considers relevant.

Provision of attendant care services.

96. (1) In this section, “attendant care services”, in relation to an injured person, means services (other than medical services or nursing care) which are required to provide for the essential and regular personal care of the person.

(2) The Corporation shall where an injured person, by reason of the transport accident, is unable to provide adequately for his or her personal care, approve of the provision to the person of attendant care services.

(3) In determining, for the purposes of subsection (2), whether attendant care services should be provided to a person, the Corporation shall have regard to -

(a) the nature and extent of the person’s injury and the degree to which that injury impairs the person’s ability to provide for his or her personal care;

(b) the extent to which such medical services and nursing care as may be received by the person provide for the essential and regular personal care of the person;

(c) where the person so desires, the extent to which it is reasonable to meet the person’s desire to live outside an institutional environment;

(d) the extent to which attendant care services are necessary to enable the person to undertake or continue employment;

(e) any assessment made, at the request of the Corporation, by persons having expertise in the rehabilitation of injured persons;

(f) any standard developed or applied by any government department or public authority in respect of the need of disabled persons for attendant care services;

(g) the extent to which any relative of the person might reasonably be expected to provide attendant care services to the person; and

(h) such other matters as the Corporation considers relevant.

(4) Nothing in subsection (3) shall be construed as preventing the Corporation from approving, under subsection (2), of the provision of attendant care services by a household family member of the injured person or by a relative of the injured person or the making of such payments in relation to the performance of those services as may be appropriate.

(5) Where any attendant care services have been provided on a voluntary basis and the performance of those services has, after the date on which those services have been provided, been approved under subsection (2), the Corporation shall pay to the person who provided those services such amount as may be determined by the Corporation in respect thereof.

Compensation for loss of earning capacity - emergency family support.

97. Where it is necessary for the spouse or a parent or child of an injured person to attend the person continuously, whether in a hospital or elsewhere, the spouse, parent or child, as the case may be, shall be entitled to compensation for loss of earning capacity for the period of the attendance, but not exceeding a period of 4 weeks, assessed as if the spouse, parent or child had been incapacitated as a result of the accident.

Travelling and accommodation expenses - emergency family support.

98. (1) Where expenses have necessarily been incurred by the spouse or a parent or child of an injured person in respect of travel and accommodation within Australia for the purpose of attending the person to provide care and support the spouse, parent or child, as the case may be, shall be entitled to reimbursement of such of those expenses as have been incurred, except as provided by subsection (2), during the period of 4 weeks from the date of the transport accident.

(2) The Corporation may, where there are exceptional circumstances and the continued presence of the spouse, parent or child is necessary for the recovery or well-being of the injured person, extend the period referred to in subsection (1).

Acquisition of a home.

99. Where an injured person has, as a result of the transport accident, no reasonable expectation of being able to obtain finance, or to make satisfactory financial arrangements, for the purchase of a home, or of a home suitable to the person’s needs, the Corporation may, having regard to the resources available to the Corporation, on such terms and conditions as it thinks fit, lend money for, or guarantee any loan for, any such purchase.

Modifications to the home.

100. (1) The Corporation shall, in respect of a person who has suffered a permanent or long-term physical disability as the result of a transport accident of a kind which severely impairs his or her mobility or ability to live independently within a home, approve of reasonable and necessary modifications to the persons home.

(2) In determining, for the purposes of subsection (1), whether any modifications to the home of an injured person are reasonable and necessary, the Corporation shall have regard to -

(a) the cost of any such modifications;

(b) any difficulty faced by the person -

(i) in gaining access to;

(ii) in enjoying reasonable freedom of movement within; or

(iii) in living independently within,

the person’s home,

(c) the likely duration of the persons residence in the home; and

(d) such other matters as the Corporation considers relevant.

(3) The Corporation may, under subsection (1), approve of modifications to a person’s home notwithstanding that the person is not the owner or sole or absolute owner of the home, but no such approval shall be given without the consent of the owner or any joint owner, mortgagee or other interested person as the case may require.

(4) The Corporation may, on such terms and conditions as may be agreed between the Corporation and the injured person and, as the case may require, the owner, a joint owner, a mortgagee or any other interested person meet the cost of any modifications approved under subsection (1) or such part of the cost as it thinks fit.

(5) Without limiting the generality of subsection (4), terms and conditions referred to in that Subsection -

(a) may include undertakings by the injured person or, as the case may require, by the owner, a joint owner, a mortgagee or another interested person -

(i) with respect to the duration of residence of the injured person in the home;

(ii) for repayment of the cost of any modifications or such part thereof as may have been met by the Corporation, in the event of a breach of an undertaking with respect to the matter referred to in subparagraph (i) or in the event of any other specified contingency; and

(b) may provide for the giving of security, whether by way of a charge on the land in or upon which the home exists or otherwise, to the Corporation in respect of the performance of any such undertaking.

(6) The Corporation may, where there are special circumstances, give a second or subsequent approval under this section in respect of the same home or give an approval under this section In respect of the second or Subsequent home of the same person.

Provision of public housing.

101. The Corporation may negotiate and enter into agreements with the Housing Commission of New South Wales and other public authorities for the provision of housing to injured persons.

Institutional accommodation.

102. (1) Where it is reasonably necessary, due to the injuries sustained by a person as the result of transport accident, for the person to be provided, during a particular period or for an indefinite period, with appropriate institutional accommodation (apart from accommodation and hospital), the Corporation shall provide accommodation of that nature to the person.

(2) A person who is provided with institutional accommodation under this section, other than a person of a prescribed class or description shall pay such amount as may be prescribed as fairly represents the element of board.

Hostels.

103. The Corporation may establish and maintain hostels for persons who are seriously disabled as the result of transport accidents or contribute to the cost of establishing and maintaining any such hostels.

Purchase of vehicle.

104. Where an injured person has, as a consequence of the transport accident no reasonable expectation of being able to obtain finance, or to make satisfactory financial arrangements, for the purchase of a motor vehicle, or of a motor vehicle suitable to the person’s needs, the Corporation may, having regard to the resources available to the Corporation, on such terms and conditions as it thinks fit, lend money for, or guarantee any loan for, the purchase of, or meet the whole or part of the cost of, a suitable motor vehicle.

Modifications to vehicle.

105. (1) The Corporation shall approve of reasonable and necessary modifications to a motor vehicle used or to be used by an injured person for the purpose of adapting the vehicle to the functional capability of the person.

(2) In determining, for the purposes of subsection (1), whether any modifications to a motor vehicle used or to be used by an injured person are reasonable and necessary, the Corporation may have regard to -

(a) the cost of any such modifications;

(b) any difficulty faced by the person -

(i) in driving or operating;

(ii) in gaining access to; or

(iii) in enjoying reasonable freedom and safety of movement within the vehicle;

(c) any alternative means of transport available to the person; and

(d) such other matters as the Corporation considers relevant.

(3) The Corporation may, under subsection (1), approve of modifications to a motor vehicle used or to be used by an injured person notwithstanding that the person is not the owner or sole or absolute owner of the vehicle, but no such approval shall be given without the consent of the owner or any joint owner or other interested person, as the case may require.

(4) The Corporation may, where there are special circumstances, give a second or subsequent approval under this section in respect of the same vehicle or give an approval under this section in respect of the second or subsequent vehicle of the same person.

Mobility allowance.

106. (1) Where an injured person is unable, by reason of the transport accident, to use public transport without the assistance of another person, the person is entitled to payment by the Corporation of a mobility allowance of an amount equal to 5 per cent of average weekly earnings per week.

(2) An injured person is not entitled to payment of a mobility allowance under subsection (1) during the period of 6 months after the date of the transport accident unless there are exceptional circumstances which justify the making of the payment.

DIVISION 5. - Compensation for permanent disability.

Entitlement to compensation for permanent disability.

107. Subject to this Act, a person who suffers a permanent disability as the result of a transport accident is entitled to compensation by way of a lump sum payment, determined in accordance with this Act, in respect of the disability.

Duty to mitigate.

108. The Corporation in assessing the degree of permanent disability of a person, shall have regard to any unreasonable refusal by the person to undertake rehabilitation or to undergo medical treatment where the undertaking of rehabilitation or the undergoing of medical treatment by the person may have reduced the degree of permanent disability.

Amount of compensation.

109. (1) In this section -

“assessed amount of compensation”, in relation to a person who suffers a permanent disability as the result of a transport accident, means the amount payable to the person under subsection (2);

“prescribed amount of compensation”, in relation to a person who suffers a permanent disability as the result of a transport accident, means the amount of average weekly earnings as at the date of assessment of the disability multiplied by 208.

(2) Subject to subsection (3), the amount of compensation payable to a person who suffers a permanent disability as the result of a transport accident is such percentage of the prescribed amount of compensation as is equal to the degree of permanent disability of the person assessed by the Corporation.

(3) The amount of compensation payable to a person who suffers a permanent disability as the result of a transport accident is, where, as at the date of the accident, the age of the person was -

(a) 25 years or less - 100 per cent of the assessed amount of compensation;

(b) more than 25 years but less than 65 years-100 per cent, less 1 per cent for each year by which the age of the person exceeded 25 years as at that date, of the assessed amount of compensation; and

(c) 65 years or more - 60 per cent of the assessed amount of compensation.

Assessment of degree of permanent disability.

110. (1) The regulations may make provision for or with respect to the basis on which the degree of a permanent disability shall be assesses.

(2) Regulations made for the purposes of subsection (1) may provide for the adoption, wholly or in part and with or without modification of -

(a) the publication entitled “Guides to the Evaluation of Permanent Impairment” published by the American Medical Association;

(b) any adaptation of the publication referred to in paragraph (a) by any government department or instrumentality within Australia; or

(c) any other standard or set of criteria for assessing the degree of a permanent disability published by any person other than the Corporation.

Minimum level of disability.

111. Notwithstanding section 109, where the Corporation assesses the degree of permanent disability of a person as being 4 per cent or less, no compensation in respect of the disability shall be payable to the person.

Total disability.

112. Notwithstanding section 109, where the Corporation assesses the degree of permanent disability of a person as being 90 per cent or more, the person shall be entitled to the Maximum amount of compensation payable under that section in respect of that person.

Time at which determination may be made.

113. (1) Except as provided by subsections (2) and (3), the Corporation shall not make an assessment of the degree of permanent disability of an injured person before the expiration of period of 12 months from the date of the transport accident.

(2) The Corporation shall make an assessment of permanent disability in respect of a person before the expiration of the period referred to in subsection (1) where, before the expiration of that period, the person’s disability is stable and permanent.

(3) Where -

(a) a claim for compensation in respect of a permanent disability is made by or on behalf of an injured person;

(b) the person has Suffered a permanent disability as a result of the transport accident; and

(c) the Corporation IS unable, at the time at which the claim is made, to make a final assessment of the degree of the disability,

the Corporation shall make an interim assessment of the degree of the disability and an interim payment of compensation in respect of the disability.

Increase in degree of disability after assessment.

114. Where, after an assessment of the degree of permanent disability of a person has been made by the Corporation under section 113, the degree of permanent disability of the person increases, the Corporation shall make a further assessment of the degree of permanent disability and, in the event that the Corporation determines that there has been such an increase, the person shall be entitled to further compensation, determined in accordance with this Act, in respect of the increase.

Payment of compensation - deceased and unconscious persons.

115. (1) Compensation in respect of a permanent disability suffered by a person as the result of a transport accident shall not be paid or payable -

(a) where the person dies before the person’s degree of permanent disability has been assessed by the Corporation or before an amount determined as compensation in respect of the disability has been paid - to any other person; or

(b) where the person -

(i) is permanently unconscious or otherwise totally and permanently unaware of his or her disability; and

(ii) does not have a dependent spouse or a dependent child or children to the person or any other person on behalf of the person.

(2) Where a person who has suffered a permanent disability as the result of a transport accident

(a) is permanently unconscious or otherwise totally and permanently unaware of his or her disability; and

(b) has a dependent spouse or a dependent child or children, or both,

compensation payable in respect of the disability shall be paid to a person as trustee for the disabled person and many at the sole discretion of the trustee, having regard to any possibility that the disabled person will recover consciousness or develop awareness, be applied to the support and maintenance of the spouse, child or children, as the case may be.

DIVISION 6. - Compensation in respect of death.

Subdivision 1. - Preliminary

Interpretation.

116. In this Division -

“earning capacity”, in relation to the surviving spouse of a deceased person, means the earning capacity of that surviving spouse determined in accordance with Subdivision 2:

“prescribed child”, in relation to a deceased person, means -

(a) for the purpose of determining the entitlement to compensation under this Division in respect of a child - a child of the deceased person or a child in relation to whom the deceased person stood in loco parentis and -

(i) who, except as provided by subparagraph (ii), had not attained the age of 16 years as at the date of death of the deceased person; or

(ii) who, where the child, as at the date of death of the deceased person, was a full-time student or is physically handicapped or mentally handicapped, had not attained the age of 21 years as at that date,

but does not include such a child who, as at that date, was married or was the de facto partner of another person; and

(b) for the purpose of determining the entitlement to compensation under this Division in respect of a spouse - a child of the deceased person to whom paragraph (a), subparagraph (ii) excepted, applies.

Presumption as to dependence of children.

117. Where a prescribed child was a member of the household of a deceased person as at the date of death of the deceased person, the dependence of the child on the deceased person shall, for the purposes of this Division be conclusively presumed.

Subdivision 2. - Earning capacity of surviving spouse.

Determination of earning capacity.

118. The Corporation shall determine the earning capacity of the surviving spouse of a deceased person in accordance with section 119 or 120.

Actual earnings of surviving spouse.

119. Except as provided by section 120, the earning capacity of the surviving spouse of a deceased person is-

(a) where the surviving spouse is not in receipt of earnings - nil; or

(b) where the surviving spouse is in receipt of earnings-the actual earnings of the surviving spouse assessed from time to time on a weekly basis.

Assumed earnings of surviving spouse.

120. Where -

(a) the surviving spouse of a deceased person is capable of undertaking employment of a kind for which the surviving spouse could reasonably be expected to apply and which is reasonably available to the surviving spouse having regard to the surviving spouse’s level of education training and language skills, the surviving spouse’s place of residence, whether or not the surviving spouse has the care and control of a prescribed child, whether or not the surviving spouse cares for an aged or disabled member of his or her family or of the deceased person’s family, where that care was undertaken as at the date of death of the deceased person, and any relevant matters; or

(b) the surviving spouse -

(i) has declined to undertake vocational training or to enable an assessment to be made of his or her employment prospects;

(ii) has failed to take reasonable measures to obtain employment of a kind which is reasonably available to the surviving spouse having regard to the matters referred to in paragraph (a); or

(iii) has refused an offer of suitable employment;

the earning capacity of the surviving spouse shall be the amount which fairly represents the weekly earnings which could be derived by the surviving spouse.

Notice and effect of certain determinations under s. 120.

121. (1) Where an amount determined under section 120 in relation to the surviving spouse of a deceased person is greater than the amount determined under section 119 in relation to the surviving spouse, the Corporation shall give notice to the surviving spouse of the amount determined under section 120.

(2) An amount determined under section 120 in relation to a surviving spouse of which notice has been given to the surviving spouse under subsection (1) shall, except as provided by subsection (3), be used, after the expiration of 8 weeks from the date of the notice, to the exclusion of any other amount, in determining the earning capacity of the surviving spouse.

(3) The Corporation may specify, in a notice to a surviving spouse under subsection (1), that an amount determined under section 120 in relation to the surviving spouse shall be used -

(a) where the surviving spouse has furnished information to the Corporation knowing it to be false in any material particular or has acted fraudulently immediately; or

(b) where there are other special circumstances - after the expiration of 1 week from the date of the notice,

to the exclusion of any other amount, in determining the earning capacity of the surviving spouse, and the amount so determined shall be used accordingly.

(4) A notice to which subsection (3) applies shall include the reasons which justify the use of the amount determined under section 120 before the expiration of 8 weeks from the date of the notice.

Subdivision 3. - Amount and payment of compensation.

Lump sum payment.

122. (1) Subject to subsections (5) and (6), the persons who, as at the date of death of a deceased person, were the dependent members of the family of the deceased person shall be entitled to claim payment from the Corporation of a lump sum to be apportioned between them, which shall not exceed the amount of average weekly earnings as at the date of death of the deceased person multiplied by 130.

(2) The amount of the lump sum payable by the Corporation shall where the claimant is or the claimants include the dependent spouse of the deceased person or a prescribed child of the deceased person who was dependent on the deceased person, be the maximum amount payable under that subsection.

(3) Where there is more than one claimant under subsection (1), the Corporation shall, subject to subsections (4) and (6), apportion the lump sum between the claimants having regard to the degree of dependence upon, or interdependence with, the deceased person on the part of each claimant as at the date of death of the deceased person.

(4) Where the deceased person is survived by-

(a) a dependent spouse or prescribed children who were dependent on the deceased person, or both; and

(b) other dependent members of the family of the deceased person,

the portion of the lump sum payable to the members referred to in paragraph (b) shall not exceed one-third unless, in the opinion of the Corporation, there are exceptional circumstances which Justify payment of a higher proportion.

(5) Where the deceased person is not survived by a dependent spouse or prescribed children who were dependent on the deceased person, or both, but is survived by another dependent member of the family of the deceased person, that member shall not be entitled to payment of any amount by the Corporation unless the Corporation is satisfied that there was a substantial degree of dependence upon, or interdependence with the deceased person on the part of that member.

(6) Where there is more than one dependent member to whom subsection (5) applies, the Corporation shall apportion any amount payable by the Corporation between the members having regard to the degree of dependence upon, or interdependence with the deceased person on the part of each member as at the date of death of the deceased person.

Periodic compensation for prescribed children.

123. (1) Subject to subsection (2) and section 127, a prescribed child of a deceased person who wis dependent on the deceased person shall be entitled to compensation at the rate of 8 per cent of average weekly earnings per week.

(2) Where compensation under this Division is payable only to the prescribed children of i deceased person, the maximum amount of compensation payable to those children shall not exceed 32 per cent of average weekly earnings per week and shall, except in so far as the Corporation otherwise determines, be apportioned equally between those children.

(3) Compensation payable under subsection (1) to a prescribed child shall continue to be so payable until the child -

(a) attains the age of -

(i) in the case of a child other than a child to whom subparagraph (ii) applies - 16 years; or

(ii) in the case of a child who, as at the date of death of the deceased person, was a full-time student or is physically handicapped or mentally handicapped - 21 years;

(b) marries or enters into a de facto relationship;

(c) becomes self-supporting; or

(d) dies,

whichever first occurs.

(4) The entitlement of a prescribed child to compensation payable under subsection (1) shall not be affected by -

(a) any earnings of the child from part-time employment; or

(b) the marriage of or entry into a de facto relationship by the surviving parent of the child who has the care and control of the child.

Periodic compensation for spouses of earners - generally.

124. (1) The surviving spouse of a deceased person who was an earner, being a surviving spouse who -

(a) was a dependent of the deceased person; and

(b) has the care and control of a prescribed child,

shall, irrespective of any earnings of the surviving spouse but subject to section 127, be entitled to compensation at the rate of -

(c) 50 per cent of the earning capacity (after payment of income tax) of the deceased person as at the date of the transport accident, determined in accordance with section 47,48, 50 or 5 1, as the case may require, per week; or

(d) 75 per cent of the equivalent (after payment of income tax) of average weekly earnings per week,

whichever is the lesser.

(2) Compensation payable under subsection (1) to a surviving spouse shall continue to be so payable until -

(a) the expiration of the period of 5 years after the date of death of the deceased person;

(b) the youngest prescribed child in the care and control of the surviving spouse attains the age of 16 years; or

(c) the surviving spouse does not have the care and control of a prescribed child, whichever first occurs.

Periodic compensation for spouses of earners - long-term child-care.

125. (1) Where, at anytime after the expiration of the period of 5 years from the date of death of a deceased person who was an earner, a surviving spouse of the deceased person, being a surviving spouse who was a dependent of the deceased person -

(a) has the care and control of a prescribed child; and

(b) has, at that time, a combined income (not including earnings) and earning capacity (if any) (the resulting amount in this section being referred to as “the prescribed amount”) which is less than the lesser of -

(i) 50 per cent of the earning capacity of the deceased person as at the date of the transport accident determined in accordance with section 47,48, 50, or 51, as the case may require, (as adjusted in accordance with the regulations) per week; or

(ii) 50 per cent of average weekly earnings per week,

the spouse shall, subject to section 127, be entitled to compensation of such amount per week as is equal to -

(c) the difference between the prescribed amount and the amount determined in accordance with paragraph (b)(i); or

(d) 50 per cent of average weekly earnings, whichever is the lesser.

(2) Compensation payable under subsection (1) to a surviving spouse shall continue to be so payable until -

(a) the youngest prescribed child in the care and control of the surviving spouse attains the age of 16 years; or

(b) the surviving spouse does not have the care and control of a prescribed child, whichever first occurs.

Periodic compensation for spouses of earners - health, age, etc., factors.

126. Where, at any time before the expiration of the period of 5 years from the date of death of a deceased person who was an earner -

(a) the earning capacity of a surviving spouse of the deceased person being a surviving spouse who was a dependent of the deceased person, is substantially impaired -

(i) by reason of the poor health, including any physical or mental disability, of the spouse, where that poor health was evident as at that date or within the period of 6 months after that date;

(ii) by reason that the spouse has attained the age of 50 years and lacks marketable work skills; or

(iii) by reason of the need to care for an aged or disabled member of his or her family or of the deceased person’s family, where that care was undertaken as at that date; and

(b) the spouse has, at that time, a combined income (not including earnings) and earning capacity (if any) (the resulting amount in this section being referred to as “the prescribed amount”) which is less than the lesser of -

(i) 50 per cent of the earning capacity of the deceased as at the date of the transport accident, determined in accordance with section 47, 48, 50 or 51, as the case may require, (as adjusted in accordance with the regulations) per week; or

(ii) 50 per cent of average weekly earnings per week,

the spouse shall subject to section 127, be entitled to compensation of such amount per week as is equal to -

(c) the difference between the prescribed amount and the amount determined in accordance with paragraph (b)(i); or

(d) 50 per cent of average weekly earnings,

whichever is the lesser.

Limitations on amount of compensation.

127. (1) Where compensation under this Division is payable to the surviving spouse of a deceased person in accordance with section 124 and to one or more prescribed children of the deceased person who was or were dependent on the deceased person in accordance with section 123, the maximum amount of compensation payable to the spouse and the child or those children shall not exceed -

(a) 65 per cent of the earning capacity of the deceased person as at the date of the accident, determined in accordance with section 47, 48, 50 or 51, as the case may require, per week; or

(b) 97.5 per cent of average weekly earnings per week,

whichever is the lesser.

(2) Where compensation under this Division is payable to the surviving spouse of a deceased person in accordance with section 125 or 126 and to one or more prescribed children of the deceased person who was or were dependent on the deceased person in accordance with section 123, the maximum amount of compensation payable to the spouse and those children, if any, shall not exceed -

(a) 65 per cent of the earning capacity of the deceased person as at the date of the accident, determined in accordance with section 47, 48, 50 or 5 1, as the case may require, per week; or

(b) 65 per cent of average weekly earnings per week,

whichever is the lesser.

(3) Where the amount of compensation which would otherwise be payable under this Division to the dependents of a deceased person is reduced in accordance with this section, the Corporation shall determine the extent to which the reduction shall be apportioned between those dependents.

Replacement household services.

128. (1) The dependent household family members of a deceased person who, before the may require, per week, or date of the transport accident, performed substantial household services for those members as household family members shall, to such extent if any, as the Corporation shall determine to be necessary for the maintenance and preservation of the household, be entitled to replacement household services.

(2) In making a determination for the purposes of subsection (1) in respect of any period, the Corporation shall have regard to -

(a) the nature and extent of the household services provided by the deceased person before the date of the transport accident;

(b) the number of dependent household family members of the deceased person the ages of those members and their need for household services;

(c) the extent to which other household family members of the deceased person whether dependent members or not, or other persons have provided or could reasonably be expected to provide household services after that date;

(d) any relationship formed with another person by the surviving spouse of the deceased person after the date of death of the deceased person; and

(e) any special factors affecting the need of the dependent household family members of the deceased person for household services.

(3) In making a determination for the purposes of subsection (1) in respect of a period which occurs after the expiration of 4 weeks from the date of death of the deceased person the Corporation, in addition to the matters specified in subsection (2), shall have regard to -

(a) the benefits provided under this Act to household family members of the deceased person as a consequence of the death of the deceased person;

(b) the earnings and other income of the surviving spouse of the deceased person; and

(c) the resources, financial or otherwise, available to the household family members of the deceased person to meet the need for household services.

(4) Except as provided by subsection (5), replacement household services shall not be provided to the dependent household family members of a deceased person after the expiration of the period of 2 years from the date of death of the deceased person

(5) Where replacement household services have been provided under this section to the surviving spouse of a deceased person at any time within the period of 2 years from the date of death of the deceased person and the termination of those household services on the expiration of that period would cause special hardship to the surviving spouse, the Corporation may continue to provide replacement household services for a further period not exceeding 3 years.

Limitation of benefits - time between accident and death.

129. (1) Where the death of a person caused by or arising out of a transport accident occurs within the period of 5 years after the date of the accident, the benefits provided under this Act to the deceased person shall not be set off against any benefits which may be provided under this Act to the dependents of the deceased person.

(2) Where the death of a person caused by or arising out of a transport accident occurs after the expiration of the period of 5 years from the date of the accident no benefits shall be provided under this Act to the dependents of the deceased person.

Deaths in rapid succession.

130. A person who would, but for this section, be entitled to benefits under this Act in respect of the death of a person caused by or arising out of a transport accident shall not be entitled to any such benefits unless the person survives the deceased person for a period of not less than 30 days.

Termination of payments.

131. Compensation payable under this Division to the surviving spouse of a deceased person shall cease to be paid by the Corporation to the surviving spouse -

(a) on the marriage or remarriage of the surviving spouse;

(b) on the entry into a de facto relationship by the surviving spouse; or

(c) on the death of the surviving spouse,

whichever first occurs.

Lump sum payment on remarriage, etc., of surviving spouse.

132. (1) Where the surviving spouse of a deceased person to whom compensation under this Division is being paid marries, remarries or enters into a de facto relationship -

(a) within 4 years of the date of death of the deceased person; or

(b) more than 1 year before the youngest prescribed child of whom the surviving spouse has the care and control attains the age of 16 years,

the surviving spouse shall be entitled to a lump sum payment equal to 12 months instalments of the compensation which the surviving spouse could have expected to have received under this Division had he or she not married, remarried or entered into a de facto relationship.

(2) Where the surviving spouse of a deceased person to whom compensation under this Division is being paid marries, remarries or enters into a de facto relationship -

(a) within the fifth year after the date of death of the deceased person; or

(b) within 1 year before the youngest prescribed child of whom the surviving spouse has the care and control attains the age of 16 years,

the surviving spouse shall be entitled to a lump sum payment equal to the compensation which the surviving spouse could have expected to have received under this Division had he or she not married, remarried or entered into a de facto relationship.

Funeral expenses.

133. The Corporation shall pay the reasonable funeral expenses of a person whose death is caused by or arises out of a transport accident.

DIVISION 7. - Miscellaneous.

Non-assignability of benefits.

134. A benefit to which a person is entitled under this act may not be assigned by that person or on that person’s behalf to another person.

Effect of pre-accident disability.

135. The amount of a benefit payable under this Act to a person who is incapacitated as the result of a transport accident and who had, before the date of the accident, a disability which did not substantially affect the earning capacity of the person as at that date shall not be reduced by reason of the fact that the disability, but for the accident would or would have been likely to have affected the earning capacity or earning potential of the person after that date.

Effect of post- accident disability.

136. The amount of a benefit payable under this Act to a person who is incapacitated as the result of a transport accident shall not be reduced and payment of the benefit shall not be terminated by reason of the occurrence of an event not caused by or arising out of the accident, which causes further disability or incapacity to the person.

Effect of overseas residence - incapacitated persons.

137. Where a person who is incapacitated as the result of a transport accident takes up residence outside Australia -

(a) any compensation for loss of earning capacity payable to the person in accordance with an assessment under section 84 of permanent incapacity shall continue to be paid by the Corporation in accordance with the assessment;

(b) any compensation for loss of earning capacity (other than compensation referred to in paragraph (a)) payable to the person shall continue to be paid by the Corporation only to such extent as it considers appropriate having regard to -

(i) the person’s circumstances;

(ii) the general levels of earnings in the country of residence or proposed residence, and

(iii) the opportunities to verify the continuing extent of the person’s loss of earning capacity;

(c) any costs incurred in the provision of rehabilitation services shall continue to be met by the Corporation only to such extent as it considers appropriate having regard to -

(i) the person’s needs and circumstances;

(ii) the comparative cost of those services in the country of residence or proposed residence; and

(iii) the opportunities to verify the continuing need of the person for those services; and

(d) the provision of any other benefits under this Act to the person shall be terminated.

Effect of overseas residence - dependents of deceased persons.

138. Where a dependent of a deceased person is resident as at the date of death of the deceased person, or takes up residence after that date, outside Australia -

(a) the residence of the dependent outside Australia shall not affect the payment to the dependent of any amount under section 122, 123 or 124; and

(b) the dependent shall not be entitled to the payment or further payment, as the case may require, of any amount under section 125 or 126.

PART VI - MAKING AND ASSESSMENT OF CLAIMS FOR BENEFITS AND ADMINISTRATION OF PROVISION OF BENEFITS.

Interpretation.

139. In this Part, a reference to a claim for benefits under this Act includes, in relation to a person who is in receipt of benefits under this Act, a reference to a claim for an increase in or variation of those benefits or for additional benefits under this Act.

Making of claims - generally.

140. (1) A person who is entitled to or who is in receipt of benefits under this Act, the Corporation on behalf of such a person, or, subject to the regulations, any other person on behalf of such a person, may make a claim for benefits under this Act.

(2) It shall not be necessary in a claim for benefits under this Act to quantify the amount of benefits sought.

(3) Where a claim is made by or on behalf of a person who is in receipt of benefits under this Act for an increase in or variation of those benefits or for additional benefits under this Act, the claim shall not affect the payment or provision of the benefits received by the person before the making of the claim.

(4) The regulations may make provision for or with respect to the form and manner in which claims may be made.

Time for making of claims.

141. (1) Except as provided by subsections (2) and (3), a claim for benefits under this Act shall be made within 1 year after -

(a) except as provided by paragraph (b) -

(i) the date of the transport accident to which the claim relates; or

(ii) where the onset of symptoms relating to the bodily injury suffered by the injured person as a result of the accident is first observed by a medical practitioner after the date of the accident, the date of the first such observation of the symptoms; or

(b) where the claim is made in respect of the death of a person the date of death.

(2) A claim may, with the leave of the Corporation be made at any time before the expiration of 3 years after the date determined under subsection (1) where the claimant has a reasonable excuse for failing to make the claim within the period referred to in that subsection.

(3) Where, within the period determined under subsection (1) or (2), a claim has been made for benefits under this Act by or on behalf of a person as the result of a transport accident, a claim by or on behalf of the person for an increase in or reduction or variation of those benefits or for any other benefits under this Act to which the person may be entitled as a result of the accident may be made at -any time.

Advice and assistance to claimants.

142. (1) The Corporation shall advise and assist persons in the preparation and making of claims for benefits under this Act and shall endeavour to ensure that those persons are informed of and receive their full entitlement to all benefits under this Act to which they may from time to time be entitled.

(2) Without limiting the generality of subsection (1), the Corporation may pay money out of the Fund to meet the costs and expenses of persons and bodies, approved by the Corporation who act, or who engage persons to act, as the agents or representatives of persons claiming benefits under this Act and who furnish advice and assistance to those persons.

Investigation and assessment of claims.

143. (1) On receipt of a claim for benefits under this Act, the Corporation -

(a) shall so far as is practicable, arrange for the investigation and assessment of the claim by a sole assessing officer who, subject to the regulations, may do all such things as are necessary to investigate, assess and determine the claim; and

(b) shall ensure that the claim is not dealt with in an adversary manner.

(2) Without limiting the generality of subsection (1)(a), the Corporation or an assessing officer referred to in that paragraph may require the claimant to furnish such information in addition to the information furnished in or with the claim, or to produce such books, documents or records as the Corporation or the assessing officer, as the case may, specifies, or to do both.

Employment information.

144. (1) The Corporation or an assessing officer referred to in section 143 (1) (a) may, by notice in writing, require the employer, or a person who at any time has been the employer, of a claimant to furnish within such period after the date of the notice as is specified in the notice, being a period of not less than 7 days, such information relating to the employment of the claimant with the employer as is specified in the notice, or to produce such books, documents or records relating to the claimant as are so specified, or to do both.

(2) A person who receives a notice under subsection (1) shall comply with the notice within the period specified in the notice.

Medical assessment.

145. (1) The Corporation may require a person by or on whose behalf a claim for benefits under this Act has been made to undergo a medical examination by one or more medical practitioners nominated by the Corporation.

(2) The Corporation may not require a person referred to in subsection (1) to undergo a medical examination that is unreasonable, unnecessarily repetitious or dangerous.

(3) Where the Corporation, as a consequence or partly as a consequence of a medical examination under this section of a person, is of the opinion that the person is not entitled to the benefits under this Act which have been claimed by or on behalf of the person or is entitled to lesser benefits than those which have been claimed or that the benefits received by a person should be reduced or terminated, the Corporation shall furnish to the person a copy of the report of the medical examination.

Determination of claims.

146. The Corporation. in relation to a claim, shall determine -

(a) the extent of entitlement to benefits under this Act; or

(b) in the case of a claim for a variation in the benefits under this Act received by a person whether the variation should be allowed, unconditionally or subject to conditions, or refused.

Payment of periodic compensation.

147. Where a person is entitled to periodic payments of compensation under this Act, the Corporation shall mike those payments to the person -

(a) except where the Corporation has made a determination under paragraph (b), fortnight in arrears; or

(b) at Such periodic intervals as may be determined by the Corporation in any particular case or class of cases.

Payment of lump sums.

148. (1) Where the Corporation determines that a person is entitled to the payment of a lump sum under this Act, the lump sum shall be paid to the person within 30 days after the date of the determination or the date of any assessment required to be made as a consequence of the determination, whichever is the later.

(2) Where a lump Sum referred to in subsection (1) is not paid within the period so referred to, interest shall, on and from the expiration of that period until the date of payment be payable on the lump sum at such rate as may be prescribed for the purposes of this subsection.

Payment or provision of other benefits.

149. Subject to sections 147 and 148, where the Corporation determines that a person is entitled to benefits under this Act or to an increase in or variation of those benefits or to additional benefits under this Act, those benefits or that increase or variation shall as soon as practicable after the determination, be paid or provided to or varied in respect of the person by or on whose behalf the claim was made in accordance with the determination.

Payment of benefits in respect of minors.

150. Where a person to whom a benefit under this Act is to be paid is, at the time at which the payment is to be made, a minor, the payment shall be made to a person as trustee for the minor and may, at the sole discretion of the trustee, be applied to the maintenance, education or advancement in life of the minor.

Effect of failure or refusal to make determination.

151. Where the Corporation has failed or refused to determine -

(a) the entitlement of a claimant to benefits under this Act; or

(b) in the case of a claim for a variation in benefits under this Act, whether the variation should be allowed, unconditionally or subject to conditions, or refused,

within such period after the date on which the claim was made as is prescribed for the purposes of this section, the Corporation shall, for the purposes of section 146, be deemed to have determined, as at the expiration of that period, that the claimant is not entitled to any benefits under this Act or that the variation be refused, as the case may require.

Notice of determination.

156. (1) The Corporation shall give notice of a determination under section 146 to the claimant in respect of whose claim the determination was made within 14 days after the date of the determination.

(2) Where a claim has been allowed in part or has not been allowed or a claim for a variation has not been approved in the terms sought by the claimant, the Corporation shall include in the notice given under subsection (1) of a determination -

(a) a statement setting out its findings on material questions of fact;

(b) a summary of the evidence on which those findings were based; and

(c) the reasons for the determination.

Interim determinations.

153. (1) The Corporation may make an interim determination in respect of a claim for benefits under this Act and may pay or provide those benefits to the person by or on whose behalf the claim was made in accordance with the interim determination.

(2) Where the amount of benefits paid to a person pursuant to an interim determination is greater than or less than the amount of those benefits payable in accordance with a determination under section 146, the Corporation shall make such adjustments as are necessary to give effect to its determination or shall take such steps as may be necessary to recover the amount of any overpayment, as the case may require.

(3) Nothing in subsection (2) requires the Corporation to take steps to recover the amount of any overpayment referred to in that subsection where the person to whom the amount has been paid -

(a) has acted in good faith;

(b) has complied with all such reasonable requirements as may have been made of the person by the Corporation; and

(c) would suffer hardship if he or she were required to repay that amount.

Claims manual.

154. The Corporation shall prepare and publish a detailed claims manual for use by its staff and by members of the public.

False application.

155. A person shall not make a claim for benefits under this act knowing that it is false in any material particular.

Periodic review of benefits.

156. (1) The Corporation shall, in relation to each person who is in receipt of benefits under this Act, review, for the purpose of ensuring that the person receives the full extent of the person’s entitlement to benefits under this Act, at such intervals as may be determined by the Corporation, all matters relating to the continuation, increase, reduction or variation of those benefits and the extent of the entitlement to and provision to the person of any other benefits under this Act.

(2) In the exercise of its functions under subsection (1), the Corporation shall have and may exercise in relation to a person who is in receipt of benefits under this Act the same functions as are conferred on the Corporation in relation to a person by or on whose behalf a claim for benefits under this Act is made.

(3) Where -

(a) in the exercise of its functions under subsection (1) the Corporation determines that a person has been paid compensation in excess of that to which the person is entitled; and

(b) the person is entitled to further payments of compensation after the date of the determination,

the Corporation may make such adjustments to those further payments as may be necessary to recover the amount of the excess compensation and as will cause the person to suffer as little hardship as possible in the circumstances of the case.

Redemptions.

157. (1) The Corporation shall not be entitled to redeem, wholly or in part, by the payment of a lump sum, any liability to make periodic payments in respect of benefits under this Act, except in accordance with this section.

(2) Where the Corporation is of the opinion that the amount of the periodic payments it is liable to make to a person in respect of benefits under this Act is so small as to inconvenience unnecessarily or burden the due administration of the Fund, the Corporation may, with the consent of the person, redeem, by payment of a lump sum its liability to make those periodic payments.

(3) Where -

(a) a person has been paid a lump sum under subsection (2) in respect of compensation for loss of earning capacity; and

(b) the person’s capacity for work is, after the date of the payment, significantly reduced,

the person shall be entitled to make an application in accordance with this Act for payment of compensation for loss of earning capacity in respect of the period during which the person’s capacity for work is significantly reduced.

(4) The Corporation, in determining an application from a person referred to in subsection (3), shall deduct from any compensation to be paid to the person an amount or amounts which mike appropriate allowance in respect of the lump sum paid to the person.

Notification of change in circumstances.

158. (1) A person who is in receipt of benefits under this Act shall, as soon as practicable after the Occurrence of any change in the person’s circumstance s which affects the amount, nature or extent of the benefits under this Act to which the person is entitled or otherwise affects the person’s entitlement to benefits under this Act- notify the Corporation of the change.

(2) Where a person to whom subsection (1) applies fails to notify the Corporation as referred to in that subsection, the Corporation may, by notice in writing given to the person, call upon the person to show cause, within 7 days after the date of the notice, why the payment or proposal of benefits under this Act should not be Suspended or terminated in whole or in part.

(3) Where a person to whom a notice is given under subsection (2) fails to show cause as referred to in that subsection, the Corporation may suspend or terminate the payment or provision of benefits under this Act to the person in whole or in part.

Termination of benefits.

159. Where a person who is In receipt of benefits under this Act ceases to be entitled to those benefits, the Corporation shall thereupon terminate the provision of those benefits to the person.

PART VII - APPEALS.

DIVISION 1. - Compensation Review Panels.

Interpretation.

160. In this Division, “appeal” means an appeal under section 163.

Establishment of Compensation Review Panels.

161. The Minister may establish one or more Compensation Review Panels.

Members.

162. (1) A Panel shall consist of 3 members appointed by the Minister.

(2) A person appointed under subsection (1) may be appointed as a full-time member or as a part-time member.

(3) Schedule 2 has effect with respect to the members of a Panel.

Appeals.

163. A person who is aggrieved by a determination of the Corporation, or a failure or refusal of the Corporation to make such a determination, which affects the amount, nature or extent of the benefits under this Act to which the person is entitled or otherwise affects the person’s entitlement to benefits under this Act, may, in the prescribed manner and form, appeal to a Panel.

Time for making appeals.

164. (1) Except as provided by subsection (2), an appeal against a determination of the Corporation shall be made within the period of 56 days after the date on which notification of the determination is given to the person aggrieved by the determination.

(2) Subject to subsection (3), an appeal may, with the leave of a Panel, be made at any time after the expiration of the period referred to in subsection (1), where the Panel is of the that there are sufficient grounds for allowing the appeal to be so made.

(3) Where the Corporation falls to give notification of a determination of the Corporation to a person affected by the determination, the person may appeal against the determination at any time.

Hearing of appeals.

165. (1) An appeal shall be conducted with as little formality and technicality, and with as much expedition, as fairness to the parties to the appeal, the requirements of this Act and the regulations and the proper consideration of the appeal permit.

(2) In determining an appeal, a Panel is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.

(3) At the hearing of an appeal -

(a) the appellant may appear in person or by a representative (whether or not a legally qualified representative) and has a right to be heard in person or through such a representative;

(b) an officer of the Corporation may, with the leave of the Panel, be heard; and

(c) except where the Panel, with the consent of the appellant otherwise orders, any other person may be present.

(4) Subject to this Division and the regulations, the procedure for the conduct of an appeal shall be as determined by the Panel.

Determination of appeals.

166. (1) A Panel -

(a) where it finds that the Corporation has failed or refused to make, within the time prescribed for the purposes of section 151, a determination under section 146 with respect to an appellant's claim - may determine an appeal by remitting any matter to the Corporation for determination; or

(b) may in any case determine an appeal by making any determination the Corporation might have made under section 146 in respect of the appellants claim for compensation that was the subject of the appeal.

(2) A Panel may, in determining an appeal in the manner provided by subsection (1) (a) -

(a) give such directions, if any, as it thinks fit to the Corporation; and

(b) if it thinks fit, make any determination which the Corporation might have made under section 153.

(3) A Panel shall, within 14 days after the receipt of a request from a party to an appeal which it has determined, provide to the party a written notice of its determination of the appeal and shall include in the notice -

(a) a statement setting out its findings on material questions of fact;

(b) a summary of evidence on which those findings were based; and

(c) the reasons for the determination.

Other powers of Panels.

167. A Panel -

(a) before or during the hearing of an appeal may require the Corporation to produce documents or information which the Panel considers relevant to the appeal;

(b) before determining an appeal, may require the appellant to undergo any medical examination which the Corporation might have required under section 145; and

(c) where it is satisfied in special circumstances that such a determination is

warranted, may, during the hearing of an appeal make any determination the Corporation might have made under section 153.

Costs.

168. (1) The Corporation shall pay -

(a) to a successful appellant; and

(b) to an unsuccessful appellant, where the Panel in special circumstances, being of the opinion that it is just, so orders,

the reasonable costs and expenses incurred by the appellant in bringing the appeal.

(2) The panel shall, subject to the regulations, assess reasonable costs and expenses for the purposes of subsection (1).

(3) The regulations may prescribe maximum amounts of costs payable under subsection (1) in respect of representation by a barrister or solicitor or of costs and expenses so payable in respect of any other matter.

Determinations, etc., of Panels.

169. (1) The Corporation shall do all such matters and things as are necessary to comply with or give effect to any determination direction, requirement or order made or given under this Division by a Panel.

(2) A determination or requirement made under this Division by a Panel, being a determination or requirement of a kind which the Corporation might have made under Part VI, shall, for the purposes of that Part operate as a determination or requirement made under that Part by the Corporation.

(3) Subject to Division 2, a determination made under this Division by a Panel shall be final.

DIVISION 2. - The Accident Compensation Review Tribunal.

Interpretation.

170. In this Division -

“appeal” means an appeal under section 172;

“judicial member”, in relation to the Tribunal, means a person appointed in accordance with this Act as a judicial member of the Tribunal and, in relation to the Tribunal as constituted for the purposes of any proceedings, means the judicial member of the Tribunal as so constituted.

The Accident Compensation Review Tribunal.

171. (1) There shall be an Accident Compensation Review Tribunal consisting of -

(a) Judicial members, who may be full-time members or part-time members; and

appointed by the Governor.

(b) non-judicial members, who shall be part-time members,

(2) Schedule 3 has effect with respect to the members of the Tribunal.

Appeals.

172. A person who is aggrieved by a determination under section 166 of a Panel or the Corporation where so aggrieved, may, in the prescribed manner and form, appeal to the Tribunal.

Time for making appeals.

173. (1) Except as provided by subsection (2), an appeal against a determination under section 166 of a Panel shall be made within the period of 90 days after the date on which the determination was made.

(2) An appeal may, with the leave of the Tribunal, be made at any time after the expiration of the period referred to in subsection (1), where the tribunal is of the opinion that there are sufficient grounds for allowing the appeal to be so made.

Hearing of appeals.

174. (1) An appeal shall be conducted with as little formality and technicality, and with as Much expedition. as fairness to the parties to the appeal the requirements bf this Act and the regulations and is the proper consideration of the appeal permit

(2) In determining an appeal, the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.

(3) At the hearing of an appeal -

(a) party to the appeal -

(i) not being the Corporation may appear in person; or

(ii) may in any case appear by a representative (whether or not a legally qualified representative);

and has a right to be heard in person or through such a representative, as the case may be; and

(b) except where the Tribunal otherwise orders, any other person may be present.

(4) Subject to section 175, the decision of the majority of the members constituting the Tribunal for the purpose of hearing an appeal shall be the decision of the Tribunal.

(5) Subject to this Division and the regulations, the procedure for the conduct of an shall be as determined by the Tribunal.

Reference of questions of procedure and law to the Supreme Court, etc.

175. (1) Any question with respect to procedure that arises in proceedings before the Tribunal shall be decided by the judicial member.

(2) Where, in proceedings before the Tribunal, a question arises with respect to a matter of law, the judicial member may decide the question or may refer it to the Supreme Court for decision.

(3) Where a question with respect to a matter of law is referred to the Supreme Court under subsection (2) -

(a) the Tribunal shall not make an order or decision to which the question is relevant until the Supreme Court has decided the question;

(b) upon deciding the question the Supreme Court shall remit its decision to the Tribunal; and

(c) the Tribunal shall not proceed in a manner, or make an order or decision, that is inconsistent with the decision of the Supreme Court.

(4) Where, in proceedings before the Tribunal, the judicial member decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may appeal to the Court of Appeal against the decision of the judicial member.

(5) After deciding the question the subject of an appeal under subsection (4), the Court of Appeal may, unless it affirms the decision of the judicial member on the question -

(a) make such order in relation to the proceedings in which the question arose as, in its opinion should have been made by the Tribunal; or

(b) remit its decision on the question to the Tribunal and order a re- hearing of the proceedings before the Tribunal.

(6) Where a re-hearing is held pursuant to an order under subsection (5)(b), the Tribunal shall not proceed in a manner, or make an order or decision, that is inconsistent with the decision of the Court of Appeal remitted to the Tribunal.

(7) Where a party to proceedings before the Tribunal has appealed to the Court of Appeal under subsection (4) against a decision of the judicial member, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or decision made in the proceedings.

(8) Where, under subsection (7), the Tribunal suspends the operation of an order or decision, the Tribunal or the Court of Appeal may terminate the suspension or, where the Court has suspended the operation of an order or decision, the Court may terminate the suspension.

(9) For the purposes of this section, a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal and to a matter as to the admission or rejection of evidence.

(10) A reference or appeal under this section shall be made in accordance with rules of the Supreme Court or the Court of Appeal, as the case may require.

Determination of appeals.

176. (1) The Tribunal -

(a) where it finds that the Corporation has failed or refused to make, within the time prescribed for the purposes of section 151, a determination under section 146 with respect to a claim for compensation made by the other party to the appeal - may determine an appeal by remitting any matter to the Corporation for determination, or

(b) may in any case determine an appeal by making any determination the Corporation might have made under section 146 in respect of a claim for compensation that was the subject of the appeal.

(2) The Tribunal may, in determining an appeal in the manner provided by subsection (1)(a) -

(a) give such directions, if any, as it thinks fit to the Corporation; and

(b) if it thinks fit, make any determination which the Corporation might have made under section 153.

(3) The Tribunal shall, within 14 days after the receipt of a request from a party to an appeal which it has determined, provide to the party a written notice of its determination of the appeal and shall include in the notice -

(a) a statement setting out its findings on material questions of fact;

(b) a summary of the evidence on which those findings were based; and

(c) the reasons for the determination.

Power to compel evidence.

177. (1) The Tribunal may of its own motion or on the application of either party to an appeal issue a subpoena under the hand of the judicial member in or to the effect of the prescribed form -

(a) requiring the person to whom the subpoena is addressed to attend as a witness at the appeal; or

(b) requiring the person to whom the subpoena is addressed to attend at the appeal and to produce any documents in the possession or under the control of the person relating to the appeal and specified in the subpoena.

(2) The regulations may make provision for or with respect to authorising compliance with a subpoena to attend and produce documents by the production of the documents at. a place specified in the subpoena at any time before the hearing of the appeal at which the documents are required to be produced.

(3) The judicial member of the Tribunal may administer an oath to any person appearing as a witness before the Tribunal, whether or not in answer to a subpoena, and allow the witness to be examined and cross-examined on oath.

(4) Except with the consent of the person who made the statement, evidence of any statement made, otherwise than in writing, to a Panel shall not be admissible in proceedings before the Tribunal.

(5) Subsection (4) has effect notwithstanding that the statement is included in any written record of a determination of a Panel.

(6) A witness summoned to attend or appearing before the Tribunal has the same protection and, without affecting any penalty that may be imposed pursuant to this Act, is subject to the same liabilities as a witness would have or to which a witness would be subject in proceedings before the District Court.

(7) A person to whom a subpoena is addressed is entitled to receive -

(a) where the subpoena was issued by the Tribunal of its own motion, from the Tribunal; or

(b) where the subpoena was issued by the Tribunal on the application of a person having any matter before the Tribunal, from the person,

his or her reasonable costs, including any loss of earnings, incurred by the person in obeying the subpoena, calculated in accordance with the scales relating to subpoenas issued out of the District Court

(8) A person -

(a) who is served with a subpoena addressed to the person pursuant to subsection (1);

(b) to whom, at the time of service, is tendered an amount that is sufficient to cover the person’s travelling and other out-of-pocket expenses in attending the hearing of the Tribunal specified in the subpoena and producing anything required by the subpoena to be produced; and

(c) who, without cause, falls or refuses to obey the subpoena,

is guilty of an offence against this Act.

Other powers of Tribunal.

178. The Tribunal -

(a) before or during the hearing of an appeal may require the Corporation to produce documents or information which the Tribunal considers relevant to the appeal;

(b) before determining an appeal may require a party to the appeal whose claim for compensation is the subject of the appeal to undergo any medical examination which the Corporation might have required under section 145; and

(c) where it is satisfied in special circumstances that such a determination is warranted, may, during the hearing of an appeal make any determination the Corporation might have made under section 153.

Costs.

179. (1) Subject to subsection (2), the Tribunal may make such order as to the payment of costs as it thinks just and may assess the amount of those costs.

(2) The Tribunal shall not order the payment of the Corporation’s costs by the other party to an appeal unless it is satisfied that -

(a) the appeal, being an appeal brought by that party, or

(b) that party’s claim for compensation which was the subject of the appeal being an appeal brought by the Corporation, was frivolous or vexatious or was made fraudulently or without proper justification.

(3) The Tribunal may from time to time approve, for the purposes of this section, of a scale of costs in respect of representation by a barrister or solicitor or of costs and expenses in respect of any other matter.

Orders, etc., of the Tribunal.

180. (1) The Corporation shall do all such matters and things as are necessary to comply with or give effect to any order, determination, direction or requirement made or given under this Division by the Tribunal.

(2) A determination or requirement made under this Division by the TribunaL being a determination or requirement which the Corporation might have made under Part VI, shall for the purpose of that Part, operate as a determination or requirement made under that Part by the Corporation.

PART VIII - ACCIDENT COMPENSATION POLICY REVIEW COMMITTEE.

Constitution of the Policy Review Committee.

181. (1) There shall be a committee, to be known as the “Accident Compensation Policy Review Committee”, which shall consist of persons appointed by the Minister.

(2) Schedule 4 has effect in relation to the constitution and procedure of the Policy Review Committee.

Functions and powers of the Policy Review Committee.

182. (1) The function of the Policy Review Committee shall be to advise the Minister concerning any matter relating to accident compensation.

(2) The Policy Review Committee may investigate, and make recommendations to the Minister concerning -

(a) the operation of this Act and any other legislation;

(b) the general efficiency of the Corporation in dealing with claims made under this act by injured persons and others and with entitlements to benefits under this Act;

(c) the content, manner of formulation and execution of the policy of the Corporation with respect to -

(i) the assessment and payment of claims;

(ii) the periodic or other review of the entitlements of claimants, or the benefits afforded to persons, under this Act; or

(iii) administrative practices or staffing matters or any other matters.

(3) It shall be the duty of the Corporation and the officers and employees of the Corporation fully to co-operate with and to provide every reasonable assistance to, the Policy Review Committee in the exercise of the Committee’s functions and, without limiting the generality of the foregoing, to provide such information, and afford such access to claims records or other documents, as the Committee or any member thereof may in that behalf reasonably require.

(4) Any advice or recommendation of the Policy Review Committee under this section shall be reduced to writing and may be tendered to the Minister at any time.

Annual report of the Policy Review Committee.

183. The Policy Review Committee shall prepare an annual report in accordance with the Annual Reports (Statutory Bodies) Act, 1984.

PART IX - MISCELLANEOUS.

Miscellaneous functions of the Corporation.

184. The Corporation -

(a) may devise and, where practicable, institute schemes whereby a person who is incapacitated as the result of a transport accident and whose loss of earning capacity exceeds 150 per cent of average weekly earnings as at the date of the accident may be further compensated;

(b) may devise and, where practicable, institute schemes whereby a person who is incapacitated as the result of a transport accident and who resumes employment for a substantial part of the working week is entitled to receive compensation of an amount in excess of 80 per cent of the person’s loss of earning capacity during the period of incapacity;

(c) may negotiate and enter into agreements with employers and insurers and their organisations and representatives with respect to the payment of claims from workers relating to transport accidents arising out of or in the course of workers’ employment; and

(d) may negotiate and enter into agreements with persons or bodies exercising similar functions to those of the Corporation in another State -

(i) for the purpose of recoupment or exchange of benefits; or

(ii) in order to give effect to any other form of co-operation necessary for the efficient administration of this Act.

Provision of interpreters.

185. (1) A person who is unable to communicate adequately in English but who is able to communicate adequately in another language shall in relation to any matter before the Corporation, a Panel or the Tribunal, be entitled to be assisted by a competent interpreter.

(2) The cost of any assistance provided under subsection (1) shall be met by the Corporation.

Driving of certain motor vehicles on public streets, etc., prohibited.

186. (1) A person shall not use or cause, or permit or suffer any other person to use, a motor vehicle upon a public street, being a motor vehicle in respect of which the prescribed amount by way of contribution to the Fund has not been paid to the Commissioner for Motor Transport.

(2) A person shall not exercise any function under a licence, permit or other authority which is prescribed for the purposes of section 26(3) unless there has been paid to the person so prescribed in relation to the licence, permit or other authority the prescribed amount by way of contribution to the Fund.

(3) It shall be a sufficient defence in any proceedings for a contravention of subsection (1) if the defendant proves to the satisfaction of the court that at the time the motor vehicle was used upon the public street the defendant had reasonable grounds for believing and did in fact believe that the prescribed amount by way of contribution to the Fund had been paid to the Commissioner for Motor Transport.

(4) It shall be a sufficient defence in any proceedings for a contravention of subsection (2) if the defendant proves to the satisfaction of the court that at the time the function under the licence, permit or other authority was exercised the defendant had reasonable grounds for believing and did in fact believe that there had been paid to the person prescribed for the purposes of section 26(3) in relation to the licence, permit or other authority the prescribed amount by way of contribution to the Fund.

Disclosure of information.

187. A person shall not disclose any information obtained in connection with the administration or execution of this Act (or any other act conferring or imposing functions on the Corporation) unless that disclosure is made -

(a) with the consent of the person from whom the information was obtained;

(b) in connection with the administration or execution of this Act (or any such other Act);

(c) for the purposes of an legal proceedings arising out of this Act (or any such other Act) or of any report of any such proceedings;

(d) in accordance with a requirement imposed under the Ombudsman Act, 1974; or

(e) with other lawful excuse.

Service of documents on the Corporation.

188. (1) A document may be served on the Corporation by leaving it at, or by sending it by post to -

(a) the office of the Corporation; or

(b) if it has more than one office - such of its offices as may be prescribed with respect to the document.

(2) Nothing in subsection (1) affects the operation of any provision of a law or of the rules of a court authorising a document to be served on the Corporation in a manner not provided for by subsection (1).

Service of documents on other persons.

189. (1) Where by or under this Act a notice or other document is required to be, or may be, given to or served on a person other than the Corporation, that notice or other document may be given to or served on -

(a) an individual -

(i) by delivering it to the individual personally;

(ii) by leaving it at the individual’s place of residence last known to the person who issued the notice or other document with a person who apparently resides there, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by prepaid post addressed to the individual at that place of residence; or

(b) a corporation -

(i) by delivering it to a person who is or apparently is concerned in the management of the corporation;

(ii) by leaving it at the registered office of the corporation with a person apparently employed at that office, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by prepaid post addressed to the corporation at that registered office.

(2) A notice or other document that is delivered, left or sent by post in accordance with subsection (1) shall be deemed to have been given or served on its being so delivered or left or, if it is sent by post, shall in the absence of evidence to the contrary, be prima facie deemed to have been given or served when it would have been delivered in the ordinary course of post.

Authentication of certain documents.

190. Every summons, process, demand, order, notice, statement, direction or document requiring authentication by the Corporation may be sufficiently authenticated without the seal of the Corporation if signed by the Chief Executive or by any officer or employee of the Corporation authorised to do so by the Chief Executive.

Proof of certain matters not required.

191. In any legal proceedings, no proof shall be required (until evidence is given to the contrary) of -

(a) the constitution of the Corporation;

(b) any resolution of the Corporation;

(c) the appointment of, or the holding of office by, any member of the Corporation; or

(d) the presence or nature of a quorum at any meeting of the Corporation.

Offences and penalty.

192. (1) A person who contravenes or fails to comply with a provision of this Act is guilty of an offence against this Act.

(2) Any person who is guilty of an offence against this Act for which no penalty is otherwise expressly provided is liable to a penalty not exceeding $2,000.

Proceedings.

193. All proceedings for offences against this Act or the regulations shall be disposed of summarily before a Local Court constituted by a Magistrate sitting alone.

Offences by corporations.

194. (1) Where a corporation contravenes, whether by act of omission, any provision of this Act or the regulations, each person, being a director of the corporation or a person concerned in the management of the corporation shall be deemed to have contravened the same provision unless the person satisfies the court that -

(a) the corporation contravened the provision without the person s knowledge;

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision; or

(c) the person, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence is actually committed.

Liability.

195. No proceedings shall lie or be allowed by or in favour of any person against -

(a) the Crown, the Minister, the Corporation, a member of the Corporation, a member of the staff of the Corporation, a member of a Panel or a member of the Tribunal; or

(b) any person acting under the direction of the Minister, the Corporation, a Panel or the Tribunal,

in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act.

Regulations.

196. (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) A regulation may impose a penalty not exceeding $1,000.

(3) A provision of a regulation may-

(a) apply generally or be limited in its application by reference to specified exceptions or factors;

(b) apply differently according to different factors of a specified kind; or

(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body;

or may do any combination of those things.

SCHEDULE 1.

(Sec 13(3).)

PROVISIONS RELATING TO THE MEMBERS AND PROCEDURE OF THE CORPORATION.

PART 1 - THE MEMBERS OF THE CORPORATION.

Interpretation.

1. In this Schedule -

“Chairperson” means the Chairperson of the Corporation;

“member” means a member of the Corporation;

“part-time member” means a member referred to in section 13(2)(b).

Age of members.

2. (1) A person of or above the age of 65 years is not eligible to be appointed as Chief Executive or to act in the office of Chief Executive.

(2) A person of or above the age of 70 years is not eligible to be appointed as a part-time member or to act in the office of a part-time member.

Chairperson of the Corporation.

3. (1) Of the part-time members, one shall, in and by the relevant instrument of appointment as such a member, or by another instrument executed by the Governor, be appointed as Chairperson of the Corporation.

(2) The Governor may remove a part-time member from the office of Chairperson.

(3) A person who is a part-time member and Chairperson shall be deemed to have vacated office as Chairperson if the person -

(a) is removed from that office by the Governor under subclause (2);

(b) resigns that office by instrument in writing addressed to the Governor; or

(c) ceases to be a part-time member.

Acting members and acting Chairperson.

4. (1) The Governor may, from time to time, appoint a person to act in the office of a member during the illness or absence of the member, and the person, while so acting, shall have and may exercise all the functions of the member.

(2) The Governor may, from time to time, appoint a part-time member to act in the office of Chairperson during the illness or absence of the Chairperson, and the part-time member, while so acting, shall have and may exercise all the functions of the Chairperson.

(3) The Governor may remove any person from any office to which the person was appointed under subclause (1) or (2).

(4) A person while acting in the office of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.

(5) For the purposes of this clause -

(a) a vacancy in the office of a member or the Chairperson shall be deemed to be an absence from office of the member or Chairperson, as the case may be; and

(b) a member shall be deemed to be absent from office as a member during any period when the member acts in the office of the Chief Executive pursuant to an appointment under subclause (1).

(6) In clause 11 and Part 2 -

(a) a reference to a member includes a reference to a person acting in the office of a member;

(b) a reference to the appointment of a member includes a reference to the appointment of a person to act in the office of a member; and

(c) a reference to the office of a member includes a reference to the office of a person appointed to act in the office of a member.

Terms of office.

5. Subject to this Schedule, a member shall hold office for such period not exceeding 5 years as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified for re-appointment.

Chief Executive to be full-time member.

6. The Chief Executive shall devote the whole of his or her time to the duties of the office of Chief Executive, except as permitted by this Act.

Remuneration.

7. (1) The Chief Executive is entitled to be paid -

(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act, 1975; and

(b) such travelling and Subsistence allowances as the Minister may from time to time determine in respect of the Chief Executive.

(2) A part-time member is entitled to be paid Such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the part-time member.

Filling of vacancy in office of member.

8. In the event of the office of any member becoming vacant a person shall subject to this Act, be appointed to fill the vacancy.

Casual vacancies.

9. (1) A member shall be deemed to have vacated office if the member -

(a) dies;

(b) being Chief Executive, absents himself or herself from duty for 14 days (whether or not wholly or partly consecutive) in any period of 12 months, except on leave granted by the Minister (which leave the Minister is hereby authorised to grant), unless the absence is occasioned by illness or other unavoidable cause;

(c) being a part-time member, absents himself or herself from 4 consecutive meetings of the Corporation of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister (which leave the Minister is hereby authorised to grant) or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for being absent from those meetings;

(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

(e) becomes a temporary patient a continued treatment patient a protected person or in incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part VII of that Act;

(f) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or upwards, or is convicted elsewhere than in New South Wales of an offence which if committed in New South Wales would be an offence so punishable;

(g) being Chief Executive engages in any paid employment outside the duties of the office of Chief Executive, except with the consent of the Minister (which consent the Minister is hereby authorised to give);

(h) resigns the office by instrument in writing addressed to the Governor;

(i) being -

(i) Chief Executive, attains the age of 65 years; or

(ii) a part-time member, attains the age of 70 years;

(j) is retired from office by the Governor under subclause (2); or

(k) is removed from office by the Governor under subclause (3), (4) or (5).

(2) The Chief Executive may, after attaining the age of 60 years and before attaining the age of 65 years, be retired from office by the Governor and, if so retired, is entitled to such compensation (if any) as the Statutory and Other Offices Remuneration Tribunal determines.

(3) The Governor may remove the Chief Executive from office for incapacity, incompetence or misbehaviour.

(4) The Governor may remove a part-time member from office.

(5) Without affecting the generality of subclauses (3) and (4), the Governor may remove from office a member who contravenes the provisions of clause 10.

Disclosure of pecuniary interests.

10. (1) A member who has a direct or indirect pecuniary interest -

(a) in a matter that is being considered, or is about to be considered, at a meeting of the Corporation; or

(b) in a thing being done or about to be done by the Corporation;

shall, as soon as possible after the relevant facts have come to the members knowledge, disclose the nature of the interest at a meeting of the Corporation.

(2) A disclosure by a member at a meeting of the Corporation that the member -

(a) is a member, or is in the employment, of a specified company or other body;

(b) is a partner or is in the employment of a specified person; or

(c) has some other specified interest relating to a specified company or other body or a specified person,

shall be deemed to be a sufficient disclosure of the nature of the interest in any matter or thing relating to that company or other body or to that person which may arise after the date of the disclosure.

(3) The Corporation shall cause particulars of any disclosure made under subclause (1) or (2) to be recorded in a book kept for the purpose and that book shall be open at all reasonable hours to the inspection of any person on payment of such fee as may be determined by the Corporation from time to time.

(4) After a member has, or is deemed to have, disclosed the nature of an interest in any matter or thing pursuant to subclause (1) or (2), the member shall not, unless the Minister otherwise determines -

(a) be present during any deliberation of the Corporation, or take part in any decision of the Corporation, with respect to that matter, or

(b) exercise any functions under this Act with respect to that thing, as the case may require.

(5) Notwithstanding that a member contravenes the provisions of this clause, that contravention does not invalidate any decision of the Corporation or the exercise of any function under this Act.

(6) Nothing in this clause applies to or in respect of an interest of a member in a matter or thing which arises by reason only that the member has a prescribed qualification or occupies a prescribed position.

(7) A reference in this clause to a meeting of the Corporation includes a reference to a meeting of a committee of the Corporation.

Effect of certain other Acts.

11. (1) The Public Service Act, 1979, does not apply to or in respect of the appointment of a member and a member is not, as a member, subject to that Act.

(2) Where by or under any other Act provision is made requiring a person who is the holder of an office specified therein to devote the whole of his or her time to the duties of that office, or prohibiting the person from engaging in employment outside the duties of that office, that provision shall not operate to disqualify the person from holding that office and also the office of a part-time member or from accepting and retaining any remuneration payable to the person under this Act as a part-time member.

Preservation of rights of Chief Executive previously public servant, etc.

12. (1) In this clause -

“statutory body” means any body declared under clause 14 to be a statutory body for the purposes of this Schedule,

“superannuation scheme” means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under any Act.

(2) Subject to subclause (3) and to the terms of appointment, where the Chief Executive was, immediately before being appointed as Chief Executive -

(a) an officer of the Public Service or a Teaching Service;

(b) a contributor to a superannuation scheme;

(c) an officer employed by a statutory body, or

(d) a person in respect of whom provision was made by any act for the retention of any rights accrued or accruing to the person as an officer or employee,

he or she -

(e) shall retain any rights accrued or accruing to him or her as such an officer, contributor or person,

(f) may continue to contribute to any superannuation scheme. to which he or she was a contributor immediately before being appointed as Chief Executive; and

(g) shall be entitled to receive any deferred or extended leave and any payment, pension or gratuity,

as if he or she had continued to be such an officer, contributor or person during his or her service as chief Executive and -

(h) his or her service as Chief Executive shall be deemed to be service as an officer or employee for the purpose of any law under which those rights accrued or were accruing, under which he or she continues to contribute or by which that entitlement is conferred; and

(i) he or she shall be deemed to be an officer or employee, and the Corporation shall be deemed to be the employer, for the purposes of the superannuation scheme to which he or she is entitled to contribute under this clause.

(3) If the Chief Executive would, but for this subclause, be entitled under subclause (2) to contribute to a Superannuation scheme or to receive any payment, pension or gratuity under the scheme, he or she shall not be so entitled upon becoming (whether upon appointment as Chief Executive or at any later time while holding office as Chief Executive) a contributor to any other superannuation scheme, and the provisions of subclause (2) (i) cease to apply to or in respect of him or her and the Corporation in any case where he or she becomes a contributor to and such other Superannuation scheme.

(4) Subclause (3) does not prevent the payment to the Chief Executive upon his or her ceasing to be a contributor to a superannuation scheme of such amount as would have been payable to him or her if he or she had ceased, by reason of resignation, to be an officer or employee for the purposes of the scheme.

(5) The Chief Executive shall not, in respect of the same period of service, be entitled to claim benefit under this Act and another Act.

Chief Executive entitled to re-appointment to former employment in certain cases.

13. (1) In this clause, “statutory body” means any body declared under clause 14 to be a statutory body for the purposes of this Schedule.

(2) A person who -

(a) ceases to be Chief Executive by reason of the expiration of the period for which the person was appointed or by reason of resignation;

(b) was, immediately before being appointed as Chief Executive -

(i) an officer of the Public Service or a Teaching Service; or

(ii) an officer or employee of a statutory body; and

(c) has not attained the age at which the person would have been entitled to retire had the person continued to be such an officer or employee,

shall be entitled to be appointed to some position in the Public Service, the Teaching Service or the service of that statutory body, as the case may be, not lower in classification and salary than that which the person held immediately before being appointed as Chief Executive.

(3) Where subclause (2) does not apply to a person who -

(a) was,immediatelybeforebeingappointedtoafull-timeofficeconstitutedby an Act, an officer or employee referred to in subclause (2) (b); and

(b) is after that appointment appointed as Chief Executive,

the person shall have such rights (if any) to appointment as such an officer or employee, in the event of ceasing to be Chief Executive, as are specified in the instrument of appointment as Chief Executive or as are agreed upon by the person and by or on behalf of the Government.

Declaration of statutory bodies.

14. The Governor may, by proclamation published in the Gazette, declare any body constituted by or under any Act to be a statutory body for the purposes of this Schedule.

PART 2 - THE PROCEDURE OF THE CORPORATION.

General procedure.

15. The procedure for the calling of meetings of the Corporation and for the conduct of business at those meetings shall, subject to this Part, be as determined by the Corporation.

Quorum.

16. Three members, of whom one shall be the Chief Executive, shall form a quorum and any duly convened meeting of the Corporation at which a quorum is present shall be competent to transact any business of the Corporation and shall have and may exercise all the functions of the Corporation.

Presiding member.

17. (1) The Chairperson or, in the absence of the Chairperson, another part-time member elected as Chairperson for the meeting by the members present shall preside at a meeting of the Corporation.

(2) The person acting as Chairperson at any meeting of the Corporation shall have a deliberative vote and, in the event of an equality of votes, shall have a second or casting vote.

Voting.

18. A decision supported by a majority of the votes cast at a meeting of the Corporation at which a quorum is present shall be the decision of the Corporation.

Minutes.

19. The Corporation shall cause full and accurate minutes to be kept of the proceedings of each meeting of the Corporation.

First meeting of Corporation.

20. The Minister shall call the first meeting of the Corporation in such manner as the Minister thinks fit.

SCHEDULE 2.

(Sec. 162(3).)

PROVISIONS RELATING TO THE MEMBERS OF A PANEL

Interpretation.

1. In this Schedule, “member” means a member of a Panel.

Age of members.

2. A person of or above the age of 70 years is not eligible for appointment as a member.

Qualifications.

3. (1) Of the members -

(a) one shall be a barrister admitted by the Supreme Court or a solicitor of that Court and shall, in and by the instrument by which the member is appointed, be appointed as Chairperson of the Panel; and

(b) the other 2 shall be persons having, in the opinion of the Minister, suitable qualifications or experience.

(2) A member or an officer of the Corporation shall not be eligible for appointment as a member.

Acting members and acting Chairperson.

4. (1) The Minister may, from time to time, appoint a person to act in the office of a member during the illness or absence of the member, and the person, while so acting, shall have and may exercise all the functions of the member.

(2) The Minister may, from time to time, appoint a person qualified for appointment as Chairperson of a Panel to act in the office of Chairperson of a Panel during the illness or absence of such a Chairperson, and the member, while so acting, shall have and may exercise all the functions of the Chairperson.

(3) The Minister may remove any person from any office to which the person was appointed under subclause (1) or (2).

(4) A person while acting in the office of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.

(5) For the purposes of this clause, a vacancy in the office of a member or the chairperson of a Panel shall be deemed to be an absence from office of the member or chairperson, as the case may be.

Term of office.

5. Subject to this Schedule, a member shall hold office for such period not exceeding 5 years as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.

Remuneration.

6. A member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

Filling of vacancy in office of member.

7. In the event of the office of any member becoming vacant a person shall subject to this Act, be appointed to fill the vacancy.

Casual vacancies.

8. (1) A member shall be deemed to have vacated office if the member -

(a) dies;

(b) being a full-time member, absents himself or herself from duty for 14 days (whether or not wholly or partly consecutive) in any period of 12 months, except on leave granted by the Minister (which leave the Minister is hereby authorised to grant), unless the absence is occasioned by illness or other unavoidable cause;

(c) becomes bankrupt, applies. to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

(d) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part VII of that Act;

(e) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or upwards, or is convicted elsewhere than in New South Wales of an offence which if committed in New South Wales would be an offence so punishable;

(f) resigns the office by instrument in writing addressed to the Minister;

(g) attains the age of 70 years; or

(h) is removed from office by the Minister under subclause (2).

(2) The Minister may at any time, for such reason as appears to the Minister sufficient, remove a member from office.

Effect of certain other Acts.

9. (1) The Public Service Act, 1979, does not apply to or in respect of the appointment of a member and a member is not, as a member, subject to that Act.

(2) The office of a member shall for the purposes of any act be deemed not to be an office or place of profit under the Crown.

Liability of members, etc.

10. No matter or thing done by a Panel, and no matter or thing done by any member or by any person acting under the direction of the Panel shall, if the matter or thing was done bona fide for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand whatever.

SCHEDULE 3.

(Sec. 171(2).)

PROVISIONS RELATING TO THE MEMBERS OF THE TRIBUNAL

Interpretation.

1. In this Schedule -

“judicial member” means a judicial member of the Tribunal and includes the senior judicial member;

“member” means a judicial member or other member of the Tribunal;

“senior judicial member” means the senior judicial member of the Tribunal.

Age of members.

2. A person of or above the age of 70 years is not eligible to be appointed as a member or to act in the office of a member.

Term of office.

3. Subject to this Schedule, a member shall hold office for such period not exceeding 7 years as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.

Eligibility of appointment to Tribunal.

4. (1) A judicial member shall be or shall have been a judge of the District Court of New South Wales or a person holding a judicial office having the status of a judge of that Court.

(2) Where, upon the appointment of a person as a part-time judicial member, the person is a judge, or the holder of an office, referred to in subclause (1), the appointment shall not, nor shall the person’s service as a part-time judicial member, affect the person’s tenure of office as such a judge or as the holder of any such office or any rank, title, status, precedence, salary or other rights or privileges of the person by reason of being such a judge or the holder of such an office.

(3) A person who is -

(a) a member of the Legislative Council or the Legislative Assembly or a member of a House of Parliament of another State or of the Commonwealth;

(b) a member or officer of the Corporation; or

(c) a member of a Panel,

is not eligible to be a member.

Senior judicial member.

5. One of the judicial members shall in and by the instrument of the member’s appointment or by another instrument executed by the Governor, be appointed as the senior judicial member.

Acting member.

6. (1) The Minister may at any time appoint a person qualified for appointment as a judicial member -

(a) to act as the senior judicial member; or

(b) to act as a judicial member other than the senior judicial member;

during the absence or illness of the senior judicial member, as the case may be.

(2) The Minister may at any time appoint a person qualified for appointment as a member to act as a member, not being a Judicial member.

(3) Where a judicial member is appointed, under subclause (1), to act as the senior judicial member, the member so acting shall be deemed, for the purposes of that subclause, to be absent while so acting.

(4) A person appointed under this section shall have and may exercise, while acting under the appointment, the functions of the member for whom the person is acting.

(5) A person appointed under this section is entitled to such remuneration, including travelling and subsistence allowances (in addition to that, if any, to which the person is otherwise entitled under this or any other Act), for so acting as the Minister may determine in respect of the person.

Remuneration.

7. (1) A full-time member is entitled to be paid -

(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act, 1975; and

(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.

(2) A part-time member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

Filling of vacancy in office of member.

8. In the event of the office of any member becoming vacant a person shalt subject to this Act, be appointed to fill the vacancy.

Casual vacancies.

9. (1) A member shall be deemed to have vacated office if the member -

(a) dies;

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

(c) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part VII of that Act;

(d) is unavailable for duty for a period exceeding 28 days except on leave granted, by the Minister(which leave the Minister is hereby authorised to grant), unless the member’s unavailability is occasioned by illness or other unavoidable cause;

(e) is nominated for election as a member of the Legislative Council or the Legislative Assembly or a member of a House of Parliament of another State or of the Commonwealth;

(f) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or upwards, or is convicted elsewhere than in New South Wales of an offence which if committed in New South Wales would be an offence so punishable;

(g) attains the age of 70 years;

(h) resigns the office in writing addressed to the Governor; or

(i) is removed from office under subclause (2) or (3).

(2) A judicial member may be removed from office in the same manner as a judge of the District Court may be removed from office.

(3) The Governor may for any reason which to the Governor seems sufficient remove any non-judicial member from office.

Constitution of the Tribunal.

10. (1) The Tribunal shall for the purposes of any proceedings before it, be constituted by 3 members comprising -

(a) a judicial member, who shall preside at the proceedings; and

(b) 2 members, being non-judicial members;

selected by the senior judicial member.

(2) In proceedings by or against the Tribunal, no proof shall be required (until evidence is given to the contrary) of -

(a) the constitution of the Tribunal; or

(b) the selection of any member of the Tribunal.

Effect of certain other Acts.

11. (1) The Public Service Act, 1979, does not apply to or in respect of the appointment of a member and a member is not, as a member, subject to that Act.

(2) Where by or under any other Act provision is made requiring a person who is the holder of an office specified therein to devote the whole of his or her time to the duties of that office, or prohibiting the person from engaging in employment outside the duties of that office, that provision shall not operate to disqualify the person from holding that office and also the office of a part-time member or from accepting and retaining any remuneration payable to the person under this Act as a part-time member.

Liability of members, etc.

12. No matter or thing done by the Tribunal, and no matter or thing done by any member or by any person acting under the direction of the Tribunal shall if the matter or thing was done bona fide for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability claim or demand whatever.

SCHEDULE 4.

(Sec 181(2).)

PROVISIONS RELATING TO THE CONSTITUTION AND PROCEDURE OF THE POLICY REVIEW COMMITTEE.

Members of Policy Review Committee.

1. (1) The Policy Review Committee shall consist of such number of part-time members as shall be determined by the Minister.

(2) The members of the Policy Committee shall be appointed by the Minister and shall comprise experts in the field of accident compensation and representatives from groups or organisations with a recognised interest in that field.

Procedure at meetings of Policy Review Committee.

2. (1) The procedure for the calling of meetings of the Policy Review Committee and for the conduct of business at those meetings shall subject to this Schedule, be as determined by the Policy Review Committee.

(2) The Minister shall call the first meeting of the Policy Review Committee in such manner as the Minister thinks fit.

(3) One half of the members of the Policy Review Committee for the time being shall constitute a quorum for the purpose of meetings of the Policy Review Committee.

(4) The person acting as Chairperson at any meeting of the Policy Review Committee shall, in the event of an equality of votes, have in addition to a deliberative vote a second or casting vote.

(5) A decision supported by a majority of the votes cast at a meeting of the Policy Review Committee at which a quorum is present shall be the decision of the Policy Review Committee.

Chairperson of the Policy Review Committee.

3. (1) Of the members, one shall, in and by the relevant instrument of appointment as such a member, or by another instrument executed by the Minister, be appointed as Chairperson of the Policy Review Committee.

(2) The Minister may at any time remove a member from the office of Chairperson.

(3) A person who is a member and Chairperson shall be deemed to have vacated office as Chairperson if the person -

(a) is removed from that office by the Minister under subclause (2);

(b) resigns that office by instrument in writing addressed to the Minister; or

(c) ceases to be a member.

Acting members and acting Chairperson.

4. (1) The Minister may, from time to time, appoint a person to act in the office of a member during illness or absence of the member, and the person, while so acting, shall have and may exercise ill the functions of the member.

(2) The Minister may, from time to time, appoint a member to act in the office of the Chairperson during illness or absence of the Chairperson, and the member, while so acting, shall have and may exercise all the functions of the Chairperson.

(3) The Minister may remove any person from any office to which the person was appointed under Subclause (1) or (2).

(4) A person while acting in the office of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.

(5) For the purposes of this clause, a vacancy in the office of a member or the Chairperson shall be deemed to be an absence from office of the member or Chairperson, as the case may be.

Remuneration.

5. A member is entitled to be paid such remuneration (including traveling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

Filling of vacancy in office of Chairperson or member.

6. In the event of the office of the Chairperson or any member becoming vacant a person shall, subject to this Act, be appointed to fill the vacancy.

Casual vacancies.

7. (1) A member shall be deemed to have vacated office if the member -

(a) dies;

(b) absents himself or herself from 4 consecutive meetings of the Policy Review Committee of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister (which leave the Minister is hereby authorised to grant) or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for being absent from those meetings;

(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefits;

(d) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part VII of that Act;

(e) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or upwards, or is convicted elsewhere than in New South Wales of an offence which if committed in New South Wales would be an offence so punishable;

(f) resigns the office by instrument in writing addressed to the Minister; or

(g) is removed from office by the Minister under subclause (2).

(2) The Minister may remove a member from office.

NOTE

The enactment of this Bill will necessitate -

(a) the consequential amendment of various Acts such as the Annual Reports (Statutory Bodies) Act, 1984, the Government Insurance Act, 1927, the Motor Vehicles (Third Party Insurance) Act, 1942, the Public Finance and Audit Act, 1983, and the Statutory and Other Offices Remuneration Act, 1975; and

(b) the enactment of appropriate savings and transitional provisions.