Australian Capital Territory Numbered Acts Australian Capital Territory Numbered ActsSchedule 1 Cross-border amendments
[1.1] Section 30 (4) (a)
substitute
(a) part 4.2A (Employment connection with ACT or State);
[1.2] Section 33
omit
insert
Part 4.2A Employment connection with ACT or State
36A Meaning of Territory or State of connection etc
(1) In this Act:
"Territory or State of connection", in relation to the employment of a worker, means—
(a) the Territory or State with which the employment of the worker is connected, as determined under this part; and
(b) if this Act mentions the Territory or State of connection determined under the law of a State for that employment—the State of connection for that employment, or the Territory or State of connection for that employment, within the meaning of the law of the State.
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(2) In this part:
"employer", in relation to a Territory or State, includes an employer within the meaning of the workers compensation law of the Territory or State.
"employment", in relation to a Territory or State, includes employment within the meaning of the workers compensation law of the Territory or State.
"worker", in relation to a Territory or State, includes a worker within the meaning of the workers compensation law of the Territory or State.
36B Employment connection test
(1) Compensation under this Act is only payable if the ACT is the Territory or State of connection.
(2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection.
(3) A worker's employment is connected with—
(a) the Territory or State where the worker usually works in the employment; or
(b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or
(c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer's principal place of business in Australia is located.
(4) For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker's employment is, while working on the ship, connected with—
(a) the Territory or State where the ship is registered; or
(b) if the ship is registered in more than 1 Territory or State—the Territory or State where the ship most recently became registered.
(5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker's employment is connected with the ACT if—
(a) the worker is in the ACT when injured; and
(b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.
(6) In deciding whether a worker usually works in a Territory or State—
(a) regard must be had to the following:
(i) the worker's work history with the employer over the preceding 12 months;
(ii) the worker's proposed future working arrangements;
(iii) the intentions of the worker and employer;
(iv) any period during which the worker worked in a Territory or State (a relevant place ) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but
(b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months.
(7) Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker's employment.
(8) In this section:
"ship "means any kind of vessel used in navigation by water, however propelled or moved, and includes all of the following if used wholly or primarily in navigation by water:
(a) a barge, lighter or other floating vessel;
(b) an air-cushioned vehicle, or other similar craft.
"Territory or State", in a geographical sense, includes a Territory's or State's relevant adjacent area as described in schedule 2.
36C Determination of Territory or State of connection in workers compensation proceedings
(1) If the question of whether the ACT is the Territory or State of connection arises in a proceeding in a court in relation to a claim for compensation under this Act, the court must determine the Territory or State of connection in accordance with section 36B (Employment connection test).
(2) Subsection (1) does not apply if there is a determination of the Territory or State of connection that is to be recognised under section 36E (Recognition of previous determinations of Territory or State of connection).
36D Determination of Territory or State of connection by Magistrates Court
(1) If a claim for compensation under this Act has been made, a party to the claim may apply to the Magistrates Court for a determination of the question of which Territory or State is the Territory or State of connection.
(2) The Magistrates Court must determine the Territory or State of connection in accordance with section 36B (Employment connection test).
(3) However, an application may not be made or heard if there is a determination of the Territory or State of connection that is to be recognised under section 36E.
36E Recognition of previous determinations of Territory or State of connection
(1) This section applies if a determination of the Territory or State of connection has been made by any of the following courts or tribunals:
(a) an ACT court under section 36C or 36D;
(b) a court or tribunal of a State under a provision of a law of the State corresponding to section 36C or 36D;
(c) an ACT court or a court of a State in a proceeding on a damages claim to which part 9.2 (Choice of law) applies, or to which provisions of a law of a State corresponding to part 9.2 apply.
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(2) The Territory or State determined as mentioned in subsection (1) is to be recognised for this Act as the Territory or State of connection.
(3) This section does not prevent any appeal relating to a determination of a court.
(4) If a determination is changed on appeal to a court, the changed determination is to be recognised under this section.
36F No ACT compensation if external compensation received
(1) Compensation under this Act ( ACT compensation ) is not payable in relation to a worker's injury to the extent that compensation ( external compensation ) under the workers compensation law of an external Territory or a place outside Australia has been received in relation to the same injury.
(2) If a person receives ACT compensation from an employer in relation to a worker's injury and later receives external compensation in relation to the same injury, the employer is entitled to recover from the person the recoverable amount.
(3) For subsection (2), the lesser of the following amounts is the recoverable amount:
(a) the amount of ACT compensation;
(b) the amount of external compensation.
(4) If an amount of ACT compensation is paid in relation to a lump sum claim, subsection (3) (a) applies as if the reference to the amount of ACT compensation paid by the employer included a reference to any legal costs as between party and party that the employer is liable to pay in relation to the claim.
(5) An employer cannot recover an amount under this section in relation to an injury if the employer has recovered an amount under section 184 (No compensation if damages received) in relation to the same injury.
omit
section 147 (2)
substitute
section 147 (7)
substitute
147 Compulsory insurance—employers
(1) An employer commits an offence if the employer fails to maintain a compulsory insurance policy with an approved insurer.
Maximum penalty: 250 penalty units, imprisonment for 2 years or both.
Note One or more fault elements apply to this offence (see Criminal Code, s 22).
(2) Subsection (1) does not apply to a non-business employer.
(3) An employer commits an offence if the employer fails to maintain a compulsory insurance policy with an approved insurer.
Maximum penalty: 50 penalty units.
(4) An offence against subsection (3) is a strict liability offence.
(5) This section does not apply to an employer if—
(a) the employer is a self-insurer; or
(b) the employer and another employer or other employers could become liable to pay compensation for the same worker, and any of the other employers maintains a joint compulsory insurance policy for the joint liability of all the employers.
(6) It is a defence to a prosecution for an offence against this section in relation to an employer's liability in relation to a worker if the employer proves that at the time of the offence—
(a) the employer believed on reasonable grounds that a State was the Territory or State of connection for the employment under the law of a State corresponding to part 4.2A (Employment connection with ACT or State); and
(b) the employer had insurance, or was registered, as required under the law of the State in relation to liability for workers compensation under the law of the State.
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(7) A cover note may be a compulsory insurance policy only if it is in force for not longer than 30 days and—
(a) the employer maintained a compulsory insurance policy (other than a cover note) immediately before maintaining the cover note; or
(b) the employer was not an employer immediately before beginning to maintain the cover note; or
(c) the employer was a self-insurer immediately before beginning to maintain the cover note.
omit
If an employer
substitute
(1) If an employer
insert
(2) However, the employer is not liable under subsection (1) for a failure to maintain a compulsory insurance policy in relation to a worker if—
(a) the employer believed on reasonable grounds that a State was the Territory or State of connection for the employment under the law of a State corresponding to part 4.2A (Employment connection with ACT or State); and
(b) the employer had insurance, or was registered, as required under a law of the State in relation to liability for workers compensation under the law of the State.
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
substitute
Chapter 9 Common law damages
Part 9.1 Interpretation and application
after section 182, insert
Part 9.2 Choice of law
182A Definitions for pt 9.2
(1) In this part:
"damages claim"—see section 182C.
"employer", in relation to a Territory or State, includes an employer within the meaning of the workers compensation law of the Territory or State.
"substantive law"—see section 182B.
"worker", in relation to a Territory or State, includes a worker within the meaning of the workers compensation law of the Territory or State.
(2) For this part, a work-related injury is an injury to a worker for which compensation is payable (whether or not it has been paid) under the workers compensation law of a Territory or State.
(3) Also, a "work-related injury "includes an injury to a worker for which compensation under a workers compensation law of a Territory or State—
(a) would have been payable apart from a provision of the law that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker stated in the provision; or
(b) would have been payable if a claim for the compensation had been properly made, and (if applicable) an election to claim compensation (instead of damages) had been properly made.
182B Meaning of substantive law
(1) For this part, "substantive law "includes each of the following, whether or not it would otherwise be regarded as procedural in nature:
(a) a law that establishes, modifies or extinguishes a cause of action or a defence to a cause of action;
(b) a law prescribing the time within which an action must be brought (including a law providing for the extension or shortening of that time);
(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not begun within a stated time;
(d) a law that limits the kinds of injury, loss or damage for which damages or workers compensation may be recovered;
(e) a law that prevents the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered;
(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights;
(g) a provision of this chapter, and any other provision of this Act for the interpretation of this chapter;
(h) a provision of the law of another Territory or a State about damages for work-related injuries that is prescribed for this section under the regulations.
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(2) However, "substantive law "does not include a law prescribing rules for choice of law.
182C Meaning of damages claim
(1) For this part, "damages claim "means a claim for damages in relation to a work-related injury to a worker caused, or claimed to have been caused by—
(a) the negligence or other tort of the employer or a person for whose acts the employer is vicariously liable; or
(b) a breach of contract by the employer.
(2) Also, "damages claim "includes a claim for damages in relation to an injury caused, or claimed to have been caused, by negligence or another tort even if the damages are claimed in an action for breach of contract or other action.
182D Applicable substantive law for damages claims
The substantive law of the Territory or State of connection governs—
(a) whether or not a damages claim can be made in relation to a work-related injury to a worker; and
(b) if a damages claim can be made—the determination of the damages claim.
182E Claims to which pt 9.2 applies
This part applies only to a damages claim against 1 or more of the following people:
(a) the employer;
(b) a person who is vicariously liable for the acts of the employer;
(c) a person for whose acts the employer is vicariously liable.
Part 9.3 Compensation and common law damages
substitute
Chapter 16 Transitional— Workers Compensation Amendment Act 2001
insert
Chapter 17 Transitional—Workers Compensation Amendment Act 2003 (No 2)
247 Definitions for ch 17
In this chapter:
"cross-border scheme commencement day "means the day the cross-border scheme provisions are inserted or substituted by the Workers Compensation Amendment Act 2003 (No 2) .
"cross-border scheme provisions "means the following provisions of this Act:
• part 4.2A (Employment connection with ACT or State)
• part 9.2 (Choice of law)
• schedule 2 (Adjacent areas).
248 Application of cross-border scheme provisions
(1) The cross-border scheme provisions do not apply in relation to an injury (an earlier injury ) received before the cross-border scheme commencement day.
(2) This Act applies in relation to the earlier injury as if the cross-border provisions had not been inserted by the Workers Compensation Amendment Act 2003 (No 2) .
(3) If the death of a worker results from both an earlier injury and an injury (a later injury ) received on or after the cross-border scheme commencement day, the worker is, for the application of the provisions in relation to the death of the worker, to be treated as having died as a result of the later injury.
(4) If a period of incapacity for work resulted both from an earlier and a later injury, the incapacity is, for the application of the cross-border scheme provisions in relation to the incapacity, to be treated as having resulted from the later injury.
(5) The cross-border scheme provisions, and this section, do not affect the following:
(a) the liability of an employer or an insurer in relation to an earlier injury, including a liability to make a contribution under section 27 (Compensation for death or incapacity through disease) in relation to compensation payable for a later injury;
(b) the apportionment of liability under this Act if there are 1 or more earlier injuries and 1 or more later injuries.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(6) A compulsory insurance policy in force on the cross-border scheme commencement day covers the employer, for as long as the policy remains in force, for the employer's liability under this Act as affected by the cross-border scheme provisions.
249 Expiry of ch 17
(1) This chapter expires 2 years after the day it commences.
(2) This chapter is a law to which the Legislation Act, section 88 (Repeal does not end the effect of transitional laws etc) applies.
insert
Schedule 2 Adjacent areas
(see s 36B (8), def Territory or State )
1 Definitions for sch 2
In this schedule:
"continental shelf"—see the Seas and Submerged Lands Act, section 3 (1).
"Petroleum (Submerged Lands) Act" means the Petroleum (Submerged Lands) Act 1967 "(Cwlth)."
"Seas and Submerged Lands Act" means the Seas and Submerged Lands Act 1973 (Cwlth).
"territorial sea"—see the Seas and Submerged Lands Act, section 3 (1).
2 Adjacent areas for States and the Northern Territory
(1) The adjacent area for New South Wales, Victoria, South Australia or Tasmania is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act, schedule 2 for the State that is within the outer limits of the continental shelf; and
(b) the space above and below that area.
(2) The "adjacent area "for Queensland is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act, schedule 2 for Queensland that is within the outer limits of the continental shelf; and
(b) the Coral Sea area within the meaning of the Petroleum (Submerged Lands) Act , section 5A (7), other than the territorial area within the Coral Sea area; and
(c) the areas within the outer limits of the territorial sea adjacent to certain islands of Queensland as determined by proclamation on 9 February 1983 under the Seas and Submerged Lands Act, section 7; and
(d) the space above and below the areas described in paragraphs (a), (b) and (c).
(3) The adjacent area for Western Australia is the part of the area described in the Petroleum (Submerged Lands) Act, schedule 2 for Western Australia that—
(a) is within the outer limits of the continental shelf, including the space above and below the area; and
(b) is not within Area A of the Zone of Cooperation.
(4) The adjacent area for the Northern Territory is—
(a) the part of the area described in the Petroleum (Submerged Lands) Act, schedule 2 for the Northern Territory that—
(i) is within the outer limits of the continental shelf; and
(ii) is not within Area A of the Zone of Cooperation; and
(b) the adjacent area for the Territory of Ashmore and Cartier Islands (within the meaning of the Petroleum Submerged Lands Act, section 5A (3)) other than the territorial sea within that area; and
(c) the space above and below the areas described in paragraph (a) and (b).
(5) However, the "adjacent area "for a State or the Northern Territory does not include any area inside the limits of a State or Territory.
[1.13] Dictionary, new definitions
insert
"damages", for chapter 9 (Common law damages)—see section 180.
"damages claim", for part 9.2 (Choice of law)—see section 182C.
[1.14] Dictionary, definition of employer , paragraph (b)
substitute
(b) for part 4.2A (Employment connection with ACT or State)—see section 36A (2) (Meaning of Territory or State of connection etc); and
(c) for chapter 5 (Injury management process)—see section 87 (Meaning of employer and insurer if more than 1); and
(d) for part 9.2 (Choice of law)—see section 182A (1).
[1.15] Dictionary, new definition
insert
"employment", for part 4.2A (Employment connection with ACT or State)—see section 36A (2) (Meaning of Territory or State of connection etc).
[1.16] Dictionary, definition of injury , new note
insert
Note For an extended meaning of injury for ch 9 (Common law damages), see s 180.
[1.17] Dictionary, definition of Territory worker
substitute
"substantive law", for part 9.2 (Choice of law)—see section 182B.
"Territory or State of connection"—see section 36A.
"Territory worker" means a worker for whom the ACT is the Territory or State of connection.
[1.18] Dictionary, definition of worker
substitute
"worker"—
(a) see chapter 3 (Meaning of worker); and
(b) for part 4.2A (Employment connection with ACT or State)—see section 36A (2) (Meaning of Territory or State of connection etc); and
(c) for part 9.2 (Choice of law)—see section 182A (1).
"workers compensation law "means a law of a place that sets up a statutory scheme for the compensation of injuries arising out of or in the course of employment.
"work-related
injury", for part 9.2 (Choice of law)—see section 182A (2) and (3).